Jharkhand High Court
Sudama Ram vs State Of Jharkhand & Ors on 10 July, 2012
Equivalent citations: 2012 (3) AIR JHAR R 841, AIR 2012(NOC) (SUPP) 650 (JHAR), (2013) 1 JCR 677 (JHA), AIR 2012 (NOC) (SUPP) 551 (JHA), 2013 (125) AIC (SOC) 19 (JHA)
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2451 of 2008
Sudama Ram ... ... ... Petitioner
Versus
1. The State of Jharkhand
2. The Principal Secretary, Animal Husbandry and
Fishery Department, Govt. of Jharkhand, Ranchi
3. The Deputy Secretary, Animal Husbandry and
Fishery Department, Govt. of Jharkhand, Ranchi
4. The Under Secretary to the Govt. Department of
Animal Husbandry and Fishery, Govt. of Jharkhand, Ranchi
5. The Director, Animal Husbandry and Fishery Department,
Government of Jharkhand, Ranchi
6. The Regional Director, Animal Husbandry Department,
North Chhotanagpur Range, Hazaribagh
7. The State of Bihar through the Secretary, Animal Husbandry
Department, Govt. of Bihar, Patna ... ... Respondents
CORAM: HON'BLE MR. JUSTICE ALOK SINGH
For the Petitioner : M/s A.K. Das, Ram Subhag Singh, Advocates
For the State of Jharkhand: Mr. Yogendra Prasad, J.C. to S.C. I
for the State of Bihar : Ms. Vandana Bharti, J.C. to G.A., Bihar
06/10.07.2012Order dated 20.11.1999, whereby petitioner was removed from the services and subsequent order dated 10.12.2007, whereby claim of the petitioner for his reinstatement in service has been rejected, are being assailed in the present petition filed under Article 226 of the Constitution of India.
Petitioner has earlier filed C.W.J.C. No. 116 of 2000 in the Patna High Court before bifurcation of the State, assailing the order dated 20.11.1999, whereby petitioner was directed to be removed from the services. After the appointed day, C.W.J.C. No. 116 of 2000 stood transferred to this Court. This Court had dismissed the C.W.J.C. No. 116 of 2000 for nonprosecution, vide order dated 20.04.2004. Petitioner, thereafter, has moved an application being C.M.P. No. 219 of 2004 for recalling the order dated 20.04.2004 and to restore C.W.J.C. No. 116 of 2000 at its original number. However, C.M.P. No. 219 of 2004 was also dismissed by this Court, vide order dated 11.05.2007. Order dismissing the restoration application was never challenged by the petitioner and has attained finality.
Thereafter, petitioner moved an application before the authorities claiming reinstatement which was dismissed vide impugned order dated 10.12.2007. Again, petitioner has filed present writ petition on 15.04.2008 challenging both the orders dated 20.11.1999, which was also subject matter of earlier writ petition being C.W.J.C. No. 116 of 2000 as well as order dated 10.12.2007, whereby his claim for reinstatement was rejected by the authorities.
Vide order dated 05.07.2012, learned counsel for the petitioner was granted time to examine as to whether in view of the dismissal of the earlier writ petition and restoration thereof, present petition is maintainable.
Learned counsel for the petitioner has vehemently argued that provisions of Order 9 Rule 9 C.P.C. are not applicable in a proceeding under Article 226 of the Constitution of India and order dated 20.04.2004, dismissing the writ petition for nonprosecution was not on merit, therefore, present writ petition is maintainable. He has further argued that in the present writ petition, a subsequent order dated 10.12.2007 seeking reinstatement is under challenge which was not subject matter of earlier writ petition being C.W.J.C. No. 116 of 2000, therefore, present writ petition assailing both the orders would be maintainable.
It is true that proceedings under Article 226 of the Constitution of India shall not be governed by the procedure provided for the suits in the Civil Procedure Code. However, there is a caveat to it that broad principles of Code of Civil Procedure can be pressed in service while hearing the petition under Article 226 of the Constitution of India. It is now common practice in almost every High Court that amendment application in the writ petition is moved on the broad principles of Order 6 Rule 17 C.P.C. Not only this, Section 151 C.P.C. is pressed in service while seeking and granting interim orders.
Order 9 Rule 9 C.P.C. reads as under : "9. Decree against plaintiff by defaults bars fresh suits. (1) where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
As per Order 9 Rule 9 where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing fresh suit in respect of the same cause of action. In the opinion of this Court, provisions of Order 9 Rule 9 C.P.C. are indicative of sound public policy.
In considered opinion, broad principles of public policy, as indicated in Order 9 Rule 9, would suggest that a litigant should prosecute legal proceeding diligently and in the event of dismissal in default, should get it restored otherwise he shall be precluded to institute fresh proceedings on the same cause of action. If he is permitted to institute fresh proceedings in the event of dismissal in default of previous proceedings perhaps there will be no end of litigation. Moreover, it may give rise unfair practice of window shopping. If a litigant, even at the last stage of proceedings, is not feeling comfortable before the particular Bench/Court, he will get his proceeding dismissed in default and shall file the fresh after the change of the roster/Judge. Furthermore, fresh proceeding shall start De Novo and shall burden opposite party unnecessary to contest the same. Therefore, in my firm opinion, litigant should not be permitted to institute fresh proceedings in the event of dismissal of previous proceeding for nonprosecution, keeping in mind broad principles of Order 9 Rule 9 C.P.C.
Hon'ble Apex Court in the case of Najmuddin Vs. Union of India, reported in (2009) 2 SCC 720, has also held that if the writ petition is dismissed for default, undisputedly, the High Court may restore the same in exercise of its jurisdiction under Article 226 of the Constitution of India on showing sufficient cause.
In the present case, petitioner has moved restoration application as well, which too, was dismissed, therefore, in view of sound public policy, as discussed herein before, present petition seems to be not maintainable.
Now, question remains as to whether in view of the fact that in the present petition, order dated 10.12.2007 is also under challenge, which was not under challenge in the previous proceeding would make the present petition on the different cause of action. Undisputedly, reinstatement of the petitioner cannot be directed without setting aside the previous order dated 20.11.1999, therefore, main subject matter of the case is order dated 20.11.1999, whereby petitioner was directed to be removed from the services. Moreover, order dated 20.11.1999 has attained finality in view of dismissal of earlier writ petition and restoration thereof.
In my considered opinion, merely because petitioner has moved application claiming reinstatement after the dismissal of the writ petition and restoration and same was rejected by the authorities shall not give rise to the new cause of action to the petitioner to challenge the previous order dated 20.11.1999 as well, which has attained finality after dismissal of previous writ petition and restoration thereof.
In view of the observations made hereinabove, present writ petition is not maintainable, therefore, same is dismissed.
A.F.R. (Alok Singh, J.) Manish