Rajasthan High Court - Jaipur
S.P. Garg vs L.I.C. And Ors. on 30 March, 2005
Equivalent citations: RLW2005(3)RAJ1619, 2005(3)WLC316
Author: S.K. Keshote
Bench: S.K. Keshote, Ajay Rastogi
JUDGMENT S.K. Keshote, J.
1. Heard learned counsel for the petitioner appellant and perused the entire record of the writ petition and the special appeal and the order of the learned Single Judge, impugned therein.
2. The petitioner appellant filed S.B. Civil Writ Petition No. 1008/88 in this Court; therein the challenged the order dated 27.9.1983 (Annexure-5) passed by the Zonal Manager, Life Insurance Corporation of India terminating the services of the petitioner appellant with effect from 27.12.1983 and the court dismissed the Writ Petition No. 1008/88 vide its order dated 23.3.1996, observing as under, "Inspite of calls, none has appeared on behalf of the petitioner. The writ petition, therefore, dismissed in default for non prosecution and stands disposed of accordingly."
3. The petitioner appellant moved the application for restoration which was registered as S.B. Civil Miscellaneous (Restoration) Application No. 181/1995 and that was dismissed on 25.3.1996 holding that no good ground for restoration was made out. The petitioner appellant challenged the order dated 25.3.1996 in S.B. Civil Miscellaneous Restoration Application No. 181/1995, by filing D.B. Special Appeal (Writ) No. 311/96, which came to be dismissed on 9.7.1996.
4. The petitioner appellant, thus, filed second S.B. Civil Writ Petition No. 4971/1996, out of which this special appeal arises, on the same facts and cause of action i.e., the challenge thereunder was made to the order dated 27.9.1983, which was made in S.B. Civil Writ Petition No. 1008/88.
5. The learned counsel for the petitioner appellant does not dispute that the facts and the cause of action in both the writ petitions, are same.
6. The learned Single Judge, under the impugned order, dismissed the writ petition on the ground that the second writ petition is not maintainable on the same facts and cause of action.
7. The learned counsel for the petitioner appellant vehemently contended that dismissal of the first writ petition, in default, or for non prosecution, does not amount to res judicata and the second writ petition is maintainable.
8. We do not find any merits in this contention. The learned counsel for the petitioner appellant is correct to stage that the order dated 23.3.1996 of the learned Single Judge dismissing the S.B. Civil Writ Petition No. 1008/88, does not amount to res judicata but the second writ petition on the same facts and same cause of action is not maintainable. The reference here may have to the Rule 382 of the Rajasthan High Court Rules, 1952. It runs as follows:
"Rule 382-Where an application has been rejected it shall not be competent for the applicant to make a second application on the same facts."
9. The identical issue has been considered by this Court in the case of Ramsingh v. State of Rajasthan, 1969 RLW 130, thereunder the Division Bench has held as under, "13. The question still, however, remains whether Section 141 CPC would apply in terms to writ proceedings instituted under Article 226 of the Constitution. We may state at once that the judicial opinion is divided on this question and we have not been able today our hands on any, pronouncement of their lordships of the Supreme Court on this point. A few authorities have been cited by the learned counsel for the respondent No. 7, as mentioned above, in support of his contention that Section 141 C.P.C. applies to writ proceedings and to those we may further add two more authorities, one of the Punjab High Court-Sonaram Rangaram v. Central Government (14) and the other of the Andhra Pradesh High Court-Annam Adinarayana v. State of Andhra Pradesh (15). A contrary view has been taken by the Calcutta High Court in Messrs Bharat Board Mills Limited v. The Regional Provident Fund Commission (16) and the Madras High Court in Management of Rainbow Dyheing Factory, Salem v. Industrial Tribunal (17). But so far as this Court is concerned, we must bear in mind that in the Rules made by this Court special procedure has been provided with respect to petitions under Article 226 of the Constitution. Chapter XXII of the Rules of this Court deals with direction, order or writ under Article 226 of the Constitution other than a writ in the nature of habeas corpus. Thus, as observed in Chandmal Nauratmal v. State of Rajasthan (12), referred to above, Article 226 of the Constitution has conferred an extraordinary jurisdiction on the High Court and the mode of exercising the same is governed by Rules that the Court has framed." It was further emphasised that the Provisions contained in the Code of Civil Procedure will not a be attracted to this special jurisdiction in terms, because Section 4(1) of the Code of Civil Procedure provides that in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law not in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. It is thus clear that special procedure has been provided in the Rules of this court for writ proceedings under Article 226 of the Constitution and, therefore, the provisions of the Code of Civil Procedure cannot apply in terms to such proceedings. This, however, does not mean that the principles contained in the Code of Civil Procedure would have no application at all to the writ proceedings. In our view, those provisions of the Code of Civil Procedure which do not come in conflict with the Rules made by this court and when can be suitably made applicable to the writ proceedings, will apply to writ proceedings. In other words, even though the provisions of the Code of Civil Procedure may not apply with full rigour to writ proceedings we are of the opinion that writ proceedings would nonetheless be governed by the principles analogous to those contained in the Code of Civil Procedure so far as they are not inconsistent with the Rules made by this Court on the subject.
14. Learned counsel for the respondent No. 7 submits that there is no provision in the Rules of this court either for setting aside the ex parte proceedings in a writ matter or for making an application for restoration of the writ application dismissed in default and, therefore, the provisions contained in the Code of Civil Procedure, in this respect, can be suitably applied to the writ proceedings. In Taxi Motor Association, Kankroli v. Appellate Authority transport (9) referred to above it was observed by this Court has inherent powers on the analogy of Order 9, Rule 13, C.P.C. to set aside its ex principle the present writ application is not maintainable in view of the fact that the earlier writ application on the same facts was dismissed in default in the presence of the opposite party and the dismissed. He also submits that the principle contained in Order 9, Rule 9 C.P.C. is indeed a salutary principle, inasmuch as there is no reason why a party should be harassed for the same cause over and over again when the Court has once held that the petitioner has been guilty of laches. It is further submitted by him that if the proposition submitted by the learned counsel for the petitioner is accepted, it would result not only in great harassment of the parties, but would also entail unnecessary waste or Courts time. We are to the view that the submission made by the learned counsel for the respondent No. 7 is not without force, and if the contention raised on behalf of the petitioner to be effect that the petitioner has a right to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution successively unless the matter has been disposed of on merits, is driven to its logical conclusion, it would result in reduction ad a absurdum. The result of acceptane of such a proposition would mean that even though a writ application may have remained pending for a few years and then it has been dismissed in default or may have been disposed of for any other reason except on merits, the petitioner would have a right to move such an application on the same facts again and again till it is disposed of on merits. Looked at from another point of view, such a procedure would result in disregarding and circumventing the earlier orders of this court. In these circumstances, we are of the opinion that the principle contained in Order 9 Rule 9, C.P.C. can be suitably applied to writ proceedings. As has already been stated above, the earlier writ application in this case based on the same facts was dismissed in default in the presence of the opposite party and the application for its restoration was dismissed on merits. Thus, applying the principle contained in Order 9, Rule 9, C.P.C. the present writ application is not maintainable. Even otherwise we may state that, in the circumstances of the present case, we are not prepared to exercise our inherent and extraordinary jurisdiction in favour of the petitioner on this second writ application. The preliminary objection raised by the learned counsel for respondent No. 7 has, therefore, force, and must prevail."
10. The reference here fruitfully may have also to the decision of the Apex Court in the case of Sarguja Transport Service v. S.T.A. Tribunal, Gwalior (AIR 1987 SC 88), therein their Lordships of the Hon'ble Supreme Court, in para Nos. 7 & 9, held as under, "7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that were the plaintiff abandons a suit or withdraws from a suit without the permission referred to in Sub-rule (3) or Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Curt and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in Sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly of substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-rule (3) in order to prevent the abuse of the process of the Court."
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra), is of no assistance. But we are of the view that the principles underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he respect of the case of action relied on in the writ petition when the withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject matter since the earlier writ petition has been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being application to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open."
11. As a result of the aforesaid discussion we are satisfied that the second writ petition field by the petitioner appellant on the same facts and same cause of action is not maintainable and rightly it has been held by the learned Single Judge Judge.
12. In the result the appeal fails and the same is dismissed.