Himachal Pradesh High Court
Baldev Singh vs Union Of India & Ors on 19 December, 2017
Author: Sanjay Karol
Bench: Tarlok Singh Chauhan, Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2159 of 2008 Reserved on: 14.12.2017 Decided on: 19.12.2017 Baldev Singh ... Petitioner .
Versus
Union of India & Ors. ... Respondents
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? Yes.
For the petitioner: Mr. Onkar Jairath and Mr. Tenzen, Advocates, for the petitioner.
For the respondents: Mr. Desh Raj Thakur, Central Government Standing Counsel, for respondent No. 1.
Mr. N.K. Sood, Sr. Advocate, with Mr. Aman sood and Mr. Hemant Sharma, Advocates, for respondents No. 2 to 4. Justice Tarlok Singh Chauhan, Judge This Court at the threshold is required to decide the following preliminary objections as raised by the respondents:-
(i) Whether after unconditional withdrawal of CWP No. 491 of 2001 on 30.04.2007, the present writ petition is not maintainable.
(ii) In case the question No. 1 is answered in negative, whether the instant petition would still be barred by the principles of Order 2 Rule 2 of the Code of Civil Procedure (for short 'Code').
_________________________ Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 2However, before answering the questions as posed before this Court, certain facts need to be noticed.
2. The petitioner alongwith some other persons initially .
approached the Hon'ble Punjab and Haryana High Court by filing CWP No. 10808 of 1994 wherein the main relief claimed was with respect to grant of benefit of pay protection and continuity of service to the petitioner from the date they were absorbed in the Bhakra Beas Management Board (for short 'BBMB') alongwith arrears resulting from the said directions.
3. It is apt to reproduce the prayer clause which reads thus:-
(a) A writ of mandamus or any other writ, order or direction directing the respondents to grant the benefit of pay protection and continuity of service to the petitioners from the date they were absorbed in the Bhakra Beas Management Board alongwith arrears resulting from the said directions i.e. the respondents be directed to give the same pay to the petitioners as they were drawing in the Beas Construction Board at the time of their retrenchment alongwith the arrears and also the benefit of continuity of service, be ordered to be given to them. Further decision of the Annexure P-6, be quashed.
4. During the pendency of this writ petition, the petitioner filed CWP No. 491 of 2001 wherein one of the relief again claimed was with respect to consideration of 14 years continuous service rendered by the petitioner with the Beas Construction Board (for short 'BCB') for fixing his seniority and computation of pension w.e.f.
::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 311.05.1966, as would be evidently clear from the prayer clause, which is reproduced in its entirety, as under:-
(b) That the respondents may be directed to consider 14 years continuous service rendered by the petitioner with Beas .
Construction Board for fixing his seniority and computation of pension w.e.f. 11.05.1966.
5. It is not in dispute that on 30.04.2007, the petitioner unconditionally withdrew the aforesaid writ petition and it is apt to reproduce order which reads thus:-
30.4.2007 Present: Mr. Rajiv Jiwan, counsel, for the petitioner.
Mr. N.K. Sood, Advocate, for respondents .
No. 1, 3 & 4.
CWP No. 491/2001Mr. Rajiv Jiwan, learned counsel for the petitioner seeks permission to withdraw the present writ petition. Permission granted. The writ petition is dismissed as withdrawn.
Sd/-
Sanjay Karol, J
6. Yet again, there is no dispute that after unconditional withdrawal of CWP No. 491 of 2001, the petitioner has thereafter filed the instant writ petition wherein similar relief to the one claimed in CWP No. 10808 of 1994 and CWP No. 491 of 2001 has been claimed, as would be evident from prayer clause (a), which is reproduced below:-
(a) That the writ of mandamus be issued to the respondents directing them to count the work charge service rendered by the petitioner in BCB from 11-05-1966 to 31-01-1981 for the purpose of computation of pension as is done in the case of others employees in terms of Board's letter dated 30/11/1990 ::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 4 (Annexure P-1) & letter dated 04.07.1991 (Annexure P02) and on the basis of Regulations framed by BBMB for Class III & Class IV employees (Annexure P-6) & revise his pension.
7. It is also not in dispute that before the CWP No. 10808 of .
1994 could actually be taken up by that Court for final hearing, the petitioner withdrew his name from the array of the petitioners.
8. Having set out the factual background, I would now proceed to determine the questions as posed.
9. Mr. N.K. Sood, learned Senior Advocate duly assisted by Mr. Aman Sood, learned Advocate, would vehemently argue that once it is admitted that CWP No. 491 of 2001 filed by the petitioner was unconditionally withdrawn without seeking liberty to file fresh petition on the same cause of action, then by virtue of principles as envisaged and incorporated under Order 23 Rule 1 of the Code as also principles of res judicata, the instant petition would not be maintainable. He would further argue that even if the instant writ petition is ultimately held not to be barred on the aforesaid principles under Order 23 Rule 1 of the Code, even then the petition would be barred and not maintainable on the principles of "might and ought"
as envisaged under Order 2 Rule 2 of the Code, as the petitioner despite the availability of grounds for relief which is now sought in this petition had not raised the same either in CWP No. 10808 of 1994 and thereafter even in CWP No. 491 of 2001 and is, therefore, ::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 5 precluded from raising these grounds for the first time in this writ petition.
10. On the other hand, Mr. Onkar Jairath, learned .
Advocate duly assisted by Mr. Tenzen, learned Advocate, would vehemently argue that the provisions of CPC are not applicable in writ jurisdiction by virtue of provisions of Section 141 of the Code and, therefore, the instant petition cannot be held to be not maintainable that too by relying upon the principles as envisaged under Order 23 of the Code (supra).
I have heard learned counsel for the parties and have gone through the records of the case.
Question No. 111. Undoubtedly, the provisions of the CPC are not applicable in the writ jurisdiction by virtue of provision of Section 141 but the principles enshrined therein are applicable. (vide Gulabchand Chhotalal Parikh vs. State of Gujarat, AIR 1965 SC 1153, Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot, AIR 1974 SC 2105 and Sarguja Transport Service vs. STAT, AIR 1987 SC 88.)
12. Apart from above, I find that this issue is otherwise no longer res integra in view of the judgment of the Hon'ble Supreme Court in Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P. Gwalior & Ors. (1987) 1 SCC 5, wherein it was categorically held that withdrawal or abandonment of a petition under Article 226/227 without permission to file fresh petition ::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 6 thereunder would bar such a fresh petition in the High Court involving the same subject matter. It was further held that principle underlying Rule 1 Order 23 of the Code is one related to public .
policy whereby once plaintiff institutes a suit in the Court of law and thereby avails remedy given to him under law, he cannot be permitted to institute a fresh 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. It is apt to reproduce the relevant observations which reads thus:-
"8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying R. 1 of O. XXIII of the Code is adopted in respect of writ petitions filed under Art. 226/227 of the Constitution also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao v. State of U.P., (1962) SCR 574: (AIR 1961 SC 1457) in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court ::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 7 under Art. 32 of the Constitution because in. such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows :
.
"If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other."
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art. 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 principle underlying R. 1 of O. 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 Art. 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 Art. 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Art. 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 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 had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have ::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 8 stated in this order may not be considered as being applicable 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 Art. 21 of the Constitution since such a case .
stands on a different footing altogether. We, however, leave this question open.
13. It would be evident from the aforesaid observations that the factors which prevailed before the Hon'ble Supreme Court for holding the second petition to be not maintainable were primarily to prevent Bench hunting and it was also observed that the writ petitions are mostly sought to be withdrawn without any liberty to file fresh at a stage when the Court is not inclined to admit the same with malafide intention by unscrupulous persons. It was in this background, the Hon'ble Supreme Court held that in cases of such nature, fresh petition could not be filed.
14. However, the said ratio was distinguished by the Hon'ble Supreme Court in Sarva Shramik Sanghatana (KV) vs. State of Maharashtra and others (2008) 1 SCC 494 wherein it was held that the decision in Sarguja Transport Service case (supra) had to be understood in light of the observations made in paragraphs 8 and 9 as quoted above. It was further held that the decision in Sarguja Transport Service case (supra) could not be treated as a euclid formula. It is apt to reproduce the relevant observations, which reads thus:
::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 9"10. The appellant, which represents the workmen concerned, opposed the very entertainment of the second closure application under Section 25-O on the ground that the first application was withdrawn but without liberty from the concerned authority to file a fresh application. The appellant .
filed a writ petition under Article 226 of the Constitution before the Bombay High Court praying that the Deputy Commissioner of Labour should be directed not to take any further proceedings in relation to the closure application dated 11.5.2007 under Section 25-O. Since that writ petition was dismissed, hence this appeal by way of Special Leave Petition.
13. It often happens that during the hearing of a petition the Court makes oral observations indicating that it is inclined to dismiss the petition. At this stage the counsel may seek withdrawal of his petition without getting a verdict on the merits, with the intention of filing a fresh petition before a more convenient bench. It was this malpractice which was sought to be discouraged by the decision in Sarguja Transport case (supra).
14. On the subject of precedents Lord Halsbury, L.C., said in Quinn v. Leathem, 1901 AC 495:
"Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."
We entirely agree with the above observations.
::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 1019. In the present case, we are satisfied that the application for withdrawal of the first petition under Section 25-O(1) was made bona fide because the respondent-company had received a letter from the Deputy Labour Commissioner on 5.4.2007 calling for a meeting of the parties so that an effort could be made for .
an amicable settlement. In fact, the respondent- company could have waited for the expiry of 60 days from the date of filing of its application under Section 25-O(1), on the expiry of which the application would have deemed to have been allowed under Section 25- O(3). The fact that it did not do so, and instead applied for withdrawal of its application under Section 25-O(1), shows its bona fide. The respondent- company was trying for an amicable settlement, and this was clearly bona fide, and it was not a case of bench hunting when it found that an adverse order was likely to be passed against it. Hence, Sarguja Transport case (supra) is clearly distinguishable, and will only apply where the first petition was withdrawn in order to do bench hunting or for some other mala fide purpose.
20. We agree with the learned counsel for the appellant that although the Code of Civil Procedure does not strictly apply to proceedings under Section 25-O(1) of the Industrial Disputes Act, or other judicial or quasi-judicial proceedings under in any other Act, some of the general principles in the CPC may be applicable. For instance, even if Section 11 of the CPC does not in terms strictly apply because both the proceedings may not be suits, the general principle of res judicata may apply vide Pondicherry Khadi & Village Industries Board vs. P. Kulothangan and another 2004 (1) SCC 68. However, this does not mean that all provisions in the CPC will strictly apply to proceedings which are not suits.
15. Yet again similar question came up for consideration before the Hon'ble Supreme Court in Ramesh Chandra Sankla and others vs. Vikram Cement and others (2008) 14 SCC 58, wherein ::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 11 again the Hon'ble Apex Court distinguished the judgments in Sarguja Transport Service case (supra) and relying upon the judgment in Sarva Shramik Sanghatana case (supra), it was .
observed as under:-
60. We may also refer to a recent decision of this Court in Sarva Shramik Sangathan (KV), Mumbai v. State of Maharashtra and Ors.,. In that case, an application under Section 25O of the Industrial Disputes Act, 1947 was filed by the employer for closure of undertaking. The application was, however, withdrawn since attempts were made for settlement of the matter. The efforts were not successful and hence, the management filed fresh application. It was contended by the Union that since earlier application filed by the employer was withdrawn, the second application was hit by Order XXIII of the Code. The Union relied upon Sarguja Transport Service. Negativing the contention, holding the application maintainable and distinguishing Sarguja Transport Service, this Court held that the action of the Management of withdrawal of first petition was bona fide. It was not a case of Bench-hunting with a view to avoid an adverse order likely to be passed against it. Sarguja Transport Service had, therefore, no application. It was also observed that provisions of the Code of Civil Procedure do not strictly apply to industrial adjudication. The second application was, therefore, held maintainable.
61. From the above case law, it is clear that it is open to the petitioner to withdraw a petition filed by him. Normally, a Court of Law would not prevent him from withdrawing his petition. But if such withdrawal is without the leave of the Court, it would mean that the petitioner is not interested in prosecuting or continuing the proceedings and he abandons his claim. In such cases, obviously, public policy requires that he should not start ::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 12 fresh round of litigation and the Court will not allow him to re-
agitate the claim which he himself had given up earlier.
62. In Sarguja Transport Service, extending the principles laid down in Daryao, Venkataramiah, J. (as His Lordship then was) .
concluded;
"9....We are of the view that the principle 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 a 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 of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should r be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission.
(emphasis supplied)
63. On the facts of the case, however, we are unable to uphold the argument on behalf of the workmen that the Company did not want to prosecute the petitions and had given up its claim against the order passed by the Labour Court and confirmed by the Industrial Court. The record reveals that the Company filed one writ petition against one employee which was registered as Writ Petition No. 3060 of 2005. It also filed another petition against the remaining employees (236) which was registered as Writ Petition No. 3471 of 2005. Since the other petition was against several employees, the Registry of the High Court raised an objection that it was under `defect . It was, therefore, not placed for admission-hearing. In an order, dated October 3, 2005, the Court noted that the learned Counsel for the Company prayed for time "to remove the defects pointed by the office". The prayer was granted.
::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 1364. It also appears that according to the Registry, there were practical difficulties and logistic problems since the petition was against more than 200 employees. The learned Counsel for the Company, therefore, on December 14, 2005, did not `press the petition and petition was accordingly dismissed `as not pressed .
.
The said order was passed on December 14, 2005. Immediately thereafter, in January, 2006, separate petitions were filed by the Company against the workmen.
65. It is thus clear that it was not a case of abandonment or giving up of claim by the Company. But, in view of office objection, practical difficulty and logistic problem, the petitioner Company did not proceed with an `omnibus and composite petition against several workmen and filed separate petitions as suggested by the Registry of the High Court.
66. There is an additional reason also for coming to this conclusion on the basis of which it can be said that the Company was prosecuting the matter and there was no intention to leave the matter. As is clear, Writ petition No. 3060 of 2005 which was filed against one employee was very much alive and was never withdrawn/ note pressed . If really the Company wanted to give up the claim, it would have withdrawn that petition as well. Thus, from the circumstances in their entirety, we hold that the objection raised by the learned Counsel for the workmen has no force and is rejected.
16. Similar reiteration of law can be found in judgment rendered by learned Division Bench of this Court in LPA No. 374 of 2012, titled Sunder Lal vs. Himachal Pradesh State Forest Corporation and others; decided on 03.09.2015.
17. Bearing in mind the aforesaid exposition of law, it would be noticed that this is not a case where petitioner can be said to be indulging in Bench hunting or abusing the process of law.
::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 1418. The question No. 1 is answered holding that even though the earlier writ petition was unconditionally withdrawn without liberty to file the same afresh, however, still in the given facts .
and circumstances of the case, the subsequent writ petition is maintainable.
Question No. 219. Adverting to question No. 2, it would be noticed that petitioner alongwith others while approaching the Hon'ble Punjab and Haryana High Court by filing CWP No. 10808 of 1994 claiming the benefit of pay protection and continuity of service from the date they were absorbed in BBMB from the BCB and had further sought the quashing of the decision (Annexure P-6) therein by which their representations for grant of the same had been rejected.
20. As regards CWP No. 491 of 2001, the relief claimed therein was based upon the award of Industrial Tribunal in Reference No. 2-C of 1971, on the basis of which the petitioner had claimed the same scale of pay w.e.f. 01.02.1981 and to consider 14 years of service rendered by the petitioner in BCB towards pension.
21. Whereas in the instant petition, it would be noticed that the petitioner has sought direction to count work charge services rendered by him in BCB from 11.05.1966 to 31.01.1981 for the purpose of computation of pension as has been done in the case of other employees in terms of the Board's letters dated 30.01.1990 and 04.07.1991.
::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 1522. It would be evident from the above that the reliefs claimed in this petition were available to the petitioner even at the time when he alongwith others filed CWP No. 10808 of 1994 before .
the Hon'ble Punjab & Haryana High Court. Therefore, obviously even while filing CWP No. 491 of 2001, the pleas raised in the writ petition before the Hon'ble Punjab & Haryana High Court were available to him at that time. Yet, the petitioner did not choose to take those pleas and surprisingly after relinquishing the basis of his relief(s) as was claimed in CWP No. 10808 of 1994 before the Hon'ble Punjab & Haryana High Court and CWP No. 491 of 2001, the petitioner obviously cannot now base his claim on the basis of letters dated 30.01.1990 and 04.07.1991 on the principles of "might and ought"
which is contained in Order 2 Rule 2 of the Code.
23. It is more than settled that although the Code of Civil Procedure does not apply to writ petition but the principles enshrined therein would certainly apply.
24. Moreover, the question posed before this Court already otherwise stands directly answered by Division Bench of this Court in Kundlu Devi and another vs. State of H.P. and others, Latest HLJ 2011 (HP) 579 wherein it was held as under:
"4. The contention of the learned counsel for the petitioners is that though the grievance with regard to quantum was dealt with, the grievance with regard to the claim for rent and occupation charges during the period the property was in possession of the Government has not been dealt with. According to the petitioners, they are entitled to the same in ::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 16 view of the decision of the Apex Court in R.L. Jain Versus DDA, (2004) 4 Supreme Court Cases 79. We do not think that it will be proper for this Court at this stage in proceeding under Article 226 of the Constitution of India to go into the question as to whether the petitioners are entitled to that component of compensation.
.
That grievance the petitioners have pursued in accordance with the procedure prescribed under the Land Acquisition Act, 1894 initially before the Collector, thereafter before the Civil Court and finally in appeal before the High Court.
According to the petitioners, though this grievance was raised, the same has not been adverted to. If that be so, a civil writ petition or for that matter any other collateral proceeding is not the remedy. All contentions, which a party might and ought to have taken, should be taken in the original proceedings and not thereafter. That is the well settled principle under Order II Rule 2 CPC. Order II Rule 2 reads as follows:
"2.Suit to include the whole claim. -
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
5. This Rule is based on the principle that the defendant shall not be vexed twice for one and the same cause. The Rule also seeks to prevent two evils, one the splitting of claims and the other ::: Downloaded on - 19/12/2017 23:12:42 :::HCHP 17 splitting of remedies. If a plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the omitted claim or the omitted remedy. The requirement of the Rule is that every suit should include the .
whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his claim, he cannot thereafter seek the recovery of the balance of the cause of action by independent proceedings. This principle has been also settled by the Apex Court in Sidramappa versus Rajashetty, AIR 1970 SC 1059.
6. Order II Rule 2 applies also to writ proceedings. The left out portion of a cause of action cannot be pursued in a subsequent writ proceedings. All claims which a petitioner might and ought to have taken, should be taken in one proceedings and only in one proceedings. {See the decision of the Supreme Court in Commissioner of Income tax vs. T.P. Kumaran, 1996(1) SCC 561}.
7. Equally, a person who has filed the suit seeking certain relief in respect of a cause of action is precluded from instituting another suit for seeking other reliefs in respect of the same cause of action. He shall not be entitled to invoke the writ jurisdiction of the High Court for obtaining the very same relief. In other words, if a second suit is barred, a writ petition would also be barred. What is directly prohibited cannot be indirectly permitted. That is the principle underlying under Order II Rule 2 CPC."
25. In view of the above discussion, even though the petition is not barred by the principles laid down in Order 23 Rule 1 of ::: Downloaded on - 19/12/2017 23:12:43 :::HCHP 18 the Code, yet the petition is barred by the principles as contained under Order 2 Rule 2 of the Code.
26. In view of the aforesaid discussion, question No. 2 is .
answered accordingly and the instant writ petition for the reasons stated above is held to be legally not maintainable and is accordingly dismissed, leaving the parties to bear their own costs.
Pending application, if any, also stand disposed of.
(Tarlok Singh Chauhan), Judge.
December 19, 2017 sanjeev ::: Downloaded on - 19/12/2017 23:12:43 :::HCHP