Satya Narayan Lakra v. State Of Bihar — 1996 DIGILAW 367 (PAT)

Judgment S.K.Chattopadhyaya, J. 1. The point for consideration in this appeal is as to whether, in the facts and circumstances of this case, the view taken by the Apex Court in the case of Sarguja Transport Service V/s. State Transport Appellate Tribunal, Givalior and Ors. reported in -- is applicable or not. 2. In order to enter into the domain of the contending claims of the respective parties, it would be appropriate to portray the factual backgrounds: The appellant being aggrieved by the notification dated 8.9.95, transferring him to Lohardagga, moved this Court in CWJC No. 3022/95 (R). The said writ application was filed on 19.10.95 and before any effective order was passed, the private respondent No. 5 filed his counter affidavit on 15.11.95. The case was listed for admission before a learned Single Judge on 9.12.95 when the said writ application was permitted to be withdrawn by the following order: Mr. Pandey M.M.P. Sinha seeks permission to withdraw this application which is not opposed by the respondents including the private respondent represented by Mr. S.B. Gadodia. In the circumstances the application is dismissed as withdrawn. 3. From the aforesaid order it is clear that while withdrawing the aforesaid writ application no permission was sought for by the learned Counsel for the petitioner for filing a fresh writ application. However, the same notification dated 8.9.95 was again impugned in CWJC No. 8/96 (R). Paragraph 2 of the said writ petition discloses the reasons for withdrawing the earlier writ application and filing the present one i.e. CWJC 8/96 (R) by stating as follows:- That the petitioner had earlier filed a writ application bearing CWJC No. 3022/95 (R), but as the same was defectively framed and did not incorporate essential facts with necessary annexures, the petitioner was advised to withdraw the same in order to bring all the essential facts with relevant annexures and accordingly, the said writ case was dismissed as withdrawn on 19.12.95 and, thereafter, the petitioner has not moved before this Hon ble court. 4. The said writ application was listed before a Single Judge on 2.4.96 and the same was dismissed on the basis of the principle laid down by the Supreme Court in the case of Sarguja Transport Services (supra). The order of the learned Single Judge dated 2.4.96 is to the following effect: Heard counsel for the parties. 4. The said writ application was listed before a Single Judge on 2.4.96 and the same was dismissed on the basis of the principle laid down by the Supreme Court in the case of Sarguja Transport Services (supra). The order of the learned Single Judge dated 2.4.96 is to the following effect: Heard counsel for the parties. It is brought to my notice that against the same order another writ petition was preferred bearing CWJC No. 3022/95 (R) which was dismissed as withdrawn on 19.12.95. From the order it does not appear that the writ petition was withdrawn with a view to file a fresh writ petition with better particulars and materials. If the petitioner really wanted to file another writ petition as claimed, with better particulars and materials in support of the allegations, the writ petitioner should have sought permission from the court to file a fresh writ petition. Having regard to the principles laid down by the Supreme Court in -- Sarguja Transport Services V/s. S.T.A. Tribunal, Givalior, this writ petition is dismissed. 5. The present L.P.A. has been preferred by the petitioner/appellant against the order dated 2.4.96 on the ground that the said writ application was not decided on merits, rather, the same was rejected merely on technical ground of res judicaia. 6. Mr. Anil Kumar Sinha learned Counsel for the petitioner has tried to distinguish the aforesaid decision of the Supreme Court on the ground that the same, was rendered in a case arising out of the order passed by the State Transport Appellate Tribunal and as the Madhya Pradesh High Court was not inclined to interfere with the order passed by the Appellant Tribunal, the writ applications were permitted to be withdrawn. According to Mr. Sinha, in the present case, the earlier writ application, namely CWJC. No. 3022/95 (R) was withdrawn by the petitioner without advancing any argument ont he mertis and, as such, it should be deemed that the said withdral was simplicter. His further argument is that if the writ application would have been withdrawn after releasing that the learned Single Judge was not inclined to interfere with the order, the matter would have been different. Further contention of Mr. His further argument is that if the writ application would have been withdrawn after releasing that the learned Single Judge was not inclined to interfere with the order, the matter would have been different. Further contention of Mr. Sinha is that explanation to Sec. 141 of the Code of Civil Procedure is clear that the provisions of CPC do not apply to writ applications and, as such, the principle of res judicate in petition under Articles 226 and 227 of the Constitution is not applicable. In support of his contention Mr. Sinha has relied on decisions in the cases of Harendra Prasad Singh V/s. State of Bihar and Ors. reported in 1989 PLJR 967, in the case of Haldhar Pd. Singh V/s. Ciridih Municipality and Ors. reported in 1989 PLJR 278 and in the case of Naya Dawkhana V/s. State of Bihar reported in 1989 BBCJ 253 . 7. Mr. P.D. Agrawal appearing on behalf of the State, countering the argument of Mr. Sinha, has contended that the aforesaid relied by the petitioner/appellant are of no avail inasmuch as CWJC No. 3022/95 (R) was withdrawn after filing of the counter affidavit by the respondent No. 5. In such circumstances, he continues, it should be presumed that the petitioner wanted to get relief disclosing the factual aspects of the case and the moment the counter affidavit was filed by respondent No. 5, the petitioner withdraw the said writ application as the learned Single Judge declined to interfere with the order of transfer. 8. In order to appreciate the contentions raised by the respective parties, the provisions laid down in the Code of Civil Procedure may be looked into. Section 141 of the Code of Civil Procedure contemplates that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings under Order IX, but does not include any proceeding in any court of civil jurisdiction. Explanation to Sec. 141 was added with effect from 1.2.77 which reads as follows:- In this Section, the expression proceedings, includes proceedings under Order IX but does not include any proceeding .under Article 226 of the Constitution 9. Explanation to Sec. 141 was added with effect from 1.2.77 which reads as follows:- In this Section, the expression proceedings, includes proceedings under Order IX but does not include any proceeding .under Article 226 of the Constitution 9. As to whether the explanation inserted in Sec. 141 of the Code of Civil Procedure (Amendment Act, 1976) will have the effect in a proceeding under Article 226 of the Constitution, was considered by a Division Bench of Allahabad High Court in the case of Kashinath Seth V/s. Collector, Central Excise, Allahabad and Ors. reported in -- The Division Bench, while considering the import of Order II Rule (2) CPC as well as the explanation to Sec. 141 C.P.C, has observed as follows:- We do not think that the rule of constructive res judicata can be applied to the facts of the case. The proper rule to be applied is the one contained in O. II, Rule 2, CPC. We are conscious of the explanation inserted in Section 141 by the Civil PC. (Amendment) Act, 1976. The effect of that amendment is that the procedure prescribed by the Code does not apply of its own force to proceedings under Article 226 of the Constitution. It does not, however, lay down that some of the salutary principles enshrined in Civil Suits may not be applied even where it enshrines a general principle of law, to trial of civil proceedings other than suits, like a writ petition under Article226 of the Constitution of India. 10. Their Lordships of the Supreme Court, in the case of Sarguja Transport Services (supra) after elaborate discussion of the provisions of Order XXIII Rule (1) of the CPC has inter alia observed as follows:- The law confers upon a man no rights for 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 the Rule I of Order XXIII. According to their lordships the principles under lying this rule is founded on public policy, but it is not the same as the rule of res judicata contained in Sec. 11 of the Code. Distinguishing the rule of res judicata and principles of public policy their lordships were of the view that in 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 that a second suit will not lie in Sub-rule (4) of the R.I of Or. 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. 11. In Sarguja Transports case (supra) exactly the same issue was involved before the Supreme Court for consideration as to whether the petitioner, after withdrawing the writ application filed by him under Article 226 of the Constitution without the permission of the court to institute a fresh petition, can file a fresh writ petition in the High Court under that Article. Referring to the decision in the case of Daryao V/s. State of U.P. reported in -- their lordships have held as follows:- On this point the decision in Daryaos case (supra) is of no assistance. But we are of the view that the principle undertaking Rule I of Or. XXIII of the Code should be extended in the interest of administration of justice to cases of withdrawal of writ petition also, not on the 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. 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 the High Court without permission to file a fresh writ petition may not bar other remedies like a suit or 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 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. However, their lordships made it clear that the aforesaid view may not be applicable to writ petition involving the personal liberty of an individual in which he prays for issue of 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. Their lordships left the said question open. 12. The case of Haldhar Prasad Singh (supra) relied upon by Mr. Sinha, in my view, instead of helping, goes against the argument. The Division Bench of the court, relying on the decision of Sarguja Transport Services (supra) Has held that as the subsequent writ petition on the same cause of action was filed after withdrawal of the earlier writ application without leave of the court to file a fresh writ petition, the second application was not maintainable. Their lordships considered the ratio of the decision of Daryaos case (supra) and held that the principle embodied in Sec. 11 and Order XXIII, Rule 1 (3) are different inasmuch as one bars a suit, the other bars a remedy. The contention of the petitioner in that case that in Sarguja Transport Services case (supra) the Division Bench of two judges of the Supreme Court differed with larger Division Bench or Constitution Bench was held to be not correct. 13. The contention of the petitioner in that case that in Sarguja Transport Services case (supra) the Division Bench of two judges of the Supreme Court differed with larger Division Bench or Constitution Bench was held to be not correct. 13. I am in respectful agreement with the aforesaid decision of the Division Bench. The decision of Harendra Prasad Singh (supra) of learned Single Judge, strongly relied by Mr. Sinha, in my considered opinion, is not applicable to the facts and circumstances of this case. In the aforesaid case, the learned Single Judge noticed that the earlier writ petition was filed prematurely to prevent appointment to the post of Enginer in-Chief made and the same was permitted to be withdrawn by the High Court. Facts of that case was that the notification dated 1.5.87 was impugned by Harendra Pd. Singh in CWJC 1959/87 praying for issuance of a writ of prohibition presumably for prohibiting the State from passing any order promoting others to the post of Engineer-in-Chief but the writ application was permitted to be withdrawn by this Court on the ground that the same was premature. The subsequent writ petition was filed challenging the same notification dated 1.5.87, but during the pendency of the said petition some subsequent events occurred as a result whereof the petitioner was recommended by the Departmental Promotion Committee to be promoted, to the post of Chief Engineer. Being aggrieved the petitioner prayed for issuance of an appropriate writ directing of the respondent-State for implementing the decision of the Departmental Promotion Committee. This was allowed by the court by allowing the petitioners application for amendment of the writ petition. Under such circumstance, the learned Single Judge was of the opinion that there was absolutely no doubt that the subsequent writ petition was based on a separate cause of action which was not available at that point of time when the earlier writ petition was permitted to be withdrawn. On the aforesaid facts, this Court held that the principle of Order XXIII (1) C.P.C, would have no application to the case-and consequently the decision of the Supreme Court in Sarguja Transport case (supra) also did not apply in that case. 14. On the aforesaid facts, this Court held that the principle of Order XXIII (1) C.P.C, would have no application to the case-and consequently the decision of the Supreme Court in Sarguja Transport case (supra) also did not apply in that case. 14. In the case of Naya Dawakhana (supra) another Division Bench has distinguished the case of Sarguja Transport Services (supra) as well as other Division Bench and Full Bench decisions on the ground that withdrawal of the earlier writ application was not unconditional but a conditional one. The Division Bench noticed that earlier writ application was disposed of by. directing the Drug controller to consider some disputed questions of facts raised by the parties in the earlier writ applications. As liberty was given to the petitioner to approach this Court again in case the finding of the enquiry goes against him on untenable grounds, the petitioner, after the enquiry, subsequently moved in another writ application which was permitted to be withdrawn with liberty to take recourse to any other remedy which might be available to it in law. On these facts and circumstances the Division Bench held that subsequent writ application was maintainable and the decision of the Supreme Court in the case of Sarguja Transport and other decisions of this Court were not applicable. 15. In the premises of the aforesaid authoritative decisions, in my view, the point raised by Mr. Sinha is not subsequent in law inasmuch the law is well settled by the decision of the Supreme Court in the case of Sarguja Transport Services (supra) and the Division Bench decision of this Court in the case of Hardhar Prasad Singh (supra). In the instant case, as I have noticed earlier, the petitioner withdrew CWJC No. 3022/95 (R) without seeking any permission to file a fresh writ application. I have already observed that on filing of the counter affidavit by respondent No. 5, the petitioner withdrew the writ application without seeking any permission from the Court. Under this circumstance, it must to presumed that the learned Single Judge who dismissed the aforesaid writ application, was not inclined to grant any relief to the petitioner and, as such, the petitioner withdrew the same. 16. Under this circumstance, it must to presumed that the learned Single Judge who dismissed the aforesaid writ application, was not inclined to grant any relief to the petitioner and, as such, the petitioner withdrew the same. 16. Another aspect which has to be considered is that according to the petitioner CWJC No. 3022/95 (R) was defectively framed and as it did not incorporate necessary facts with necessary annexures, the petitioner was advised to withdrew the same in order to bring all the essential facts with annexures, but surprisingly enough the petitioner is silent about the facts and annexures which have required to be filed in CWJC No. 3022/95 (R). In my view, if this would have been the real ground for the petitioner to withdraw the earlier writ application, the petitioner ought to have prayed before the learned Single Judge about the same but the order dated 19.12.95 passed in CWJC No. 3022/95 (R) does not reveal the same. In my considered opinion, filing of such type of repeated writ applications before the High Court must be stopped on the principle of public policy which will discharge, to quote the observation of the Supreme Court, the litigant from indulging in bench-hunting tactics. For the reasons aforesaid, I find no merit in the submissions of Mr. Sinha. 17. Mr. Sinha has fairly submitted that on merits the appellant has no case and after considering the facts of the case and the nature of the impugned order I also find no merit in this appeal. The appeal is, accordingly, dismissed.