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2005 DIGILAW 2988 (RAJ)

Vasudeo v. Union of India

2005-11-14

DINESH MAHESHWARI

body2005
Honble MAHESHWARI, J.–Nobody has appeared for the respondents despite service and, therefore, learned counsel for the petitioner has been heard finally. (2). The petitioner has submitted this writ petition under Article 226 of the Constitution of India on 15.12.2003 with the averments, inter alia, that he was holding a passport but it could not be renewed in time. The petitioner submitted a fresh application for passport on 21.01.1992 and the application remained pending for about one year. On 1.2.1993, the petitioner was informed that the Superintendent of Police had reported about a case pending against him and to show cause as to why action should not be taken against him for suppression of fact. The petitioner replied that in criminal case No.1/1990 he was acquitted by the Sessions Judge, Jodhpur before he moved application for passport. The petitioner has annexed a copy of his reply as Annexure-2 and a copy of the judgment of the Sessions Judge, Jodhpur dated 18.11.1991 as Annexure-4. The petitioner has also submitted that the matter was referred to the Superintendent of Police, Jodhpur and the Station House Officer, Police Station, Sardapura, Jodhpur had obtained affidavit of the fact that he was acquitted and no criminal case was pending against him. A copy of this affidavit has been submitted with the writ petition as Annexure-3. The petitioner, thereafter, submitted a writ petition before this court being Writ Petition No.118/1995, which was dismissed in default on 17.2.1998; the petitioner filed an application for restoration but the same was also declined. (3). Taking the averments aforesaid, the petitioner has submitted this writ petition seeking directions to the respondents to issue the passport to him in pursuance of the application submitted by him on the grounds that the action of the respondents in withholding of issuance of passport was illegal, arbitrary and discriminatory and violative of Article 14 of the Constitution of India and that the passport was sought to be denied to him on baseless and incorrect ground and such denial was violative of fundamental right of freedom of movement and violative of Articles 19, 20 and 21 of the Constitution of India. (4). (4). On being asked about the competence of this successive writ petition after the earlier writ petition on the same cause was dismissed and even its restoration was declined, learned counsel for the petitioner strenuously contended that the principles of res judicata could apply only when the issue directly and substantially in issue in the later petition had been heard and finally decided in the former petition. Learned counsel while relying on the decision of the Honble Supreme Court in the case of State of Maharashtra vs. M/s. National Construction Company, Bombay & Anr. (1996(2) RLW (SC) 27), contended that the bar applies only if the matter had been heard and finally decided in the former petition and dismissal in default cannot be said to be resulting in creating the bar of res judicata upon the petitioner. (5). Having given an anxious consideration to the submissions of the learned counsel for the petitioner, this Court is clearly of opinion that such submissions cannot be countenanced in the present case and this writ petition remains incompetent. (6). It is not the principle of res judicata which come in the way of the petitioner but the principles, as emanating from the provisions of Section 12 and Order 9 Rule 9 of the Code of Civil Procedure (CPC) that create a bar on the competence of this petition. It is not in dispute that the petitioner filed the earlier writ petition precisely on the same facts agitating the same cause against the denial of issuance of passport to him. The said petition filed way back, in the year 1995 was dismissed by this Court by the order dated 17.2.1998 (Annex.5) which reads as under:- ``Shri Purohit pleads no instruction. The writ petition is dismissed. (7). The petitioner has not stated the date of filing of restoration application but it appears from title page in the certified copy of the order dated 13.8.2003 (Annex.6) that the restoration application was filed only in the month of September, 2002. The restoration application submitted by the petitioner, being S.B. Civil Misc. Restoration Application No.51/2002, was rejected by this Court on 13.8.2003 with the following order:- ``No case is made out for restoration. The restoration application is dismissed. (8). Provisions of Order 9 Rule 8 and Order 9 Rule 9 of the code of Civil Procedure dealing with the civil suits provide as under:- ``8. Restoration Application No.51/2002, was rejected by this Court on 13.8.2003 with the following order:- ``No case is made out for restoration. The restoration application is dismissed. (8). Provisions of Order 9 Rule 8 and Order 9 Rule 9 of the code of Civil Procedure dealing with the civil suits provide as under:- ``8. Procedure where defendant only appears.–Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. 9. Decree against plaintiff by default bars fresh suit.–(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 of 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 non-appearance 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. (9). As the plaintiff stands precluded from bringing fresh suit in respect of the same cause of action, when a suit is wholly or partly dismissed when the defendant appears and the plaintiff does not appear, the bar is specifically spelt out in Section 12 of the Code of Civil Procedure thus:- ``12. Bar to further suit.–Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court which this Code applies. (10). Bar to further suit.–Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court which this Code applies. (10). It may also be pointed out that Chapter-XXII of the Rules of the High Court of Judicature for Rajasthan, 1952 dealing with the writ petitions, which have been referred as ``the application for a direction under Article 226 of the Constitution, also contains provisions in keeping with the fundamental principles emanating from Order 9 Rule 9 and Section 12, CPC. Rule 382 of the Rules of 1952 provides thus:- Rule 382. No second application on the same facts.–Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts. (11). The submissions made by the learned counsel for the petitioner with reference to the decision of the Honble Supreme Court in the case of M/s. National Construction Company, Bombay (supra), are entirely misplaced. The dispute therein was between the State of Maharashtra and contractor-respondent in relation to a work of Paithan Dam. The Central Bank of India executed a performance guarantee for faithful performance by the contractor and under the terms of the guarantee, the Bank was jointly and severally liable with the contractor for the letters default in performance, although the liability of the Bank was limited to 5% of the contract price. The contractor did not commence the work and abandoned the same and the appellants alleged that they were forced to employ other agencies for completing the work. The appellants filed short cause suit No.491/1972 only against the Bank for recovery of the amount stipulated in the performance guarantee but the suit was dismissed by the Bombay High Court for non-joinder of the contractor as necessary party for deciding the issue of default. In appeal, the appellants included the contractor as a party in the case title but the appeal was dismissed on 7.4.1983 on the very same ground because the contractor was not impleaded a party by Courts order. On the same day of 7.4.1983, the appellants filed special Civil Suit No.29/1983 both against the contractor and the Bank in the Court of the Civil Judge (Sr. Division), Aurangabad claiming damages for breach of contract. On the same day of 7.4.1983, the appellants filed special Civil Suit No.29/1983 both against the contractor and the Bank in the Court of the Civil Judge (Sr. Division), Aurangabad claiming damages for breach of contract. This claim was inclusive of their claim against the Bank under the performance guarantee. The trial Judge dismissed the latter suit holding that the cause of action was identical to the one in the former suit and it was barred by res judicata under Explanation-IV to Section 11 as also Order 2 Rule 2 CPC. Appeal to the High Court was also dismissed and hence the matter was in appeal before the Honble Supreme Court. (12). The Honble Apex Court held in the first place that the earlier suit was dismissed on the technical ground of non-joinder of necessary party and the merits of the case were not considered; the observations by the High Court that the matter was barred by res judicata were not approved and it was held that dismissal of short cause suit and its appeal would not operate bringing the bar of res judicata. Dealing with the issue involving Order 2 Rule 2 CPC, the Honble Supreme Court held that the test was as to whether the claim in the new suit was founded upon a cause of action distinct from that which was the foundation of the former suit. Analysing the position of a contract of bank guarantee, it was held that such a contract was distinct and independent of the underlying contract, the performance of which it seeks to secure. In the plaint of the Special Suit (latter suit), the main relief sought for by the appellants was on the basis of the contract entered into between the appellants and the contractors and the breach thereof; and it was held that the relief sought in the Short cause suit was based on a different cause of action from the upon which primary relief of the special suit was founded. The Honble Court held with reference to the case of Sidramappa vs. Rajashetty ( AIR 1970 SC 1059 ) that where the cause of action on the basis of which the previous suit was brought, does not from the foundation of the subsequent suit, and in the earlier suit, the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiffs subsequent suit would not be barred by Order 2 Rule 2. Applying this rule to the facts of the case, it was held that in the first suit, the appellants could only claim relief in respect of the amount limited to the maximum amount stipulated in the performance guarantee and could not have claimed reliefs of the amount which they claimed in the latter suit on the basis of the contract and in those circumstances, it was held that the cause of action in two suits were distinct. (13). The case at hands in the present writ petition poses an entirely different scenario. Admittedly, the earlier writ petition was based on the same cause of action seeking the same relief of mandamus against the non-petitioners for issuance of passport in pursuance of the application submitted by the petitioner on 21.1.1991. Counsel for the petitioner pleaded on instructions and the counsel for the respondent was present. This Court proceeded to dismiss the writ petition. It appears that restoration application itself was filed after a long delay and this Court did not find any case of restoration. In such circumstances, this Court is of considered opinion that present one as a successive petition, on the same cause of action and seeking the same reliefs, filed on 15.12.2003 is fundamentally incompetent and the petitioner is not entitled to maintain this writ petition. (14). As a result of the aforesaid, the writ petition fails and is dismissed. _