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2009 DIGILAW 624 (JK)

Bhat & Sons v. State Of J. &K.

2009-12-07

J.P.SINGH

body2009
1. The Petitioner, M/s Bhat and Sons, has filed this Writ petition seeking issuance of a Writ of Mandamus to the State, and its functionaries, to place supply orders of, Tri-Junction Stones/Pillars, used in the Settlement Process, with it, and a Writ of Certiorari for quashing Settlement Commissioner, Jammu and Kashmirs Order No. 67/SC/THY/01/06 of January 24, 2006, besides, in the alternative, a direction to the respondents to pay it Rs.20.00 lac as Compensation for the investment it had made in advance for making arrangements to supply Tri-Junction Stones/Pillars to the State Government. 2. The petitioner had approached this Court, earlier too, by his Writ Petition, OWP No. 89/2006 which was, however, dismissed on March 01, 2006, inter alia, observing as follows:- "Instead of participating in that process and competing by fresh tenders, the petitioner has come with this Writ Petition to have the allotment in his favour ordered on strength of his earlier tender whereunder admittedly no allotment has been made to him, except for the four Tehsils aforementioned, nor is there any thing to suggest that the tender was accepted in case of all the twenty Tehsils of the State. That being so, the present petition appears to be an effort to force respondents to place supply orders to the petitioner for other Tehsils also without having any legal basis therefor. In addition thereto, the order, under which the purchase of Stones is required to be made at Provincial level by Divisional Commissioner, instead of State level has not been challenged in the Writ Petition. So long as the said order remains, no action consequential thereupon can be challenged. Accordingly, the petition being unfounded is dismissed at the threshold." 3. The petitioner thereafter filed a Civil Suit for Declaration and Mandatory Injunction with the Second Civil Sub-ordinate Judge, Srinagar, which was dismissed for petitioners continued default of appearance on June 15, 2007, under Order 9 Rule 8 of the Code of Civil Procedure. 4. It is after the dismissal of its Civil Suit that the petitioner has approached this Court again by this Writ Petition, seeking directions as mentioned at the threshold. 5. I have heard learned counsel for the parties and considered their submissions. 6. 4. It is after the dismissal of its Civil Suit that the petitioner has approached this Court again by this Writ Petition, seeking directions as mentioned at the threshold. 5. I have heard learned counsel for the parties and considered their submissions. 6. During the course of the consideration of the Petition, the petitioners learned counsel, when asked, stated at the Bar that the subject matter of the Civil Suit and the petitioners present Writ Petition is same. 7. According to the provisions of Order 9 Rule 9 of the Code of Civil Procedure, dismissal of a Suit under Order 9 Rule 8 of the Code, precludes the plaintiff from bringing a fresh Suit, in respect of the same Cause of action. This is, however, subject to his right to seek the dismissal set aside. 8. Petitioners suit too was dismissed under Order 9 Rule 8 of the Code, as it was only defendant who had appeared in the case when it was called on for hearing. It did not exercise its option to seek its restoration. 9. By the operation of law, it thus stand precluded from bringing a fresh Suit in respect of the Cause of action, on which the Suit had been founded. 10. Having been precluded, by operation of law, from bringing Civil Suit on the Cause of action and regarding the subject matter on which he had filed the Civil Suit, the petitioner is estopped from invoking the extraordinary Civil Writ Jurisdiction of the Court, and that too, without any explanation of any type whatsoever, as to what precluded it from prosecuting its available remedy of Suit under the ordinary law. 11. The raison detra of the Rule of "Conclusiveness of Judgments" and the Public Policy may not permit allowing a person who had deliberately chosen a position, i.e. of remaining absent to suffer the prescribed fall out, in consequence thereof, on his rights, to reprobate it and blow hot now when it was blowing cold before. 12. Finality attached to a Judgment or Order of a Court of competent jurisdiction cannot be permitted, in the Public interest to be fiddled with by the litigants choosing one after the another Forum after its failure to succeed in the already chosen Forums. 12. Finality attached to a Judgment or Order of a Court of competent jurisdiction cannot be permitted, in the Public interest to be fiddled with by the litigants choosing one after the another Forum after its failure to succeed in the already chosen Forums. That apart, the petitioner having been denied reliefs in his earlier Writ Petition, on the ground that it had no legal basis to the claim thereof, I do not find any merit in the petitioners Writ Petition, when no ground, stilless sustainable is found to have been raised by the petitioner to question the Settlement Commissioners Order No. 67/SC/THY/01/06 of January 24, 2006. 13. Thus found without merit, this Writ Petition is, accordingly, dismissed.