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2019 DIGILAW 105 (ALL)

Ram Prakash Rastogi v. Bhagirath Gramin Bank

2019-01-11

SAURABH LAVANIA

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JUDGMENT : Saurabh Lavania, J. Heard Sri Som Kartik, learned counsel for the petitioner and Sri A K Chaturvedi, Senior Advocate assisted by Sri Ashwani Kumar Singh, learned counsel for the respondent-Bank. 2. By means of the present writ petition, the petitioner has challenged the order of dismissal dated 21.04.1980. The main relief sought by the petitioner in the present writ petition is quoted below for ready reference:- "(A) Issue a writ in the nature of certiorari to quash the order of dismissal of the petition vide order dated 21.04.1980 passed by opposite party No. 2 on behalf of opposite party No. 1 and declare the same as illegal and void and is inoperative and that the petitioner be deemed to be continuing in service." 3. The relief has been sought broadly on the ground to the effect that the order of dismissal dated 21.04.1980 has been passed without giving the proper opportunity of hearing during the enquiry proceedings. 4. At very outset, a preliminary objection has been raised on the maintainability of the writ petition by Sri A K Chaturvedi, Senior Advocate appearing on behalf of the respondent/Bank. 5. In support of his preliminary objection, Sri A K Chaturvedi, learned Senior Advocate has submitted that order of dismissal dated 21.04.1980, challenged in the present writ petition, was earlier challenged by the petitioner in the Writ Petition No. 1177 (S/S) of 1980 and 29.04.1980, the writ petition was withdrawn by the petitioner with liberty to seek alternative remedy and present writ petition challenging the same order dated 21.04.1980 being second writ petition on the same subject and cause of action for the same relief is not maintainable. The order dated 29.04.1980 reads as under:- "The counsel of the petitioner states that the petition may be permitted to be withdrawn as the petitioner intends to see alternative remedy. Hence, the petition stands withdrawn and dismissed " 6. In reply to the aforesaid preliminary objection, the counsel for the petitioner has submitted that after the withdrawal of the earlier Writ Petition No. 1177 (S/S) of 1980, the petitioner approached the Authorities and filed the appeal but no decision was taken on the said appeal and because of the same, he again approached this Hon'ble Court challenging the order of dismissal dated 21.04.1980 by means of the present writ petition. 7. 7. The counsel for the petitioner has further submitted that the earlier writ petition was not disposed of/decided on merits and as such, the principle of res-judicata and constructive res-judicata would not apply and being so, the present writ petition for the reliefs sought, is maintainable. 8. In reply to the aforesaid, the submission of the counsel of the respondent-Bank is that the petitioner never filed the appeal before the Competent Authority and as per record of the writ petition, the petition filed the review application before the Punishing Authority (Annexure No. 18 to the writ petition). 9. He has further submitted that in fact, even the review application was also not filed before the authority concerned. In support of his contention the counsel appearing for Bank placed before this Court contents of Para 26 of the counter affidavit and Para 24 of the supplementary counter affidavit. 10. A perusal of contents of Para 26 and 24 reveals that, the averment of the respondent-Bank is to the effect that neither review application was filed nor any appeal was filed after order of this Court passed on 29.04.1980 in the earlier Writ Petition No. 1177 (S/S) of 1980. Averments made in Para 24 of the supplementary counter affidavit have not been denied by the petitioner by filing reply to the supplementary counter affidavit. 11. The rejoinder affidavit filed by the petitioner in reply to the counter affidavit is also appears to be vague on the issue of filing the appeal. It appears from the counter affidavit, rejoinder affidavit and supplementary counter affidavit that after dismissal of the writ petition as withdrawn, the petitioner filed an application dated 14.08.1982 for reinstating the petitioner and the said application was moved only on humanitarian ground. The copy of the said application is on record as Annexure No. S-2 to the supplementary counter affidavit. A similar application has also been placed on record through rejoinder affidavit as Annexure No. 22. 12. Be that as it may, the preliminary objection regarding the maintainability of the writ petition is to be considered at this stage. 13. Admittedly, the petitioner approached this Court challenging the order dated 21.04.1980 by means of Writ Petition No. 1177 (S/S) of 1980 and that writ petition was dismissed as withdrawn with liberty to seek alternative remedy. 12. Be that as it may, the preliminary objection regarding the maintainability of the writ petition is to be considered at this stage. 13. Admittedly, the petitioner approached this Court challenging the order dated 21.04.1980 by means of Writ Petition No. 1177 (S/S) of 1980 and that writ petition was dismissed as withdrawn with liberty to seek alternative remedy. It is evident from the order passed by this Court on 29.04.1980 that this Court granted the liberty to the petitioner for seeking alternative remedy and no liberty was granted to file the writ petition and despite the same the petitioner filed the present writ petition challenging the same order of dismissal dated 21.04.1980.. 14. The relevant provisions of the Rules of the Court, 1952 and Code of Civil Procedure, 1908 (in short "CPC") are:- (i) Rule 7 of Chapter XXII of the Rules of the Court, 1952, and (ii) Order 23 Rule 1 of Code of Civil Procedure, 1908. 15. The aforesaid provisions are quoted below for ready reference:- Chapter XXII Rule 7 No second application on 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. Order XXIII Rule 1 Withdrawal of suit or abandonment of part of claim-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person. (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff.] [1-A.When transposition of defendants as plaintiffs may be permitted.-Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.] Rule 7 of the Chapter XXII provides that "where an application has been rejected it shall not be competent for an applicant to make second application on the same facts. According to the principles envisaged in order 23, Rule 1, second suit is not maintainable if liberty has not been granted for instituting the same." 16. No doubt, that the principle of res-judicata would only apply where the Court decides the issues on merits but the present case is not related with the principles of res-judicata and in fact is related to the public policy and principles flowing from Rule 1 of Order 23 of CPC as well as provisions of Rule 7 of Chapter XXII of Rules of the Court, 1952. According to principles borne out from the above quoted provisions, the second application or suit or writ petition would not be maintainable in absence of liberty to institute afresh. 17. The principle of maintainability of the second writ petition, if the liberty has not been granted by the Court for filing the second writ petition has been considered by the Hon'ble Apex Court as well as by this Court and it has been held that second writ petition on the same issue, is not maintainable if the liberty is not granted by the Court for filing a fresh writ petition. "In the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior and others, (1987) AIR SC 88 the Hon'ble Apex Court after considering the principles envisaged in order XXIII Rule 1 of CPC in para 9 has held that second writ petition, if filed without the permission/liberty to file afresh, would not be maintainable. The Para 9 of the judgment is quoted below:- "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 is of no assistance. But 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. 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 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 fight 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 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 fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open." 18. The Hon'ble Supreme Court in the case of Avinash Nagra vs. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534 , in paragraph 13, has held that where the first writ petition challenging the order of termination of service was withdrawn without grant of liberty by the Court to file a second writ petition, the second writ petition for that very purpose would attract the principle of constructive res judicata and would, therefore, not be maintainable. 19. The Full Bench of this Court in Surya Deo Mishra Vs. State of U.P. through Chief Secretary and others, (2006) 2 LLJ 583 All, has observed as under :- "The rules of this Court clearly prohibit such course of action. 19. The Full Bench of this Court in Surya Deo Mishra Vs. State of U.P. through Chief Secretary and others, (2006) 2 LLJ 583 All, has observed as under :- "The rules of this Court clearly prohibit such course of action. Rule 7 of Chapter XXII of the Allahabad High Court Rules 1952 provides that, where an application has been rejected, it shall not be competent for the applicant to move a second application on the same fact. Even if the petitioner has withdrawn the earlier writ petition without a prayer to file a fresh writ petition, a second writ petition for the same cause of action is not maintainable. This cardinal rule of public policy to discourage multiplicity of proceedings, also incorporated in Order 2 Rule 2 of the Code of Civil Procedure, the principles whereof are also applicable to writ proceedings, is too well settled to merit any elaboration. For this, it will be sufficient to refer to the judgments in B.N. Singh v. State of U.P., (1979) AllLJ 1184 Dr. Ramji Dwivedi v. State of and Ors., (1983) UPLBEC 426; Niranjan Rai v.District Inspector of Schools, (1991) 2 UPLBEC 1416; Sahib Ram v. State of Haryana ; Harish Chandra Srivastava v. State of U.P. and Ors.,1967 3 UPLBEC 1840 (DB); Keshav Tripathi v. State of U.N.P. and Ors., (1997) AllLJ 28 (DB) and S.L. Bathla v. State Bank of India, (1999) 1 UPLBEC 233 . This rule was succinctly explained in State of U.P. and Anr. v. Labh Chand by the Apex Court in paragraph 20 as follows:- 20. When a Judge of Single Judge Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petition of the same person on the same matter had been dismissed already by another Single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non availing of alternative remedy. Second writ petition cannot be so entertained not because the learned Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another learned Single Judge or a Division Bench of the same court, it would encourage an unsuccessful writ petition to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge and another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any bench of such court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the court refusing to entertain a writ petition. It is why, the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting which the first writ petition of the same person was dismissed by the same court even if the order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternative remedy, has come to the accepted and followed as salutary rule in exercise of writ jurisdiction of courts." 20. The preposition settled is clearly in favour of preliminary objection raised on behalf of respondents. 21. The preposition settled is clearly in favour of preliminary objection raised on behalf of respondents. 21. Considering the provisions envisaged in Rule 7 of Chapter XXII, order XXIII Rule 7 and settled preposition on the issue of maintainability of second writ petition, without liberty to file afresh, I am of the view that the present writ petition, being second writ petition on the same issue has been filed without having liberty to file afresh, is not maintainable and is liable to be dismissed. 22. Writ petition is dismissed accordingly.