Sarguja Transport Service Vs. State
Transport Tribunal, M.P. Gwalior & Ors [1986] INSC 233 (12 November 1986)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) DUTT, M.M. (J)
CITATION: 1987 AIR 88 1987 SCR (1) 200 1987
SCC (1) 5 JT 1986 808 1986 SCALE (2)757
ACT:
Constitution of India, 1950: Articles 21, 32,
226 & 227--Writ Petition withdrawn without permission to file a fresh
petition--Effect of--Petitioner whether precluded from filing any fresh
petition/suit in respect of the same subject matter.
Civil Procedure Code, 1908: Order XXIII, Rule
1--Applicability of to cases of withdrawal of writ petitions.
HEADNOTE:
Sub-rule (1) of rule 1, Order XXIII of the
Code of Civil Procedure ) permits a plaintiff to abandon his suit against all
or any of the defendants at any time after the institution of the suit;
sub-rule (3) lays down that where the court is satisfied (a) that a suit must
fall 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
the suit, it may grant permission to him to withdraw from such suit with
liberty to institute a fresh suit, while sub-rule (4) provides that where the
plaintiff abandons any suit under sub-rule (1) or withdraws from it without the
permission referred to in sub-rule (3), he shall be precluded from instituting
any fresh suit in respect of such subject matter.
The provisions of the Code of Civil
Procedure, 1908 are not in terms applicable to the writ proceedings. However,
the procedure prescribed, therein, as far as it can be made applicable, is
followed by the High Court in disposing of the writ petitions.
The petitioner withdrew its earlier writ
petition filed under Art. 226/227 of the Constitution without permission of the
Court to file a fresh petition. Later on it filed another writ petition against
the order assailed in the first petition. The High Court summarily dismissed it
taking the view that no second writ petition lies against the same order where
the earlier petition was not withdrawn with permission to file a fresh
petition.
In this petition for special leave it was
contended that since the 201 High Court had not decided the earlier petition on
merits but had only permitted the petitioner to withdraw it the withdrawal
could not be treated as a bar to the subsequent writ petition.
On the question: Whether a petitioner after
withdrawing a writ petition filed by him in the High Court under Art.
226/227 of the Constitution without
permission to institute a fresh petition can file a fresh writ petition in the
High Court under these Articles, and whether it would advance the cause of
justice if the principle underlying rule 1, Order XXIII of the Code of Civil
Procedure is adopted in respect of the writ petitions under these Articles.
Dismissing the special leave petition, the
Court.
HELD:1. The High Court was right in holding
that a fresh 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.
[208D]
2. 1 The principle underlying rule 1, Order
XXIII of the Code of Civil Procedure that when a plaintiff once institutes a
suit in a Court and thereby avails of a remedy given to him under law, he cannot
be permitted to institute a fresh suit in respect of the same subject matter
again after abandoning the earlier suit or by withdrawing it without the
permission Of the Court to file fresh suit. should be extended in the interest
of justice on the ground of public policy to cases of withdrawal of writ
petition also. [206D, 208A]
2.2 Invito beneficium non datur. The law
confers upon a man no rights or benefits which he does not desire. Whoever
waives. abandons or disclaims a right would loose it. [206E]
2.3 Where a petitioner withdraws a writ
petition filed by him in the High Court under Art. 226/227 without permission
to institute a fresh petition he should be deemed to have abandoned the remedy
under these Articles in respect of the cause of action relied on in the writ
petition and barred from filing a fresh petition. [207H,208C]
3.1 The principle embodied in rule 1, Order
XXIII of the Code is rounded on public policy. It is not the same as the rule
of res judicata contained in s. II of the Code, which applies to a case where
the suit or an issue has already been heard and finally decided by a Court. In
the case of abandonment or withdrawal of a suit, there is no prior adjudica202
tion of a suit nor an issue is involved. The plaintiff is precluded from
instituting any fresh suit in respect of the same subject matter to prevent the
abuse of the process of the Court. [206G, H, D, 207B]
3.2 Such withdrawal would not bar other
remedies like a suit or a petition under Art. 32 of the Constitution before the
Supreme Court in a case involving the question of enforcement of fundamental
rights since such withdrawal does not amount to res judicata and there has been
no decision on the merits by the High Court. [208C, 207E] Daryao and Ors. v.
The State of U.P. and Ors., [1962] 1 SCR 575. referred to.
[A 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 stands on a different footing altogether.
This question is left open.] [208E]
CIVIL APPELLATE JURISDICTION: Special Leave
Petition (Civil) No. 5665 of 1986 From the Judgment and Order dated 17.1.1986
of the Madhya Pradesh High Court in Misc. Petition No. 188 of 1986.
B.P. Singh and Ranjit Kumar for the
Petitioner.
The Order of the Court was delivered by
VENKATARAMIAH, J. On the expiry of the period of a permit :
to run a stage carriage on the route
Jashpurnagar--Ambikapur issued under the Motor Vehicles Act, 1939 (hereinafter
referred to as 'the Act') in favour of the Janta Transport Co-operative
Society. the petitioner and some others filed applications for the grant of the
said permit before the Regional Transport Authority, Bilaspur. The Janta
Transport Co-operative Society also made an application for the renewal of the
permit in its favour. The application for renewal filed by the Janta Transport
Co-operative Society was rejected by the Regional Transport Authority on the
ground that it was barred by time. On a consideration of the relative merits of
the other applicants, namely. the petitioner and others, the Regional Transport
Authority granted the permit in favour of the petitioner. The said order was
challenged in appeal by M/s. Ali Ahmed & Sons--respondent No. 3, which was
also 203 an applicant for the said permit before the State Transport Appellate
Tribunal. The other unsuccessful applicants also filed separate appeals
questioning the grant in favour of the petitioner. The State Transport
Appellate Tribunal heard all the appeals together. The Tribunal by its order
dated 19.9.1985 set aside the order granting the permit in favour of the
petitioner on two grounds, namely, that Mohd. Jhahid Khan, the proprietor of the
petitioner concern was a practising advocate and that he had ceased to carry on
the transport business in his individual capacity and granted the permit in
favour of M/s. Ali Ahmed & Sons. Aggrieved by the order of the Tribunal the
petitioner filed a writ petition in M.P. No. 2945 of 1985 on the file of the
High Court of Madhya Pradesh at Jabalpur under Articles 226/227 of the
Constitution of India. That petition was taken up for hearing on 4.10.1985 by
the High Court. On that day the High Court passed the following order:-"Shri
Y.S. Dharmadhikari, learned counsel for the petitioner seeks permission to
withdraw the petition. He is permitted to do so. The petition is dismissed as
withdrawn." Later on the petitioner again filed another writ petition
before the High Court in M.P. No. 188 of 1986. That petition came up for
hearing on 17.1.1986. At the conclusion of the hearing the High Court passed
the following order:-"Shri P.R. Bhave for the petitioner heard on
admission.
This writ petition is directed against the
order of the State Transport Appellate Tribunal setting aside the grant in
favour of the petitioner, and instead giving the permit. to the respondent No.
3. The petitioner earlier filed writ petition No. M.P. No. 2945/85 against the impugned
order which was withdrawn on 4.10.1985. No second writ petition lies against
the same order. The earlier petition was not withdrawn with permission to file
a fresh petition. Besides, we do not find any merit in this petition. The
Appellate Tribunal has granted the permit to the respondent No. 3 as he has
been found superior to the petitioner. Besides, he being a practising lawyer
could not be doing the transport business.
Similar petition of other operators has already
been dismissed by this Court.
Accordingly, the petition is dismissed summarily.
204 Aggrieved by the above order rejecting
the writ petition at the stage of admission, the petitioner has filed the above
special leave petition requesting the Court to grant the special leave to
prefer an appeal against the order of the High Court.
The main contention urged before this Court
by the learned counsel for the petitioner is that the High Court was in error
in rejecting the writ petition out of which this case arises, on the ground that
the petitioner had withdrawn the earlier writ petition in which he had questioned
the order passed by the Tribunal on 4.10. 1985 without the permission of the
High Court to file a fresh petition. It is urged by the learned counsel that
since the High Court had not decided the earlier petition on merits but only
had permitted the petitioner to withdraw the petition, the withdrawal of the
said earlier petition could not have been treated as a bar to the subsequent
writ petition.
In this case we are called upon to consider
the effect of the withdrawal of the writ petition filed under Articles 226/227
of the Constitution of India without the permission of the High Court to file a
fresh petition. The provisions of the Code of Civil Procedure. 1908 (hereinafter
referred to as 'the Code') are not in terms applicable to the writ proceedings
although the procedure prescribed therein as far as it can be made applicable
is followed by the High Court in disposing of the writ petitions. Rule 1 of
Order XXIII of the Code provides for the withdrawal of a suit and the
consequences of such withdrawal. Prior to its amendment by Act 104 of 1976,
rule 1 of Order XXIII of the Code provided for two kinds of withdrawal of a
suit. namely, (i) absolute withdrawal, and (ii) withdrawal with the permission
of the Court to institute a fresh suit on the same cause of action.
The first category of withdrawal was governed
by sub-rule (1) thereof as it stood then, which provided that at any time after
the institution of a suit the plaintiff might, as against all or any of the
defendants 'withdraw' his suit or abandon a part of his claim. The second
category was governed by sub-rule (2) thereof which provided that where the
Court was satisfied (a) that a suit must fail by reason of some formal defect,
or (b) that there were sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject-matter of a suit or part of a claim. it
might, on such terms as it thought fit, grant the plaintiff permission to
withdraw from such suit or abandon a part of a claim with liberty to institute
a fresh suit in respect of the subject-matter of such suit or such part of the
claim.
Sub-rule (3) of the former rule 1 of order
XXIII of the Code provided that where the plaintiff withdrew from a suit or
abandoned a part of a claim without the permission referred to in 205 sub-rule
(2) he would be liable to. such costs as the Court might award and would be
precluded from instituting any fresh suit in respect of such subject-matter or
such part of the claim. Since it was considered that the use of the word
'withdrawal' in relation to both the categories of withdrawals led to
confusion, the rule was amended to avoid such confusion. The relevant part of
rule 1 of Order XXIII of the Code now reads thus:-"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:
**** **** **** (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 a 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
daim 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."
It may be noted that while in sub-rule (1) of the former rule 1 of Order XXIII
of the Code the words 'withdraw his suit' had been used, in sub-rule (1) of the
new rule 1 of Order XXIII of the Code, the words 'abandon his suit' are used.
The new sub-rule (1) is applicable to a case 206 where the Court does not
accord permission to withdraw from a 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. In the new sub-rule (3) which corresponds to the
former sub-rule (2) practically no change is made and under that sub-rule the
Court is empowered to grant subject to the conditions mentioned therein
permission to withdraw from a suit with liberty to institute a fresh suit in
respect of the subject-matter of such suit. Sub-rule (4) of the new rule 1 of
Order XXIII of the Code provides that where the plaintiff abandons any suit or
part of claim under sub-rule (1) or withdraws from a suit or part of a claim
without the permission referred to in sub-rule (3), he would be liable for such
costs as the Court might award and would also be precluded from instituting any
fresh suit in respect of such subjectmatter or such part of the claim.
The Code as it now stands thus makes a
distinction between 'abandonment' of a suit and 'withdrawal' from a suit with
permission to file a fresh suit. It provides that where the plaintiff abandons
a suit or withdraws from a suit without the permission, referred to in subrule
(3) of rule 1 of Order XXIII of the Code, he shall be precluded from
instituting any fresh suit in respect of such subject-matter or such part of
the claim. The principle underlying rule 1 of Order XXIII of the Code is that
when a plaintiff once institutes a suit in a Court and thereby avails of a
remedy given to him under law, he cannot be permitted to institute a fresh suit
in respect of the same subject-matter again after abandoning the earlier suit
or by withdrawing it without the permission of the Court to file fresh suit.
Invito benificium non datur. The law confers
upon a man no rights or benefits which he does not desire. Whoever waives,
abandons or disclaims a right will loose 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 rule 1 of Order XXIII.
The principle underlying the above rule is rounded on public policy, but it is
not the same as the rule of res judicata contained in section 11 of the Code
which provides that no court shall try any suit or issue in which the matter
directly or substantially in issue has been directly or substantially in issue
in a former suit between the same parties, or between parties under whom they
or any of them claim, litigating under the same title, in a Court competent to
try such subsequent suit or the suit in which such issue has been subsequently
raised, and has been heard and finally decided by such Court. The rule of res
judicata 207 applies to a case where the suit or an issue has already been
heard and finally decided by a Court. In the 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,
as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of
Order 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.
The question for our consideration is whether
it would or would not advance the cause of justice if the principle underlying
rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed
under Articles 226/227 of the Constitution of India 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 and
Ors. v. The State of U.P. and Ors., [1962] 2 S.C.R. 575 in a case involving the
question of enforcement of fundamental rights file a petition before the
Supreme Court under Article 32 of the Constitution of India 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." 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 208 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 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 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.
Even on merits we do not find any ground to
reverse the decision of the High Court. In the result we dismiss the special
leave petition.
P.S.S. Petition dismissed.
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