Kalyan Jyoti Sengupta, CJ.

By consent of the parties, we dispose of this appeal finally today at the stage of admission itself.

2. This appeal has been preferred against the judgment and order of the learned single Judge dt.23.10.2013 by which the relief claimed by the respondent/writ petitioner was allowed. While preferring this appeal, the appellant/Corporation has taken various grounds and one of the grounds is pure question of law based on factual aspect as pleaded before the learned trial Judge.

3. It is submitted by the learned counsel for the appellants that the learned trial Judge has missed to decide legal implication of the fact that the respondent/writ petitioner had previously on the same cause of action filed a writ petition asking for identical relief, though couched in different language and the same was allowed to be withdrawn, but no permission to file a fresh one on the same cause of action, under Order XXIII Rule 1 of the Code of Civil Procedure (CPC) was prayed for, as such it was not granted. He therefore submits that the subsequent writ petition on which the impugned judgment and order was passed is completely barred by virtue of provision of Order XXIII Rule 1(4) of CPC. He further contends that the provisions of CPC have been made applicable to writ jurisdiction of this Court by virtue of Rule 24 of the Writ Proceedings Rules of this Court.

4. Learned counsel for the respondent/writ petitioner says that it is not correct to say that leave to file fresh one was not prayed for before the learned trial Judge at the time of withdrawal of the writ petition, in the order it was not mentioned in so many words, essence thereof suggests leave was granted. However, the learned counsel is very fair to admit that the Court did not record expressly that the leave has been granted.

5. In that view of the matter, we have examined the pleadings filed before the learned trial Judge. In paragraph-17 of the counter affidavit filed by the appellants – respondents in the writ petition, a specific point was taken which reads as follows:

“In reply to para 14, I submit that admittedly the writ petitioner filed W.P. No.6420 of 2013 and withdrew the same for the reasons best known to them. The writ petition is dismissed as withdrawn and no liberty has been given to the petitioner by this Hon’ble Court for filing another writ petition.”

6. While dealing with the aforesaid statement of fact, the writ petitioner in paragraph 15 of the affidavit in reply has stated as follows:

“The petitioner never suppressed the fact of earlier WP No.6420/2013 and which was withdrawn due to their personal reasons and the same was mentioned in present writ petition, the Hon’ble Court is having elaborate powers to hear the matter under Article 226 of Constitution of India to issue direction or directions under writ of Mandamus.”

7. Thus, it is clear that there is no denial of the fact that no liberty was granted to file fresh one by the said order allowing to withdraw the previous writ petition. Learned counsel for the respondent, however, says that in exercise of writ jurisdiction the Court should ignore all these technicalities and decide the matter on merit and that is what has exactly been done by the learned trial Judge.

8. We are unable to accept the contention of learned counsel for the respondent/writ petitioner that it is a mere technicality, and the reasons for our conclusion on this point are elaborated hereunder.

9. By virtue of Rule 24 of the Writ Proceedings Rules framed by this Court, the provisions of CPC have been made applicable to writ proceedings. Therefore, the provisions of Order XXIII and also other related provisions of CPC will be applicable in these proceedings. Order XXIII Rule 1 of CPC reads as follows:

“O. XXIII R.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:

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