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Karnataka High Court
Judges : N.Kumar
D.SANGYA NAIK - Appellant
Versus
DEPARTMENT OF TELECOM BY ITS HEAD OF THE DEPT. - Respondent
Writ Petition 40556 Of 2004
Decided On : 10/05/2004
Advocates Appeared :
P.A.KULKARNI
[N. Kumar, J]: That the plaintiff shall be precluded from bringing a fresh so it in respect of the Same cause of action, It enables him to apply to the same Court which dismissed the suit for non-appearance for setting aside the order of dismissal on his showing sufficient cause for his non-appearance when the suit was called for hearing. The dismissal of the suit under Rule 8 does not operate as "res judicata. It only imposes a disability on the plaintiff. This Rule is based on sound public policy. The principle underlying this provision is that a litigant who comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so that a finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve disputes in a civilized way. Therefore, it is a rule of estoppel, which finds a statutory recognition in order IX Rule 8 CPC, which prevents the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance. These provisions would also equally apply to the writ proceedings.
Cases Referred:
Distinguished: AIR 1961 SC 1457; AIR 1969 SC 971; AIR 1979 SC 1328.
Article 226 - Resjudicata - Applicability - Principles of resjudicata are applicable to writ proceedings also.
[N. Kumar, J]: That the plaintiff shall be precluded from bringing a fresh so it in respect of the Same cause of action, It enables him to apply to the same Court which dismissed the suit for non-appearance for setting aside the order of dismissal on his showing sufficient cause for his non-appearance when the suit was called for hearing. The dismissal of the suit under Rule 8 does not operate as "res judicata. It only imposes a disability on the plaintiff. This Rule is based on sound public policy. The principle underlying this provision is that a litigant who comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so that a finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve disputes in a civilized way. Therefore, it is a rule of estoppel, which finds a statutory recognition in order IX Rule 8 CPC, which prevents the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance. These provisions would also equally apply to the writ proceedings.
Cases Referred:
Relied & Distinguished:AIR 1961 SC 1457; AIR 1969 SC 971; AIR 1979 SC 1328.
Constitution Of India - Article 226 - Resjudicata - Petition dismissed for default - No recalling application made - Petitioner cannot have any grievance - The rule of estoppel applies.
Cases Referred:
Referred & Distinguished:AIR 1961 SC 1457; AIR 1969 SC 971; AIR 1979 SC 1328.
Constitution Of India - Resjudicata - Article 226 - Resjudicata - Applicability - Principles of resjudicata are applicable to writ proceedings also. [N. Kumar, J]: That the plaintiff shall be precluded from bringing a fresh so it in respect of the Same cause of action, It enables him to apply to the same Court which dismissed the suit for non-appearance for setting aside the order of dismissal on his showing sufficient cause for his non-appearance when the suit was called for hearing. The dismissal of the suit under Rule 8 does not operate as "res judicata. It only imposes a disability on the plaintiff. This Rule is based on sound public policy. The principle underlying this provision is that a litigant who comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so that a finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve disputes in a civilized way. Therefore, it is a rule of estoppel, which finds a statutory recognition in order IX Rule 8 CPC, which prevents the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance. These provisions would also equally apply to the writ proceedings.
Cases Referred:
Relied & Distinguished:AIR 1961 SC 1457; AIR 1969 SC 971; AIR 1979 SC 1328.
( 1 ) THE petitioner has challenged in this writ petition the order at Annexure-F, dated 18-9-2001, by which he was reverted to the post of T. O. A (G ).
( 2 ) THE petitioner had challenged the very same order before this Court by filing a writ petition in wp. No. 12302/2002, where this Court after entertaining the Writ petition granted an interim order of stay. The said writ petition came to be dismissal for non-prosecution on 22. 7. 2003. Therefore, contending that the said writ petition and the issues involved therein are not decided by the Court and the said writ petition came to be dismissed only for non-prosecution, the present writ petition is filed challenging the very same order. When the Court called upon the learned Counsel for the petitioner to show how this writ petition is maintainable, the learned counsel has relied on three judgments of the Supreme Court. The first judgment is of the constitutional Bench of the Supreme Court in the case of DAYARAO and ORS.- v.- STATE of U. P. and ORS. , AIR1961 SC 1457 , [1962 ]1 SCR574 second judgment in the case of SHIVASHANKAR PRASAD SAH and ANR.- v.- BAIKUNTH BATH singh AND ORS. , AIR1969 SC 971 , 1970 (0 )BLJR1 , (1969 )1 scc718 , [1969 ]3 SCR908 and third judgment in the case of HOSHNNAK SINGH - v. UNION of INDIA and ORS. , AIR 1979 SC 1328, ( 1979 ) 3 SCC 135 and contends that in view of the law declared by the Supreme Court in the three decisions.
( 3 ) IN the aforesaid Constitutional Bench decision, the Supreme Court was considering the question what circumstances an order passed in an earlier proceeding would operate as res judicata and the decision of the High Court under Article 226 of the Constitution if can be pleaded as a bar to the petitioner under Article 32 of the Constitution. It is in that context, it has been held as under:
"if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move the supreme Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases which are already indicated. If the petition is dismissed in limine without passing a speaking order than such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all, but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under
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