HEMANT GUPTA, J.

1. Heard learned counsel for the parties.

2. The present writ application has been placed before this Bench in view of the order passed by the Division Bench of this Court on 20th of February, 1988 wherein, the correctness of Full Bench judgment of this Court in the case reported as Rita Mishra & Others vs. Director, Primary Education, Bihar & Others, 1987 PLJR 1090 was doubted.

3. In Rita Mishra's case, the earlier Division Bench judgment reported as Kishori Singh vs. The State of Bihar & Others AIR 1985 Patna 298 was relied upon to hold that a second petition on similar facts in respect of the same cause of action by the same party would not be maintainable. The view of the Full Bench was doubted and consequently the matter has been placed before this Bench.

4. The brief facts leading to the said reference is that Guru of the present petitioner instituted a Title Suit claiming a declaration that the properties mentioned therein were personal and private properties and the Trust being private could not be subjected to the provisions of the Bihar Hindu Religious Trusts Act, 1950. It is asserted that he has been substituted as Mahanth of the private Math on 27th of October, 1983 after the death of his Guru. It appears that the proceedings were initiated for appointing the successor of the Math after the death of the Guru of the petitioner as a vacancy said to have become available on the basis of report of the Postman the Guru has died. Thereafter the Trustee was appointed. The writ application C.W.J.C. No. 133 of 1987 was filed against the supply of vacancy by the Board under Section 33 of the Bihar Hindu Religious Trusts Act, 1950. The said writ application was withdrawn. It is thereafter, the petitioner filed an application in the Title Suit for ad interim injunction. Such application was finally dismissed on 10th of March, 1987. The petitioner challenged the said order in Misc. Appeal vide M.A. No. 7 of 1987 which was dismissed on 25th of November, 1987. In the present petition, the petitioner has again sought quashing of the order dated 7th of August, 1986 filling up the purported vacancy. It is in these circumstances; the correctness of the earlier judgment in Rita Mishra's case was doubted.

5. In the present case, learned counsel for the petitioner refers to a Constitution Bench judgment reported as Daryao and Others vs. State of U.P. and Others, AIR 1961 SC 1457 and B. Prabhakar Rao and Others vs. State of Andhra Pradesh and Others, AIR 1986 SC 210 to contend that the dismissal of the petition without speaking order which will include withdrawal of a writ application will not bar the invocation of the jurisdiction of the Court again in a petition under Article 226 of the Constitution of India.

6. On the other hand, learned counsel for the respondents refers to Supreme Court judgment reported as Puran Singh and Others vs. State of Punjab and Others, (1996) 2 SCC 205 and Ramesh Chandra Sankla and Others vs. Vikram Cement and Others, (2008) 14 SCC 58 to contend that the second petition would not be maintainable as a matter of public policy.

7. We have heard learned counsel for the parties and find that second petition on the same cause of action would normally be not entertained. In Daryao's case (supra) the Supreme Court was considering the invocation of jurisdiction under Article 32 of the Constitution of India. The Court examined a situation when a petition under Article 226 of the Constitution is dismissed not on merits but on account of laches of the party or that the party had an alternative remedy available to it. The Court held that in such circumstances, the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 of the Constitution. The relevant extract from the judgment reads as under:-

“19. We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 2