The main legal point established in the judgment is that the second writ petition was not maintainable as the petitioners did not approach the writ court within a reasonable period of time after the dismissal of the first writ petition.

Dipankar Datta, J.

1. A short order dated August 29, 2013 passed by a learned Judge of this Court dismissing W.P. 10142(W) of 2011 is questioned in this writ appeal. The same reads as follows:

“The issue sought to be raised in the instant writ petition was raised in an earlier writ petition, i.e. W.P. 10029(W) of 2010, which was dismissed on 23rd August, 2010. As such, this writ petition also cannot be entertained and is liable to be dismissed and is accordingly dismissed.”

2. Bare perusal of the aforesaid order would not reveal as to whether the earlier writ petition, W.P. 10029(W) of 2010, was dismissed on merit or not. Accordingly, we called upon Mr. Sanyal, learned advocate for the petitioner to place the order of dismissal of W.P. 10029(W) of 2010. He invited our attention to page 247 of the paper book. The date of the order not being printed on such page, we called for the records of W.P. 10029 (W) of 2010 and found the same to have been dismissed for default on August 4, 2010 on second call, owing to non-appearance of anyone to press the same. The reference to order dated August 23, 2010 in the impugned order could be a misprint or because of inadvertence.

3. We find from the records of W.P. 10029 (W) of 2010 that the same was at the instance of 22 petitioners, who were aspirants for the posts of assistant teachers in primary schools within the jurisdiction of the District Primary School Council (South 24-Parganas) (hereafter the DPSC) but were unsuccessful in obtaining offers of appointment. Accordingly, they had prayed for direction on the DPSC and the other respondents in the writ petition to give them appointment, and also to restrain them (the respondents) from giving appointment to any candidate who was not otherwise eligible.

4. The second writ petition i.e. W.P. 10142(W) of 2011 was also at the instance of those 22 aspirants and the relief claimed therein appears to be identical to the relief claimed in the earlier writ petition. In paragraph 25 of this writ petition, dismissal of the earlier writ petition was duly pleaded and, therefore, Mr. Das, learned advocate appearing for the DPSC rightly did not allege suppression of a material fact. However, Mr. Das has been vociferous in his objection to the maintainability of the second writ petition by submitting that it is an abuse of the process of Court and, therefore, the learned Judge was justified in dismissing the same.

5. In support of his submissions Mr. Das has relied on several decisions of the Supreme Court as well as this Court and other high courts of the country, to which we shall refer at a later stage of this judgment.

6. Mr. Sanyal, learned advocate appearing for the petitioners referred to the provisions of Order IX Rules 4, 8 and 9 of the Code of Civil Procedure (hereafter the CPC) and submitted on the basis thereof that subject to the law of limitation and should the defendant be not present at the time dismissal is ordered on the ground of default, a fresh suit may be instituted even after dismissal of the earlier suit; and, having regard to the provisions contained in Rule 53 of the Writ Rules framed by this Court, there is no bar for the writ court to be guided by the principles flowing from the CPC and adopting it to the extent possible; therefore, the learned Judge erred in the exercise of his jurisdiction in practically holding it to be not maintainable.

7. Elaborating his submission, Mr. Sanyal proceeded to argue that once the law permits a litigant to approach the court a second time after dismissal of an earlier proceeding initiated by such litigant not on merits but on the ground of default of appearance and a fresh proceeding is initiated in accordance with law, that cannot amount to abuse of process. Referring to Black’s Law Dictionary, 6th Edition, the Concise Law Dictionary as well as the dictionaries of P. Ramanatha Aiyar and K.J. Aiyar, it was contended that unless the conduct of a party appears to be tainted with malice or is in