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Rajasthan High Court
Dave, C.J. & Lodma, J.
Ramsingh - Appellant
Versus
The State of Rajasthan - Respondents
D.B. Civil Writ Petition No. 369 of 1966
Decided On : July 25, 1968
Those provisions of the Code of Civil Procedure which do not come in conflict with Rules made by this Court and which can be suitably made applicable to the writ proceedings, will apply to writ proceedings. If the contention raised on behalf of the petitioner to the effect that the petitioner has a right invoke the extraordinary jurisdiction of this Court under Art. 226 of the Constitution successively unless the matter has been disposed of on merits, lis driven to its logical conclusion, it would result in reduction ad-absurdum. The result of acceptance of such a proposition would mean that even though a writ application may have remained pending for a few years and then it has been dismissed in default or may have been disposed of for any other reason except on merits, the petitioner would have a right to move such an application on the same facts again and again till it is disposed of on merits. Looked at from another point of view, such a procedure would result in disregarding and circumventing the earlier orders of this Court.
The principle contained in O. 9, R. 9, C.P.C. can be suitably applied to writ proceedings. The earlier writ application in this case based on the same facts was dismissed in default in the presence of the opposite party and the application for its restoration was dismissed on merits. Thus, applying the principle contained in O. 9, R. 9, C.P.C., the present writ application is not maintainable. (Paras 13 & 14)
Key Points: - The present writ application challenges the judgment of the Board of Revenue recognizing respondent No. 7 as an heir and ordering compensation payment (!) . - A preliminary objection was raised regarding the maintainability of the writ application [17019690220001]. - The petitioner had previously filed a writ application on the same facts in 1961, which was dismissed in default on January 13, 1965 [17019690220002]. - An application for restoration of the first writ petition was dismissed on merits on April 20, 1966 (!) [17019690220002]. - The current writ application was filed on May 3, 1966, on the same facts [17019690220015]. - The principle of Order 9 Rule 9 of the CPC can be suitably applied to writ proceedings [17019690220013]. - Rule 382 of the Rajasthan High Court Rules, 1952, states that if an application is rejected, a second application on the same facts is not competent (!) [17019690220013]. - Writ proceedings invoking extraordinary jurisdiction under Article 226 for enforcement of civil rights are considered civil proceedings [17019690220011]. - Provisions of the CPC do not apply in terms to writ proceedings due to special rules, but analogous principles can be applied if they do not conflict with the rules [17019690220012]. - The present writ application is dismissed as not maintainable because the previous application on the same facts was dismissed in default and its restoration was also dismissed [17019690220013][17019690220014].
2. We do not think it necessary to set-out the facts stated in the writ application in detail, as, in our opinion, the writ application deserves to be disposed of on the preliminary objection raised by the learned counsel for the respondent No. 7. The preliminary objection is that the present writ application is not maintainable. In order to appreciate the preliminary objection, it would be necessary to give a few facts leading to the filetion of this writ petition.
3. The impugned decision of the Board of Revenue was given on 24-12-60. A writ application challenging the correctness of the said decision of the Board of Revenue was filed in this Court by the petitioner on 23-5-61 and was registered as D B. Civil Writ Petition No. 273 of 1961. It was admitted on 30-5-61 and after service of notices on the opposite parties, it was listed for hearing on 13-1-65. On this date no body appeared on behalf of the petitioner with the result that it was dismissed in default. An application for restoration was filed and the writ application was restored on 7-4-15. Unfortunately for the petitioner, the writ application was again dismissed in default on 13-4-66 in the presence of Shri D. P. Gupta, counsel for respondent No. 7. This time also an application for restoration was made on 18-4-66, but it was dismissed after hearing the learned counsel for the petitioner on 20-4 66. It would be proper to reproduce the order of the Court dated 20-4-66 dismissing the application for restoration. It is as follows—
"We have heard learned counsel and perused the application and affidavits filed on behalf of the petitioner for restoration of his writ application. We are sorry to have to say that the affidavit filed by Mr. R. S. Kejriwal that this case was taken up at 3 Oclock in the day and that he was watching it untill that time is factually incorrect for we fully remember that this case was taken up before lunch and we dismissed it then and Om Prakashs case which was No. 5 on days list was started immediately after lunch. In these circumstances, we are entirely unable to accept the petitioners application for restoration as it fails to disclose sufficient cause for the same. The application is accordingly dismissed."
This is the second writ application which has been filed on 3-5-66 on the same facts. In the reply filed on behalf of respondent No. 7, an objection has been taken that the previous writ application having been dismissed in default in the presence of the counsel for respondent No. 7 and the application for its restoration also having been dismissed, this second writ application does not lie.
4. We have heard learned counsel for the parties at considerable length. Mr. Tewari, learned counsel for the petitioner, has vehemently argued that this second writ application is not barred and in support of his contention, he has relied on a number of decisions of their lordships of the Supreme Court. He has referred to Daryao vs. State of U.P.(l), Davendrapratap Narainrai Sharma vs. State of U.P.(2), State of U.P. vs. Dr. Vijay Anand Maharaj(3), Amalgamated Coalfields Ltd. vs. Janapada Sabha, Chhindwara(4), Gulabchand Chhotalal Parikh vs. State of Gujarat(5) and Sheodansingh vs. Daryao Kunwar(6). We have gone through all these decisions and do not think it necessary to discuss the propositions of law laid down by their lordships of the Supreme Court in them, because, according to us, none of them has a direct bearing on the facts and circumstances of the present case. Suffice it to say that the propositions of law, in this connection have been laid down by their l
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