SEN, J.—The short question which arises for determination in this special appeal against the order of J P.Jain, J., dated 28.9.1973 is, whether the learned Single Judge was right in holding that (1) the writ petition filed by the appellants barred by the rule of constructive res judicata, and (2) it could not be entertained due to inordinate delay and laches on their part.

2. It is common ground that the appellants had previously filed writ Petition No. 1384 of 1971 on identically the same facts, claiming the same reliefs viz. for quashing the notifications issued by the State Government of Rajasthan under sections 4 and 6 of the Rajasthan Land Acquisition Act, 1953 dated 17.10.1963 and 7-1-1971 for the acquisition of village Rampura Roopa for the Jaipur Improvement Trust for a public purpose, i.e., for the planned development of Jaipur City under the Lal Kothi Scheme.

3. That petition of theirs was heard on merits along with Writ Petitions No?. 538 and 546 of 1971 by Tyagi, J. on 23.2.1972. Tyagi, J had in the meanwhile; rejected 28 writ petitions challenging the aforesaid notifications on precisely similar grounds by the judgment in Writ Petition No. 112 of 1970 dated 31-3-1971. The order sheet of 23.2.1972 reads: -

"23.2.72 Honble Tyagi, J. Mr. P.N. Dutt for the petitioners

Mr S.K. Tiwari, Dy. Govt Advocate

Heard learned counsel for the parties Learned counsel for the petitioners wants to obtain further instructions from his clients to with draw this petition in view of various judgments given by this Court. Let this case be listed for dictation of judgment on 14-3-72.

Sd/- V.P. Tyagi"

On 14 3-1972, the prayer for further time was renewed. Tyagi, J. accordingly fixed the case for 16 3 1972 "for dictation of judgment". On that day, learned counsel for the petitioners, however, prayed for withdrawal of the writ petition with liberty to file a fresh one on the ground that certain facts had come to his notice. That prayer of his was opposed by the learned Deputy Government Advocate. Tyagi, J. accordingly passed the following order—

"This question whether the petitioner has a right to file a fresh petition shall be examined when the fresh petition is filed in this Court. Subject to the objection raised by the learned Deputy Government Advocate, the writ petition is allowed to be withdrawn. The writ petition is therefore dismissed as withdrawn."

It would thus appear that the appellants prevented the Court from dismissing the earlier writ petition by withdrawing the same on the date of judgment.

4 On 13-9-1973, i.e., after a lapse of nearly 1-1/2 years, the appellants filed the present writ petition on identically the same facts, challenging the said notifications on previously the same grounds except for the ground based on the decision of their Lordships of the Supreme Court in Munshi Singh vs. Union of India (1). The learned Single Judge has dismissed the writ petition as not maintainable for the grounds stated above.

5. The earlier writ petition having been withdrawn, there was no decision on merits and, therefore, the learned Single Judge was not right in holding that the writ petition was barred by the rule of constructive res judicata Arati Ray Choudhury vs. Union of India (1). The question still is whether the second writ petition lies.

6. It is urged that the order of Tyagi, J. should be construed as one granting leave to withdraw the earlier writ petition with liberty to bring a fresh petition. It is true that the permission mentioned in Order 23 rule 1 C.P.C. need not be given in express terms. It is sufficient if it can be implied from the order read with the application on which the order was made. It is conceded that there was no "formal defect" within the meaning of clause (a) of sub-rule (2), but it is said that there were "other sufficient grounds" within clause (b). There is no merit in the contention. The words "other sufficient grounds" in clause (b) of sub-rule (z) must be read ejusdem generis with the words formal defec

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