Back
1994 Supreme(J&K) 126
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
A.M. Mir, J.
Ab. Rashid Mir - Appellant
Versus
State Of J&K & Ors. - Respondent
CMP (SW) No. 804/1993
Decided On : 19 December, 1994
Advocate For Appellant: K.S. Johal
Advocate For Respondent: D.C. Sharma
Advocate For Respondent: K.L. Pandita
Advocate For Respondent: S.K. Anand
The Code of Civil Procedure is applicable to proceedings under Part B of Chapter VIII of the Jammu and Kashmir High Court Rules, 1955, subject to the conditions that it should not prejudice the rules preceding Rule 44 and that the application of the Code shall depend upon its practicability in a given situation.
Headnote:
CIVIL PROCEDURE - APPLICABILITY OF CODE OF CIVIL PROCEDURE TO WRIT PROCEEDINGS - SECTION 141 OF THE CODE OF CIVIL PROCEDURE - INTERPRETATION - APPLICABILITY OF PRINCIPLES OF CIVIL LAW TO WRIT PROCEEDINGS - RULE 44 OF THE JAMMU AND KASHMIR HIGH COURT RULES, 1955 - APPLICABILITY OF THE CODE OF CIVIL PROCEDURE TO WRIT PROCEEDINGS - CONDITIONS - IMPLEADMENT OF A PARTY IN A WRIT PETITION - PRINCIPLES GOVERNING IMPLEADMENT - SURVIVAL OF CAUSE OF ACTION - EFFECT OF DISMISSAL OF A WRIT PETITION ON THE CAUSE OF ACTION - DELAY IN APPROACHING THE COURT - EFFECT ON THE CAUSE OF ACTION - MISJOINDER OF CAUSES OF ACTION - AVOIDANCE.
Fact of the Case:
The applicant, Harminder Singh, filed an application to be impleaded as a party/petitioner in Writ Petition No. 776 of 1992, which was filed by a different person on 17.8.1992. The applicant claimed that he was aggrieved by the discriminatory treatment meted out to him in not appointing him as Assistant Conservator of Forests and that he was entitled to such appointment on the basis of his having figured in the select list. The non-applicant resisted the application on the ground that the applicant had earlier filed Writ Petition No. 521/68 in 1986 on the same subject matter, which was dismissed on 23.12.1988, and that a fresh petition was barred under law.
Finding of the Court:
The court held that the Code of Civil Procedure is applicable to proceedings under Part B of Chapter VIII of the Jammu and Kashmir High Court Rules, 1955, subject to the conditions that it should not prejudice the rules preceding Rule 44 and that the application of the Code shall depend upon its practicability in a given situation. The court further held that the applicant did not have a community of cause of action with the Writ petitioner and that his cause of action had not survived the dismissal of his earlier Writ Petition. The court also held that the applicant had not come to the court with clean hands and that he was not entitled to an equitable relief as prayed for in his application.
Issues: 1. Whether the Code of Civil Procedure is applicable to proceedings under Part B of Chapter VIII of the Jammu and Kashmir High Court Rules, 1955? 2. Whether the applicant had a community of cause of action with the Writ petitioner? 3. Whether the applicant's cause of action had survived the dismissal of his earlier Writ Petition? 4. Whether the applicant had come to the court with clean hands? 5. Whether the applicant was entitled to an equitable relief as prayed for in his application?
Ratio Decidendi: 1. The court held that the Code of Civil Procedure is applicable to proceedings under Part B of Chapter VIII of the Jammu and Kashmir High Court Rules, 1955, subject to the conditions that it should not prejudice the rules preceding Rule 44 and that the application of the Code shall depend upon its practicability in a given situation. 2. The court held that the applicant did not have a community of cause of action with the Writ petitioner because the applicant had filed an earlier Writ Petition on the same subject matter, which was dismissed, and the applicant had not taken any steps to revive the cause of action. 3. The court held that the applicant's cause of action had not survived the dismissal of his earlier Writ Petition because the applicant had not taken any steps to revive the cause of action. 4. The court held that the applicant had not come to the court with clean hands because he had concealed from the court the fact that he had filed an earlier Writ Petition on the same subject matter, which was dismissed. 5. The court held that the applicant was not entitled to an equitable relief as prayed for in his application because he had not come to the court with clean hands.
Final Decision: The court dismissed the applicant's application for impleadment as a party/petitioner in Writ Petition No. 776 of 1992.
a] That he was aggrieved of the discriminatory treatment meted out to him in not appointing him as Assistant Conservator of Forests,
b) The applicant on basis of his having figured in the select list was entitled to such appointment.
c) That the applicant is similarly situated with the petitioner in Writ Petition No: 776/92 (here-in-after referred to as Writ petitioner]. His rights are also effected in the same manner as those of the Writ petitioner and he also is entitled to the relief prayed for by the latter.
d) That by impleading the applicant as party, Writ Petitioner™s right shall not be effected, not shall be respondents prejudiced in any manner.
e) That the impleadment of the applicant will enable the Court to arrive at right and just conclusion.
2. This application has been resisted by the other side on the ground that the application is not maintainable for the reason that the applicant earlier in 1986 filed Writ Petition No: 521/68 in this Court on the same subject matter. The same stood dismissed vide order dated 23.12.1988. After dismissal of that petition a fresh petition is barred under law. This according to the non-applicant™s implies that cause of action expired on the dismissal of Writ Petition No: 521 of 1986. Therefore, he cannot revive his cause of action by filing the present application. There is a difference between the causes of action available to the two. Therefore, the applicant is not entitled to be impleaded as party. Finally, it has also been contended that the cause between the parties in the main case shall get delayed by entering into a fresh bout and his impleadment shall frustrate the cause of justice for the Writ Petitioner.
3. I have heard the learned counsel for the parties at length. I also have considered the case. The counter objection that has been taken by the learned counsel for the applicant is that Code of Civil Procedure is not applicable to the case as its application to Writ proceedings is expressly barred by proviso to Section 141 of Code of Civil Procedure (hereinafter called the Code), Section 141 of the Code, according to Mr. Johal excludes the proceedings under Article 226 of the Constitution of India from the definition of ˜proceedings™ to which the procedure of the Code is made applicable. However, it includes proceedings taken under Order IX of the Code. As the application has not been filed in terms of Order IX, therefore, the bar created by the explanation is attracted.
The first question that arises is as to whether the Code is applicable to proceedings under Part B of Chapter VIII of the Rules. There is no doubt that the applicability of the Code to proceedings in general, shall be determined on the touch stone of Section 141. The Code lays down the general policy of law with regard to its applicability to proceedings relating to matters arising in Courts.
4. Section 142 of the Code Supra, its grammatical construction enables a Court to follow the procedure laid down in the Code for trial of suits to other proceedings in any Court of Civil jurisdiction. There are two ways of reading Section 141 of the Code. One, reading it independently and the second reading it conjointly with Rule 44 of the Jammu and Kashmir High Court Rules 1955 (herein-after called ˜the Rules™) Let me in the first instance analyses Section 141 independently.
Section 141 reads as under ;-
141 Miscellaneous:
The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction.
Explanat
