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IN THE HIGH COURT OF JHARKHAND AT RANCHI
ALOK SINGH, J.
Sudama Ram - Petitioner
Versus
The State of Jharkhand & ors. - Respondents
W.P.(S) No. 2451 of 2008
Decided on: 10.7.2012
Order 9 Rule 9 C.P.C. - Challenge to Removal from Service - Order 9 Rule 9 C.P.C. - Provisions of Order 9 Rule 9 C.P.C. are indicative of sound public policy. Broad principles of public policy, as indicated in Order 9 Rule 9, would suggest that a litigant should prosecute legal proceeding diligently and in the event of dismissal in default, should get it restored otherwise he shall be precluded to institute fresh proceedings on the same cause of action. If he is permitted to institute fresh proceedings in the event of dismissal in default of previous proceedings perhaps there will be no end of litigation. Moreover, it may give rise unfair practice of window shopping. If a litigant, even at the last stage of proceedings, is not feeling comfortable before the particular Bench/Court, he will get his proceeding dismissed in default and shall file the fresh after the change of the roster/Judge. Furthermore, fresh proceeding shall start De Novo and shall burden opposite party unnecessary to contest the same. Therefore, in my firm opinion, litigant should not be permitted to institute fresh proceedings in the event of dismissal of previous proceeding for non-prosecution, keeping in mind broad principles of Order 9 Rule 9 C.P.C.
Fact of the Case:
The petitioner was removed from the services in 1999 and subsequently, his claim for reinstatement was rejected in 2007. The petitioner filed a writ petition challenging both the removal order and the rejection of his reinstatement claim.
Finding of the Court:
The court found that the present writ petition was not maintainable as the dismissal of the earlier writ petition and restoration thereof had led to the finality of the order dated 20.11.1999, and the subsequent claim for reinstatement did not give rise to a new cause of action.
Issues: The issues revolved around the maintainability of the present writ petition in light of the previous dismissal and restoration of the writ petition, and the rejection of the petitioner's claim for reinstatement.
Ratio Decidendi: The court held that the provisions of Order 9 Rule 9 C.P.C. indicate sound public policy, and a litigant should prosecute legal proceedings diligently. The court emphasized that allowing fresh proceedings after dismissal in default could lead to endless litigation and unfair practices.
Final Decision: The court dismissed the present writ petition, ruling that it was not maintainable.
Order dated 20.11.1999, whereby petitioner was removed from the services and subsequent order dated 10.12.2007, whereby claim of the petitioner for his reinstatement in service has been rejected, are being assailed in the present petition filed under Article 226 of the Constitution of India.
2. Petitioner has earlier filed C.W.J.C. No. 116 of 2000 in the Patna High Court before bifurcation of the State, assailing the order dated 20.11.1999, whereby petitioner was directed to be removed from the services. After the appointed day, C.W.J.C. No. 116 of 2000 stood transferred to this Court. This Court had dismissed the C.W.J.C. No. 116 of 2000 for non-prosecution, vide order dated 20.04.2004. Petitioner, thereafter, has moved an application being C.M.P. No. 219 of 2004 for recalling the order dated 20.04.2004 and to restore C.W.J.C. No. 116 of 2000 at its original number. However, C.M.P. No. 219 of 2004 was also dismissed by this Court, vide order dated 11.05.2007. Order dismissing the restoration application was never challenged by the petitioner and has attained finality.
3. Thereafter, petitioner moved an application before the authorities claiming reinstatement which was dismissed vide impugned order dated 10.12.2007. Again, petitioner has filed present writ petition on 15.04.2008 challenging both the orders dated 20.11.1999, which was also subject matter of earlier writ petition being C.W.J.C. No. 116 of 2000 as well as order dated 10.12.2007, whereby his claim for reinstatement was rejected by the authorities.
4. Vide order dated 05.07.2012, learned counsel for the petitioner was granted time to examine as to whether in view of the dismissal of the earlier writ petition and restoration thereof, present petition is maintainable.
5. Learned counsel for the petitioner has vehemently argued that provisions of Order 9 Rule 9 C.P.C. are not applicable in a proceeding under Article 226 of the Constitution of India and order dated 20.04.2004, dismissing the writ petition for non-prosecution was not on merit, therefore, present writ petition is maintainable. He has further argued that in the present writ petition, a subsequent order dated 10.12.2007 seeking reinstatement is under challenge which was not subject matter of earlier writ petition being C.W.J.C. No. 116 of 2000, therefore, present writ petition assailing both the orders would be maintainable.
6. It is true that proceedings under Article 226 of the Constitution of India shall not be governed by the procedure provided for the suits in the Civil Procedure Code. However, there is a caveat to it that broad principles of Code of Civil Procedure can be pressed in service while hearing the petition under Article 226 of the Constitution of India. It is now common practice in almost every High Court that amendment application in the writ petition is moved on the broad principles of Order 6 Rule 17 C.P.C. Not only this, Section 151 C.P.C. is pressed in service while seeking and granting interim orders. Order 9 Rule 9 C.P.C. reads as under :
“9. Decree against plaintiff by defaults bars fresh suits.--(1) where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.”
7. As per Order 9 Rule 9 where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing fresh suit in respect of the same cause of action. In the opinion of this Court, provisions of Order 9 Rule 9 C.P.C. are indicative of sound
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