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IN THE HIGH COURT OF ALLAHABAD
G.P. MATHUR, J.
Daya Shankar - Appellant
Versus
IIIrd Additional Sessions Judge, Kanpur And Others - Respondents
Civil Misc. Writ No. 37641 of 1991
Decided On : 18-06-1992
WRIT PETITION - MAINTAINABILITY - SECOND WRIT PETITION - DISMISSAL OF EARLIER WRIT PETITION AS NOT PRESSED - WHETHER BARS SUBSEQUENT WRIT PETITION - RES JUDICATA - PRINCIPLES GOVERNING.
Fact of the Case:
Petitioner filed a writ petition challenging certain orders passed by the City Magistrate and the 3rd Addl. Sessions Judge. The petition was dismissed as not pressed on the application of the Petitioner. Subsequently, the Petitioner filed a second writ petition challenging the same orders. The contesting Respondent raised the objection of maintainability, arguing that the second petition was barred by res judicata.
Finding of the Court:
The court held that the second writ petition was not maintainable. It observed that the earlier writ petition was dismissed on the merits, as evident from the order passed by the court. The court relied on the Supreme Court decision in Daryao and Others Vs. The State of Uttar Pradesh and Others, wherein it was held that if a writ petition is dismissed on the merits, a subsequent writ petition on the same facts would be barred by res judicata.
Issues: Whether a second writ petition is maintainable if the earlier writ petition is dismissed as not pressed.
Ratio Decidendi: The court held that the dismissal of the earlier writ petition as not pressed created a bar of res judicata, which would prevent the Petitioner from filing a subsequent writ petition on the same cause of action. The court reasoned that the earlier writ petition was dismissed on the merits, as evident from the order passed by the court. The court also noted that the Petitioner had not obtained permission from the court to withdraw the earlier writ petition, which would have allowed him to file a fresh writ petition.
Final Decision: The court dismissed the second writ petition as not maintainable.
G.P. Mathur, J.
This petition has been filed for quashing of the orders dated 21-3-1991 passed by the City Magistrate, Kanpur Nagar (Annexure 12 to the writ petition) and the order dated 27-11-1991 passed by the 3rd Addl. Sessions Judge, Kanpur Nagar, (Annexure 13 to the writ petition) in proceedings u/s 133 Code of Civil Procedure. The parties have exchanged affidavits and, therefore, the writ petition is being disposed of finally at the admission stage in accordance with the Rules of Court
2. The present petition was filed before the Joint Registrar on 18-12-1991 and on 20-12-1991 an order was passed for issuing notice to the opposite parties to show cause why the petition be not admitted. The contesting opposite party No. 23 has filed counter affidavit and the main plea taken therein is that the Petitioner had filed another writ petition No. 35505 of 1991 challenging the same orders in this Court which was dismissed as not pressed on the application of the Petitioner and in these circumstances the present petition is not maintainable. I have, therefore, summoned the record of the aforesaid writ petition which reveals the following facts:
3. The present Petitioner Daya Shanker filed Writ Petition No. 35505 of 1991 challenging the same orders dated 21-3-1991 of the City Magistrate Kanpur Nagar, and 27-11-1991 of the 3rd Addl. Sessions Judge, Kanpur Nagar, in this Court on 5-12-1991. The petition was heard by me on 6-12-91 when the following order was passed;
As prayed put up on 9-12-1991 as part heard. It appears that the writ petition was not taken up for hearing on 9-12-1991. Subsequently the Petitioner Daya Shanker moved an application which bears the date 13/17 December, 1991, for dismissing the writ petition as not pressed. The application was filed in Court on 17-12-1991 and on 19-12-1991 the following order was passed:
An application has been moved by Shri A.C. Tewari praying that the writ petition be dismissed as not pressed. Along with the application a Vakalatnama of the Petitioner Daya Shanker has been filed. In these circumstances this petition is dismissed as not pressed.
The affidavit filed in support of the present writ petition No. 37641 of 1991 was sworn on 16-12-1991 and it was got reported from the office of the Stamp Reporter on 18-12-1991 and was filed in the office of the same day. It was heard on 20-12-1991 when notice was directed to be issued.
4. Learned Counsel for the contesting Respondent has submitted that as the Petitioner had filed another writ ^petition in this Court challenging the same orders which was dismissed as 'not pressed' the present writ petition challenging the same orders is not maintainable and is liable to be dismissed on this ground alone. Learned Counsel for the Petitioner has however submitted that since the earlier writ petition was dismissed as 'not pressed' and without expressing any opinion on the merits of the case the second petition is not barred and the same is maintainable. In support of his submission he has placed reliance upon several decisions of Hon'ble Supreme Court, namely Daryao and Others Vs. The State of Uttar Pradesh and Others, AIR 1961 SC 1457, Virudhunagar Steel Rolling Mills Limited Vs. The Government of Madras, AIR 1968 SC 1196. P.D. Sharma Vs. State Bank of India, AIR 1968 SC 985, Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, (1969) 1 SCC 110, Hoshnak Singh v. Union of India AIR 1979 SC 1328 and Direct Recruit Engineering Officers v. State of Maharashtra 1990 (2) UP LB EC 833.
5. In the case of Daryao (supra) the Petitioners challenged the order passed by the Board of Revenue by filing a writ petition in the High Court under Article 226 of the Constitution which was dismissed. Instead of filing an appeal under Article 136 of the Constitution against the order of the High Court the Petitioners filed a writ petition under Article 32 of the Constitution before the Hon'ble Supreme Court. The main argument of the Petitioners was that th
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