PETITIONER:

SARGUJA TRANSPORT SERVICE Vs.

RESPONDENT:

STATE TRANSPORT APPELLATE TRIBUNAL, M.P.,GWALIOR AND OTHERS DATE OF JUDGMENT12/11/1986 BENCH:

VENKATARAMIAH, E.S. (J)

BENCH:

VENKATARAMIAH, E.S. (J)

DUTT, M.M. (J)

CITATION:

1987 AIR 88 1987 SCR (1) 200

1987 SCC (1) 5 JT 1986 808

1986 SCALE (2)757 ACT:

Constitution of India, 1950: Articles 21, 32, 226 &

227--Writ Petition withdrawn without permission to file a fresh petition--Effect of--Petitioner whether precluded from filing any fresh petition/suit in respect of the same sub-

ject matter.

Civil Procedure Code, 1908: Order XXIII, Rule 1--Ap-

plicability of to cases of withdrawal of writ petitions.

HEADNOTE:

Sub-rule (1) of rule 1, Order XXIII of the Code of Civil Procedure ) permits a plaintiff to abandon his suit against all or any of the defendants at any time after the institu- tion of the suit; sub-rule (3) lays down that where the court is satisfied (a) that a suit must fall by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit, it may grant permission to him to withdraw from such suit with liberty to institute a fresh suit, while sub-rule (4) provides that where the plaintiff abandons any suit under sub-rule (1) or withdraws from it without the permission referred to in sub-rule (3), he shall be precluded from instituting any fresh suit in respect of such subject matter.

The provisions of the Code of Civil Procedure, 1908 are not in terms applicable to the writ proceedings. However, the procedure prescribed, therein, as far as it can be made applicable, is followed by the High Court in disposing of the writ petitions.

The petitioner withdrew its earlier writ petition filed under Art. 226/227 of the Constitution without permission of the Court to file a fresh petition. Later on it filed anoth- er writ petition against the order assailed in the first petition. The High Court summarily dismissed it taking the view that no second writ petition lies against the same order where the earlier petition was not withdrawn with permission to file a fresh petition.

In this petition for special leave it was contended that since the

201 High Court had not decided the earlier petition on merits but had only permitted the petitioner to withdraw it the withdrawal could not be treated as a bar to the subsequent writ petition.

On the question: Whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art. 226/227 of the Constitution without permission to institute a fresh petition can file a fresh writ petition in the High Court under these Articles, and whether it would advance the cause of justice if the principle underlying rule 1, Order XXIII of the Code of Civil Procedure is adopted in respect of the writ petitions under these Articles.

Dismissing the special leave petition, the Court.

HELD:1. The High Court was right in holding that a fresh petition was not maintainable before it in respect of the same subject matter since the earlier writ petition had been withdrawn without permission to file a fresh petition.

[208D]

2. 1 The principle underlying rule 1, Order XXIII of the Code of Civil Procedure that when a plaintiff once insti- tutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the earlier suit or by withdrawing it without the permission Of the Court to file fresh suit. should be ex- tended in the interest of justice on the ground of public policy to cases of withdrawal of writ petition also. [206D, 208A]

2.2 Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives. abandons or disclaims a right would loose it. [206E]

2.3 Where a petitioner withdraws a writ petition filed by him in the High Court under Art. 226/227 without permis- sion to institute a fresh petition he should be deemed to have abandoned the remedy under these Articles in respect of the cause of action relied on in the writ petition and barred from filing a fresh petition. [207H,208C]

3.1 The principle embodied in rule 1, Order XXIII of the Code is rounded on public policy. It is not the same as the rule of res judicata contained in s. II of the Code, which applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit, there is no prior adjudica-

202 tion of a suit nor an issue is involved. The plaintiff is precluded from instituting any fresh suit in respect of the same subject matter to prevent the abuse of the process of the Court. [206G, H, D, 207B]

3.2 Such withdrawal would not bar other remedies like a suit or a petition under Art. 32 of the Constitution before the Supreme Court in a case involving the question of en- forcement of fundamental rights since such withdrawal does not amount to res judicata and there has been no decision on the merits by the High Court. [208C, 207E]

Daryao and Ors. v. The State of U.P. and Ors., [1962] 1 SCR 575. referred to.

[A petition involving the personal liberty of an indi-

vidual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Art. 21 of the Constitu- tion stands on a different footing altogether. This question is left open.] [208E]