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The legal principle underscores that such dismissals are procedural and do not operate as res judicata or final judgments on the merits, allowing parties to seek relief through other legitimate channels ["Kanchan Lal VS Board of Revenue, U. P. - Allahabad"] ["BHARATI W/O MALLESHAPPA LAMANI v/s SMT. MANJAVVA W/O LOHITAPPA KALLIMANI - Karnataka"].
Analysis and Conclusion:
References:- ["Daya Shankar VS IIIrd Additional Sessions Judge, Kanpur - 1992 0 Supreme(All) 877"]- ["BHARATI W/O MALLESHAPPA LAMANI v/s SMT. MANJAVVA W/O LOHITAPPA KALLIMANI - Karnataka"]- ["Kanchan Lal VS Board of Revenue, U. P. - Allahabad"]
In the complex world of Indian civil litigation, petitioners often face procedural hurdles that can feel like roadblocks to justice. One common scenario arises when a suit or appeal is dismissed as not pressed. But does this procedural dismissal forever bar you from seeking the same relief through a writ petition under Article 226 of the Constitution of India? This question—dismissal of suit as not pressed bars writ remedy for the same relief—is at the heart of numerous court battles and offers critical insights for litigants.
This blog post breaks down the legal principles, Supreme Court precedents, and practical implications. While this is general information based on established case law and should not be taken as specific legal advice, understanding these nuances can help you navigate your case effectively. Always consult a qualified lawyer for personalized guidance.
The dismissal of a suit as not pressed does not necessarily bar the remedy under Article 226, provided the dismissal was not on merits but on procedural or administrative grounds, such as withdrawal without permission or dismissal in limine. The pivotal factor is the nature of the order—whether it's a substantive decision on merits or merely procedural. Courts, including the Supreme Court, have repeatedly clarified this distinction to prevent injustice from technical dismissals. Hoshnak Singh VS Union Of India - 1979 0 Supreme(SC) 165Jai Singh VS Union Of India - 1976 0 Supreme(SC) 453
As held in a key ruling: The High Court may as well dismiss the petition in limine on the ground of delay or laches or on the ground of alternative remedy. The second petition after pursuing the alternative remedy would not be barred by the principles analogous to res judicata. Hoshnak Singh VS Union Of India - 1979 0 Supreme(SC) 165
Here are the essential takeaways supported by landmark cases:
These principles ensure that procedural missteps don't extinguish substantive rights.
The doctrine of res judicata under Section 11 of the CPC applies only to final judgments on merits. A not pressed dismissal typically signals the petitioner's choice not to pursue, often due to strategy, procedural errors, or alternative remedies—not a judicial adjudication of facts or law.
In Daya Shankar VS IIIrd Additional Sessions Judge, Kanpur - 1992 0 Supreme(All) 877, the Court noted: The earlier petition was dismissed by a non-speaking, one word, order dismissed. The High Court may as well dismiss the petition in limine on the ground of delay or laches or on the ground of alternative remedy. The second petition after pursuing the alternative remedy would not be barred by the principles analogous to res judicata.
Similarly, Sew Nafra Power Corporation Ltd. VS State of Arunachal Pradesh - 2019 0 Supreme(Gau) 1269 clarifies: Order in a case of withdrawal of a writ petition also does not amount to res judicata, and a subsequent petition for the same relief is permissible unless the earlier order was on merits.
Other judgments reinforce this. For instance, in a case involving appeals under Order 23 Rule 1(4)(b) CPC, the court held that dismissal as not pressed did not bar fresh appeals when the appellant hadn't abandoned the matter but sought return due to procedural issues like non-maintainability. Manganam Service Coop. Bank Ltd. v. Zachariah Joseph - 1996 Supreme(Online)(Ker) 1291Manganam Service Co-op. Bank Ltd. VS Zachariah Joseph - 1995 Supreme(Ker) 323 The court emphasized: A. is not pressed and it has to be returned... Memo dated 10.8.95 was not one praying for dismissal... but he stated that, the memorandum of appeal is to be returned because the common appeal... is not maintainable and so not pressed.
In rent control proceedings, procedural dismissals under Order IX CPC were distinguished from substantive bars, noting that defaults without merits decisions allow restoration or fresh claims where substantive rights persist. Jullunder D. & N. Mfg. Co. VS Jayadevan - 1998 Supreme(Ker) 492Ashok Bhaurao Sardar VS State of Maharashtra, through its Secretary, Ministry of Revenue, Mantralaya - 2014 Supreme(Bom) 1402
Even in service and employment disputes, prior not pressed dismissals didn't preclude terminal benefits claims if not decided on merits. Subbammal VS Saradammal - 2016 Supreme(Mad) 3451
These cases illustrate a consistent judicial trend: procedural dismissals rarely erect permanent barriers.
While the general rule favors refiling, exceptions exist:
In writ contexts, High Courts have noted that Order XXIII CPC doesn't strictly apply to Article 226 petitions, allowing flexibility. Lissy Roy VS Mar Gregorious English Medium Higher Secondary School - 2013 Supreme(Ker) 1119
To safeguard your position:
As seen in a Board of Indian Medicine case, courts may vacate interim benefits upon not pressed requests, underscoring the need for informed decisions. Abhimanyoo Ram VS State of UP - 2008 Supreme(SC) 2081
In summary, a dismissal as not pressed generally does not bar Article 226 remedies for the same relief unless rendered on merits. This principle, upheld across Supreme Court and High Court rulings, balances procedural discipline with substantive justice. Hoshnak Singh VS Union Of India - 1979 0 Supreme(SC) 165Daya Shankar VS IIIrd Additional Sessions Judge, Kanpur - 1992 0 Supreme(All) 877Jai Singh VS Union Of India - 1976 0 Supreme(SC) 453
Key Takeaways:- Focus on the order's nature: procedural = no bar; merits = potential bar.- Leverage precedents to argue maintainability.- Proceed cautiously, as courts retain discretion.
This analysis draws from established case law for educational purposes. Legal outcomes depend on specific facts—consult an advocate to assess your situation.
References:1. Hoshnak Singh VS Union Of India - 1979 0 Supreme(SC) 165: Dismissal in limine no res judicata.2. Daya Shankar VS IIIrd Additional Sessions Judge, Kanpur - 1992 0 Supreme(All) 877: Not pressed without merits allows refiling.3. Sew Nafra Power Corporation Ltd. VS State of Arunachal Pradesh - 2019 0 Supreme(Gau) 1269: Withdrawal orders not res judicata.4. Jai Singh VS Union Of India - 1976 0 Supreme(SC) 453: Procedural vs. merits distinction.
Stay informed, and approach courts strategically.
#WritPetition #ResJudicata #Article226
If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the larches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to ... Tewari praying that the writ petition be dismissed as not pressed. Along with the application a Vakalatnama of the Petitioner Daya ....
As pointed out by the learned counsel for respondent No.2, the suit is not pending as of the date of filing the writ petition. If the petitioner, aggrieved by the dismissal of the suit as not pressed, has an efficacious remedy by filing an appeal under Section 96 of CPC. ... Before filing of the said application by the petitioner, respondent No.1 had filed a memo for dismissal of the suit as not #....
On 14.8.95, the appellate court dismissed it as not pressed. Eventhough the court has dismissed the appeal as not pressed, according to me, that dismissal was not on account of the abandonment of the appeal or on account of the appellant withdrawing from the appeal. ... A. is not pressed and it has to be returned. ... 3. Memo dated 10.8.95 was not one praying for dismissal of C. M. A. 91/95. It was stated therein....
A. is not pressed and it has to be returned. ... 3. Memo dated 10.8.95 was not one praying for dismissal of C. M. A. 91/95. ... In that memo, appellant did not state that the appeal may be dismissed as not pressed; but he stated that, the memorandum of appeal is to be returned because the common appeal against the orders in two interlocutory applications is not maintainable and so not pressed. ... A. 91/95 came up ....
Rule 9 bars fresh suit in respect of the same cause of action because the remedy is self contained in the Order IX, Rule 8 of the Code of Civil Procedure to enable the plaintiff to apply for setting aside dismissal of the suit and/or restoration of the suit. ... Jogi, (2011) 10 SCC 357, it was held that dismissal of the Writ Petition without hearing on merits does not amount to resjudicata in subsequent proceedings. ... As the Trust....
In view of the above authorities, it is clear that dismissal of earlier writ petition as not pressed did not bar either filing of suit or Revision before the Board of Revenue. ... As far as the effect of order of this Court dated 25.9.1986 dismissing the writ petition as not pressed without any permission to file fresh petition is concerned the legal position is that such dismissal of writ petitio....
This decision cannot be taken as an authority for a proposition that the remedy given under O. IX R.9 to a plaintiff to make an application to set aside the dismissal of the suit is not applicable to the rent control proceedings. ... 4. ... Decree against plaintiff by default bars fresh suit:- (1) where a suit is wholly or partly dismissed under R.8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. .....
Lalbai 1, in which it was held that the dismissal of a suit under section 381 of the Indian Code of Civil Procedure, which corresponds to our section 418, does not bar a fresh suit for the same cause of action. I venture to think that this decision is not applicable to the present case. ... operates as res judicata, and bars a fresh action on the same cause of action. ... But it does not say that the dismissal of a suit#H....
Secondly, the revision is not as efficacious a remedy as is available through the Writ jurisdiction of this Court. ... It has been contended by learned counsel for the petitioners that such relief could not be claimed in a civil suit as the granting of such relief would offend the provisions of Section 21 of the Act. ... During the pendency of the suit plaintiff moved an application for the grant of a temporary injunction in terms of the re....
Secondly, the revision is not as efficacious a remedy as is available through the Writ jurisdiction of this Court. ... It has been contended by learned counsel for the petitioners that such relief could not be claimed in a civil suit as the granting of such relief would offend the provisions of Section 21 of the Act. ... During the pendency of the suit plaintiff moved an application for the grant of a temporary injunction in terms of the re....
5. The case of the first defendant is that: (a) she is the only legally wedded wife of the deceased V. Kesavalu and the only son born to them is one Venkatesan and therefore, as such, they are the only persons entitled to claim terminal benefits; (b) the suit itself is not maintainable as the first suit filed in O.S. No. 663 of 1997 was dismissed as not pressed and therefore, for the very same relief, the second suit was not maintainable.
Secondly, the above provision bars the suit only when an equally efficacious remedy for the relief claimed in the suit is otherwise available. Learned counsel for the defendants have utterly failed to point out the alternate remedy, if any, so available. Accordingly, this argument has been noted only to be rejected. First of all no such plea was taken in the Court below and no issue was got settled on this point.
A Full Bench of the High Court of Karnataka in Harunautha Rao v. State of Mysore reported in (1963) 2 Mys. L.J. 164(FB) and a Division Bench of the Allahabad High Court in State of U.P. v. M.M. Khanna reported in 1977 All.L.J 262 (DB) held that the provisions of Rule 1, Order XXIII of the Code do not apply to petitions under Articles 226 and 227 of the Constitution of India. In this case, the petitioner filed this writ petition prior to the dismissal of the said suit as not pressed. In the contextual situation it is also apposite to refer to Section 141 of the Code and also....
Thereafter, he moved the court for dismissal of the writ petition as not pressed. In view of the statement so made by the learned counsel for the petitioner, this writ petition is dismissed as not pressed. The High Court, on 25.2.2008, accordingly dismissed the writ petition by the following order: "Learned counsel for the petitioner states that petitioner is not interested in pursuing this writ petition and the same may be dismissed as not pressed.
But, when an application is filed in a suit, naturally, it can only be an interlocutory application therein. It was held by the Supreme Court in Bharat Petroleum Corporation Ltd., vs. N.R. Vairamani and another [2004(5) CTC 74(SC)] that the right of a tenant under section 9 of the Act is not only a privilege on the tenant, but also an additional statutory right against whom a suit for ejectment has been filed and such right is not a vested right in the property and it is a privilege granted to him by a statute which is equitable in nature. The dismissal of the interlocutory applica....
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