TMI Blog1986 (11) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... in its favour. The application for renewal filed by the Janta Transport Co-operative Society was rejected by the Regional Transport Authority on the ground that it was barred by time. On a consideration of the rela- tive merits of the other applicants, namely. the petitioner and others, the Regional Transport Authority granted the permit in favour of the petitioner. The said order was challenged in appeal by M/s. Ali Ahmed Sons--respondent No. 3, which was also an applicant for the said permit before the State Transport Appellate Tribunal. The other unsuccessful applicants also filed separate appeals questioning the grant in favour of the petitioner. The State Transport Appellate Tribunal heard all the appeals together. The Tribunal by its order dated 19.9.1985 set aside the order granting the permit in favour of the petitioner on two grounds, namely, that Mohd. Jhahid Khan, the proprietor of the petitioner concern was a practising advocate and that he had ceased to carry on the transport business in his individual capacity and granted the permit in favour of M/s. Ali Ahmed Sons. Aggrieved by the order of the Tribunal the petitioner filed a writ petition in M.P. No. 2945 of 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated as a bar to the subsequent writ petition. In this case we are called upon to consider the effect of the withdrawal of the writ petition filed under Articles 226/227 of the Constitution of India without the permission of the High Court to file a fresh petition. The provisions of the Code of Civil Procedure. 1908 (hereinafter referred to as 'the Code') are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions. Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal. Prior to its amendment by Act 104 of 1976, rule 1 of Order XXIII of the Code provided for two kinds of withdrawal of a suit. namely, (i) absolute withdrawal, and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action. The first category of withdrawal was governed by sub-rule (1) thereof as it stood then, which provided that at any time after the institution of a suit the plaintiff might, as against all or any of the defendants 'withdraw' his suit or aband ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode the words 'withdraw his suit' had been used, in sub-rule (1) of the new rule 1 of Order XXIII of the Code, the words 'abandon his suit' are used. The new sub-rule (1) is applicable to a case where the Court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. In the new sub-rule (3) which corresponds to the former sub-rule (2) practically no change is made and under that sub-rule the Court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. Sub-rule (4) of the new rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he would be liable for such costs as the Court might award and would also be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. The Code as it now stands thus makes a dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-rule (3) in order to prevent the abuse of the process of the Court. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seek- ing permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinari- ly grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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