TMI Blog2017 (8) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... er withdrew the writ petition, but without seeking any liberty to file a fresh petition on the same cause of action. We would be acting contrary to judicial discipline, if we entertain a second writ petition on the same cause of action but with a marginal improvement, as pointed out. We uphold the preliminary objection of the learned Additional Solicitor General and dismiss these writ petitions. - Writ Petition No.1033 OF 2017, Writ Petition No.1258 of 2017, Writ Petition No.1259 of 2017, Writ Petition No.1260 of 2017, And Writ Petition No.1261 of 2017 - - - Dated:- 14-8-2017 - MR. S.C. DHARMADHIKARI AND SMT. VIBHA KANKANWADI, JJ. For The Petitioner : Mr. J.D. Mistri, Senior Counsel with Mr. Madhur Agrawal i/by Mr. Atul K. Jasani For The Respondents : Mr. Anil C. Singh, Additional Solicitor General with Mr. Abhay Ahuja, Mr. A. Narayanan, Ms Indrayani Deshmukh Ms Geetika Gandhi ORAL ORDER ( Per Shri S.C. DHARMADHIKARI, J .) :- 1. By these petitions under Article 226 of the Constitution of India, the petitioner is seeking the following reliefs: ( a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or any other writ ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period covered these Petitions. 3 On the above facts being pointed out, Mr. Mistri, learned Senior Counsel appearing for the Petitioner took time to take instructions from the Petitioner with regard to the correctness of the statement made by him in the Petition. The Petition was adjourned to 7th December, 2016 and thereafter on 7th December, 2016 at the instance of the Petitioner, to today. 4 Today, Mr. Mistri, learned Senior Counsel appearing for the Petitioner, on instructions, states that the Petitioner at the relevant time, did have property in India. However, it is the contention of Mr. Mistri, learned Senior Counsel that the same would make no material difference for the purposes of this Petition being entertained. Prima facie, we are not convinced but would take a final view on the same only after hearing the Petitioner. Moreover, in case, Mr. Mistri, learned Senior Counsel is able to explain the apparently incorrect statement as not affecting the invocation of the extra ordinary remedy under Article 226 of the Constitution of India, then there are other issues which would be required to be considered for admission of the Petition. We are informed by Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any liberty to file fresh writ petitions on the same cause of action. Such being the order of this Court, the learned Additional Solicitor General would submit that these fresh petitions, having been filed on 1242017 and 562017, be dismissed as not maintainable. 6. Mr. Singh has taken us through the memo of the earlier writ petitions and the prayers, and the memo of the present writ petitions and the prayers to submit that everything therein is identical. The writ petitions are filed on the same cause of action. 7. Mr. Singh also submits that except deleting one paragraph from the earlier petitions about the petitioner having no property in India, there is absolutely no change. In such circumstances and relying upon the Judgments of the Hon'ble Supreme Court rendered in the cases of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others , reported in AIR 1987 SC 88 and Upadhyay Co. v. State of U.P. and others , reported in (1999) 1 SCC 81, it is urged that the present petitions be dismissed. 8. Mr. Mistri, learned Senior Counsel appearing on behalf of the petitioner, in meeting this preliminary objection, would submit that true it is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions be entertained and the preliminary objection be overruled. 10. With the able assistance of the learned Senior Counsel appearing for both sides, we have perused the petitions. A copy of one of the earlier writ petitions filed was handed in by the learned Additional Solicitor General. It is not in dispute that the very petitioner who is before this Court in the present petitions was the petitioner in the earlier round. Mr. Kamal Galani had impleaded the same parties as partyrespondents. In para 1 of the earlier petition, he had stated that he is an individual and is a citizen of India. In memo of the earlier petition, he clarified, that he has challenged notice dated 3032015 issued by the Assistant Commissioner of Incometax at Mumbai under Section 148 of the Income Tax Act, 1961 (for short, the I.T. Act ) and order dated 1982015 passed by that very respondent, rejecting the objections of the petitioner challenging the validity of the reassessment proceedings for the Assessment Year 200203, and notice dated 2482015 issued by respondent No.1 to that petition under Section 274 of the I.T. Act seeking to levy penalty under Section 271(1)(b) of the I.T. Act. 11. The same fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o filed separate appeals questioning the grant in favour of Sarguja Transport. All these appeals were taken together and heard extensively and on 1991985 the Tribunal set aside the order granting the permit in favour of Sarguja Transport on two grounds. It granted permit in favour of M/s. Ali Ahmed Sons. Aggrieved by that order of the Tribunal, Miscellaneous Petition No.2945 of 1985 was filed in the High Court of Madhya Pradesh at Jabalpur, invoking Articles 226 and 227 of the Constitution of India. That petition was taken up for hearing on 4101985. On that day, the High Court passed an order recording the statement of seeking of leave by the petitioner to withdraw the petition. Leave was granted and the petition was dismissed as withdrawn. Later on another writ petition was filed before the High Court being Miscellaneous Petition No.188 of 1986. That came up for admission/hearing on 1711986. The High Court passed the following order: Shri P.R. Bhave for the petitioner heard on admission. This writ petition is directed against the order of the State Transport Appellate Tribunal setting aside the grant in favour of the petitioner, and instead giving the permit to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so the substantive provisions in CPC would not govern the disposal of a writ petition under Article 226 of the Constitution of India. 16. It is that argument which is extensively dealt with in Sarguja Transport, and in paras 7, 8 and 9, the Hon'ble Supreme Court held thus: 7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission referred to in subrule (3) of R. 1 of O. XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subjectmatter or such part of the claim. The principle underlying R. 1 of O. XXIII of the Code is that when a plaintiff once institutes 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 subjectmatter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. State of U.P., (1962) SCR 574 : (AIR 1961 SC 1457) in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Art. 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows: If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. 9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain on the same cause of action, without any reason. The law insists that he should obtain the permission of the Court to file a fresh proceeding and that is how it held that the principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the CPC. It is in these circumstances that the rule was applied also to writ petitions under Articles 226 and 227 of the Constitution of India to hold that the second writ petition was not maintainable and rightly dismissed. 18. This very Judgment was followed in the case of Upadhyay Co. (supra) and the principle was extended because the petitioner before the Hon'ble Supreme Court, Upadhyay Co., was allowed to collect the toll at specified rates for a period of one year at Shastri Bridge at Allahabad, running across River Ganga. For a succeeding period of three years, the petitioner competed with other bidders in a public auction and when his bid was not accepted by the authorities, he filed Writ Petition No.32974 of 1991 before the Allahabad High Court and got an interim order by which he was permitted to continue to collect toll charges from vehicle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same order. That is how the principle in Sarguja Transport (supra) was extended and the Additional Solicitor General appearing before us is right in relying upon paras 9, 11, 12 and 13 of the Judgment in Upadhyay's case (supra). In para 15, the Hon'ble Supreme Court once again emphasised the rule of public policy. 21. Mr. Mistri has relied upon two Judgments of the Hon'ble Supreme Court, the first in the case of Arunima Baruah v. Union of India and others , reported in (2007) 6 SCC 120 and the other in Sarva Shramik Sanghatana (KV), Mumbai v. State of Maharashtra and others , reported in (2008) 1 SCC 494. 22. In the first Judgment in the case of Arunima Baruah (supra), the Hon'ble Supreme Court was considering a peculiar situation. The appellant before the Supreme Court filed a suit in the District Court and moved an application for grant of injunction therein. On such an application, the trial Court issued only a notice to the defendant but did not grant injunction. The appellant before the Supreme Court/plaintiff in that suit filed a writ petition in the High Court on 1042001. The suit was filed on 2832001 and the application for interim injunction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement with its recognised Union and to reduce the work force. There was a scheme of voluntary retirement offered. The scheme was improved upon after discussion and negotiations. After the manufacturing activities came to an end in the textile mill, the company made an application under Section 25O of the Industrial Disputes Act, 1947 seeking permission for closure. That application was dated 1322007. Before that application could be decided, the company received a letter from the Deputy Commissioner of Labour, Mumbai, which stated that the Hon'ble Minister for Labour, Government of Maharashtra has convened a meeting so that the issue could be discussed. The company gave its willingness but pointed out that its application under Section 25O( 1) is pending and it is to be decided within sixty days, failing which it is deemed to have been allowed. The application was made on 1322007 and the sixty days would shortly expire. That is why in order to create a conducive atmosphere for discussion, the respondentcompany withdrew this application but reserved its right to move a fresh application under Section 25O, as and when necessary. That is how the withdrawal was allowed by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e failing in our duty if we do not apply Sarguja Transport's principle to the present facts and circumstances. We have clearly noted the observations of this Court and which point towards an abuse of this Court's jurisdiction. The Court was persuaded to go on with the matter despite the objection raised by the respondents about the status of the petitioner. The petitioner despite noticing this position insisted on arguing the writ petition and argued it. After a preliminary hearing, on finding that it is not possible to get over the objection raised and the allegation of suppression of a material fact, the petitioner withdrew the writ petition, but without seeking any liberty to file a fresh petition on the same cause of action. We would be acting contrary to judicial discipline, if we entertain a second writ petition on the same cause of action but with a marginal improvement, as pointed out. This is not a case where substantial justice demands that we overlook the point of maintainability. This is a clear case where knowing the state of law and being aware of the legal position, a decision was taken to withdraw the writ petition without seeking any liberty, as above. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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