TMI Blog1981 (3) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... and Haryana) Rules, 1976 (hereinafter referred to as the Writ Rules): and that in view of the provisions of O. 23, R. 1 of the Civil P.C., C. W. P. No. 1522 of 1973 was not maintainable as in respect of the same cause of action the earlier petition, C. W. No. 1064 of 1973 was got dismissed as withdrawn without obtaining permission to file a fresh petition. In L. P. A. No. 269 of 1979, which came up for hearing before another Division Bench,. the objection that was raised on behalf of the respondents was that the writ petition had abated as the sole petitioner had died and his legal representatives were not brought on the record within the prescribed period of limitation. In other words, the question agitated before the Bench was that provisions of O. 22 applied to writ proceedings. 4. On the other hand, the stand taken by the learned counsel for the petitioner/appellant was that provisions of the Civil P. C. did not apply to writ proceedings. In support of this contention reliance was placed solely on an earlier Full bench case decided by three learned Judges in Ram Kala v. Assistant Director, Consolidation of Holdings, Punjab. The question that arose in Ram Kala's case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Act of the Parliament, it also gets invested with the authority to take all ancillary steps which are necessary to exercise that jurisdiction. A petition presented to the Court exercising jurisdiction under Art. 226 of the Constitution cannot necessarily be regarded as an application under the Civil P. C. It is an entirely different matter that while entertaining and deciding such an application, this Court may draw upon the principles of the Civil P. C. which are based on equity, justice and good conscience but in doing so this Court seldom takes recourse to the penal provisions of the said Code. All that has to be seen is whether the grant of such an application would promote the ends of justice or not. We are, therefore, of the view that Art. 137 of the Schedule to the Limitation Act cannot be held to govern an application filed in the High Court exercising jurisdiction under Art. 226 of the Constitution of India. 6. The correctness of the aforesaid view was challenged by the learned counsel for the respondents on the ground that R. 32 of the Writ Rules was not brought to the notice of the learned Judges and that in the wake of that rule, the view taken in Ram Kala' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility to a petition under Art. 226 of the Constitution. Before the addition of the explanation, one view was that a writ proceeding is one of Court of civil jurisdiction and this section applied to such proceedings. The other set of cases had taken the view that a writ proceeding is a proceeding of a special nature and not one in a Court of civil jurisdiction and therefore this section did not apply. There was a third view also that a writ proceeding was not in the nature of a civil suit and that consequently the provisions of this section could not be invoked of this section could not be invoked so as to apply the provisions of the Code to such proceeding. As earlier observed, by the addition of the explanation the question stands settled that the expression proceedings in the section does not include a proceeding under Art 226 of the Constitution. 10. Mr. Anand Swarup, learned counsel, has tried to take advantage of the explanation, but to me, it is quite evident that the newly added explanation has no relevance at all to the decision of the point involved in these cases. The explanation only provides that the word proceedings would not include any proceeding under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. In the case of third acquisition which took place in July, 1953, cash compensation was not paid. The appellant approached the authorities for payment of compensation. In the meantime, after the introduction of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, allotment of land to the appellant which was till then on quasi-permanent basis was converted into permanent basis. As the appellant was clamouring for compensation for the land taken from him, the Chief Settlement Commissioner, Punjab made an order on 17th Mar. 1961, whereby a reference made from the Evacuee Property Department was accepted and the permanent settlement rights conferred on the appellant in respect of 1 standard acre and 151/2 units of land were cancelled. The appellant questioned the correctness of that order by filing a petition under Art. 226 of the Constitution which was dismissed in limine on 22nd Mar, 1961. After the dismissal or the petition, the appellant approached the Financial Commissioner requesting him to pay cash compensation for the land taken over by the Union of India. It appears that nothing tangible came out, with the result that the appellant preferred a petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles analogous to res judicata because the cause of action is entirely different and the merger of the order cannot stand in the way of the petitioner invoking the jurisdiction of the High Court under Art. 226. In the leading case of Daryao v. State of U. P. (1962) 1 SCR 574 : AIR 1961 SC 1457): this Court in terms said that if the petition filed in the High Court under Art. 226 is dismissed not on the merits but because of the laches 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 the subsequent petition under Art. 32 except in cases where the facts found by the High Court may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar if the order says that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases indicated in the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deciding the point in issue nor is it an authority to determine whether provisions of the Civil P. C. would apply or not to the writ proceedings when it has been so specifically provided under the rules validity framed by this Court under Art. 225 of the Constitution. The reading of the judgment in Hoshnak Singh's case shows that the point that needed decision was whether the dismissal of earlier petition on same and similar facts would operate as a bar to the filing of a second petition on principles analogous to res judicata. On the facts of that case it was held that the dismissal of a the earlier petition would not operate as res judicata because the dismissal of the earlier petition was treated not to be on merits, but was taken to be on the ground that an alternate remedy was available. It would be pertinent to observe that in Hoshnak Singh's case it was held by their Lordships that principles analogous to res judicata could not be invoked in writ proceedings. 15. Moreover, the contention of Mr. Anand Swarup that a litigant can approach this Court under Article 226 any number of times in respect of the same cause of action if this earlier petition has been dispose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplicitly decided again the respondent. Indisputably nothing was expressly decided. The effect of a non-speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted. It may be due to several reasons. It may be one or more. It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference. But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award. A writ proceeding is a different proceeding. Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the special leave petition cannot be re-opened. But the technical rule of res judicata although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But the order would be final if the jurisdiction of a tribunal is questioned and the High Court either upholds it or does not. In either case, the controversy in the High Court is finally decided. To judge whether the order is final in that sense it is not always necessary to correlate the decision in every case with the facts in controversy especially where the question is one of the jurisdiction of the Court or tribunal. The answer to the question whether the order is final or not will not depend on whether the controversy is finally over but whether the controversy raised before the High Court is finally over or not. If it is, the order will be appealable provided the other conditions are-satisfied, otherwise not. In the case before the Supreme Court Ramesh's case 1966 Cur LJ 152 AIR 1966 SC 1445) (supra) the question raised was whether the Commissioner, Nagpur Division, had jurisdiction to set aside the discharge of the debt ordered by the Claims Officer. This decision was challenged by a proceeding under Article 226. The High Court summarily dismissed the petition, that is, it upheld the jurisdiction and the Supreme Court held that in the circumstances it makes no dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was not res judicata as the previous order of dismissal was not shown to have been made on merits. The contention was repelled and the learned Judges observed thus (at p. 260 of AIR): Learned counsel for both the parties are agreed that the order dismissing the previous writ petition consisted of a single word 'Dismissed'. According to Mr. Chawla, that order cannot be said to have been made on merits because it is not a speaking order. The argument is fallacious. Had the order been passed because of a laches on the part of the writ petitioner or for the reasons that an alternative remedy was available to him or on a ground analogous thereto, the order would certainly have said so. Its silence on these points is conclusive to show that the dismissal was ordered on merits. In the absence of any specific reasons making out that the dismissal was ordered on account of a technical defect or some such reason, such a defect or reason cannot be read into it. 16. Mr. Anand Swarup, learned counsel, drew our attention to the judgment of the Supreme Court in Daryao v. State of U. P. AIR 1961 SC, which is the basic authority dealing with the question of res judicata. That deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear to the effect that all the provisions of the Civil P. C. would apply to the writ proceedings in so far as they could be made applicable and were not inconsistent with the with rules. For regulating the form and other details of procedure, rules had to be framed. In exercise of the power vested in this Court under Art. 225. Writ rules have been framed. While framing the rules, this Court could have re-written certain provisions of the Civil P. C. in the shape of rules which were necessary for regulating the form and other details of procedure of writ petitions. But instead of unnecessarily wasting time, it was thought proper to apply all the relevant provisions of the Civil P. C. by enacting a rule of the kind of R. 32. It would be pertinent to observe here that it was not contended by Mr. Anand Swarup that in case a rule in the same terms as O. 23, R. 1 or O. 22 of the Code had been incorporated in the Writ Rules, then such a rule could be ignored on the ground that it curtailed the constitutional right of a party to approach this Court under Art. 226 of the Constitution. In other words, it was not controverted by the learned counsel that for the purpose of dealing with a peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Order 27 of the Civil P. C. would apply to writ proceedings or not and the learned Judge on that aspect of the matter observed thus (at p. 74) : The Writ Proceedings Rules of 1977 made by this Court, regulating the form and other details of procedure of writ petitions filed under Art. 226 of the Constitution, do not regulate the service of notices on the parties. By R. 39 of the Rules, the provisions of the Civil P. C. in matters not specifically dealt by the Rules and to the extent they are necessary, are made applicable to proceedings under Art. 226 of the Constitution. In matters of procedure, it is permissible to rely on the provisions made in the Code with such modifications as are necessary in the context. I am therefore of the opinion that Order 27 of the Civil P. C. is applicable to writ proceedings before this Court. In O. 27 of the Civil P. C. we have to read the words 'writ petition' wherever the word 'suit' occurs. 20. As a result of the aforesaid discussion. I find no escape from the conclusion that in the matters which have not been specifically dealt with by the Writ Rules, the provisions of the Civil P. C. to the extent they ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the provisions of the Limitation Act would also be attracted while dealing with the applications filed under Order 22 for bringing on record the legal representatives of the deceased? In my view, the answer has to be in the negative. R. 32 only makes applicable the provisions of the Civil P. C. There is no rule which may provide for the applicability of the provisions of the Limitation Act. So far as writ proceedings are concerned, there can be no gainsaying that the provisions of the Limitation Act do not apply nor have they been made applicable. A petition under Art. 226 of the Constitution is not a suit and it is also not a petition or an application to which the Limitation Act applies. If such is the position of law with regard to the applicability of the provisions of the limitation Act to writ petitions, then a fortiori the same principle would apply to miscellaneous applications filed in the writ petitions. It is, therefore, follows that the provisions of the Limitation Act would not apply to an application filed under O. 22 for bringing on record the legal representatives of the deceased. 24. The question that would now arise is as to what considerations or fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... files a petition in this Court which comes up for motion hearing. During the arguments an impression is gathered than the Bench is not agreeing and the petition is likely to be dismissed and on the basis of that impression, the petition is got dismissed as withdrawn. Thereafter, on same facts and in respect of the same cause of action a second writ petition is filed. Now in such case, if the contention, of Mr. Anand Swarup is accepted, then the second writ petition must be entertained and disposed of on merits one way or the other by passing a speaking order, Such a course, if adopted, would, in my opinion, not only result in the abuse of the process of the Court, but would also give handle to a dishonest and unscrupulous litigant to harass his opponent. 26. By the applicability of the provisions of O. 23, R. 1, no constitutional right of a litigant is being taken away A litigant has a right to withdraw his petition: but in case he wishes to file a fresh petition on the same cause of action, then permission of the Court has to be taken, and for that purpose, proper legal foundation has to be laid. 27. As a result of my aforesaid discussion. I come to the following conclusion: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, J. 31, I agree. G.C. Mittal, J. 32. I agree. Kulwant Singh Tiwana, J. 33. This petition under Arts. 226 and 227 of the Constitution of India has been filed by Teja Singh petitioner stating that he was employed as a Radiographer in the State of Punjab in 1959. He was posted in that capacity in the General Hospital. Sector 16 at Chandigarh. At the time of the reorganisation of the State, he was allocated to the service of the Health Department of the Union Territory of Chandigarh Vide letter No. 7364-GH-73/1230D/- 2nd Feb. 1973 which is Annexure p. 7, he was reverted to the State of Punjab from which service he was on deputation to the Union Territory of Chandigarh. The petitioner has challenged this order on the ground that he was a permanent employee of the Union Territory of Chandigarh and after his allocation to this territory he could not be sent to the State of Punjab. 34. The respondents in their written statements have contested the position taken by the petitioner and have averred that he was only on deputation to the Union Territory of Chandigarh and was reverted on administrative grounds. It was also put forward that the petitioner had no legal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arup is accepted, then the second writ petition must be entertained and disposed of on merits one way or the other by passing a speaking order. Such a course, if adopted, would, in my opinion, not only result in the abuse of the process of the Court, but would also give handle to a dishonest and unscrupulous litigant to harass his opponent. By the applicability of the provisions of Order 23 rule 1, no constitutional right of a litigant is being taken away. A litigant has a right to withdraw his petition: but in case he wishes to file a fresh petition on the same cause of action, then permission of the Court has to be taken, and for that purpose, proper legal foundation has to be laid. While deriving the conclusion on the last page in sub-para (9), the Full Bench observed:-- That provisions of O. 23 R. 1 of the Civil P. C. would apply to the writ proceedings and that a petition which has simply been got dismissed as withdrawn would be a bar to the filling of a second petition on the same facts and in respect of the cause of action. 36. Teja Singh petitioner, who appeared in person, urged that the relief claimed in both the petitions was not the same. We have gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X
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