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Teja Singh Versus Union Territory of Chandigarh and Ors.

1981 (3) TMI 258 - PUNJAB AND HARYANA HIGH COURT

Civil Writ Petn. No. 1522 of 1973 - Dated:- 16-3-1981 - Prem Chand Jain, D.S. Tewatia, Kulwant Singh Tiwana, Harbans Lal and G.C. Mittal, JJ. JUDGMENT Prem Chand Jain, 1. Whether provisions of the Civil P. C. would apply to the writ proceedings, is the prime and important question which falls for our determination in these cases. 2. I do not propose to refer to the facts of the cases which have been set down for hearing before us as for answering the aforesaid question it is not necessary to do .....

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ovided under Rule 32 of the Writ Jurisdiction (Punjab 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as in respect of the same cause of action the earlier petition, C. W. No. 1064 of 1973 was got dismissed as withdrawn without obtaining permission to file a fresh petition.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,. .....

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oceedings. 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 whether Art. 137 of the Limitation Act does or does not apply to an application for adding or substituting parties to a petition under Art. 226 of the Constitution. Before the Bench two arguments were raised. The first argument advanced was that in .....

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bt civil proceedings but on that ground alone it cannot be held that the Civil P. C. governs such proceedings. This Court may while exercising jurisdiction under Art. 226 of the Constitution draw upon the principles enunciated in the Civil P. C., for, the principle contained therein are by and large based on the principles of natural justice. Nevertheless, it can devise its own procedure for rendering speedy and efficacious justice in the circumstances of the case. S. 141 of the Civil P. C. lays .....

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tely it was held as under (at p. 90 of AIR) : "In view of the binding precedent of the Supreme Court and the preponderance of opinion in this Court, we hold that O. 22, Civil P. C. does not apply to the writ proceedings." 5. The second contention raised before the Bench related to the applicability of the provisions of Art. 137 of the Limitation Act and on that aspect it was observed as follows (at p. 91 of AIR) : "As already noticed, this Court while exercising jurisdiction under .....

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tter 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 .....

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en formulated in the earlier part of the judgment. 7. In exercise of the powers conferred under Art. 225 of the Constitution, this Court has made rules regulating the form and other details of procedure of writ petitions filed under Art. 226 of the Constitution. R. 32 of the Writ Rules, with which we are concerned, reads as under :- "32. In all matters for which no provision is made by these rules, the provisions of the Civil P.C. 1908 shall apply mutatis mutandis in so far as they are not .....

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been framed only provide the procedure for dealing with a petition under Art. 226 of the Constitution and that these rules in no way affect the right of a litigant to approach this Court under Art. 226 of the Constitution any number of times and at any time. It was also submitted by the learned counsel that under Section 141 of the Civil P. C. an explanation has been inserted by civil P. C. (Amendment) Act, 1976, which clearly goes to show that the expression "proceedings" does not in .....

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een added to Section 141 by the Amendment Act is concerned, it may be observed that it has only set at rest the controversy which had arisen earlier regarding the interpretation of the words "proceedings in any court of Civil jurisdiction" with regard to their applicability 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 procee .....

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ition 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 proc .....

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s has been earlier observed, the explanation had to be added by the Parliament in order to remove the controversy which had arisen with regard to the interpretation of the provision of Section 141 as it stood before the Amendment Act, 1976. Thus, the provisions of the explanation to Section 141 are of no held to the petitioner appellant before us, nor does it advance their case, nor does it help us one way or the other in solving the problem with which we are faced in these cases. 11. This bring .....

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f on merits by passing a speaking order, the right of the litigant was not taken away, nor cold he be precluded from filing petitions under Art. 226 if his earlier petitions were disposed of without dealing with the controversy on merits. 12. Mr. Anand Swarup, learned counsel, cited certain cases before us in support of his viewpoint and the main case relied upon was in Hoshnak Singh v. Union of India : AIR 1979 SC 1328. The facts of that case are that Hoshnak Singh appellant was allotted on qua .....

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ation 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 t .....

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on of India. It appears that nothing tangible came out, with the result that the appellant preferred a petition under Section 33 of the Act challenging the order dated 17th Mar. 1961 of the then Settlement Commissioner cancelling the permanent settlement rights conferred upon the appellant. That application was rejected by the Joint Secretary to the Government of India. Thereafter, the appellant filed a writ petition in which rule nisi was issued and return was filed by the Under Secretary to th .....

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single Judge and also of the letter patent bench dismissing the appeal in limine. At the time of hearing of the appeal, a similar objection about the maintainability of the writ petition was raised before their Lordships of the Supreme Court on behalf of the respondents, but the same did not prevail and while repelling the objection it was observed thus (at pp. 1331, 32, 33 of AIR): "The earlier petition was dismissed by a non-speaking one word, order 'dismissed.' The High Court ma .....

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s the petitioner to exhaust the remedy and in such a situation the petition is dismissed in limine. If after preferring an appeal or revision under the statute under which the right is claimed by the petitioner a petition under Art. 226 is filed irrespective of the fact that the revision or appeal was dismissed and the original order which was challenged in the first petition had merged into the appellate or revisional order, nonetheless the second petition in the circumstances would not be barr .....

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ecause 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 wo .....

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order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all, but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitute a bar of res judicata against a similar petition filed under Article 32." xxx xxx It must follow as a necessary corollary that a s .....

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t petition on the same cause of action, more so, when on the facts in this case it appears that the petition was dismissed presumably because the petitioner had an alternative remedy by way of a revision petition under Section 33 of the 1954 Act which remedy he availed of and after a failure to get the relief he moved the High Court again for the relief." 13. Mr. Anand Swarup laid great emphasis on the observations of the learned Judge in the above mentioned judgment in para 10, which have .....

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ak Singh's case : AIR 1979 SC 1328) yet I may observe that the said decision is not at all helpful for 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 .....

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r 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 disposed of by one word 'dismissed' and that the dismissal of the petition would not operate as a bar to the filing of a second petition is again not legally sustainable. it is not necessary to de .....

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a or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by Courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of Section 11 of the Civil P. C. and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided the decision ope .....

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r proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided. In the instant case the award of the Tribunal, no doubt, was challenged in the special leave petition filed in the Court on almost all grounds which were in the High Court. There is no question, therefore, of applying the principles of constructive res judicata in this case .....

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cial 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 dif .....

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o as to found it on mere guesswork. To illustrate our viewpoint we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the writ Petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding. Such as, of suit, Art. 32 or Art. 136 directed from the same order or decision. If the writ petition is dismissed by a speaking order eith .....

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Similarly, even, if one writ petition is dismissed in limine by a non-speaking one word order 'dismissed' another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is .....

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s. A question will always arise what has the High Court decided and what is the effect of the order. If, for example, the High Court declines to interfere because all the remedies open under the law are not exhausted, the order of the High Court may not possess that finality which the Article contemplates. 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 deci .....

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ions 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 .....

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of 1965) as well as the writ petition (Civil Writ No. 3005 of 1965) giving rise to this Letters Patent Appeal, what was challenged was the jurisdiction of respondents Nos. 1 and 2 to make the impugned orders. The previous writ petition was dismissed in limine on the 3rd Dec. 1965, and the dismissal in limine of the previous writ petition amounted to affirming the jurisdiction. That order on the principle laid down in Ramesh's case 1966 Cur. LJ 152 : AIR 1966 SC 1445) (supra) was final so fa .....

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well recognised exception, require finality of judicial proceedings so far as the same Court is concerned. These rules of practice and propriety were enunciated as far back as 1892 in Queen v. Mayor and Justices of Bodmin. (1892) 2 QB 21 and have been endorsed by the Bench of this Court in (1965) 67 Punj LR 862 at p. 866." The second case to which reference may be made is in Union of India v. Diwan Chand wherein also the question of res judicata had been raised on the plea that the writ pe .....

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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 alternati .....

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of U. P. AIR 1961 SC, which is the basic authority dealing with the question of res judicata. That decision is not at all helpful to the learned counsel. In Daryao's case, the question of bar of res judicata was being considered in respect of the petitions made to the High Court under Art. 226 of the Constitution vis-a-vis the petition based on similar facts made to the Supreme Court under Art. 32 of the Constitution and that the point which has been debated by Mr. Anand Swarup that if a pet .....

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in any other proceeding such as suit or a petition under Art. 32 etc. But where a petition is dismissed only on the ground of laches or the availability of an alternate remedy or on a ground analogous thereto, then any other remedy by way of suit or any other proceeding will not be barred on principles of res judicata. Further where a petition is dismissed on the ground of laches or on the ground of alternate remedy or on a ground analogous thereto, a second petition on the same cause of action .....

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me party would not be maintainable even if his earlier petition has been disposed of by one word 'dismissed'. 18. Coming to the point in issue, I find that R. 32, which has been reproduced in the earlier part of the judgment, clearly specifies that the provisions of the Civil P. C. would be applicable mutatis mutandis insofar as they are not inconsistent with the rules. In view of the specific rule there can be no gainsaying that the intention of this Court while framing Rule 32 was clea .....

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egulating 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 .....

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then it would result in curtailment of the constitutional right of a person to approach this Court under Article 226 of the Constitution. Moreover, the argument of the learned counsel that by applying the provisions of the Civil P. C. the constitutional right of a litigant to approach this Court shall stand curtailed is wholly untenable. By framing rules no constitutional right has been taken away. The High Court is empowered to make rules. The Writ Rules regulate the form and prescribe procedur .....

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exercise of the power by this Court in writ proceedings and do not take away the right to file a petition. 19. To me, it appears that the question, though simple but of some importance, has been unnecessarily complicated. The court has power to make rules and in exercise of that power rules have been framed. R. 32 specifically says that the provisions of the Civil P. C. so far as they are not inconsistent, would regulate the form and other details of procedure for writ proceedings. In the wake o .....

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One of the questions that arose in the aforesaid case before the learned Judge was whether the 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 Rul .....

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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 are necessary would be applicable to proceedings under Art. 226 of the Constitution. 21. After having arrived at the aforesaid conclusion, it would not have been necessary for me to deal with some of the .....

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ction. Cases have arisen in this Court where petitions have been filed jointly by more than one petitioner and joining several distinct causes of action. In such cases the non-maintainability of the petition on the ground of misjoinder of parties and causes of action, has to be decided keeping in view the aforesaid provisions. In cases where there are numerous petitioners or respondents have the same interest, resort can be made to the provisions of O. 1, R. 8. 23. Reference may now be made to O .....

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rt to hear the petition on merits as in the absence of the legal representatives of a partly to the petition, it would not be permissible to hear the petition, on merits. In case a party dies and the legal representatives are not brought on the record, then the Court is bound to dismiss that petition for want of necessary parties. The question what now arises for consideration is as to what should be the period of limitation for bringing on record the legal representatives of the deceased becaus .....

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ere 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 .....

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is very simple. i.e. that whatever considerations are taken note of while dealing with a petition under Art. 226, would be adverted to for deciding an application under O. 22. For filing writ petitions no period has been indicated which may be regarded as an ultimate limit of action. there is no lower limit nor is there any upper limit and generally each case is judged on its own facts and in case it is found that a party has been guilty of avoidable delay, then on that ground the Court refuses .....

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will have to be seen and judged on its facts. In this view of the matter, I am constrained to hold that the view taken in Ram Kala's case that O. 22 of the Civil P. C. does not apply to the writ proceedings is not correct. 25. The brings me to the provisions of O. 23, R. 1 of the Code. As has come in the contention of Shri Anand Swarup, the applicability of this provision was sought to be avoided solely on the plea that a petition which has been dismissed as withdrawn could not be a bar to t .....

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gs by virtue of R. 32. It may be noticed that the applicability of the provisions of O. 23, R. 1 shall have a very salutary effect as it would minimise to a great extent the chances of the abuse of the process of this Court. To elucidate the point further, I take an example. A litigant 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 i .....

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t 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:- (1) That in the m .....

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ny other proceeding such as suit, a petition under Art. 32 etc. (4) That if a petition is dismissed only on the ground of laches or the availability of an alternate remedy or on a ground analogous thereto, then any other remedy by way of suit or any other proceeding will not be barred on principle of res judicata. (5) That even in cases where a petition is dismissed on the ground of laches or on the ground of alternate remedy or on a ground analogous thereto, a second petition on the same cause .....

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d in respect of the same cause of action by the same party would not be maintainable even if his earlier petition has been disposed of by one word 'Dismissed'. (8) That the provisions of O. 22 Civil P. C. would 226 of the Constitution. (9) 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 filing of a second petition on the same facts and in respect of the same ca .....

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r 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 pe .....

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o make the petition. 35. It may be noticed that the petitioner filed Civil Writ Petition No. 1064 of 1973 Teja Singh v. U. T. Chandigarh, in which he had challenged the same order, that is, 7364-GH-II-73 issued in the month of Feb. copy of which was annexure P-14 to that petition and which is Annexure P. 7 in the present writ petition. C. W. P. No. 1064 of 1973 was dismissed on 2nd April, 1973 as withdrawn. An objection was raised on behalf of the respondents that since the earlier writ petition .....

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ention of Shri Anand Swarup, the applicability of this provision was sought to be avoided solely on the plea that a petition which has been dismissed as withdrawn could not be a bar to the filing of the second petition as in a petition which is got dismissed as withdrawn, the merits of the controversy are not gone into: but this approach of the learned counsel is without any merit. It is correct that in the petition which is dismissed as withdrawn, the merits of the controversy are not gone into .....

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which comes up for motion hearing. During the arguments an impression is gathered that 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 o .....

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f 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 .....

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