TMI Blog1976 (9) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants had previously filed writ petition No. 1384 of 1971 on identically the same facts, claiming the same reliefs viz. for quashing the notifications issued by the State Government of Rajasthan under Sections 4 and 6 of the Rajasthan Land Acquisition Act, 1953 dated 17-10-1963 and 7-1-1971 for tine acquisition of village Rampura Roopa for the Jainpir Improvement Trust for public purpose i.e. for the planned development of Jaipur City under the Lal Kothi Scheme. 3. That petition of theirs was heard on merits along with Writ Petitions Nos. 538 and 546 of 1971 by Tyagi, J. on 23-2-1972. Tyagi, J. had, in the meanwhile, rejected 28 Writ Petitions challenging the aforesaid notifications on precisely similar grounds by the judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on identically the same facts, challenging the said notifications on precisely the same grounds except for the ground based on the decision of their Lordships of the Supreme Court in Munshi Singh v. Union of India AIR 1973 SC 1150. The learned single Judge has dismissed the writ petition as not maintainable for the grounds stated above. 5. The earlier writ petition having been withdrawn, there was no decision on merits and, therefore, the learned single Judge was not right in holding that the writ petition was barred by the rule of constructive res judicata: Arati Ray Choudhury v. Union of India AIR 1974 SC 532. The question still is whether the second writ petition lies. 6. It is urged that the order of Tyagi J. should be construed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te with this proposition but the difficulty is as regards its application. 8. There can be no doubt as to the principles applicable to a suit. The court has undoubtedly no power apart from Order 23, Rule 1, C.P.C. to allow a suit to be withdrawn with liberty to file a fresh one, and the power has to be exercised subject to the conditions prescribed therein. When leave is granted to the plaintiff to withdraw from the suit with liberty to bring a fresh suit, the order must not be one dismissing the suit with liberty to bring a fresh suit, but one granting permission to the plaintiff to withdraw from the suit with liberty to bring a fresh suit. Where leave is refused, the Court should simply dismiss the application. It should not make an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdraw the earlier writ petition at their own risk. They made a false representation seeking leave to withdraw the petition on the pretext that some new facts had come to their notice. The present petition is, as it is now accepted, based on identically the same facts. But it is said that it is based on a new ground, namely, on the decision of their Lordships of the Supreme Court in Munshi Singh v. Union of India (AIR 1973 SC 1150) which according to the learned counsel, constitutes new facts, and therefore, a second petition was maintainable. The submission is wholly unwarranted. There were a series of petitions based on more or less similar grounds. They were also dismissed by Tyagi J. by his order in Writ Petition No. 112 of 1970 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to move such an application on the same facts again and again till it is disposed of on merits. Looked at from another point of view, such a procedure would result in disregarding and circumventing the earlier orders of this Court. In these circumstances, we are of the opinion that the principle contained in Order 9, Rule 9, C.P.C. can be suitably applied to writ proceedings. As has already been stated above, the earlier writ application in this case based on the same facts was dismissed in default in the presence of the opposite party and the application for the restoration was dismissed on merits. Thus, applying the principle contained in Order 9, Rule 9, C.P.C. the present writ application is not maintainable. In Special Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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