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PETITIONER: SARGUJA TRANSPORT SERVICE

       Vs.

RESPONDENT: STATE TRANSPORT APPELLATE TRIBUNAL, M.P.,GWALIOR AND OTHERS

DATE OF JUDGMENT12/11/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) DUTT, M.M. (J)

CITATION:  1987 AIR   88            1987 SCR  (1) 200  1987 SCC  (1)   5        JT 1986   808  1986 SCALE  (2)757

ACT:      Constitution  of  India, 1950: Articles 21, 32,  226  & 227--Writ  Petition withdrawn without permission to  file  a fresh petition--Effect of--Petitioner whether precluded from filing  any fresh petition/suit in respect of the same  sub- ject matter.      Civil  Procedure Code, 1908: Order XXIII,  Rule  1--Ap- plicability of to cases of withdrawal of writ petitions.

HEADNOTE: Sub-rule  (1)  of rule 1, Order XXIII of the Code  of  Civil Procedure ) permits a plaintiff to abandon his suit  against all or any of the defendants at any time after the  institu- tion  of  the suit; sub-rule (3) lays down  that  where  the court  is satisfied (a) that a suit must fall by  reason  of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject  matter of the suit, it may grant permission to  him to withdraw from such suit with liberty to institute a fresh suit,  while sub-rule (4) provides that where the  plaintiff abandons  any suit under sub-rule (1) or withdraws  from  it without the permission referred to in sub-rule (3), he shall be  precluded from instituting any fresh suit in respect  of such subject matter.      The provisions of the Code of Civil Procedure, 1908 are not  in terms applicable to the writ  proceedings.  However, the procedure prescribed, therein, as far as it can be  made applicable,  is followed by the High Court in  disposing  of the writ petitions.      The petitioner withdrew its earlier writ petition filed under Art. 226/227 of the Constitution without permission of the Court to file a fresh petition. Later on it filed anoth- er  writ  petition against the order assailed in  the  first petition.  The High Court summarily dismissed it taking  the view  that  no second writ petition lies  against  the  same order  where  the earlier petition was  not  withdrawn  with permission to file a fresh petition. In  this  petition for special leave it was  contended  that since the 201 High  Court had not decided the earlier petition  on  merits

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but  had  only permitted the petitioner to withdraw  it  the withdrawal  could not be treated as a bar to the  subsequent writ petition.     On the question: Whether a petitioner after  withdrawing a  writ petition filed by him in the High Court  under  Art. 226/227 of the Constitution without permission to  institute a fresh petition can file a fresh writ petition in the  High Court under these Articles, and whether it would advance the cause  of justice if the principle underlying rule 1,  Order XXIII  of the Code of Civil Procedure is adopted in  respect of the writ petitions under these Articles. Dismissing the special leave petition, the Court.     HELD:1. The High Court was right in holding that a fresh petition  was not maintainable before it in respect  of  the same subject matter since the earlier writ petition had been withdrawn  without  permission  to file  a  fresh  petition. [208D]     2. 1 The principle underlying rule 1, Order XXIII of the Code  of Civil Procedure that when a plaintiff  once  insti- tutes 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 subject matter again after abandoning the earlier suit or by withdrawing it without the permission  Of the Court to file fresh suit. should  be  ex- tended  in the interest of justice on the ground  of  public policy to cases of withdrawal of writ petition also.  [206D, 208A]     2.2 Invito beneficium non datur. The law confers upon  a man no rights or benefits which he does not desire.  Whoever waives. abandons or disclaims a right would loose it. [206E]     2.3  Where a petitioner withdraws a writ petition  filed by him in the High Court under Art. 226/227 without  permis- sion  to institute a fresh petition he should be  deemed  to have abandoned the remedy under these Articles in respect of the  cause  of  action relied on in the  writ  petition  and barred from filing a fresh petition. [207H,208C]     3.1 The principle embodied in rule 1, Order XXIII of the Code is rounded on public policy. It is not the same as  the rule  of res judicata contained in s. II of the Code,  which applies  to  a case where the suit or an issue  has  already been  heard and finally decided by a Court. In the  case  of abandonment  or  withdrawal  of a suit, there  is  no  prior adjudica- 202 tion  of a suit nor an issue is involved. The  plaintiff  is precluded from instituting any fresh suit in respect of  the same  subject matter to prevent the abuse of the process  of the Court. [206G, H, D, 207B]      3.2 Such withdrawal would not bar other remedies like a suit or a petition under Art. 32 of the Constitution  before the  Supreme Court in a case involving the question  of  en- forcement  of fundamental rights since such withdrawal  does not amount to res judicata and there has been no decision on the merits by the High Court. [208C, 207E]      Daryao and Ors. v. The State of U.P. and Ors., [1962] 1 SCR 575. referred to.      [A petition involving the personal liberty of an  indi- vidual in which the petitioner prays for the issue of a writ in  the  nature  of habeas corpus or seeks  to  enforce  the fundamental right guaranteed under Art. 21 of the  Constitu- tion stands on a different footing altogether. This question is left open.] [208E]

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JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Special  Leave  Petition (Civil) No. 5665 of 1986      From  the  Judgment and Order dated  17.1.1986  of  the Madhya Pradesh High Court in Misc. Petition No. 188 of 1986. B.P. Singh and Ranjit Kumar for the Petitioner. The Order of the Court was delivered by VENKATARAMIAH, J. On the expiry of the period of a permit  : to run a stage carriage on the route Jashpurnagar--Ambikapur issued  under  the  Motor Vehicles  Act,  1939  (hereinafter referred  to as ’the Act’) in favour of the Janta  Transport Co-operative  Society. the petitioner and some others  filed applications  for  the grant of the said permit  before  the Regional Transport Authority, Bilaspur. The Janta  Transport Co-operative Society also made an application for the renew- al of the permit in its favour. The application for  renewal filed  by the Janta Transport Co-operative Society  was  re- jected  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 203 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  prac- tising  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  peti- tion in M.P. No. 2945 of 1985 on the file of the High  Court of Madhya Pradesh at Jabalpur under Articles 226/227 of  the Constitution of India. That petition was taken up for  hear- ing  on  4.10.1985 by the High Court. On that day  the  High Court passed the following order:--               "Shri Y.S. Dharmadhikari, learned counsel  for               the  petitioner seeks permission  to  withdraw               the  petition. He is permitted to do  so.  The               petition is dismissed as withdrawn."     Later  on the petitioner again filed another writ  peti- tion  before  the High Court in M.P. No. 188 of  1986.  That petition came up for hearing on 17.1.1986. At the conclusion of the hearing 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  Tribu-               nal  setting aside the grant in favour of  the               petitioner, and instead giving the permit.  to               the  respondent No. 3. The petitioner  earlier               filed  writ  petition  No.  M.P.  No.  2945/85               against the impugned order which was withdrawn               on  4.10.1985.  No second writ  petition  lies               against  the same order. The earlier  petition               was  not withdrawn with permission to  file  a               fresh  petition. Besides, we do not  find  any               merit in this petition. The Appellate Tribunal               has granted the permit to the respondent No. 3

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             as he has been found superior to the petition-               er.  Besides,  he being  a  practising  lawyer               could  not  be doing the  transport  business.               Similar  petition of other operators  has  al-               ready been dismissed by this Court.               Accordingly,  the petition is  dismissed  sum-               marily.               204     Aggrieved by the above order rejecting the writ petition at  the  stage of admission, the petitioner  has  filed  the above  special leave petition requesting the Court to  grant the  special leave to prefer an appeal against the order  of the High Court.     The  main  contention  urged before this  Court  by  the learned  counsel for the petitioner is that the  High  Court was  in  error in rejecting the writ petition out  of  which this  case  arises, on the ground that  the  petitioner  had withdrawn  the earlier writ petition in which he  had  ques- tioned the order passed by the Tribunal on 4.10. 1985  with- out  the permission of the High Court to file a fresh  peti- tion. It is urged by the learned counsel that since the High Court  had  not decided the earlier petition on  merits  but only had permitted the petitioner to withdraw the  petition, the  withdrawal of the said earlier petition could not  have been treated 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 abandon  a part of his claim. The second category  was  gov- erned by sub-rule (2) thereof which provided that where  the Court  was satisfied (a) that a suit must fail by reason  of some  formal  defect,  or (b)  that  there  were  sufficient grounds for allowing the plaintiff to institute a fresh suit for  the  subject-matter of a suit or part of  a  claim.  it might, on such terms as it thought fit, grant the  plaintiff permission to withdraw from such suit or abandon a part of a claim  with liberty to institute a fresh suit in respect  of the  subject-matter of such suit or such part of the  claim. Sub-rule (3) of the former rule 1 of order XXIII of the Code provided  that where the plaintiff withdrew from a  suit  or abandoned a part of a claim without the permission  referred to in 205 sub-rule (2) he would be liable to. such costs as the  Court might  award  and would be precluded  from  instituting  any fresh suit in respect of such subject-matter or such part of the claim. Since it was considered that the use of the  word ’withdrawal’ in relation to both the categories of withdraw- als  led  to confusion, the rule was amended to  avoid  such

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confusion. The relevant part of rule 1 of Order XXIII of the Code now reads thus:--               "Rule 1. Withdrawal of suit or abandonment  of               part  of  claim--(1)  At any  time  after  the               institution  of a suit, the plaintiff  may  as               against  all or any of the defendants  abandon               his suit or abandon a part of his claim:               ****                                      ****               ****               (3) Where the Court is satisfied--               (a)  that a suit must fail by reason  of  some               formal defect, or               (b)  that  there are  sufficient  grounds  for               allowing  the plaintiff to institute  a  fresh               suit for the subject-matter of a suit or  part               of a claim,               it may, on such terms as it thinks fit,  grant               the plaintiff permission to withdraw from such               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.               (4) Where the plaintiff--               (a)  abandons any suit or part of claim  under               sub-rule (1), or               (b)  withdraws from a suit or part of  a  daim               without the permission referred to in sub-rule               (3),               he shall be liable for such costs as the Court               may  award and shall be precluded from  insti-               tuting  any  fresh  suit in  respect  of  such               subject-matter or such part of the claim."     It may be noted that while in sub-rule (1) of the former rule  1 of Order XXIII of the Code 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 206 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 corre- sponds  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 subjectmatter or such part of the claim.     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 rule 1 of  Order  XXIII  of the Code, he shall  be  precluded  from instituting any fresh suit in respect of such subject-matter or  such part of the claim. The principle underlying rule  1 of  Order  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

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a  fresh  suit in respect of the same  subject-matter  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 desire. Whoever waives, abandons  or  disclaims a right will loose it. In  order  to prevent a litigant from abusing the process of the Court  by instituting  suits  again  and again on the  same  cause  of action  without  any good reason the Code  insists  that  he should  obtain the permission of the Court to file  a  fresh suit after establishing either of the two grounds  mentioned in  sub-rule  (3) of rule 1 of Order  XXIII.  The  principle underlying  the above rule is rounded on public policy,  but it is not the same as the rule of res judicata contained  in section  11 of the Code which provides that no  court  shall try  any suit or issue in which the matter directly or  sub- stantially  in issue has been directly or  substantially  in issue in a former suit between the same parties, or  between parties  under  whom they or any of them  claim,  litigating under  the  same  title, in a Court competent  to  try  such subsequent  suit  or the suit in which such issue  has  been subsequently raised, and has been heard and finally  decided by such Court. The rule of res judicata 207 applies  to  a case where the suit or an issue  has  already been  heard and finally decided by a Court. In the  case  of abandonment  or withdrawal of a suit without the  permission of the Court to file a fresh suit, there is no prior adjudi- cation  of  a suit. or an issue is involved,  yet  the  Code provides, as stated earlier, that a second suit will not lie in  sub-rule (4) of rule 1 of Order XXIII of the  Code  when the first suit is withdrawn without the permission  referred to  in  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  peti- tion because he cannot be considered as a party aggrieved by the  order  passed by the High Court. He may  as  stated  in Daryao  and  Ors. v. The State of U.P. and  Ors.,  [1962]  2 S.C.R.  575 in a case involving the question of  enforcement of  fundamental  rights file a petition before  the  Supreme Court under Article 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  with-               drawn  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

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             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."     The  point  for consideration is  whether  a  petitioner after  withdrawing a writ petition filed by him in the  High Court under Article 226 of the Constitution of India without the permission to institute a 208 fresh  petition can file a fresh writ petition in  the  High Court  under  that Article. On this point  the  decision  in Daryao’s case (supra) is of no assistance. But we are of the view that the principle underlying rule 1 of Order XXIII  of the Code should be extended in the interests of  administra- tion  of  justice to cases of withdrawal  of  writ  petition also, not on the ground of res judicata but on the ground of public  policy as explained above. It would also  discourage the litigant from indulging in bench-hunting tactics. In any event  there  is  no justifiable reason in such  a  case  to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again.  While the withdrawal of a writ petition filed  in  a High Court without permission to file a fresh writ  petition may  not bar other remedies like a suit or a petition  under Article 32 of the Constitution of India since such withdraw- al does not amount to res judicata, the remedy under Article 226  of the Constitution of India should be deemed  to  have been abandoned by the petitioner in respect of the cause  of action  relied on in the writ petition when he withdraws  it without such permission. In the instant case the High  Court was  fight  in holding that a fresh writ  petition  was  not maintainable before it in respect of the same subject-matter since  the earlier writ petition had been withdrawn  without permission  to file a fresh petition. We, however.  make  it clear that whatever we have stated in this order may not  be considered as being applicable to a writ petition  involving the personal liberty of an individual in which the petition- er  prays  for the issue of a writ in the nature  of  habeas corpus or seeks to enforce the fundamental fight  guaranteed under  Article  21  of the Constitution since  such  a  case stands  on a different footing altogether. We however  leave this question open.     Even on merits we do not find any ground to reverse  the decision  of  the High Court. In the result we  dismiss  the special leave petition. P.S.S. Petition dismissed.                                 1 ?209