Holding

A petitioner who withdraws a writ petition under Articles 226/227 without permission to file a fresh petition is deemed to have abandoned the remedy and is precluded from filing another writ petition on the same cause of action.

Summary

The petitioners, Sarguja Transport Service, obtained a transport permit which was later set aside by the State Transport Appellate Tribunal. They filed a writ petition (M.P. No. 2945/85) under Articles 226/227 of the Constitution, which the High Court allowed them to withdraw and dismissed as withdrawn. Subsequently they filed a second writ petition (M.P. No. 188/86) challenging the same order. The High Court dismissed the second petition, holding that because the first petition was withdrawn without permission to file a fresh petition, a fresh writ could not be entertained. The petitioners appealed to the Supreme Court, contending that the earlier withdrawal was not a bar since the petition had not been decided on merits. The Supreme Court held that withdrawal of a writ petition without the Court’s permission amounts to abandonment of the remedy and, by extending the principle of Rule I, Order XXIII of the CPC, bars the filing of another writ on the same subject matter. The Court dismissed the Special Leave Petition, affirming the High Court’s decision.

Issues considered

Whether a writ petition withdrawn without the High Court’s permission to file a fresh petition bars the filing of a subsequent writ petition on the same subject matter.
Whether the principle underlying Rule I, Order XXIII of the CPC, which precludes a fresh suit after an unpermitted withdrawal, should be extended to writ petitions under Articles 226/227 of the Constitution.

Legislation cited

Code of Civil Procedure, 1908s. Order XXIII, Rule I
Constitution of Indias. Art.21, s. Art.226, s. Art.227, s. Art.32
Motor Vehicles Act, 1939

Subjects

writ petitionwithdrawalArt.226Art.227CPC Order XXIII Rule Ipublic policyres judicataspecial leave petitiontransport permitabandonment

Judgment

SARGUJA TRANSPORT SERVICE
A V.
STATE TRANSPORT APPELLATE TRIBUNAL, M.P.,
GWALIOR AND OTHERS

NOVEMBER 12. 1986
B
[E.S. VENKATARAMIAH AND M.M. DUTT, JJ.]

Constitution of India, 1950: Articles 21, 32, 226 & 227-Writ 1--
Petition withdrawn without permission to file a fresh petition-Effect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 subject matter.
c 1
Civil Procedure Code, 1908: Order XXlll, Rule I-Applicability'
of to cases of withdrawal of writ petitions.

Sub-rule (I) of rule I, Order XXIII of the Code of Civil Procedure
D permits a plaintiff to abandon his suit against .all or any of the de-
fendants at any time after the institution of the suit; sub-rule (3) lays
down that 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 allow-
ing 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
E 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
F terms applicable to the writ proceedings. However, the procedure pre-

1
scribed, 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
G fresh petition. Later on it filed another writ petition against the order
assailed in the first petition. The High Court summarily dismissed it
laking 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.

H In this petition· for special leave it was contended that since the

200
SARGUJA T.S. v. S.T.A.T. 20 l

;.. . High Court had not decided the earlier petition on merits but had only A
""-. 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 Con-
stitution without permission to institute a fresh petition can file a fresh B
writ petition in the High Court under these Articles, and whether it
would advance the ca'!5e of justice if the principle underlying rule I,
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, c
HELD: l. The High Court was right in holding that a fresh peti-
tion was not maintainable before it in respect of the same subject matter
since the earlier writ petition had been withdrawn without permiS.ion
lo file a fresh petition. [108D]
D
2.1 The principle underlying rule I, Order XXIII of the Code of
Civil Procedure that when a plaintiff once institutes a suit in a Court
a'1d thereby avails of a remedy given to him under law, he cannot be
permitted lo institute a fresh suit in respect of the same subject matter
again after abandoning the earlier suit or by withdrawing ii without the
permission of the Court to file fresh suit. should be extended in the E
interest of justice on the ground of public policy to cases of withdrawal
of writ petition also. [206D, 208A]

- 2.2 ln\'ito he.nefi.ciunz nbn datur. The law confers upon a man no
rights or benefits which he does not desire. Whoever waives, abandons

!
~ or disclaims a right )Vould loose it. [206E] F

2.3 Where a petitioner withdraws a writ petition filed by him in
the High Court under Art. 226/217 without permission to institute a
fresh petition he should be deemed lo ha.e 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] G

3. I The principle embodied in rule I, Order XXllI of the Code is
·)- founded on public policy. It is not the same as the rule of res judicata
' contained in s. I ! of the Code, which applies to a case where the suit or
an issue has already been heard and finally decided hy a Court.· In the
case of abandonment or withdrawal of a suit, there is no prior adjudica- H
202 SUl'RJ;ME COURT Rel'ORTS [ 1987] l S.C.R.

'
A 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 pre-
vent the abuse of the proc-ess of the Court. [206G, H, D, 2078)

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
B a case involving the question of enforcement of fundamental rights since
such withdrawal does not amount to res j11dirnt11 and there hns been no
decision on the merits by the High Court. [208C, 207EI

Daryao and Ors. v. The State of U.I'. and Ors .. [1962) l SCR
575. referred to. · 1'
c
[A petition involving the personal liberty of an individual in which
the petitioner prays for the issue of a writ in the nature of hahcas corpus
or seeks to enforce the fundamental right guaranteed under Art. 2 I of
the Constitution stands on a different footing altogether. This question
is left open.] [208E]
D
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) No. 5665 of 1986

From the Judgment and Order dated 17. I. 1986 of the Madhya
Pradesh High Court in Misc. Petition No. !88 of 198fl.
E
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
F to run a stage carriage on the route Jashpumagar-Ambikapur issued r",
under the Motor Vehicles Act. 19.19 (hereinafler referred to as 'the \
Act") in favour of the Jan ta 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 IC·
G newal of the permit in its favour. The application for renewal filed by
the Jan ta Transport Co-operative Society was rejected by the Regional
Transport Authority on the ground that it was barred by time. On a
consideration of the relative 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
H appeal by M/s. Ali Ahmed & Sons-respondent No . .1, which was also
SARGUJA T.S. v. S.T.A.T. [VENKATARAMIAH, J.I 203

an applicant for the said permit before the State Transport Appellate A
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 practising advocate and B
that he had ceased to carry on the transport business in his .individual
capacity and granted the permit in favour of M/s. Ali Ahmyd & Sons.
· Aggrieved by the order of the Tribunal the petitioner filed a writ
·(petition 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 Constitu-
. lion of India. That petition was taken up for hearing on 4. IO. 1985 by
the High Court. On that day the High Court passed the following
c
order:-

"Shri Y.S. Dharmadhikari, learned counsel for the peti- ·
tinner seeks permission to withdraw the petition. He is
permitted to do so. The petition is dismissed as withdrawn." D

Later on the petitioner again filed another writ petition before
the High Court in M.P. No. 188 of 1986. That petition came up for
hearing on 17. I. 1986. At the conclusion of the hearing the High Court
passed the following order:-
E
"Shri P.R. Bhave for the petitioner heard orr admi.ssion.

- 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 respondent No. 3. The petitioner earlier filed writ peti- F
lion No. M.P. No. 2945/85 against the impugned order
which was withdrawn on 4. I0.'!985. 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 as G
he has been found superior to the petitioner. Besides, he
being a practising lawyer could not be doing the transport
business. Similar petition of other operators has already
been dismissed by this Court.

Accordingly, the petition is dismissed summarily." H
204 SUPREME COURT REPORTS [ 1987] 1 S.C.R.

A Aggrieved by the above order rejecting the writ petition at the v•
.,
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
B counsel for the petitioner is that the !figh Court was in error in reject-
ing 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
questioned the order passed by the Tribunal on .J. lO. 1985 without the
permission of the High Court to file a fresh petition. It is urged by the
learned counsel that since the High Court had not decided the earlier
C 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 226i227 of the
D Constitution of India without the permission of the High Court to file a
fresh petition. The provisions of the Code of Civil Procedure. 1908
(hereinaf\er 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 l of Order XXIII of the Code provides for
E 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 providej 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
F stood theri, which provided that at any time after the institution of a
suit the plaintiff might, as against all or any of ihe defendants 'with-
draw' his suit or abandon a part of his claim. The second category was
governed 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
G 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
H abandoned a part of a claim without the permission referred to in
SARGUJA T.S. v. S.T.A.T (VENKATARAMIAH, J.] 205

sub-rule (2) he would be liable tq such costs as the Court might award A
and would be preclu~ed 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 withdrawals led to confusion, the rule was amended to avoid such
confusion. The relevant part of rule l of Order XXIII of the Code now
reads thus:- B

"Rule L Withdrawal of suit or abandonment of part of
claim-(!) 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:

**** . **** ****
c
(3) Where the Court is satisfied-

(a) that a suit must fail by reason of some formal de-
fect, or ·
D
(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 E
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 F
( l), or
(b) withdraws from a suit or part of a claim 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 instituting any fresh suit in respect G
of such subject-matter or such part of the claim."

It may be noted that while in sub-rule (I) of the former rule l of
Order XXIII of the Code the words 'withdraw his suit' had been used,
in sub-rule (I) of the new rule I of Order XXIII of the Code, the words H
'abandon his suit' are used, The new sub-rule (I) is applicable to a case
206 SUPREME COURT REPORTS (1987] 1 S.C.R.

A where the Court does not accord pennission 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 corresponds to the fonner sub-rule (2) practically
f.10 change is made and under that sub-rule the Court is empowered to
grant subject to the conditions mentioned therein pennission to with-
B draw 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 l of Order
XXIII of the Code provides that where the plaintiff abandons any suit
or part of claim under sub-rule ( l) or withdraws from a suit or part of a
claim without the pennission 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 subject-
c matter 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 pennission
to file a fresh suit. It provides that where the plaintiff abandons a suit
D or withdraws from a suit without the pennission, referred to in sub-
rule (3) of rule l 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 l 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
E 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. lnvito 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 pro"cess of the Court by
F instituting suits again and again on the same cause of action without
any good "reason the Code insists that he should obtain the pennission
of the Court to file a fresh suit after establishing either of the two
grounds mentioned in sub-rule (3) of rule l of Order XXIII. The
principle underlying the above rule is founded on public policy, but it
is not the same as the rule of res judicota contained in section l l of the
G Code which provides that no court shall try any suit or issue in which
the matter directly or su,bstantially in issue has been directly or sub-
stantially in issue in a fo~er suit between the same parties, or bet-
ween 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
H heard and finally· decided by such Court. The rule of res j11dicata
SARGUJA T.S. v. S.T.A.T. IVENKATARAMIAH, J.] 207

applies to a case where the suit or an issue has already been heard and A
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 adjudication 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 l of Order XXIIJ of the Code when the first suit is withdrawn
B
.... 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
'f~.not advance the cause of justice if the principle underlying rule l 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 c
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 seeking permission to institute .a fresh writ petition. A
Court which is unwilling to admit the petition would not ordinarily D
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
petition 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. E
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 be-
-· fore 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) ts to be found at page 593 and it is as follows: F

"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 G
has been argued as a preliminary issue in these writ peti-
tions and no other.··

The point for consideration is whether a petitioner after with-
drawing a writ petition filed by him in the High Court under Article
H
226 of the Constitution of India without the permission to institute a
208 SUPREME COURT REPORTS [1987] 1 S.C.R.

A fresh petition can file a fresh writ petition in the High Court under that y-
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 l
of Order XXIII of the Code should be extended in the interests of
administration 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
B 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 jurisdic-
tion 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 1 ~
C remedies like a suit or a petition under Article 32 of the Constitution
of India since such withdrawal does not amount to res judicata, the
remedy under Article 226 of the Con_stitution 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 right
D 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, how-
ever. 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 petitioner prays for the '-,r--
E issue of a writ in the nature of habeas corpus or seeks to enforce the
fundamental right 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
F of the High Court. In the result we dismiss the special leave petition.

P.S.S.
Petition dismissed.

(
'