IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.615 of 2008 SACHCHIDANAND KUMAR Versus THE STATE OF BIHAR & ORS ----------- For the appellant : Mr. Surendra Kumar, Advocate For the Respondents : Mrs. Nividita Nirvikar, G.P. XVI ----- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal -------- Dated, the 18th August, 2008. There is merit in the submission of the counsel for the appellant that there was no concealment on the part of the appellant (original writ petitioner) with regard to the dismissal of earlier writ petition in default and the dismissal of restoration application. He has rightly submitted that in paragraph 21 of the writ petition, the facts concerning earlier writ petition and restoration application have been stated. There appears to be, thus, a mistake in making averment in paragraph 2 of the writ petition which has been noticed by the Single Judge. However, it does not improve the case of the appellant, as the entertainment of the second writ petition, for which an earlier writ petition was dismissed in default, and the restoration application also came to be dismissed, would be improper. 2. Order IX Rule 9 of the Code of Civil Procedure 2 provides thus: “Decree against plaintiff by default bars fresh suit.---(1)Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.” 3. Although in view of section 141 of the Code of Civil Procedure, afore-referred provision contained in Order IX Rule 9 of the Code of Civil Procedure would not be applicable as it is to a proceeding of the Article 226 of the Constitution of India but nevertheless, the principles underlying the said provision which articulates a sound public policy, can justifiably be applied. 4. Letters Patent Appeal, accordingly, does not deserve to be admitted. It is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J. Anil/