HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.23302 of 1998 Date: 22.2.2010 Between: P. Venkata Ramana and others. ..... PETITIONERS AND The Joint Collector, Medak at Sangaredy and others. .....RESPONDENTS HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 23302 of 1998 JUDGMENT: In this writ petition, the petitioners herein seek a Writ of Certiorari to have the order dated 9.6.1998 and all other connected records quashed. They also seek a direction to the respondents to mutate the lands in Survey No. 210,217,218 of Ratnapur Village and Survey No. 222 of Pillutla Village, Shivampet Mandal, Medak District in their name and to make entries in all the concerned revenue records as per the final patta Certificates given in their favour in the year 1978. A detailed counter affidavit is filed wherein, in addition to the plea of fraud having been committed by the petitioners resulting in the impugned order being passed, it is also stated that the petitioners had earlier filed Writ Petition No. 19786 of 1998 before this Court questioning the very same order of the Joint Collector, Medak dated 9.6.1998, and that W.P. No. 19786 of 1998 was, on the request of the petitioners, dismissed as withdrawn by this Court on 27.7.1998. In the affidavit filed in support of the present writ petition the petitioners have not even stated that they had earlier filed a writ petition for the very same relief and that the earlier writ petition was withdrawn. What would be the consequence of withdrawal of the earlier writ petition, and failure on the part of the petitioners to state the facts relating to such withdrawal in the present writ petition, are questions which necessitate examination. Sri S. Krishna Murthy, learned counsel for the petitioners, while fairly stating that the petitioners in the present writ petition and those in Writ Petition No. 19786 of 1998 are the same, and the order under challenge in both the writ petitions is also the same, would, however, submit that a small mistake committed by the petitioners, in not seeking liberty from the Court while withdrawing the earlier writ petition, should not result in denial of their right to invoke the jurisdiction of this Court under Article 226 of the Constitution. Learned counsel would submit that the question whether or not a subsequent writ petition should be entertained, despite liberty not having been sought for in the earlier writ petition, is a matter of discretion of this Court and the plight of the petitioners, who are the owners of small extents of land, would necessitate this Court taking a liberal view and entertain the writ petition on merits. Learned counsel would rely on a Full Bench judgment of this Court in Bhadruka College of Commerce And Arts (Day) vs. State of A.P. & Others[1], in this regard. Learned counsel would also contend that, while the respondents had stated in their counter affidavit that the earlier writ petition was dismissed as withdrawn, they had also sought to sustain the order on merits and had pleaded fraud. Learned counsel would submit that the respondents had filed voluminous documents in support of their plea that the petitioners had committed fraud; the vacate stay petition filed by them was dismissed and the interim stay was made absolute; and, having chosen to contest the matter on merits, it was not open to them to now contend that, in the absence of liberty being granted by this Court while dismissing Writ Petition No. 19786 of 1998 as withdrawn, the present writ petition was also liable to be dismissed. Learned Additional Advocate General, appearing on behalf of the respondents, would submit that in the light of the specific averment in the counter affidavit that the earlier writ petition had been withdrawn, and in as much as no liberty was granted by the Court earlier, it was clear that the petitioners had suppressed facts. He would submit that the law laid down by the Supreme Court and this Court in Sarguja Transport Service vs. State Transport Appellate Tribunal & Others[2] and Chaitanya Samkshema Sangham vs. State Of A.P. & Others[3], would necessitate the present writ petition being dismissed as not maintainable. He would further submit that, in any event, this was not a matter where this Court should exercise discretion to entertain the writ petition in as much as the petitioners had, by suppressing the fact of their having filed the earlier writ petition and of having withdrawn the same without seeking liberty, had abused the process of the Court. In Sarguja Transport2 the Supreme Court, while extending the principles underlying Order 23 Rule 1 of the Civil Procedure Code to proceedings under Article 226 of the Constitution, observed:- “…….. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying R. 1 of O. XXIII of the Code is adopted in respect of writ petitions filed under Art. 226/227 of the Constitution 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 seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily 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 v. State of U.P., (1962) SCR 574: (AIR 1961 SC 1457) in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Art. 32 of the Constitution 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 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 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 Art. 226 of the Constitution of India without the permission to institute a 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 R. 1 of O. 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 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 Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Art. 226 of the Constitution 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 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. …….” Following the judgment of the Supreme Court in Sarguja Transport2, a Division Bench of this Court in Chaitanya Samkshema Sangham3, held that since the petitioners did not seek permission of the Court for withdrawing the earlier writ petition and to file a fresh writ petition on the same cause of action, it must be deemed that the petitioners had abandoned the relief sought in the earlier writ petition and it was therefore not permissible for the petitioners to file a fresh writ petition seeking the very same relief sought for in the earlier writ petition. The law laid down by the Supreme Court in Sarguja Transport2 and the Division Bench of this Court in Chaitanya Smkshema Sangham3, is that when liberty is not granted to file a writ petition afresh, upon withdrawal of the earlier writ petition, the petitioners must be deemed to have abandoned their right to file a writ petition afresh on the very same cause of action and, while a Suit or other remedies are not barred, the jurisdiction of the High Court under Article 226 of the Constitution could not be invoked for the very same relief. In Bhadruka College1, the scope of Rule 24 of the Writ Proceeding Rules was under consideration. Rule 24 reads thus: “All other rules relating to causes and matters coming before the original side and appellate side of the High Court and the provisions of the Code of Civil Procedure, 1908 will apply to the writ petitions and the writ appeals in so far as they are not inconsistent with these rules”. The Full Bench declared that the “provisions of the Civil Procedure Code were not applicable to proceedings under Article 226 and 227 of the Constitution to any extent except to borrow any of the principles therein to exercise discretion within the powers conferred under Article 226 to render justice and for no other purpose.” The question before the Full Bench in Bhadruka College1 did not relate to withdrawal of an earlier writ petition under Order 23 Rule 1 nor did the Full Bench notice the judgment of the Supreme Court in Sarguja Transport2. As the petitioners had not sought liberty of this Court while withdrawing Writ Petition No. 19786 of 1998, and as the said writ petition was dismissed as withdrawn by this Court on 27.7.2008 without liberty being granted to file a writ petition afresh, I see no reason to entertain the present writ petition filed by the very same petitioners seeking the self-same relief. The petitioners have, by their failure to mention withdrawal of the earlier writ petition without liberty being granted by this Court, in the present writ petition suppressed relevant and material facts. By such suppression the purity of the stream of justice has been sullied and the petitioners have abused the process of the Court. I consider it appropriate, in such circumstances, to dismiss the writ petition with exemplary costs quantified at Rs. 5,000/- (Rupees five thousand only) payable by the petitioners to the 1st respondent herein within a period of four weeks from today. __________________________ RAMESH RANGANATHAN,J DATE: 22nd February, 2010 Pnb [1] AIR 1997 AP 179 [2] AIR 1987 SC 88 [3] 2003 (4) ALT 54