IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition No. 978 of 2001. Date of decision: 23.12.2010. S.R.Forgings Ltd. ….. Petitioner. Vs. State of H.P. & ors. …. Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner: Mr. M.M.Khanna, Senior Advocate with Ms. Madhu Sharma and Mr. Vayur Gautam, Advocates. For the Respondents : Ms. Subh Mahajan, Dy. Advocate General and Mr. Vinod Thakur, Dy. Advocate General, for respondents No. 1 to 3. Ms. Anita Dogra, Central Govt. Counsel, for respondent No.4. Mr. K.D.Sood, Advocate, for respondent No. 5. Dev Darshan Sud, Judge (Oral). It is undisputed before us that CWP No. 678 of 2001 titled M/s S.R. Forgings Ltd. Vs. State of H.P. & others was instituted in this court on 16.8.2001, where relief was prayed for quashing of Annexures P-12 to P 14 therein, which were notices dated 12.7.2000, 3.2.2001 and 19.7.2001 issued by the Collector-cum-Assistant Excise and Taxation Commissioner, Solan, District Solan, H.P. for recovery Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… of arrears of sales tax amounting to Rs. 1,40,87,800/-. This writ petition was withdrawn by an order of this court dated 20.3.2002, holding as under:- “Learned counsel for the petitioner seeks permission to withdraw the present writ petition. Permission is granted. The writ petition is dismissed as withdrawn. CMP No. 1154 of 2001. In view of the withdrawal of the writ petition, the present application is dismissed.” 2. We find that the present petition is also filed for quashing these three notices, may be on some other grounds. It was open to the petitioner to have urged those grounds/relief (s) in the previous petition. We find that three notices challenged in the previous writ petition are the very basis for other reliefs in this writ petition. Since no liberty was sought/ granted to the petitioner to institute a fresh petition, we cannot entertain this writ petition. On this point, we are supported by a judgement of Supreme Court in Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior, and others (1987) 1 SCC 5 holding that though the principle of res judicata may not apply to writ petitions, but it is in public policy that principle underlying Order 23 Rule 1 CPC applies to a petition under Article 226 of the Constitution of India. The Supreme Court has held:- “8. 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 …3… petitioner or his counsel finds that the court is not likely to pass an order admitted 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 plan 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 H.P (1962) 1 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 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 case 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 Article 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. 9. 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 fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case 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 administration of justice to …4… 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 withdrawal 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 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. 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 petitioner prays for the 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.” 3. The writ petition, is therefore, dismissed with no order as to costs. All interim orders shall stand vacated. ( Dev Darshan Sud ), Judge. December 23, 2010. ( Kuldip Singh ), (Hem) Judge.