WP(C) 2614/2010 BEFORE THE HON’BLE MR JUSTICE A.K. GOSWAMI 1. Nurul Haque S/o Late Akbar Ali Munshi 2. Abdul Karim @ Karim, S/o Late Rajab Ali Both are of Village Borghula, Part-1, P.O. Chalantapara, P.S. Jogighopa. District- Bongaigaon. & & & &.. Petitioners - versus - 1. The State of Assam, Represented by the Secretary to the Government of Assam, Department of Land Revenue, Dispur, Guwahati-6. 2. The Board of Revenue, Assam, Guwahati-1. 3. The Settlement Officer, Goalpara, and Bongaigaon at Goalpara, District- Goalpara. 4. The Assistant Settlement Officer, Boitamari, P.O.- Boitamari, District- Bongaigaon. 5. Nurul Hoque. 6. Samsul. 7. Habibor Rahman 5, 6 and 7 are sons of late Rohijuddin Village- Borghula Part-1, P.O.- Chalantapara, District- Bongaigaon. & & & & &.. Respondents. BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI For the petitioners : Mr. A. Roshid, : Mr. D.F.A. Ahmed, : Mr. S. Alom, : Mr. A. Mobaraque, Advocates. For the respondent : Mr. J. Handique, Nos. 1 to 4 Government Advocate For the respondent : Mr. I. Hussian, Nos. 5, 6 & 7 Advocate Date of hearing & : 15-09-2011 Judgement JUDGMENT AND ORDER (Oral) 1. Heard Mr. A. Roshid, learned counsel for the petitioners. Also heard Mr. J. Handique, learned Government Advocate appearing for the respondent Nos. 1 to 4. I have also heard Mr. I. Hussian, learned counsel appearing for the respondent Nos. 5, 6 & 7. 2. This present writ petition has been filed with the following pra yer :- It is prayed that your Lordship may be pleased to admit this petition, call for the records, issue a Rule calling the respondents to show ca use as to why a writ of Mandamus and or Certiorari should not be issued direct ing them to set aside and quash the order dated 31-07-2000 passed in Case No. 1/ 2000 by the Asstt. Settlement Officer, Boitamari, order dated 14-08-2001 passed in Appeal Case No. 1/2001 by the Settlement Officer, Goalpara and Bongaigaon at Goalpara and order dated 25-05-2009 passed in Revenue Appeal No. 104 RA(G)/01 pa ssed by the Board of Revenue, Assam, Guwahati and after hearing the parties, per usal of records make the Rule absolute and or pass such further order or orders as your Lordship may deem fit and proper. 3. By filing an affidavit, the respondent Nos. 5,6 & 7 have pointed ou t that on an earlier occasion, the writ petitioners had approached this Court ch allenging the very same orders in W.P.(C) No. 3353 of 2009 and on the prayer of the learned counsel for the petitioners, W.P.(C) No. 3353 of 2009 was disposed of as not pressed. Mr. I. Hussian, learned counsel for the respondent Nos. 5, 6 & 7 submits that in absence of any liberty being granted, this writ petition is not maintainable. 4. Prayer made in W.P.(C) No. 3353 of 2009 reads as follows :- It is prayed that your Lordship may be pleased to admit this p etition, call for the records, issue a Rule calling the respondents to show caus e as to why a writ of Mandamus and or Certiorari should not be issued directing them to set aside and quash the order dated 31-07-2000 passed in Case No. 1/2000 by the Asstt. Settlement Officer, Boitamari, order dated 14-08-2001 passed in A ppeal Case No.1/2001 by the Settlement Officer, Goalpara and Bongaigaon at Goalp ara and order dated 25-05-2009 passed in Revenue Appeal No. 104 RA(G)/01 passed by the Board of Revenue, Assam, Guwahati and after hearing the parties, perusal of records make the Rule absolute or pass such further order or orders as your L ordship may deem fit and proper. 5. Therefore, it would appear that the prayers made in both the writ petitions are one and the same and identical. The averments made in t he writ petitions barring paragraph-19 of the present petition are also same. P aragraph- 19 reads as follows :- That the petitioner state that the respondents are lying (sic) to execute the above mentioned impugned Judgements and orders without serving a ny notice/hearing of the petitioners and the petitioners are apprehending that t he same may be done at any time without following the procedure of law. Hence t he impugned orders may kindly be stayed otherwise the petitioner will suffer irr eparable loss injury and financial hardship. 6. It has been submitted by Mr. A. Roshid that in view of the statements made in paragraph-19 which gives rise to new cause of action, th e present writ petition cannot be held to be not maintainable. In support of hi s contention, the learned counsel places reliance on the judgement of the Apex C ourt in G.N. Nayak -vs- Goa University and Others, reported in AIR 2002 Supreme Court 790. 7. In the said case it was contended that the respondent No.5 in t he Supreme Court having withdrawn an earlier writ petition without being afford ed the liberty to file a fresh petition on the same cause of action, responden t No. 5 could not be permitted to re-agitate the identical issue once again. On the facts of the case, the Supreme Court rejected the contention raised by holdi ng that the subject matters of both the proceedings being different, the second writ petition was competent. 8. On perusal of the pleading of the parties of the writ pe tition in both the cases and having regard to the prayer made in both the writ p etitions, this Court is of the considered opinion that the subject matter of bot h the proceedings are identical. Therefore, it is to be considered as to whether a writ petition having been withdrawn without liberty to file a fresh applicat ion on the same cause of action, the second writ petition is maintainable. 9. The provisions of the Civil Procedure Code, 1908, for short, th e code, are not in terms applicable to a writ proceeding although the procedure prescribed to the extent it can be made applicable to a writ proceeding is fol lowed while disposing of writ petitions. It is in this context Rule 1 of Order XXIII of the code becomes relevant. Rule 1 Order XXIII of the code provides for withdrawal of a writ or abandonment of part of the claim of suits and the cons equences following there from. Rule 1 of Order XXIII is quoted herein below :- 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 o r any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither th e suit nor any part of the claim shall be abandoned without the leave of the Cou rt. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor o r such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied,-- (a) that a suit must fail by reason of some formal defec t, or (b) that there are sufficient grounds for allowing the p laintiff to institute it may, on such terms as it thinks fit, grant the plaintif f permission to withdraw from such suit or such part of the claim with liberty t o institute a fresh suit in respect of the subject-matter of such suit or such p art 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 claim without the permiss ion referred to in sub-rule (3), shall be liable for such costs as the Court ma y award and shall be precluded from instituting any fresh suit in respect of suc h subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, w ithout the consent of the other plaintiffs. 10. The Supreme Court in Sarguja Tansport Service -v- St ate Transport Appellate Tribunal, Gwalior and Others, reported in 1987 Supreme C ourt 88 had laid down that the principle underlying Rule 1 of Order XXIII of t he code is that when a plaintiff once instituted a suit in a Court and thereby avails a remedy given to him under the law, he cannot be permitted to institute a fresh suit in respect of the same subject matter again after abandoning the e arlier suit or by withdrawing it without the permission of the Court to file a fresh suit. The aforesaid principle is founded on the ground of public policy a nd the principle underlying Rule 1 of Order XXIII is not one and the same as rul e of res judicata under Section 11 of the code. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on th e same cause of action without any good reason, the code mandates that he should obtain the permission of the Court to file a fresh suit after satisfying the Co urt about the existence of either of the two grounds mentioned in Sub- Rule (3) of Rule 1 of Order XXIII. In Sarguja (supra) the Apex Court laid down that the principle underlying Rule 1 of Order XXIII of the code should be extended in th e interest of administration of justice to cases of withdrawal of writ petitions also, not on the ground of res judicata but on the ground of public policy. 11. In view of the aforesaid discussions, in absence of any liberty granted while withdrawing the earlier writ petition, this Court is of the consid ered opinion that the instant writ petition is not maintainable. Accordingly, th e same is dismissed. 12. No costs.