Introduction 

• This is a landmark judgment relating to the applicability of Order XXIII Rule 1 of Civil Procedure Code, 1908 on the writ petitions.    
• This judgment was delivered by a 2- judge bench comprising of Justice ES Venkataramiah and Justice MM Dutt.   

Facts 

• The petitioners and some others filed applications for the grant of the permit before the Regional Transport Authority, Bilaspur. 
• The State Transport Appellate Tribunal set aside the order granting the permit in favor of the petitioner. 
• Aggrieved by the order of the Tribunal a writ petition was filed in the High Court of Madhya Pradesh under Article 227/226 of the Constitution of India, 1950 (COI). 
• The Petitioner sought the permission of the permission to withdraw the petition and the same was dismissed as withdrawn. 
• Later on, the petitioner filed another writ petition before the High Court of MP. 
• This writ petition was dismissed. Aggrieved by the order rejecting the petition the petitioner filed the special leave petition requesting the Court to grant the special leave to prefer an appeal against the order of High Court.      

Issue Involved  

• Whether 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? 

Observations 

• The Court observed that the provisions of Civil Procedure Code, 1908 (CPC) 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.    
• The Court observed that the principle underlying rule 1 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 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. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. 
• The question the consideration of the Court here was 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. 
• 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. 
• The principle underlying Rule 1 of Order XXIII of CPC should be extended in the interest of administration of justice to cases of withdrawal of writ petition as well. 
• 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. 
• The Court hence held that 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 has been withdrawn without the permission to file a fresh petition. 

Conclusion 

• The judgment discusses the applicability of Order XXIII Rule 1 of CPC on the writ petitions. 
• The judgment laid down that if without the permission of the Court a writ petition has been withdrawn, a fresh writ petition on the same cause of action will not be allowed.