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idan Puri Vs. the Union of India (Uoi) and 2 ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Special Appeal No. 564 of 1972
Judge
Reported in1977WLN(UC)28
Appellantidan Puri
RespondentThe Union of India (Uoi) and 2 ors.
DispositionAppeal dismissed
Cases ReferredBasappa v. Nagappa
Excerpt:
.....decisions in r. in our judgment, the present writ petition was clearly barred by rule 382 of the rajasthan high court rules, 1952 which runs as..........his writ petition for quashing the order of his dismissal dated 27-2-1971.2. the learned single judge declined to invoke his discretionary powers under article 226 of. the constitution on the ground that an earlier writ petition filed by the appellant for a relief similar to that claimed in the present writ petition, had been dismissed by this court summarily, on the ground that while it was permissible for him to have filed a revision-application under rule 24(2) of the railway servants (discipline and appeal) rules, 1968 he had not availed of that remedy though he was specifically informed by letter, ex. 3, dated 24-6-1971. as that statutory remedy was held to be equally efficacious and convenient the writ petition was dismissed. thereafter, the appellant filed a revision but.....
Judgment:

A.P. Sen, J.

1. This special appeal by Idan Puri who was & Skilled Fitter in the Northern Railway Workshop, Jodhpur, is directed against an order of P.N. Shanghai, J. dated 3-4-1972 dismissing his writ petition for quashing the order of his dismissal dated 27-2-1971.

2. The learned Single Judge declined to invoke his discretionary powers under Article 226 of. the Constitution on the ground that an earlier writ petition filed by the appellant for a relief similar to that claimed in the present writ petition, had been dismissed by this Court summarily, on the ground that while it was permissible for him to have filed a revision-application under Rule 24(2) of the Railway Servants (Discipline and Appeal) Rules, 1968 he had not availed of that remedy though he was specifically informed by letter, Ex. 3, dated 24-6-1971. As that statutory remedy was held to be equally efficacious and convenient the writ petition was dismissed. thereafter, the appellant filed a revision but it appears from letter dated 27-11-1971 that the revision had been dismissed. The question before the learned Single Judge, therefore, was whether the second be petition after the dismissal of the first should be entertained. Following the decision of Lord Denman C.J., in The Queen v. Manchester and Leeds Railway Co. English Reports Vol. CXII, 859, the learned Single Judge was of the view that as regards writ other than habeas corpus, a second petition will not lie. He distinguished the decision of their Lordships in Daryao and Ors. v. State of Utter Pradesh and Ors. : [1962]1SCR574 , as the question involved there was different, viz. whether a petition under Article 32 of the Constitution was barred by the principle of res judicata when an earlier petition ruder Article 226 had been distressed in limine. The learned Single Judge accordingly dismissed the writ petition, leaving the petitioner the remedy of a suit, if so advised.

3. In England, as regards' writs other than habeas corpus, the view has all along been maintained that a second application does net lie. The law is succinctly stated in Halsbury's Laws of England, 3rd Edn. Vol. 11, para 156 thus:

When an application for an order of certiorari prohibition or mandamus has been made, argued, and refused cm the; ground of defects in the case, as disclosed in the affidavits supporting the application, it is not competent for the applicant to make a second application for the same order on amended affidavits containing fresh Materials. The rule applies even in cases where the defects in the case which caused the refusal of the first application are remedied in the second, and it makes no difference whether the motion is made in a private capacity or by a law officer on public grounds.

It would thus appear, that the rule applies even in cases where the defects in the case which, cause, the refusal of the first application are remedied in the second. As regards a writ of certiorari Lord Denman in The Queen v. Manchester and Leeds Railway Co. (supra), stated that, where a party applying for certiorari fails from incompleteness of his affidavits, or, any other defect in the way, he will not have a certiorari granted to him, after, supplying the feet. Lord Denman has stated the rule thus:

Court will not allow a party to, succeed, on a, second application, who has previously applied, for the same thing without coming properly prepared. We are constantly acting on this principle, of which the convenience and the justice are apparent... I must say...that a party after once failing in consequence of a, defect in the way in which he brought his case forward, is not entitled to renew the same application...every party is, to come at first fully prepared-with a proper case, and, if he fails to do so, must not afterwards renew the application with an amended case.

The rule with regard to a writ of mandamus is well settled by the decisions in R. v. Bodmin Corporation (1892) 2 Q.B. and Ex parte Thompson, (1845) 6 Q.B. 721. In Bodmin's case Day, J. observed as follows:

As I read the authorities it has always been held, whenever this objection has been taken and the attention of the Courts has been called to the point, that no second application for a prerogative writ will be granted when the first application has been discharged. There are many authorities which support this contention; but I think, apart from authority, that it is a most convenient view to take of the jurisdiction of the Court in such matters It is a view which has commended itself to many judges who have acted upon it, and it commends itself to me. It is no doubt extremely convenient that no second application for a high prerogative writ should be allowed after a first application has been refused. Such a writ is an extraordinary remedy, and persons seeking it may very reasonably be required not to apply for it unless they have sufficient cause for doing so. They must come prepared with full and sufficient materials to support their application, and if those materials are complete, I think it is quite right that they should not be allowed to come again.

The Courts in India except in the case of a writ of habeas corpus, have uniformly followed the view. In Ashraf Ali Khan and Ors. v. State of West Bengal and Ors. : AIR1958Cal219 , Chakravartti C.J., stated:

I am aware of the principle laid down repeatedly in English cases that that if an application for a writ of mandamus is once rejected on the ground that no prior demand for justice was made, no second application is entertained in any circumstances, even though, since the rejection of the first application, a demand for justice may have been made. This rule has been applied by the English Judges inexorably oh the principle that the remedy by way of a writ is a remedy of an extraordinary character and who ever approaches the Court for such a remedy, must come after having fully complied with all the conditions precedent and must come, even in the first instance, with all the materials On which he wishes to rely. If he does not do so, the Court will not indulge him to make successive applications. See Ex parte Thompson (1845) 6 Q.B. 721 and The Queen v. Boomin Corporation (1892) 2 Q.B. 21.

The learned Single Judge was, therefore, right in rejecting the writ petition.

4. The practice and procedure of this Court is ordinarily governed by the Rules framed by the Court under Article 225 of the Constitution. In our judgment, the present writ petition was clearly barred by Rule 382 of the Rajasthan High Court Rules, 1952 which runs as follows:

382. Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts.

That was the view taken in Radha Krishna and Anr. v. The State of Rajasthan and Ors. D.B. Civil Special Appeal No. 135 of 1973, decided on 16-9-1976. There is no reason for us to take a different view now.

5. We are quite conscious of the observations of Mukherjee J., in Basappa v. Nagappa : [1955]1SCR250 to the effect:

In view of the express provisions in our Constitution we need not now look bark to the early history or the procedural technicalities of these writs in the English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by the English Judges! We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in the English law.

We, however, do not want to enter into these technicalities. The decision of the appeal must rest on the short ground that the learned Single Judge having declined to exercise; his discretionary powers, this Court cannot in special appeal interfere with the exercise of that discretion, when it has been exercised in accordance with the settled principles. As observed by the learned Single Judge, the appellant is at liberty to file a suit, if so advised.

6. The result, therefore, is that the special appeal fails and is dismissed. There shall be no order as to costs.


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