SARGUJA TRANSPORT SERVICE versus STATE TRANSPORT APPELLATE TRIBUNAL, M.P., GWALIOR AND OTHERS

Citation: [1987] 1 S.C.R. 200 · Decided: 12-11-1986 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Dismissed
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Judgment (excerpt)

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SARGUJA TRANSPORT SERVICE 
V. 
STATE TRANSPORT APPELLATE TRIBUNAL, M.P., 
GWALIOR AND OTHERS 
NOVEMBER 12. 1986 
[E.S. VENKATARAMIAH AND M.M. DUTT, JJ.] 
Constitution of India, 1950: Articles 21, 32, 226 & 227-Writ 
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Petition withdrawn without permission to file a fresh petition-Effect 
of-Petitioner whether precluded from filing any fresh petition/suit in 
respect of the same subject matter. 
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Civil Procedure Code, 1908: Order XXlll, Rule I-Applicability' 
of to cases of withdrawal of writ petitions. 
Sub-rule (I) of rule I, Order XXIII of the Code of Civil Procedure 
D permits a plaintiff to abandon his suit against . all or any of the de-
fendants at any time after the institution of the suit; sub-rule (3) lays 
down that where the court is satisfied (a) that a suit must fail by reason 
of some formal defect, or (b) that there are sufficient grounds for allow-
ing the plaintiff to institute a fresh suit for the subject matter of the suit, 
it may grant permission to him to withdraw from such suit with liberty 
E to institute a fresh suit, while sub-rule (4) provides that where the 
plaintiff abandons any suit under sub-rule ( 1) or withdraws from it 
without the permission referred to in sub-rule (3), he shall be precluded 
from instituting any fresh suit in respect of such subject matter. 
The provisions of the Code of Civil Procedure, 1908 are not in 
F terms applicable to the writ proceedings. However, the procedure pre-1
scribed, therein, as far as it can be made applicable, is followed by the 
High Court in disposing of the writ petitions. 
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The petitioner withdrew its earlier writ petition filed under Art. 
226/227 of the Constitution without permission of the Court to file a 
G fresh petition. Later on it filed another writ petition against the order 
assailed in the first petition. The High Court summarily dismissed it 
laking the view that no second writ petition lies against the same order 
where the earlier petition was not withdrawn with permission to file a 
fresh petition. 
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In this petition· for special leave it was contended that since the 
200 
SARGUJA T.S. v. S.T.A.T. 
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High Court had not decided the earlier petition on merits but had only 
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permitted the petitioner to withdraw it the withdrawal could not be 
treated as a bar to the subsequent writ petition. 
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On the question: Whether a petitioner after withdrawing a writ 
petition filed by him in the High Court under Art. 226/227 of the Con-
stitution without permission to institute a fresh petition can file a fresh 
writ petition in the High Court under these Articles, and whether it 
would advance the ca'!5e of justice if the principle underlying rule I, 
Order XXIII of the Code of Civil Procedure is adopted in respect of the 
writ petitions under these Articles. 
Dismissing the special leave petition, the Court, 
HELD: l. The High Court was right in holding that a fresh peti-
tion was not maintainable before it in respect of the same subject matter 
since the earlier writ petition had been withdrawn without permiS.ion 
lo file a fresh petition. [108D] 
2.1 The principle underlying rule I, Order XXIII of the Code of 
Civil Procedure that when a plaintiff once institutes a suit in a Court 
a'1d thereby avails of a remedy given to him under law, he cannot be 
permitted lo institute a fresh suit in respect of the same subject matter 
again after abandoning the earlier suit or by withdrawing ii without the 
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permission of the Court to file fresh suit. should be extended in the 
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interest of justice on the ground of public policy to cases of withdrawal 
of writ petition also. [206D, 208A] 
2.2 ln\'ito he.nefi.ciunz nbn datur. The law confers upon a man no 
rights or benefits which he does not desire. Whoever waives, abandons 
or disclaims a right )Vould loose it. [206E] 
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2.3 Where a petitioner withdraws a writ petition filed by him in 
the High Court under Art. 226/217 without permission to institute a 
fresh petition he should be deemed lo ha.e abandoned the remedy 
under these Articles in respect of the cause of action relied on in the writ 
petition and barred from filing a fresh petition. [207H, 208C] 
3. I The principle embodied in rule I, Order XXllI of the Code is 
founded on public policy. It is not the same as the rule of res judicata 
contained in s. I ! of the Code, which applies to a case where the suit or 
an issue has already been heard and finally decided hy a Cour
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