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Friday, May 31, 2013

CONSTRUCTIVE RESJUDICATE = A party should take all grounds and raise all pleas available to him and if he fails to do so, the principle of constructive res judicata applies. Supreme Court in the case of Avinash Nagra vs. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534. In paragraph 13, it has been held that where the first writ petition challenging the order of termination of service was withdrawn without grant of liberty by the Court to file a second writ petition, the second writ petition for that very purpose would attract the principle of constructive res judicata and would, therefore, not be maintainable.= In our considered view, a party is required to take all available grounds and raise all available pleas available to him and if he fails to do so, the principle of constructive res judicata comes into play. Otherwise also, only by finding out better or more grounds, the legal position would not change because there is no scope to take a different view than what was taken by this Court earlier in the judgments noted above as well as in another Division Bench Judgement in the case of Ashok Pratap Singh vs. State of U.P. and others, (2004) 2 UPLBEC 1909. In view of aforesaid discussion, the writ petition is dismissed on the preliminary ground as not being maintainable because no liberty was sought for filing another writ petition by the petitioners and nor was it granted when their earlier writ petition was dismissed as not pressed. .

REPORTED IN / PUBLISHED IN elegalix.allahabadhighcourt.in

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Chief Justice's Court 

Case :- WRIT - C No. - 13702 of 2013 

Petitioner :- Khurkhur And Another 
Respondent :- Union Of India And Others 
Petitioner Counsel :- Rishu Mishra,Umakant 
Respondent Counsel :- Sudhir Bharti 

Hon'ble Shiva Kirti Singh,Chief Justice 
Hon'ble Dilip Gupta,J. 

Heard learned counsel for the petitioners and Mr. M.P. Sharma, learned counsel appearing for the respondents no. 1 and 2. 
On 12.3.2013, we had indicated the preliminary objection taken by learned counsel for respondents no. 1 and 2 that this second writ petition by the petitioners is not maintainable in view of facts disclosed in paragraph 34 of the writ petition. 
In paragraph 34, the petitioners have stated that earlier Writ Petition No. 60061 of 2012 (Khurkhur and another vs. Union of India and others) was filed challenging the proceeding of compensation but due to faulty pleadings, it was not pressed and withdrawn. Consequently, it was dismissed as not pressed on 21.11.2012. 
After the dismissal of the earlier writ petition, the petitioners claim to have made another representation before respondent no. 3 on 27.11.2012 and it has been alleged that no decision is being taken by respondent no. 3 on that representation filed for setting aside the award on various grounds. 
The prayer in this writ petition is for a direction to the Special Land Acquisition Officer to dispose of petitioners' representation dated 27.11.2012 and also for issuance of a mandamus to award compensation on the basis of market value of the land and on some other principles along with interest. A prayer has also been made for a writ of certiorari to quash the award dated 6.6.2011. 
Learned counsel for the petitioners has submitted that the preliminary objection has no substance because no issue was decided while dismissing the petitioners' earlier writ petition as not pressed vide order dated 21.11.2012. He has placed reliance upon the judgement of the Supreme Court in the case of Hoshnak Singh vs. Union of India and others, AIR 1979 SC 1328 and another judgement in the case of Ferro Alloys Corporation Ltd. and another vs. Union of India and others, (1999) 4 SCC 149. 
In reply, learned counsel for the respondents has submitted that 
principle of res judicata will no doubt arise only when issues are determined and are decided by the Court in a previous litigation between the same parties, but he has submitted that the bar to maintainability of subsequent writ petition, when no leave of the Court was sought at the time of withdrawal or dismissal of the first writ petition, is on account of public policy and principles flowing from Rule 1 of Order XXIII of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'). In support of this contention, he has placed reliance upon a judgement of the 
Supreme Court in the case of Avinash Nagra vs. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534. 
In paragraph 13,
it has been held that where the first writ petition challenging the order of termination of service was withdrawn without grant of liberty by the Court to file a second writ petition, the second writ petition for that very purpose would attract the principle of constructive res judicata and would, therefore, not be maintainable.
 He has further placed reliance upon a judgement of this Court in the case of Shyam Narain Dwivedi vs. The State of Uttar Pradesh and others (1999) 1 UPLBEC 513. In paragraph 29 of this judgement, reliance was placed upon principle of Order XXIII of CPC and it was held that this principle is applicable in writ proceedings, by way of public policy, if the writ petition is withdrawn without the leave or liberty. In this judgement, learned Single Judge considered large number of earlier judgments including Division Bench Judgement of this Court taking similar view and also judgement of the Supreme Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, Gwalior and others, AIR 1987 SC 88. Paragraph 9 of the judgement in the case of Sarguja Transport Service (supra) clinches the legal issue that is clearly in favour of preliminary objection raised on behalf of respondents. 
Learned counsel for the petitioners drew our attention to several grounds indicated in the present petition for claiming the reliefs noted above. The grounds include challenge to the provisions of Sections 20E (1), 20F (4) and 20F (6) of The Railways (Amendment) Act, 2008. It has been submitted that vires of sub-section was not challenged as a ground for claiming the reliefs in the earlier writ petition. 
In our considered view, a party is required to take all available grounds and raise all available pleas available to him and if he fails to do so, the principle of constructive res judicata comes into play. Otherwise also, only by finding out better or more grounds, the legal position would not change because there is no scope to take a different view than what was taken by this Court earlier in the judgments noted above as well as in another Division Bench Judgement in the case of Ashok Pratap Singh vs. State of U.P. and others, (2004) 2 UPLBEC 1909. 
In view of aforesaid discussion, the writ petition is dismissed on the preliminary ground as not being maintainable because no liberty was sought for filing another writ petition by the petitioners and nor was it granted when their earlier writ petition was dismissed as not pressed. 

Order Date :- 14.3.2013 
RK/ 

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