Vijay Kumar Prasad vs The State Of Jharkhand
2023 Latest Caselaw 1762 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
         L.P.A. No. 569 of 2022

Vijay Kumar Prasad              ... ...   Appellant
                        Versus
1. The State of Jharkhand
2. The Dy. Commissioner, Chatra
3. The Dy. Development Commissioner, Chatra
4. The Block Development Officer, Pratappur, Chatra
                                ...   ...    ...     Respondents
                        ---------
CORAM:         SRI SANJAYA KUMAR MISHRA, C.J.
                   SRI ANANDA SEN, J.
                        ---------
For the Appellant:      Mr. Ajay Kumar Singh, Advocate
For the State:          Mr. Rahul Saboo, G.P.-II
                        ---------

04/Dated: 26.04.2023

      Upon hearing the learned counsel for the parties, this Court

passed the following, (Per, Sanjaya Kumar Mishra, C.J.)

                   ORDER

1. By filing this intra-court appeal, the petitioner has challenged

the order passed by the learned Single Judge on 15.09.2022 in

W.P.(S) No. 6188 of 2018, which was dismissed on the ground that

earlier an application has been filed by the petitioner bearing W.P.(S)

No. 7351 of 2011, which was dismissed for non-prosecution on

04.01.2018.

2. After going through the records and the order dated 04.01.2018,

it appears that the learned Single Judge came to the conclusion that

even though, earlier the case has been dismissed for default, there

has been some discussion by the learned Single Judge in the earlier

writ application and he has taken note of the arguments advanced by

the respondents. A reference to the order dated 04.01.2018 reveals

that at paragraph 2 the learned Single Judge has observed that he

has heard Ms. Ananya, learned counsel for the respondents, who has

submitted that the grievance of the petitioner cannot be adjudicated

until and unless he will file the required documents detailing the work

which he has done and for which, he is claiming the payment.

Thereafter, the learned Single Judge has further held that taking note

of the fact that the petitioner has not appeared, the writ petition is

dismissed for non-prosecution.

3. If a suit for civil proceeding is dismissed for non-prosecution

under the provisions of Order IX and Rule 8 of the Code of Civil

Procedure, 1908 (hereinafter referred to as "Code" for brevity), a

subsequent suit is barred under Order IX, Rule 9 of the Code.

However, Section 141 of the Code provides that the provisions of the

Code will be applicable to all civil proceedings, but, it shall not be

applicable to writ jurisdiction. The High Court of Uttarakhand at

Nainital in Pradeep Singh Vs. Director General, Assam Rifles

UPAO Branch (NE-III), Shilong-I and others, (Special Appeal No.

54 of 20220 has held that the provisions of the Code is not fully

applicable to high prerogative writs. The above judgment has been

authored by one of us, namely, Sri Sanjaya Kumar Mishra, as Acting

Chief Justice of the High Court of Uttarakhand at Nainital, taking into

consideration the judgment passed by the Hon'ble Supreme Court in

the case of Brahma Singh and others Vs. Union of India and

others, (2020) 12 SCC 762, laying down the ratio that Order II Rule 2

of the Code is not applicable to high prerogative writs. Admittedly, the

same principle will be applicable to similar provisions of Order IX Rule

9 of the Code which prohibits filing a second suit or Order XXIII Rule 1

of the Code, which prohibits filing a further suit if permission is not

granted by the Court allowing withdrawal of the suit. Since the

petitions filed under Article 226 of the Constitution of India, are for

issuance of a high prerogative writs, this procedural aspect will not be

applicable. Moreover, when procedural law is pitted against

substantive justice, the cause of substantive justice takes precedence.

4. In that view of the matter, we are of the further opinion that the

learned Single Judge should consider the matter on merit and dispose

of the same strictly on merits in accordance with law.

5. Accordingly, the instant Letters Patent Appeal is allowed. The

order passed by the learned Single Judge on 15.09.2022 in W.P.(S)

No. 6188 of 2018 is hereby set aside. The matter is remitted to the

learned Single Judge for afresh adjudication.

6. There shall be no orders as to costs.

7. Pending application, if any, stands disposed of.

8. In the interregnum, learned counsel for the State may file

counter affidavit to the writ application within four weeks.

9. Grant urgent certified copy of this order as per the Rules.

(Sanjaya Kumar Mishra, C.J.)

(Ananda Sen, J.)

N.A.F.R APK/VK