Karnataka High Court
Karnataka State Road Transport vs K.R. Eregowda on 3 January, 2023
Bench: Alok Aradhe, S Vishwajith Shetty
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
WRIT APPEAL NO.1620/2014 (L-KSRTC)
BETWEEN:
KARNATAKA STATE ROAD
TRANSPORT CORPORATION
BANGALORE CENTRAL DIVISION
BANGALORE - 560 027
BY ITS DIVISIONAL CONTROLLER
REPRESENTED BY ITS
CHIEF LAW OFFICER. ...APPELLANT
(BY SMT. H.R. RENUKA, ADV.,)
AND:
K.R. EREGOWDA
ADULT
REPRESENTED BY GENERAL SECRETARY
KSRTC AND BMTC SAMYUKTHA
KARMIKARA SANGHA, NO.23
4TH MAIN ROAD, MATHIKERE
BANGALORE - 560 054. ...RESPONDENT
(BY SRI L. SHEKAR, ADV.)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE
ORDER PASSED IN THE WRIT PETITION 13796/2008 DATED
07/09/2011.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING:
2
JUDGMENT
This intra court appeal has been filed assailing the
order dated 07.09.2011 passed by the learned Single
Judge of this Court in W.P.No.13796/2008.
2. Heard the learned counsel for the parties and
also perused the material available on record.
3. Facts giving rise to filing of this appeal briefly
stated are, the appellant had filed W.P.No.13796/2008
challenging the order dated 05.04.2008 passed by the
Industrial Tribunal, Bengaluru in I.D.No.161/2006
wherein the Tribunal had held that order of penalty
passed by the Corporation against the respondent in a
departmental enquiry on the charges of pilferage were
not justified and has set-aside the order of penalty. The
learned Single Judge vide the order impugned having
allowed the writ petition had held in paragraph No.10 of
the order as follows:
"10. I find force in the submission of
Sri.L.Shekhar that the order dt. 24.2.1995 imposing
the punishment of stoppage of one annual increment
for a period of two years whence the workman will
not earn any increment and the reduction will have
the effect of postponing the future increments,
deserves to be read as, on the expiry of the period of
punishment, workman would be entitled to
restoration and refixation of basic pay with
increments together with consequential benefits.
4. Being aggrieved by the aforesaid observation
made by the leaned Single Judge while allowing the writ
petition, the petitioner corporation has preferred this
intra court appeal.
5. Learned counsel for the appellant has raised
a preliminary objection with regard to maintainability of
the writ appeal on the ground that writ appeal cannot be
maintained as the same is hit by principle of res judicata.
He submits that challenging the very same impugned
order the appellant had earlier filed W.A.No.8593/2012
which was withdrawn by the appellant on 29.10.2013
with liberty to redress its grievance before the learned
Single Judge by filing a review petition. He submits that
subsequently, the review petition filed by the appellant in
R.P.No.949/2013 was also dismissed on 03.03.2014 and
as against the said order, the appellant had filed
W.A.No.324/2016 which was dismissed as not pressed on
01.07.2016. He submits that since the earlier writ appeal
was withdrawn without seeking any liberty to file a fresh
writ appeal as against the very same order impugned,
this writ appeal cannot be sustained.
6. Order XXIII Rule 1(3) of Code of Civil
Procedure provides for withdrawal of the suit, which
reads as follows:
"1. Withdrawal of suit of abandonment of
part of claim.-
1. xxx
2. xxx
(3). 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
allowing the plaintiff to institute a fresh suit for
the subject-matter of a suit or part of claim,
it may, on such terms as it
thinks fit, grant the plaintiff permission
to withdraw from such suit or such part
of the claim with liberty to institute a
fresh suit in respect of the subject-
matter of such suit or such part of the
claim".
7. As per Order XXIII Rule 1(3) of CPC, suit may
be permitted to be withdrawn with liberty to institute
fresh suit when the court is satisfied that the plaintiff has
made out a case in terms of Order XXIII Rule 1(3)(a) or
(b) of CPC. That is, existence of ''formal defect'' or
"sufficient grounds". The very same principle is
applicable even to the case of withdrawal of writ petition.
In the present case liberty has been granted to
appellants to file fresh writ petition on same cause of
action under Order XXIII Rule 1(3)(b) of CPC, since the
Court had found sufficient grounds for granting such
prayer.
8. The Hon'ble Supreme Court in the case of
SARGUJA TRANSPORT SERVICE V. STATE
TRANSPORT APPELLATE TRIBUNAL, M.P, GWALIOR,
AND OTHERS - (1987) 1 SCC 5 has held that principle
underlying Rule 1 Order XXIII of the Code should be
extended in the interests of administration of justice to
cases of withdrawal of writ petition also, not on the
ground of res judicata but on the ground of public policy.
9. In the present case, the appellant had earlier
filed W.A.No.8593/2012 challenging the very same order
which is impugned in this writ appeal and earlier writ
appeal was withdrawn by the appellant only with liberty
to redress its grievance before the learned Single Judge
by filing a review petition. This court while dismissing
writ appeal as withdrawn has not reserved any liberty to
the appellant to file a fresh writ appeal in respect of the
same subject matter and therefore this writ appeal
cannot be maintained by the appellant. Accordingly, the
same is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
NMS
