R.R. Dehariya vs Board Of Secondary Education Of ...
2021 Latest Caselaw 4186 MP

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            THE HIGH COURT OF MADHYA PRADESH

                          WP No.13692/2021
 (R.R. Dehariya vs. Board of Secondary Education of M.P. and another)

JABALPUR DATED : 11.08.2021

      Shri K.C. Ghildiyal, learned counsel for the petitioner.
      Shri Jubin Prasad, learned counsel for the respondent No.1.

Shri Kamlesh Dwivedi, learned counsel for respondent No.2. Heard.

By this petition, the petitioner has challenged the order dated 29.06.2021 (Annexure P/4).

Against this very impugned order dated 29.06.2021, the petitioner had filed WP No.12361/2021 which was withdrawn by order dated 23.07.2021 which reads as under:

"Shri Ankit Saxena, learned counsel for the petitioner. Learned counsel for the petitioner seeks withdrawal of the present petition.

Accordingly, this petition is dismissed as withdrawn."

The present writ petition has been filed by the petitioner without disclosing the factum of filing the earlier WP No.12361/2021 against the same order and its withdrawal without liberty to file a fresh petition. Hence, the present petition suffers from the defect of suppression of material fact. As the petitioner has not come to this Court with the clean hands, therefore, he is not entitled to maintain this writ petition.

While withdrawing earlier Writ Petition No.12361/2021 by order dated 23.07.2021, the petitioner had not sought any liberty to file a fresh petition, therefore, this second petition against the same order is not maintainable. The Supreme Court in the matter of Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior and others reported in (1987) 1 SCC 5 has held that-

"9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to

institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case 1 is of no assistance. But we are of the view that the principle underlying rule 1 of 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 as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however. make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open."

In view of the aforesaid judgment and the facts of the present case, the present petition cannot be held to be maintainable.

Counsel for the petitioner has placed reliance upon the judgment of Supreme Court in the matter of Himachal Pradesh Financial Corporation vs. Anil Garg and others reported in (2017) 14 SCC 634 but that was a case of withdrawal of suit, hence, considering the Order XXIII Rule 1 of the CPC, the Hon'ble Supreme Court took the view that Rule 1 would apply only to a fresh suit and not to proceedings consider under the Special Act. Hence, the said judgment has no help to the petitioner.

Since the present writ petition is not maintainable, therefore, no merit is found in IA No.7936/2021 which is an application for filing the fresh petition. The said IA is accordingly rejected. Similarly, in the

circumstances of the case, now the petitioner cannot be permitted to amend the petition. Hence, IA No.7930/2021 is also rejected.

For the reasons stated above, the present writ petition is dismissed.

(PRAKASH SHRIVASTAVA) JUDGE YS Digitally signed by YOGESH KUMAR SHRIVASTAVA Date: 2021.08.12 17:03:36 +05'30'