Chhakodilal Saket vs State of Madhya Pradesh and Others

A.K. Patnaik, C.J.—This is an appeal against the order dated 13-11-2006 passed by the learned Single Judge in Writ Petition No. 15413/2006.

By the said order dated 13-11-2006, the learned Single Judge dismissed the writ petition on the ground that father of the appellant had earlier filed W.P. No. 5928/2006, which was dismissed for non-prosecution on 18-7-2006 and the reliefs claimed in the earlier petition and in the instant W.P. No. 15413/2006 were the same.

In Daryao and Others Vs. The State of U.P. and Others, , the Supreme Court has held that if a writ petition is dismissed in limine and an order is passed in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order and if the order is on the merits it would be a bar, but if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in some cases.

In our considered opinion, therefore, if a writ petition is dismissed for want of prosecution, a second writ petition would not be a bar. In such a case, the appellant has a remedy either to file an application for restoration of the writ petition or file a fresh writ petition. The principle is also contained in Order 9 Rule 4 of the CPC which provides that where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may subject to the law of limitation bring a fresh suit or he may apply for an order to set the dismissal aside.

For the aforesaid reasons, we set aside the order dated 13-11-2006 passed by the learned Single Judge in W.P. No. 15413/2006 and remit the writ petition back to the file of the learned Single Judge for fresh decision in accordance with law.