Principles of Order XXIII Rule 1 CPC Preclude Writ Petitions on Subject Matter Abandoned in Civil Suits

The petitioners, parents of deceased Constable Mohammad Amin Hajam, filed a writ petition seeking family pension benefits.

They claimed entitlement following the remarriage of Respondent No. 7 (the deceased's widow).

Respondent No. 7 raised a preliminary objection, asserting that the petitioners had previously filed a civil suit in the Court of Sub Judge, Pattan, based on the same cause of action and seeking identical reliefs.

That civil suit was dismissed for non-prosecution on 13.06.2022.

The official records confirmed that Respondent No. 7 was present in the civil court when the suit was dismissed due to the petitioners' absence.

1. Whether the present writ petition is maintainable in light of the dismissal of a prior civil suit filed on the same cause of action and for the same relief.

2. Whether the principles of Order XXIII Rule 1 and Order IX Rule 9 of the Code of Civil Procedure (CPC) apply to writ proceedings under Article 226.

Order XXIII Rule 1(4) of the CPC, which precludes a plaintiff from instituting a fresh suit on the same subject matter if a previous suit was abandoned or withdrawn without court permission.

Order IX Rule 9 of the CPC, which bars a fresh suit on the same cause of action when a previous suit is dismissed under Rule 8 (where the defendant appeared but the plaintiff did not).

Sarguja Transport Service v. T.A. Tribunal Gwalior (1987), which established that while the CPC may not strictly apply to writ proceedings, the principles of public policy underlying Order XXIII Rule 1 should be extended to writ jurisdictions.

The Court observed that the reliefs sought in the writ petition—declaration of entitlement to pension and injunction against payments to the widow—were exactly similar to those sought in the dismissed civil suit.

The Court rejected the petitioners’ argument that Order IX Rule 4 allowed a fresh filing, noting that the dismissal occurred while Respondent No. 7 was present, thus invoking the bar under Order IX Rule 9 rather than the exceptions under Rules 2 or 3.

By failing to prosecute the civil suit and not seeking liberty to file afresh, the court determined the petitioners had effectively abandoned their claim.

Applying the principle of public policy from the Sarguja Transport case, the Court reasoned that allowing a subsequent writ petition on the same abandoned cause of action would constitute an abuse of the judicial process.

The Court upheld the preliminary objection raised by Respondent No. 7, ruling that the petitioners were precluded from filing the petition by the bar contained in Order XXIII Rule 1(4) and Order IX Rule 9 of the CPC.

The writ petition was dismissed.