Order 23 Rule 1 CPC Precludes Raising Same Subject Matter By Plaintiff In Subsequent Suit If Earlier Suit Was Withdrawn Without Seeking Leave: Calcutta High Court
The Calcutta High Court was considering a writ petition by the petitioner who had earlier approached the West Bengal Administrative Tribunal.
The Calcutta High Court has held that the principles contained in Order 23 Rule 1 of the Code of Civil Procedure preclude raising the same subject matter by the plaintiff in a subsequent suit if the earlier suit raising the same subject matter was withdrawn or abandoned without seeking leave/liberty.
The High Court was considering a writ petition by the petitioner, who had earlier approached the West Bengal Administrative Tribunal seeking the relief of quashing the charge memo against him.
The Division Bench of Justice Madhuresh Prasad and Justice Prasenjit Biswas held, “A plain reading of the provision leaves no room for interpretation that if at all any relief is abandoned wholly or in part it is contemplated by the provision to be done by the plaintiff against the defendants and not vice versa. Applying the principles contained in order 23 Rule 1 of the C.P.C, the defendants cannot be barred from raising any issue. Principles contained in the provision preclude raising of the same subject matter by the plaintiff in a subsequent suit if the earlier suit raising the same subject matter was withdrawn or abandoned without seeking leave/liberty. Therefore, the authorities which were not the petitioner/applicant before the Tribunal cannot in any way be precluded from proceeding on the basis of a charge memo dated 22.04.2022."
Advocate Bikash Ranjan Neogi represented the Petitioner while Additional Advocate General Amal Kr. Sen represented the Respondent.
Factual Background
The writ petitioner was proceeded against by way of a departmental proceeding in accordance with the provisions contained in West Bengal Services (Classification, Control and Appeal) Rules, 1971. A charge memo was served on the writ petitioner. The writ petitioner filed an application before the Tribunal. The authorities realized that a draft article of charge was enclosed with the charge memo. The petitioner thereafter was served with a charge memo which prompted him to file another Original Application. The petitioner sought the relief of quashing of the charge memo and regularizing his period of suspension from April 29, 2013 to April 16, 2017, and for payment of full salary and other allowances for the period in question. The Tribunal found no merit in the second Original Application and dismissed the same which became the subject matter of challenge before the High Court.
Reasoning
On a perusal of the rival submissions, the Bench found that the writ petitioner filed the First Original Application being aggrieved by a fact that a draft article of charge was served on the petitioner instead of a proper Charge Memo. Neither the competence of the authority issuing the Charge Memo, nor this substance of the allegations contained in the Charge Memo was made an issue by the writ petitioner in the original application. The limited relief prayed for by the writ petitioner in the First Original Application was setting aside of the Charge Memo dated August 8, 2014 containing draft charges. Consequential direction to treat the applicant as a regular revenue officer was also prayed for.
The Bench found that the respondent authorities had fairly conceded in the first original application filed by the writ petitioner since the charge memo was served containing a draft articles of charge. The first original application was disposed of as infructuous. “The authorities in the circumstances cannot be precluded in future from proceeding against the petitioner based on proper charge memo, in accordance with the 1971 rules”, it added.
The Bench thus held that the order passed in the first original application did not come in the way of the respondent authorities in proceeding against the writ petitioner on the basis of a fresh charge memo. Upholding the order of the Tribunal rejecting the petitioner’s second original application, the Bench dismissed the Petition.
Cause Title: Gitesh Das Mahapatra Vs. State of West Bengal (Case No.: W.P.S.T. 185 of 2025)
Appearance
Petitioner: Advocates Bikash Ranjan Neogi, Ananya Neogi, Anushka Ghosh
Respondent: Additional Advocate General Amal Kr. Sen, Advocate Arkadipta Sengupta