ORDER
1. This is a petition under Art. 226 of the Constitution in which the following reliefs have been prayed for:--
(a) directing the respondents to decide the representations of the petitioner dated 30-11-1992 and 17-3-1993 (Annexures Nos. III and IV) as also the representation of Sri Surendra Singh dated 17-3-1993 (Annexure V) respectively in accordance with the judgment/ guidelines of the Supreme Court referred to above.
(b) directing the respondents to decide the claim of the petitioner strictly in accordance with the guidelines laid down by the Supreme Court in its judgment referred to above.
(c) granting any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(d) awarding the costs of the writ petition.
2. The petitioner is a partnership firm. Sri Swatantra Kumar Agarwal is its partner. It has established a rice mill by investing Rs. 6.55 lacs from its own resources. The U. P. Financial Corporation, respondent No. 2 advanced a loan of about Rs. 7.29 lacs against the sanctioned amount of Rs. 8.68 lacs. Due to the failure of the respondents in not timely providing and sanctioning the loan, the petitioner could not make a steady progress and suffered huge loss. It became a sick unit, for declaration of which an application is pending. In the writ petition filed by the petitioner earlier, an order dated 23-4-1992 (Annexure 1) was passed directing the respondents to dispose of the petitioner's application for declaring the unit as a sick unit. Accordingly the petitioner submitted an application/representation along with this Court's order to the respondents well within time. That was decided by the respondents vide order dated 12-11-1992, Annexure2 to the writ petition. The petitioner contends that this decision is not in accordance with the decision of the Hon'ble Supreme Court in Mahesh Chandra's case nor in accordance with the directions given by this Court, on 30-11-1992 the petitioner again approached the respondents to reconsider the decision and decide the representation promptly. The petitioner made some additional offers also on its behalf vide its subsequent representation dated 30-11-1992, Annexure3 to the petition. The same point was reiterated in the subsequent representation dated 17-3-1992. Nay, a writ petition was filed in this Court by the petitioner with the following prayers:--
(1) Issue a suitable writ, order or direction in the nature of certiorari quashing the order dated 12-1 l-1992(Annexure 11) passed by the respondent No. 3 in that petition.
(2) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 3 to dispose of the application of the petitioner for declaring unit as sick unit in view of the High Court's order dated 23-4-1992 (Annexure 10 of writ petition).
(3) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 3, to refrain from selling the said unit until the disposal of the case of the petitioner before respondents Nos. 1 and 2 for declaring the said unit of the petitioner as sick unit.
(4) Issue a writ, order or direction in the nature of mandamus commanding the respondents to decide the application of the petitioner for one time settlement.
(5) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case; and (6) Award costs to the petitioner.
The petition was dismissed on 23-3-1993 by this Court after hearing the petitioner at stretch at the stage of admission in these words:--
"Proceedings have been initiated against the petitioner in accordance with the pr9vi-sions of S. 29 of the U. P. Financial Corporations Act for recovering the amount which was advanced to the petitioner. There is no legal infirmity warranting interference by this Court. The petition is dismissed."
The petitioner reiterates that the representation has not been decided by the respondents in accordance with the directions of the Hon'ble Supreme Court in the case of Mahesh Chandra v. Regional Manager, U.P. Financial Corporation, 1992 (2) UPLBEC 1313. The main thrust of the petition is that the directions given in the aforesaid case were not followed by the respondents while deciding the representation. Therefore, this petition has been filed to ensure that the respondents follow the guidelines contained in the said judgment and reliefs supra have been claimed in this petition.
3. Learned counsel for the respondents have put in appearance. At the stage of admission itself, parties learned counsel have been heard. The main objection raised from the side of the respondents is two fold :--
(1) Rule 7 of Chapter 22 of the Allahabad High Court Rules which runs as under, does not permit the second petition by the petitioner:
"7. Where an application has been rejected it shall not be competent for the applicant to make a second application on the same facts."
and (2) Principles of res judicata and O.2, R. 2, C.P.C. come in the way of the petitioner.
4. After hearing learned counsel for the parties at stretch and going through the record, we find that this petition has no merits and it deserves to be dismissed.
5. Rule 7 of the Allahabad High Court Rules, 1952 as quoted above is explicit and unequivocal. It clearly provides that a second application on the same facts will not be entertained by the court. It is clear that the facts of the present petition are 100% similar to the facts contained in the earlier petition. The monumental judgment of the Hon'ble Supreme Court in Mahesh Chandra's case (supra) had already been delivered and it was the law of the land and binding on all the judicial and quasi-judicial authorities in India. Therefore, if an authority has passed an order, it will be believed that it was conscious of the implications and directions contained in that judgment. In the earlier petition also, the magna carta of the petition was the same i.e. guidelines contained in Mahesh Chandra's case. So is the case in the present petition also. So the facts in both the petitions are virtually thesame. Hence the bar of Rule 7 of this Court's Rules clearly comes in the way of the petitioner and this petition is not maintainable.
6. The vires of this Rule has not been challenged in this petition. Therefore, it has to be deemed to remain intact and operative with all force.
7. In these circumstances, this petition is not maintainable on this ground alone.
8. The second leg of the objection is that the principles of res judicata and 0.2, R. 2 of the C.P.C. do not permit the entertainment of this petition.
9. As against this, the learned counsel for the petitioner has placed reliance upon two rulings of the Hon'ble Supreme Court; the first one is Hoshnak Singh v. Union of India, 1979 (3) SCC 135 : (AIR 1979 SC 1328). The appellant, a displaced person was allotted 32.5 standard acres of land on quasi-permanent basis. After the introduction of Displaced Persons (Compensation and Rehabilitation) Act, 1954, the quasi-permanent allotment of the land to the appellants was made permanent. But in 1961 the Chief Settlement Commissioner by an order cancelled his permanent settlement rights in respect of his land acquired by the Government. The appellant challenged this order by a writ in the High Court, which was dismissed by a non-speaking, one word order, "Dismissed". Thereafter, he made a representation to the Financial Commissioner (Rehabilitation Department) for the payment of cash compensation for the acquisition of his land. The inter-departmental communications between the State and the Central Government was to the effect that the appellant was entitled to cash compensation. However, no tangible result having come out of the appellant's representation, he made a revision application under S. 33 of the Act challenging the order being contrary to the then permanent settlement rights conferred on him. But that was also rejected by the Joint Secretary to the Government of India. He then filed a writ petition in the High Court inter alia claiming for cash compensation which was dismissed on the ground that it was barred by the principle analogous to res judicata. Hence this appeal came before the Hon'ble Supreme Court. While dealing with this objection of res judicata raised from the side of the respondents, the Hon'ble Supreme Court held as under (at page 1333) :--
"Where a petition under Art, 226 is dis-missed without a speaking order, such a dismissal would not constitute a bar of res judicata to subsequent petition on the same cause of action; more so, when on the facts in this case it appears that the petition was dismissed presumably because the petitioner had an alternative remedy by way of a revision petition under S. 33 of the 1954 Act, which remedy he availed of, and after failure to get the relief he moved the High Court again for the said relief. It would be incorrect in such a situation to dismiss the petition on the ground that the order made by the reyisional authority dismissing the revision petition had the effect of merging the original order against which the revision was preferred with the order made by the revisional authority and, therefore, the challenge on the fresh cause of action to the order made by the revisional authority would of necessity be a challenge to the original order also and the petition would be barred by the principles analogous to res judicata as the first order had become final.
The merger of the orders cannot stand in the way of the petitioner invoking the jurisdiction of the High Court under Art. 226 because the cause of action is entirely different in the two cases. Moreover, while in the first petition the appellant challenged the order of cancellation in his permanent settlement rights, in the second petition, he specifically prayed for cash compensation for the acquisition of his land by the Government. The relief of compensation claimed in the second petition thus being never claimed in the first one, the second petition for this particular relief cannot be dismised in the facts of this case on the ground that it is barred by the principle analogous to res judicata."
10. In paragraph 10 at page 141, the Hon'ble Supreme Court further discussed the earlier case law and concluded in these words:--
"this Court in Daryao case (supra) did not mean to lay down that if the petition is at dismissed in limine without notice to the opposite side it would not bar a subsequent petition. This Court only ruled that if the petition is dismissed in limine but with a speaking order which order itself indicates that the petition was dismissed on merits, the absence of notice to other side by itself would not be sufficient to negative the plea of res judicata in a subsequent petition in respect of the same cause of action."
11. If the petition was dismissed presumably because the petitioner had an alternative remedy by way of a revision petition under Section 33 of 1954 Act, which remedy he availed of and after failure to get a relief, moved the High Court again for the relief, it cannot be incorrect in such a situation to dismiss the petition on the ground that the order made by the revisional authority dismissing the revision petition had the effect of merging the original order against which the revision was preferred with the order made by the revisional authority and, therefore, the challenge under the fresh cause of action to the order made by the revisional authority would of necessity be a challenge to the original order also.
12. This Ruling does not lay down the law that the principles of res judicata will not apply irrespective of the facts of the case in writ petition. The precitum laid down is that if the court had applied its mind to the facts of the case and passed a speaking order in an earlier writ petition on the same cause of action, the second petition will not lie. In the case before their Lordships, the petitioner had come for the second time after exhausting the alternative remedy. Since the quasi-judicial officer had not followed the principles of natural justice and committed blatant error of law, the petitioner challenged the second order of the authority by way of a writ petition. Hence the second petition was held not barred by the principles of res judicata.
13. The second ruling relied upon by the petitioner is Smt. Pujari Bai v. Marian Gopal, 1989 All CJ 490 : (AIR 1989 SC 1764). The appellant petitioner Pujari Bai had migrated from Pakistan in 1947 leaving a large areas of agricultural land in Pakishan. In 1949 the Government in order to settle such refugees adopted certain measures and gave land to the displaced persons for the purpose of cultivation. The displaced persons' claims were examined by the East Punjab Government at some places and the lands were given individually to those who had left behind agricultural lands in the West Punjab. The petitioner was allotted certain lands. On 29-12-1962 allotment made was quasi-permanent in character, but on 29-4-1963 the lands were transferred to her permanently and a pucca sanad was issued in her name. The defendant respondent also an evacuee from Pakistan was also allotted some land. On 29-6-1960 during the consolidation proceedings, he filed some objections before the consolidation authorities. Smt. Pujari Bai was not a party to the proceedings. The objections were rejected. Against this order, he filed an appeal before the Appellate Authority where he met the same fate. The second appeal was remanded to the Settlement Officer with certain observations "that there have been over allotment and the authorities will see that first allottee is given land first". As the authorities were sleeping over the matter, the defendant respondent filed a writ petition in the Punjab and Haryana High Court, Smt. Pujari Bai was not a party to that proceeding too. The High Court,by its order dated 25-11-1966 directed that the order passed by the Second Appellate Authority should be complied with. After this order of the High Court, the Consolidation Authorities proceeded in a hectic manner and deprived some of the allottee of the part of land allotted to them including Smt. Pujari Bai and allotted all such lands to the respondents. Her objection was not entertained by the Consolidation Officer, she preferred an appeal before the Asstt. Director (Consolidation), which was dismissed. Against this order of the Appellate Authority, she filed a writ, which was rejected by the High Court in limine with one word "dismissed" by order dated 14-4-1969. She filed a suit but she lost from all the courts including the High Court. Then she filed a writ petition. Here she based her claim an ihe sanad granted to her but from the side of the respondent a plea of res judicata in view of the order dated 14-4-1969 was raised. Whereas it was urged from the side of the petitioner that as the order dated 14-4-1969 dismissing her petition was passed in limine and it was non-speaking order, it could not operate as res judicata as it was not a decision on merits deciding anyone of the issues arising in the litigation. Disposing of the contention on the point of res judicata, the Hon'ble Supreme Court observed as follows at page 1768 (of AIR):--
"The question is whether the suit of the appellant was barred by res judicata in view of the summary dismissal of her writ petition earlier. It is not disputed that the writ petition filed by the appellant against the order of the Assistant Consolidation Officer was dismissed in limine. This order dated 14-4-1969 was passed by the Division Bench of Punjab and Haryana High Court. It was a one word order. The question of res judicata apparently arises when a controversy or an issue between the parties has been heard and decided. This Court in workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust 1978 (3) SCR 971 : (AIR 1978 SC 1283) considered this principle and observed (at p. 977):
"But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guess work. To illustrate our view point, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari (o challenge some order or decision on several grounds. If the writ petition is dismissed by a speaking order cither at the threshould or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata."
It thus becomes clear that when a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res judicata, but not a dismissal in limine or dismissal on the ground of laches or availability of alternative remedy. The High Court and the courts below, therefore were not right in throwing out the suit of the appellant on the ground of res judicata."
14. The law, as laid down by the Apex Court as apparent from the discussions and quotations above, is that if the order reflects that the mind of the Court was drawn to the relevant facts involved in the case and the court declared its judgment even at the stage of hearing in limine, the principles of res judicata will apply. In the order passed by this Court dated 23-3-1993, these words are very significant..... "There is no legal infirmity in warranting interference by this Court". So it appears that the court considered all the points raised by the petitioner in that case. The legal infirmities pointed out by the petitioner were analysed and the court passed a speaking order that those infirmities did not exist or at least they could not be proved. Therefore, the court found no merit in the petition. The petition was accordingly dismissed as being devoid of merits. It was not dismissed on any technical ground. It was also not dismissed on the ground that there was any alternative remedy available to the petitioner or he was guilty of laches etc.
15. The crux of the question for determination as to whether an order is a speaking order or a silent or blind order is that if it is apparent from a perusal of the order itself that the court applied its mind to all the facts and circumstances involved in the case and after "their evaluation and determination, concluded that .there was no force in the petition, the order howsoever short or precise it may, or even at the stage of admission or at the stage of issuing rule nisi, the order will be on merits. It cannot be branded as non-speaking order or an order which was passed without considering the merits of the case.
16. Adverting to the facts of the present case, the allegations of fact in both the petitions are the same. The reliefs sought in both the petitions are mutatis mutandis the same. The grounds on which the actions of the respondents were challenged were also identical. A writ of certiorari was sought in the earlier petition basing the claim on the observations made in Mahesh Chandra's case. So is the ground taken in the present petition too. The arguments advanced in both the petitions were the same. The Judges constituting the Bench and passing the order dated 23-3-1993 were the same as in the present case. The basis of challenge in both the petitions is the same. Hence it is clear that this petition is clearly barred by the principles of resjudicata.
16.1 Another leg of the argument advanced by the learned counsel for the respondents is that provisions of Order 2, Rule 2, C.P.C. also hit the entertainment of the present petition. The law aims at avoiding multiplicity of the petitions. It requires that a party who comes to the court, must plead all the grounds available to it and seek all the reliefs which it can seek in the first case itself, so that the court may decide the case once for all and the door of the court may be slammed for ever for raising the same points in subsequent litigations. The principle is based on public policy and cannot be taken exception to otherwise.
17. When the petitioner came for the first time with the earlier petition, he could have taken all these pleas and sought all the reliefs which he has claimed in the present writ petition, in fact he did all that in the earlier petition though in a modified language but the spirit and substance were the same. He tried his luck for the first time and failed. Then the second trial of luck has begun. The law does not encourage such a litigation.
18. After considering the arguments advanced and examining the evidence, law and facts available, we come to an irresistible conclusion that this petition is barred by provisions of Order 2, Rule 2, C.P.C. as well which apply, mutatis mutandis to the writ petitions also.
19. Thus the writ petition fails and it is dismissed. No order as to costs.
20. While concluding his arguments, learned counsel appearing for the petitioner lastly submitted that in case this court comes to the conclusion that instant petition is liable to be dismissed, in that event, leave to appeal to the Supreme Court may be granted. We have considered this submission also but since in our opinion no point of public importance is involved in the instant case, hence prayer for leave to appeal is rejected.
21. Petition dismissed.