Abdul Hakim vs State of U.P.

Amreshwar Pratap Sahi and Vivek Kumar Birla, JJ.—Heard Sri Prabhat Kumar Srivastava, learned Counsel for the petitioner. Sri Srivastava has filed two supplementary affidavits today which are taken on record.

However, before proceeding on the merits of the case, the Court finds that the petitioner had filed Original Suit No. 1293 of 2013 on 10th March, 2014. The said suit was dismissed as withdrawn with liberty to file a fresh suit on the ground that the petitioner had failed to serve the notice u/s 80 of the C.P.C. on the defendant.

This writ petition has been filed for the same cause of action. Sri Srivastava states that this was done in an urgency. The matter was entertained and the learned Counsel was granted time to file supplementary affidavits.

Once, the petitioner had filed a suit and was permitted to withdraw the same with liberty to file a fresh suit, this does not entitle him to file a writ petition for the same cause of action. This issue has been squarely settled by a Division Bench of this Court in the case of Akay Organics Private Limited Vs. Oil and Natural Gas Commission and Others, that relies on the ratio of Sheonath Dubey v. DIOS Mainpuri, 1985 UPLBEC 1374. The writ petition is, accordingly, dismissed.