AB RASHID MIR Vs. STATE OF J&K

JUDGEMENT

(1.) THIS C. P. M was moved by one Harminder Singh, herein -after called Ëœthe applicantâ„¢, for being impleaded as a party/petitioner in Writ Petition No 776 of 1992 which has been filed by a different person on 17.8.1992. The main petition was heard in part by this Court and when the arguments in that petition were to be concluded and orders were to follow, the applicant filed the present application on the following grounds : - a] That he was aggrieved of the discriminatory treatment meted out to him in not appointing him as Assistant Conservator of Forests, b) The applicant on basis of his having figured in the select list was entitled to such appointment. c) That the applicant is similarly situated with the petitioner in Writ Petition No: 776/92 (here -in -after referred to as Writ petitioner]. His rights are also effected in the same manner as those of the Writ petitioner and he also is entitled to the relief prayed for by the latter. d) That by impleading the applicant as party, Writ Petitionerâ„¢s right shall not be effected, not shall be respondents prejudiced in any manner. e) That the impleadment of the applicant will enable the Court to arrive at right and just conclusion.

(2.) THIS application has been resisted by the other side on the ground that the application is not maintainable for the reason that the applicant earlier in 1986 filed Writ Petition No: 521/68 in this Court on the same subject matter. The same stood dismissed vide order dated 23.12.1988. After dismissal of that petition a fresh petition is barred under law. This according to the non -applicantâ„¢s implies that cause of action expired on the dismissal of Writ Petition No: 521 of 1986. Therefore, he cannot revive his cause of action by filing the present application. There is a difference between the causes of action available to the two. Therefore, the applicant is not entitled to be impleaded as party. Finally, it has also been contended that the cause between the parties in the main case shall get delayed by entering into a fresh bout and his impleadment shall frustrate the cause of justice for the Writ Petitioner.

(3.) I have heard the learned counsel for the parties at length. I also have considered the case. The counter objection that has been taken by the learned counsel for the applicant is that Code of Civil Procedure is not applicable to the case as its application to Writ proceedings is expressly barred by proviso to Section 141 of Code of Civil Procedure (hereinafter called the Code), Section 141 of the Code, according to Mr. Johal excludes the proceedings under Article 226 of the Constitution of India from the definition of Ëœproceedingsâ„¢ to which the procedure of the Code is made applicable. However, it includes proceedings taken under Order IX of the Code. As the application has not been filed in terms of Order IX, therefore, the bar created by the explanation is attracted. The first question that arises is as to whether the Code is applicable to proceedings under Part B of Chapter VIII of the Rules. There is no doubt that the applicability of the Code to proceedings in general, shall be determined on the touch stone of Section 141. The Code lays down the general policy of law with regard to its applicability to proceedings relating to matters arising in Courts.