HE WHI SEEKS EQUITY MUST DO EQUITY

Whether a petitioner after withdrawing a writ petition filed by him in the HC under Art.226 without the permission to institute a fresh petition, can file a fresh writ petition in the HC under that Article? 

The principle underlying Rule 1 of Order 23 of CPC should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. While withdrawal of writ petition without permission may not bar other remedies like a suit or a petition under Art.32 of the Constitution, since withdrawal does not amount to res judicata. The writ petition filed, challenging the very same impugned order, without disclosing the earlier writ, was a suppression of fact and such litigation cannot be allowed to continue (1996 II MLJ 283). 

The SC in 1997 (2) SCC 534 held that the second writ petition is not maintainable as the principle of constructive res judicata could apply. In Halsbury’s Law of England the law is stated “He who seeks equity must do equity.” 

The SC in 2008 (1) SCC 560 held that a writ remedy is an equitable one; a person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of process of law.