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Harish Chandra v. State Of U.P. And Others - WRIT - A No. 41781 of 2004  RD-AH 1221 (27 October 2004)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 41781 OF 2004
Harish Chandra ------------- Petitioner
State of U.P. & Ors. ------------- Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
This writ petition has been filed for quashing the impugned suspension order dated 21.6.2004. Learned Standing Counsel has raised a preliminary objection regarding the maintainability of this petition contending that the petitioner had earlier filed Writ Petition No. 291231 of 2004 challenging the same order and his petition was dismissed vide order dated 5th July, 2004. Thus, the second petition for the same relief is not maintainable. The order passed in earlier writ petition reads as under:-
"This writ petition has been filed against the impugned suspension order dated 21.6.2004. Considering the gravity of the charges, we are not inclined to interfere in the matter. However, the respondents are directed to conclude the enquiry against the petitioner as early as possible, preferably within a period of two months and he shall be entitled to draw the subsistence allowance during the suspension period strictly in accordance with law.
In view of the above, writ petition stands disposed of."
It has been submitted that if the inquiry could not be concluded as per the directions of the Court, the petitioner may approach the contempt Court but the second writ petition is not maintainable.
The issue of filing successive writ petition has been considered by the Hon'ble Supreme Court time and again and held that even if the earlier writ petition has been dismissed as withdrawn, Public Policy which is reflected in the principle enshrined in Order 23 rule 1 C.P.C., mandates that successive writ petition cannot be entertained for the same relief. (Vide M/s. Sarguja Transport Service Vs. State Transport Appellate Tribunal & Ors., AIR 1987 SC 88; Ashok Kumar & Ors. Vs. Delhi Development Authority, 1994 (6) SCC 97; and Khacher Singh Vs. State of U.P. & Ors., AIR 1995 All. 338).
Even if a party does not pray for the relief in the earlier writ petition, which he ought to have claimed in the earlier petition, he cannot file a successive writ petition claiming that relief, as it would be barred by the principle of constructive res judicata enshrined in Explanation IV to Section 11 and Order 2 rule 2 C.P.C. as has been explained, in unambiguous and crystal clear language by the Hon'ble Supreme Court in Commissioner of Income Tax, Bombay Vs. T.P. Kumaran, 1996 (10) SCC 561; Union of India & Ors. Vs. Punnilal & Ors., 1996 (11) SCC 112; and M/s. D. Cawasji & Co. & Ors. Vs. State of Mysore & Anr., AIR 1975 SC 813.
Similar view has been reiterated by the Hon'ble Supreme Court in Avinash Nagra Vs. Navodaya Vidyalaya Samiti & Ors., (1997) 2 SCC 534 and by the other Court in Uda Ram Vs. Central State Farm & ors., AIR 1998 Raj. 186; and M/s. Rajasthan Art Emporium Vs. Rajasthan State Industrial and Investment Corporation & Anr., AIR 1998 Raj. 277.
In M/s. D. Cawasji & Co. etc. Vs. State of Mysore & Anr. (Supra), the Hon'ble Supreme Court observed as under:-
"Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no reasons before the High Court in these writ petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of the Courts. Therefore, the appellants could not be allowed to split up their claims for refund and file writ petitions in this piecemeal fashion. If the appellants could have, but did not, without any legal justification, claim refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants should be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions without any justification, we do not think, we would be justified in interfering with the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund....in view of the above, the petition is liable to be dismissed as not maintainable and it is dismissed accordingly...."
Similarly, in State of U.P. & Anr. Vs. Labh Chand, AIR 1994 SC 754, the Hon'ble Supreme Court has held as under:-
"This reason is not concerned with the discretionary power of the Judge or Judges of the High Court under Article 226 of the Constitution to entertain a second writ petition whose earlier writ petition was dismissed on the ground of non-exhaustion of alternative remedy but of such a Judge or Judges having not followed the well established salutary rule of judicial practice and procedure that an order of a Single Judge Bench or a Larger Bench of the same High Court dismissing the writ petition either on the ground of latches or non-exhaustion of alternative remedy as well shall not be bye-passed by a Single Judge Bench or Judges of a Larger Bench except in exercise of review or appellate powers possessed by it..... But as the learned Single Judge constituting a Single Judge Bench of the same Court, who has in the purported exercise of jurisdiction under Article 226 of the Constitution bye-passed the order of dismissal of the writ petition made by a Division Bench by entertaining a second writ petition filed by the respondent in respect of the subject matter which was the subject matter of the earlier writ petition, the question is, whether the well established salutary rule of judicial practice and procedure governing such matters permit the learned Single Judge to bye-pass the order of the Division Bench on the excuse that High Court has jurisdiction under Article 226 of the Constitution to entertain a second writ petition since the earlier writ petition of the same person had been dismissed on the ground of non-availing of alternative remedy and not on merits.... Second writ petition cannot be so entertained, not because the learned Single Judge had no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same Court dismissing the earlier writ petition, redundant and nugatory although not reviewed by it in exercise of its recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another Single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petitions after writ petition in the same matter, in the same High Court and for it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it would result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court refusing to entertain a writ petition could be ignored by him with impunity and the relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court, for there could be no finality for an order of the Court refusing to entertain a writ petition. It is why the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting that the writ petition of the same person was dismissed by the same Court even if the order of such dismissal was in limine, be it on the ground of latches or on the ground of non-exhaustion of alternative remedy, has come to be accepted and followed as salutary rule in exercise of writ jurisdiction of the Court." (Emphasis added).
In Burn & Co. Vs. Their Employees, AIR 1957 SC 38, the Hon'ble Apex Court has held as under:-
"That would be contrary to the well-recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be re-agitated. It is on this principle that the rule of res judicata enacted in Section 11, Civil P.C. is based. That section is, no doubt in terms in application to the present matter, but the principle underlying it, expressed in the maxim "interest rei publicae ut sit finis litium", is founded on sound public policy and is of universal application. (Vide Broom's Legal Maxims, Tenth Edition, page 218). 'The rule of res judicata is dictated' observed Sir Lawrence Jenkins C.J. in Sheoparasan Singh Vs. Ramnandan Prasad Narayan Singh, 43 Ind. App. 91: ILR 43 Cal. 694: (AIR 1916 PC 78) (C), by a wisdom which is for all time."
Therefore, in view of the above referred judgments, it is abundantly clear that even if the provisions of the Code of Civil Procedure are not applicable in writ jurisdiction, the principle enshrined therein can be resorted to for the reason that the principles, on which the Code of Civil Procedure is based, are founded on public policy and, therefore, require to be extended and made applicable in writ jurisdiction also in the interest of administration of justice. Any relief not claimed in the earlier writ petition should be deemed to have been abandoned by the petitioner to the extent of the cause of action claimed in the subsequent writ petition and in order to restrain the person from abusing the process of the Court, such an order/course requires not only to be resorted to but to be enforced.
In Dr. Buddhi Kota Subbarao Vs. K. Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In Tamil Nadu Electricity Board & Anr. Vs. N. Raju Reddiar & Anr. AIR 1997 SC 1005 the Hon'ble Supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand.
In Sabia Khan & ors. Vs. State of U.P. & ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly.
In Abdul Rahman Vs. Prasoni Bai & Anr., (2003) 1 SCC 488, the Hon'ble Supreme Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law.
Thus, in view of the above, the second writ petition is not maintainable for seeking the relief of quashing the impugned suspension order dated 21st June, 2004 as the earlier writ petition for the same relief stood dismissed vide order dated 5th July, 2004, wherein this Court had held that in view of the gravity of the charges, no interference was required.
It has been submitted at this stage by Shri C.L. Pandey, learned counsel for the petitioner that respondents have admittedly not ensured the compliance of the order passed by this Court on 5th July, 2004, as no steps have been taken to conclude the enquiry against the petitioner, therefore, the Court should suo motu initiate the contempt proceedings against the respondents.
The submissions made by Shri Pandey in this regard seems to be appropriate. However, in view of the Division Bench judgment of this Court in Prof. Y.C. Simhadri & Ors. Vs. Deenbandhu Pathak, 2001 All CJ 1549, this Bench does not have competence to initiate the contempt proceedings even suo motu. Thus, the prayer made is not acceptable. If the petitioner is so aggrieved, he may file the contempt petition for not complying with the order dated 5.7.2004.
With these observations, the petition stands dismissed.
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