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Harish Chandra v. State Of U.P. And Others - WRIT - A No. 41781 of 2004 [2004] RD-AH 1221 (27 October 2004)


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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by  the  Hon'ble Supreme Court  time and again and held that  even if the earlier  writ petition has been  dismissed as withdrawn, Public Policy which is reflected in the principle  enshrined  in  Order 23  rule  1 C.P.C., mandates  that successive writ petition cannot be entertained  for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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