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MAJOR JASBINDER SINGH BALA versus IIND A.D.J. & OTHERS

High Court of Judicature at Allahabad

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Major Jasbinder Singh Bala v. IInd A.D.J. & Others - WRIT - C No. 38064 of 2002 [2005] RD-AH 5866 (17 November 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Reserved

Civil Misc. Writ Petition no. 38064 of 2002

Major Jasbinder Singh Bala

Vs.

IInd Addl. District Judge, Ghaziabad and others

............

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Bharati Sapru, J.

(By the Court)

The present writ petition has been filed by one Major Jasbinder Singh Bala claiming certain reliefs which arise out of the judgment dated 29.4.2002 in L.A.R. no. 421 of 1992 under section 30 of Land Acquisition Act, 1894 (hereinafter referred to as the Act). His claim is that while deciding the issue of apportionment of the compensation under section 30, apportionment has wrongly been made in favour of two persons namely Paras Ram and Gajraj respondents no. 4 and 5 respectively, depriving him from getting compensation after due apportionment. He has therefore made the following prayers 1 to 4:

i. issue a writ order or direction in the nature of writ of prohibition restraining the respondents from disbursement of amount awarded in pursuance of judgment dated 29.4.2002 in L.A.R. no. 421 of 1992 under section 30 of Land Acquisition Act, during the pendency of Reference 18 of the Act between the parties.

ii. issue a writ order or direction in the nature of mandamus to declaration of the amount of Rs.22,74,966.28 paise on the basis of impugned judgment dated 29.4.2002 in favour of respondent no. 4 and 5 in the proceedings u/s. 30 decided like a declaratory suit by setting aside the registered sale deed executed on 25.11.1968 as unconstitutional and void.

iii. issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.8.2002 passed by respondent no. 6 rejecting the transfer application no.397 of 2002.

iv. issue a writ, order or direction in the nature of mandamus in the alternative that proceedings of review application no. 31 of 2002 may kindly be directed to be decided by some other Addl. District Judge in view of the fact that matter was referred to the Hon'ble Chief Justice for initiating an enquiry and for directing the same to be decided by the Court nominated by District Judge, Ghaziabad.

From these prayers, it is abundantly clear that the petitioner feels aggrieved that the compensation has been wrongly apportioned between the respondents no.4 and 5 and he has wrongly been deprived of the same as he claims that he is also entitled to get the compensation and therefore a writ of prohibition be issued restraining the respondents-authorities from disbursing the amount in pursuance of the judgment and order dated 29.4.2002 in L.A.R. no. 421 o 1992.

The second prayer is that this Court may issue a writ of mandamus to declare, that the amount of Rs. 22 lakhs and odd which has been awarded in favour of the respondents no. 4 and 5 in the proceedings impeached herein, as unconstitutional and to declare the sale deed dated 25.11.1968 a nullity.

A preliminary objection has been raised by Sri R.N. Singh, learned Senior Advocate appearing on behalf of respondents no. 4 and Shri A.D. Prabhakar, for respondent no. 5 that the writ petition itself is not maintainable and the petitioner is not entitled to get any relief in the present writ petition as the same is barred by the principles of res judicata and also on account of material suppression of facts relevant to the issue. To support the said submission, it is urged that the petitioner filed a regular First Appeal no. 284 (defective) of 2002 under section 96 C.P.C. read with section 54 of the Act seeking the same reliefs and against the same impugned order dated 29.4.2002, which stood dismissed as withdrawn vide order dated 17.12.2003. We propose to decide the preliminary objection first.

We have perused the record of First Appeal no. 248 (defective) of 2002. The record reveals that the said Appeal was filed by the same petitioner and through the same counsel seeking the following reliefs:

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the judgment and decree dated 29.4.2002 and 4.5.2002 respectively passed in L.A.R. no. 421 of 1992 by setting aside the same as justice may be done without the right of the appellant."

The said First Appeal was reported as defective appeal on 16.7.2002, which was filed on 5.9.2002 as defective. Thereafter the said First Appeal was dismissed by the Division Bench on 17.12.2003 by passing the following order:

   "Sri Yogesh Kumar Saxena, learned counsel for the appellant prays for and is permitted to withdraw the appeal (defective).

   The appeal is dismissed as withdrawn."

Simultaneously the present writ petition being writ petition no. 38064 of 2002 reported on 5.9.2002 was filed on 5.9.2002 itself. Thus two options were exercised by the petitioner on the same date. It is really speaking, a case of forum hunting. The petitioner had already availed the statutory remedy of filing a First Appeal under section 96 of the Code of Civil Procedure (hereinafter referred to as the C.P.C.) read with Section 54 of the Act against the judgment and order dated 29.4.2002 as the order passed under section 30 of the Act amounted to a decree within the meaning of Section 2 (2) C.P.C. and had attained finality and would remain alive unless set aside by the superior Court. The petitioner being conscious of this, had availed of his statutory remedy under section 96 C.P.C.

While filing writ petition on the same day, the petitioner stated in para 42 of the writ petition which is quoted herein below.

"42. That the petitioner is also submitted that there is no remedy for the petitioner to challenge the order and decree dated 29.4.2002 and 4.5.2002 respectively passed by IInd Additional District Judge, Ghaziabad in L.A.R. no. 421 of 1992 under section 30 of Land Acquisition Act. There is proceedings of section 54 of Land Acquisition Act to file the First Appeal in respect of cases decided u/s. 18 of the Land Acquisition Act, wherein a decree could have been passed after determination of amount in respect of entitlement of different claimants. In case the petitioner pursue the remedy of filing the appeal, he is required to deposits Rs.1,71,032.50 paise as the Court fees for the said appeal as the Courts fees ad valorem is required to be paid. Thus the aforesaid appeal is neither amenable for the petitioner to have been filed by depositing such a huge amount for conferring his right specially under the circumstances when the respondents has himself proceeded to file the writ petition no. 23591 of 1992. It has been held in Smt. Shyamlata Jauhari vs. Collector, reported in 1990 AWC page 1234 that the award given by Land Acquisition Officer is not a decree within meaning of section 2 (2) of C.P.C. and as such, the same is not tenable for execution by Civil Court and thus the writ petition is amenable for realization of compensation awarded by Special Land Acquisition Officer."  

This para is sworn on the basis of legal advice. Thus it is also abundantly clear that the petitioner was having full knowledge of the fact that he had availed of the statutory remedy by way of availing first appeal against the judgment and order dated 29.4.2002 passed under section 30 of the Act. The plea taken by the petitioner in para 42 of the writ petition is that it was not possible for him to file first appeal on account of the fact that it would incur heavy Court fees. From a plain reading of para 42 of the writ petition, it is clear that the facts as stated do not disclose that in fact the petitioner had already availed of the statutory remedy under section 96 C.P.C. The petitioner had given the reference of the judgment of this Court in Smt. Shyamlata Jauhari (supra) wherein it has been held that the award given by the learned Land Acquisition Collector is not a decree under Section 2 (2) of the C.P.C. and therefore not appealable.

In the instant case, the judgment and order under challenge is by the Court deciding a reference under section 30 of the Act, therefore reference to the said judgment of this Court is totally misplaced and the ratio of the said judgment has no bearing in this case.

The non-disclosure of the fact of the filing of the appeal, in our opinion, amounts to material suppression and concealment of relevant facts. The petitioner also invoked extra-ordinary jurisdiction of this Court on the same day i.e. 5.9.2002 through the same counsel but did not disclose in the first appeal regarding the filing of the writ petition or in the writ petition that he had already filed a first appeal and in fact it had been reported as early as 16.7.2002 and filed simultaneously on 5.9.2002. Such an act of the petitioner meets him with serious consequences. In a Court of equity while seeking a discretionary relief, it is clear that the petitioner did not come with clean hands. The first appeal was subsequently dismissed as withdrawn on 17.11.2003.

Against this background, Sri R.N. Singh has argued that the judgment and order dated 29.4.2002 passed under section 30 of the Act had attained finality as the petitioner had availed of the statutory remedy under section 96 C.P.C. read with section 54 of Act by filing a First Appeal no. 248 of 2002. As the said first appeal was not pursued by the petitioner and has been dismissed as withdrawn on 17.12.2003, the judgment and order dated 29.4.2002 had attained finality and therefore operates as res judicata against the petitioner and thus it is not open for him to press a writ petition filed simultaneously against the same judgment and decree seeking the same kind of reliefs.

Sri R.N. Singh has also argued that when the first appeal was dismissed as withdrawn on 17.12.2003 a simple order of dismissal for withdrawal was passed. The appellant in that appeal did not get the appeal dismissed as withdrawn with liberty to file a fresh matter and therefore the petitioner had acquiesced and the decree against which the first appeal was filed also had become final and had attained finality. Thus the writ petition is not maintainable.

Sri R.N. Singh has next advanced an argument that  once the order has attained finality, it would require setting set aside by a superior Court, even if the order is void.

In reply to these arguments Sri Y.K. Saxena has urged that in fact, the first appeal no. 248 of 2002 was a defective appeal, and therefore it was not a competent appeal and it had no existence and therefore the principles of res judicata would not apply and that judgment and decree dated 29.4.2002 had not attained finality. Even at the time of passing of the order for dismissal by withdrawal on 17.12.2003, Sri Y.K. Saxena on being questioned closely could not answer the query of this Court as to how the appeal has become non-existent. Sri Saxena during the course of argument relied on para 42 of the writ petition where it has been stated that filing of an appeal was an expensive proposition and was therefore not being availed of by the petitioner.

As has been pointed out earlier, that both the first appeal and the writ petition were filed on 5.9.2002 but the first appeal had in fact been got reported on 16.7.2002. Petitioner has deliberately availed two remedies simultaneously in the same Court seeking the same relief. These decisions were taken by the petitioner being fully conscious of the remedies available to him.

By the subsequent actions, the petitioner also permitted the judgment and order dated 29.4.2002 passed in proceedings under section 30 of the Act to become final by the passing of the order of withdrawal as not pressed on 17.12.2003.

We have also examined Rules 6, 7 and 8 of chapter XI of Allahabad High Court Rules, 1952 (hereinafter referred to as the Rules, 1952). From a perusal of these rules, it is abundantly clear that even where an appeal is insufficiently stamped at every stage, the interference of the Court is involved and for removal of defects the matter is decided by the Court and even in the case of non-removal of defect as in the present case the appeal is posted before the Court. This is the reason why, even though the appeal of the petitioner was defective, it was posted before the Court to obtain necessary orders for withdrawal as not pressed. The Court while exercising its discretion and being seized with the matter passed an order on 17.12.2003. It would be preposterous to assume that the Court has passed an order in a non-existing appeal. The argument advanced by Sri Y.K. Saxena that the appeal was non-existing, is legally untenable and factually incorrect, as such the contention deserves outright rejection. The argument is in total defiance of logic as it does not lie in the mouth of the petitioner to say, that even though the appeal was non-existent, he has obtained an order of withdrawal for dismissing the appeal as not pressed.

Having examined the records of both the writ petition as well as the first appeal, it is evident that by not disclosing the facts of each other in the pleadings, the petitioner has played a game of hide and seek in this very Court.

The legal issue to be examined herein is as to whether the judgment and order passed by the Court under section 30 of the Act is appealable and if so, whether it is under section 54 of the Act or section 96 C.P.C.

The Patna High Court dealt with a similar issue in Dhanusdhari Rai Vs. Man Mohan Rai, AIR 1974 Pat 262, wherein it has been observed as under:

"6. By virtue of Section 53 of the Act, the provisions of the Code of Civil Procedure, so far as they are not inconsistent with the Act, apply to the proceeding under the Act before the Court and, therefore, it was competent to the Civil Court, when the dispute was referred to it to consider the claim of the respective parties who appeared before it. The claim of the plaintiff no. 1 was, therefore, fully adjudicated upon by the Civil Court and the said adjudication under the Act is, in my opinion, as much subject to the principles of res judicata as adjudication by courts under the Civil Procedure code. The scope of adjudication under section 30 of the Act on a reference arises only when a dispute regarding apportionment of the compensation money arises between different claimants. It is only the question of the right and title of the respective claimants to the apportionment of the compensation money which is referred for determination by the Civil court under section 30 of the Act and those parties are certainly bound by the adjudication of the Court and the same question cannot be tried and determined by any other Court in a subsequent suit as the right to apportionment necessarily involves the determination of the title of the claimant or the objector in the properties which may be the subject matter of the acquisition, because it is only on the determination of this condition precedent that the Court determines the question as to person entitled to the compensation or its apportionment."

This view stands fortified by the judgments of the Privy Council in Ramachandra Rao Vs. Ramachandra Rao, AIR 1922 PC 80; and Mt. Bhagwati Vs. Mt. Ram Kali, AIR 1939 PC 133.

A Division Bench of Gujarat High Court has considered the same issue in great detail in Bai Lalita Vs. Shardaben and Ors., AIR 1970 Guj 37 wherein after referring to a large number of statutory provisions of the Land Acquisition Act, and C.P.C., it has been held that the Act makes reference under section 3 (d) to the Court and it refers to the Court and not to the Collector. The Collector has been defined under Section 3 (c) of Act whereas Court includes having territorial jurisdiction to perform the functions of the Court under the Act. Therefore it makes reference to the Court. Section 54 of the Act provides for appeal against awards under section 18 of the Act and does not include the reference decided by the Court under section 30 of the Act as it merely deals with the apportionment of the amount of compensation amongst the persons who claim title and interest in the property so acquired. However, by virtue of the provisions of Section 53 of the Act, the judgment and order passed under section 30 of the Act, is appealable under section 96 C.P.C., as Section 53 applies all the provisions of C.P.C. to the proceedings of the Court under the Act. Para 3 of the judgment in Bai Lalita's case (supra) quoted herein below illustrates the same:-

"Now it is true that there is no other provision in the Act which permits an appeal against an order or decision of the Court passed under Section 30 of the Act. But we can not lose sight of the fact that by reason of section 53 of the Act, the provisions of the Civil Procedure Code are made applicable to any proceedings  before the Court under this Act. As contemplated therein, they apply to all proceedings before the Court under this Act "save in so far as they may be inconsistent with anything contained in this Act."  Section 54 of the Act also proceeds by saying that an appeal under Section 54 shall be subject to the provisions of Code of Civil Procedure applicable to appeals from original decrees. Thus the right of appeal against any other order or decision which is not inconsistent with the provisions contained in Section 54 remains under Section 96 of the Civil Procedure Code. That is not taken away and on the contrary one has to avail of the provisions relating to appeal in the Civil Procedure Code, in matters under the Act provided there is a decision or order of the Court not falling under Section 54 of the Act. As stated in Section 30 of the Act, reference is for a decision of the Court and a decision given by that Court determines the rights of the parties in respect of their disputes. It is in the nature of a decree as contemplated in Section 2 (2) of the Civil Procedure Code, and thus, in our view, it becomes appealable under Section 96 of the Civil Procedure Code."

A Division Bench of the Madras High Court in (Janapareddi) Venkatareddi Vs. (Janapareddi) Adhinarayana, AIR 1929 Mad. 351, held that a decision on reference under Section 30 of the Act is a decree which would be appealable.

A Division Bench of Bombay High Court in Rajhunathdas Harjivandas Vs. District Superintendent of Police, AIR 1933 Bom. 187, considered the issue in detail and held that under the earlier Act, i.e. the Land Acquisition Act, 1870, there was a separate provision for appeal under Section 39 against the reference like Section 30 of the Act. However, in the present Act, by virtue of the provisions of Sections 53 and 54, the award of the Court is appealable under Section 54 and similarly the decree passed under Section 30 of the Act shall also be appealable being governed by ordinary law. The Court rejected the contention that in absence of any separate provision for appeal against the decision under Section 30 of the Act, the appeal was not maintainable.

In Srimathu Muthu Vijaya Raghunatha Duraisingnam Vs. Karuppiah & Ors., AIR 1939 Mad. 716; A.M. Chengalvaraya Chetty Vs. The Collector of Madras & Ors., AIR 1965 Mad. 376; and Velappa Gounder Vs. Nachimuttu Gounder & Ors., AIR 1973 Mad. 449, the Madras High Court held that decision under Section 30 of the Act is a decree and thus appealable. While deciding the later cases, reliance has been placed on the Full Bench judgment in Chikkanna Chettiar Vs. V.S. Perumal Chettiar, AIR 1940 Mad. 474, wherein while deciding the similar issue, the Court held as under:-

"The Subordinate Judge who is appointed under Section 3(d) of the Act to decide a dispute with regard to allocation of compensation money does not constitute a Court of Record, but admittedly he does constitute a Civil Court. Hence an appeal lies from the decision of a Subordinate Judge appointed by the Provincial Government under Section 3(d) to decide a dispute referred by the Collector under Section 30 of the Act."

In Hanumanthappa & Anr. Vs. Korisetty Sivalingappa, AIR 1960 Mys 139, a Division Bench of Mysore High Court after placing reliance upon large number of judgments, came to the conclusion that the High Courts in India have consistently taken the view that a decision under Section 30 of the Act is a decree and appealable.

In spite of our repeated query, Shri Saxena could not point out any judgment of any Court to the contrary and we do not see any cogent reason for taking a different view. Thus, we hold that decision rendered by the Court appointed under Section 3(d) of the Act on a reference under Section 30 of the Act is appealable under Section 96, C.P.C.

There is yet another reason in support of the aforesaid conclusion. The Land Acquisition Act is a complete Code and its proceedings are governed by the Act itself as held by the Hon'ble Apex Court in State of Bihar Vs. Dhirendra Kumar & Ors. AIR 1995 SC 1955; and Laxmi Chand & Ors. Vs. Gram Panchayat Kararia & Ors. AIR 1996 SC 523.

It is evident that the Act is a complete Code and provides for an appeal against an order passed under Section 30 of the Act under section 96 C.P.C. as such the party aggrieved should avail the remedy accordingly. The petitioner approached the Court by filing an appeal under section 96 C.P.C. read with section 54 of the Act without disclosing the filing of the writ petition and got it dismissed as withdrawn.

Having held that an appeal would lie against the order passed under Section 30, which is undeniably a decree as defined under Section 2(2) C.P.C., it is clear that the petitioner availed of the said remedy and abandoned it voluntarily without leave to pursue any other remedy. The order passed by the Court under Section 30, therefore has attained finality. In this view of the matter, the decree aforesaid will operate as res judicata and would necessarily bar the institution of the present writ proceedings.

The relief sought for by the petitioner is barred by the principles enshrined in Order II Rule 2 C.P.C., which provides that suit/petition must include the whole claim. If a relief which could have been claimed is not claimed, party cannot claim it in a subsequent suit/petition.

The rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction. One great criterion, when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, is whether the same evidence will support both actions and the cause of action is also the same. (Mohd Khalil Khan Vs. Mahbub Ali Mian, AIR 1949 PC 78).

A Constitution Bench of Hon'ble Supreme Court in Gurbux Singh Vs. Bhooralal, AIR 1964 SC 1810, held that 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 II Rule 2 C.P.C. as has been  explained, in unambiguous  and  crystal clear language  by  the Hon'ble Supreme  Court in M/s.  D. Cawasji &  Co. Vs. State of Mysore, AIR 1975 SC 813; Commissioner of Income Tax Vs. T.P. Kumaran,  (1996) 10  SCC  561;  Union of  India & Ors. Vs. Punnilal & Ors., (1996) 11 SCC  112; Deva Ram & Anr. Vs. Ishwar Chand & Anr., AIR 1996 SC 378; and M/s. Bengal Waterproof Limited Vs.  M/s. Bombay Waterproof Manufacturing Company & Anr, AIR 1997 SC 1398.

In Kunjan Nair Sivaraman Nair Vs. Narayanan Nair & Ors., AIR 2004 SC 1761, the Apex Court  explained the scope of Order II, Rule 2 C.P.C. observing as under:-

"The doctrine of res judicata differs from the principle underlying Order II, Rule 2 in that the former places emphasis on the plaintiff's duty to exhaust all available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. Order II concerns framing of a suit and requires that the plaintiff shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any Court, he will not be entitled to that relief in any subsequent suit. Further sub-rule (3) provides that the person entitled to more than one reliefs in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for such relief he shall not be afterwards be permitted to sue for relief so omitted."

Thus, in view of the above, law can be summarised that as the law of res judicata/constructive res judicata provides for finality of the proceedings and is based on legal maxim. Section 11 C.P.C. contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence "Interest republicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the Court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a Court, competent to try the subsequent suit in which such issue has been raised. It also provides that a litigant must claim the whole relief and once he abandons the relief which he ought to have claimed he cannot bring an independent proceeding for the same.

The Hon'ble Supreme Court time and again has held that even if the earlier writ petition or proceedings in another jurisdiction has been dismissed as withdrawn, Public Policy, which is reflected in the principles enshrined in order XXIII Rule 1 C.P.C., mandates that successive/subsequent proceedings be not entertained for the same relief.

In M/s. Hulas Rai Baij Nath Vs. Firm K.B. Bass & Co. , AIR 1968 SC 111, the Apex Court considering the provision of Order XXIII, Rule 1 C.P.C., and particularly, sub-rule (3) thereof, has held that where a plaintiff withdraws from a suit without the permission of the Court to institute fresh proceedings, he is precluded from filing a fresh suit on the same subject matter against the same parties.

In Sarguja Transport Service Vs. State Transport Appellate Tribunal & Ors., AIR 1987 SC 88, the Hon'ble Apex Court held as under:-

".....The principle underlying R.1 of O. XXIII of the Code, is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of R. 1 O. XXIII. The  principle underlying the above rule is founded on public policy..............."(Emphasis added)

In M/s. Upadhyay & Co. Vs. State of U.P. & ors., AIR 1999 SC 509, the Apex Court has emphasized the importance and necessity of applying the principles enshrined under Order XXIII Rule 1 C.P.C., being based on public policy, in all Court proceedings.

A Division Bench of this Court in Khacher Singh Vs. State of U.P. & Ors., AIR 1995 All 338, considered the issue at length and interpreted the provisions of Rule 7 of Chapter XXII of the Allahabad High Court Rules, 1952 which bar the filing of a second writ petition on the same cause of action and held that the second petition for the same cause of action not to be maintainable. Other Division Benches in L.S. Tripathi Vs. Banaras Hindu University & Ors., (1993) 1 UPLBEC 448; and Saheb Lal Vs. Assistant Registrar (Administration), Banaras Hindu University, Varanasi & Ors., (1995) 1 UPLBEC 31, held that filing successive writ petitions for the same cause of action is not only against the public policy, but also amounts to abuse of the process of the Court.

Therefore it is evident from the above referred to judgments that withdrawal of a petition without seeking liberty to file a fresh proceeding or approach some other forum may preclude the party from instituting any other proceedings in any other forum.

In K.S. Rashid & Sons Vs. Income Tax Investigation Commission & Ors., AIR 1954 SC 207, a Constitution Bench of the Hon'ble Supreme Court considered the issue that when the remedy under Section 8 (5) of the Taxation of Income-tax (Investigation Commission) Act, 1947 was pending, whether the High Court could entertain a writ petition. The Hon'ble Apex court held that a person has a choice to proceed either with the alternative remedy or with the writ petition, but both cannot be permitted simultaneously.

A similar view has been reiterated by another Constitution Bench in   M/s. Tilokchand Motichand & Ors., Vs. H.B. Munshi, AIR 1970 SC 898. However, the Hon'ble Apex Court cautioned that a writ Court should entertain a writ petition in rare cases where the ordinary process of law appears inefficacious as the writ Court may interfere even where other remedies are available.

A Constitution Bench of the Hon'ble Supreme Court in A.V. Venkateswaran, Vs. Ramchand Sobhraj Wadhwani & Anr., AIR 1961 SC 1506 held that even where a party has approached the alternative forum, the Court should entertain a writ petition or not, a straight jacket formula cannot be formulated. The Court may examine the facts and circumstances of the case and decide as to whether it was to entertain the petition or not. However, where the petitioner has already approached the alternative forum for appropriate relief, it is not appropriate that the writ petition should be entertained. The rule is based on public policy and motivating factor is that of existence of the parallel jurisdiction in another Court.

In Jai Singh Vs. Union of India & Ors., AIR 1977 SC 898, the Hon'ble Supreme Court considered a case wherein the petitioner filed a writ petition which was dismissed in limine. Subsequently, he filed a suit agitating the same subject matter. The Court held that suit was not maintainable as a person cannot be permitted to pursue two parallel remedies in respect of the same subject matter at the same time.

In Bombay Metropolitan Region Development Authority, Bombay Vs. Gokak Patel Volkart Ltd., & Ors., (1995) 1 SCC 642, the petitioner therein had filed a writ petition during the pendency of the appeal before the Statutory Authority. The Hon'ble Apex Court held that such a writ was not maintainable.

Thus, in view of the above, the law can be summarised that public policy demands that a person has a right to choose the forum for redressal of his grievance, but he cannot be permitted to choose two forums in respect of the same subject matter for the same relief. There may be a case of forum hunting that a party who filed a suit, may not be able to get the interim relief. It may abandon the remedy before the civil Court and approach the remedy of filing the writ petition. Thus, it will amount to abuse of the process of the Court by forum hunting.

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 AIR  SCW 14, 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.

In Sheo Nath Dubey Vs. District Inspector of Schools and Ors., 1985 UPLBEC 1374. The ratio of this judgment being that the sound exercise of judicial discretion is that having chosen the remedy of filing the first appeal, the party would not be permitted to harass the other parties by changing the forums in the same Court and therefore the judicial discretion requires the rejection of the writ petition on that ground alone.

In M/s. Akay Organics Private Ltd. Vs. Oil & Natural Gas Commission and Ors., 1992 AWC 792, whereby also the Court held that on the doctrine of election and public policy that once a party has elected to seek redress in civil Court, he cannot be permitted to give it up and seek the same relief in a writ petition.

The Hon'ble Supreme Court in the case of State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, JT 1995 (8) SC 533, wherein the Apex Court held that even if an order is ''void'.  It shall in fact be effective inter parties until it is successfully avoided or challenged in a higher forum and therefore such an order cannot be said to be non-existent in all cases and in all situations.

In the instant case, the petitioner has not only abused the forums of the Court, but also suppressed the material facts from the Court.

When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide Ramjas Foundation & ors. Vs. Union of India & ors., AIR 1993 SC 852; K.R. Srinivas Vs. R.M. Premchand & ors. , (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim " Jure Naturae Aequum Est Neminem cum Alterius  Detrimento Et Injuria Fieri Locupletiorem", which means that it is a law of nature that one should not be enriched by the loss or injury to another, applies in such cases.

In Nooruddin Vs. Dr. K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:

"....Equally, the judicial process should never become an instrument of oppression or abuse or a means in the process of the Court to subvert justice."  

In Ramniklal N. Bhutta Vs. State of Maharastra, AIR 1997 SC 1236; the Apex Court held that the power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point. "The interest of justice and public interest coalesce. They are very often one and the same." The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers.

In view of the above, we reach the inescapable conclusion that the petitioner had chosen to approach two parallel forums simultaneously by filing the appeal under Section 96 C.P.C. read with Section 54 of the Act and also by filing the present writ petition. As we have examined above, by virtue of section 53 of the Act the judgment and order impugned is appealable and appeal has been filed by the petitioner without making payment of court fees. The writ petition has been filed on the same day to avoid the payment of court fees. Application for proceedings as in forma pauperis was not pressed by the petitioner. In the circumstances, it cannot be held that the petitioner was not aware what was the remedy available to him. We fail to understand as to under what circumstances the petitioner suppressed the material facts that he was simultaneously challenging the impugned judgment and order in writ jurisdiction and in the writ petition that a statutory appeal had been preferred. Thus the suppression of material relevant to the issue is serious and cannot be ignored. The remedy availed by the petitioner by filing the appeal was an appropriate one and once he opted it, he ought not to have withdrawn the same. The facts involved herein disentitle the petitioner from any equitable relief from this Court.

Writ jurisdiction is discretionary. It is not issued merely because it is lawful to do so. The purpose of the writ Court is not only to protect a person from being subjected to violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, the power being discretionary, the Court has to balance the competing interest, keeping in mind that interest of justice and public interest can coalesce in certain circumstances. The Court must so act as to prevent perpetration of a legal fraud and to promote good faith and equity. (Vide Champalal Binani Vs. Commissioner of Income Tax, West Bengal, AIR 1970 SC 645; Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr., AIR 1994 SC 2151; Chimajirao K. Shrike Vs. Oriental Fire & General Insurance Co. Ltd., AIR 2000 SC 2532; Shama Prashant Raje Vs. Ganpatrao & Ors., AIR  2000 SC 3094; LIC of India Vs. Asha Goel, AIR  2001 SC 549; Roshan Deen Vs. Preeti Lal, AIR  2002 SC 33; Haryana Financial Corporation & Anr. Vs. M/s. Jagdamba Oil Mills & Anr., AIR 2002 SC 834; S.D.S. Shipping (P) Ltd. Vs. Jay Container Services Co. (P) Ltd. & Ors., AIR 2003 SC 2186; and Chandra Singh Vs. State of Rajasthan & Anr. AIR 2003 SC 2889).

The contents of para 42 of the writ petition, which the petitioner rely and have been sworn on legal advice, reveal that the petitioner had full knowledge of what he was doing. Petitioner has clearly indulged in an activity, which is nothing but an abuse of the process of the Court and therefore he is not entitled to any equitable relief in extraordinary discretionary jurisdiction of the Court. He has not come with clean hands. He has in fact suppressed the material facts about filing of the appeal simultaneously.

In view of the above, we are of the considered opinion that the petitioner has not approached this Court with clean hands and he is guilty of suppressing material information. He has filed an appeal against the impugned decision and has voluntarily withdrawn the same without seeking any liberty to approach any other forum or file the present writ petition. The conduct of the petitioner in proceeding in such a manner amounts to abuse of process of the Court and is thus reprehensible. It further justifies no interference at his behest by the writ Court.

Thus the preliminary objections raised on behalf of the respondents no. 4 and 5 are upheld and the petition is, accordingly, dismissed. No cost.

November 17, 2005

Rk//AHA/38064/02-ch


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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