Kerala High Court
Baduvan Kunhi vs K.M.Abdulla on 29 April, 2016
Author: Dama Seshadri Naidu
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938
WA.No. 969 of 2016 () IN WP(C).16525/2016
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AGAINST THE JUDGMENT IN WP(C) 16525/2016 of HIGH COURT OF KERALA
DATED 29-04-2016
APPELLANT/NO PARTY IN WPC:
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BADUVAN KUNHI
AGED 56 YRS, S/O. ABDULLA KUNHI,
RESIDING AT HOUSE NO. 2/3, PAYYALADKA HOUSE,
BADIYADKA G.P., P.O. PERDALA, KASARAGOD DISTRICT.
REPRESENTED BY THE POWER OF ATTORNEY HOLDER,
SRI. MOHAMMED ASHRAF, S/O. ABDUL KADER,
AGED 34 YRS, R/AT. BOLKATTA HOUSE,
BADIYADKA G.P., P.O. PERDALA, KASARAGOD DISTRICT.
BY ADV. SRI.SAJEEV KUMAR K.GOPAL
RESPONDENTS/PETITIONER & RESPONDENT IN WPC:
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1. K.M.ABDULLA
S/O. MAMMUNHI, BIRMINADKA HOUSE, BELA P.O.,
KUMBALA, KASARAGOD, PIN-671321.
2. THE SECRETARY
REGIONAL TRANSPORT AUTHORITY,
KASARAGOD-671123.
R2 BY GOVERNMENT PLEADER SHOBA ANNAMA EAPEN
R1 BY ADV.SRI.IVANS C.CHAMAKKAL
R BY ADV.SRI.A.K.ABDUL AZEEZ
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
15-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.969 of 2016
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE I TRUE COPY OF WPC NO.8507/2016 FILED BY THE
IST RESPONDENT.
ANNEXURE II TRUE COPY OF THE TEMPORARY PERMIT ISSUED BY THE
2ND RESPONDENT TO THE IST RESPONDENT.
RESPONDENT'S EXHIBITS:
ANN.R2(a) TRUE COPY OF THE PROCEEDINGS.
TRUE COPY
p.s.to judge
CSS/
C.R.
Antony Dominic & Dama Seshadri Naidu, JJ.
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W.A.No.969 of 2016
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Dated this the 15th day of July, 2016
JUDGMENT
Dama Seshadri Naidu, J.
The appeal is by a person who is not a party to the writ petition; his grievance is that the first respondent filed a writ petition behind his back and obtained a judgment to the appellant's prejudice. His complaint confounds the first respondent's conduct for he filed his previous writ petition on the issue arraying the appellant as a party.
Facts As Set Out By The Appellant:
2. The appellant is the registered owner of stage carriage with registration No. KL-13/K-5986. The vehicle has a regular permit to operate on the route Mundathaduka-Kasaragod. Initially, the 1st respondent was issued with a temporary permit for his vehicle No. KL-13/J-7585 to operate on the route Mundathaduka-
Kasaragod-Kambar (Via), Neerchal, B.C Road Civil Station. The permit, given in the vacancy of another stage carriage, had the W.A.No.969/2016 2 permit valid up to 18.12.2015.
3. The appellant has a grievance that the first respondent's route permit stretches 3 km., into the appellant's permitted route, its total stretch being 28 km. The appellant submitted an objection before the RTA authorities: The permissible overlapping is 5% of the total route length; it comes to 1.4 km. But the first respondent's route overlaps by over 5%--to be precise by 3 km. The authorities, therefore, should not renew the temporary permit to the first respondent. The appellant, after complaining, filed W.P.(C) No. 37837/2015 seeking a direction to the authorities to consider his objections.
4. As a result, the 2nd respondent, through proceeding dated 15.01.2016 (Exhibit P5), rejected the first respondent's application for a temporary permit or its extension. Aggrieved, the 1st respondent preferred W.P.(C) No. 8507/2016. The appellant and the KSRTC, the rival route-operators, were arrayed as the respondents in the writ petition. Initially the writ petition was admitted, and later, on 08.04.2016, the Court directed the matter to be posted after summer vacation. The first respondent has got no interim relief.
5. During the summer vacation, while W.P.(C) No. W.A.No.969/2016 3 8507/2016 was subsisting, on 28.04.2016 the first respondent filed W.P.(C) No. 16525/2016, contending that his application (Exhibit P2) for a temporary permit submitted by him on 28.04.2016 itself was yet to be considered by the 1st respondent.
6. A learned Single Judge disposed of the writ petition on 29.04.2016, at the inception, directing the second respondent to issue a temporary permit to the first respondent for four months. The direction was acted upon. When the first respondent started operating his bus on the route, the appellant made enquiries; and, startled at the subsequent developments, he rushed to the Court. In the appeal, he sought the Court's leave to impugn the judgment, to which he was not a party.
Facts As Set Out By The First Respondent:
7. The first respondent has a motor vehicle (bus) being operated on a particular route. First, he had a vehicle with Reg.No.KL-14-E-3494 with a regular permit in 2012. He sold the vehicle but retained the permit. As the validity of the permit came to an end, on 20th March 2012, the first respondent applied to the authorities for renewal; but, in the meanwhile, he secured a job abroad and left. Intermittently, whenever he came back home, he W.A.No.969/2016 4 went on enquiring with the authorities about the renewal of the route permit.
8. In 2014, the authorities' failing to renew the route permit, the first respondent filed a writ petition, the details of which are not available on the record. This Court seems to have directed the first respondent to file a fresh application; the direction was on the premise that the timing of the route the first respondent had initially applied for might have been allotted to some other operator in the interim.
9. In the light of the decision of this Court referred to above, the first respondent, having come back to India for good, applied for a temporary permit 'on the same slot'. To begin with, complaining against the authority's reluctance to grant him a temporary permit, the first respondent filed WP(C) Nos.31292/2014, 12580/2015 and 24722/2015. This Court allowed the first two writ petitions on 24.11.2014 and 17.4.2015 directing the authorities to grant a temporary permit on each occasion for four months. In WP(C) No.24722/2015 the Court is said to have passed an interim order on 13.08.2015.
10. On 08.12.2015, the first respondent submitted another W.A.No.969/2016 5 application for the re-issuance or renewal of the temporary permit
--in a measure, an extension of the earlier temporary permit, which the first respondent could have on the strength of a rash of writ petitions. Once again the first respondent filed WPC No.381915 of 2015 on the basis of his application, dt.08.12.2015.
On 16.12.2015, this Court disposed of the writ petition directing the authorities to consider his application within two weeks and to permit the petitioner to operate the service till orders were passed. In compliance with the judgment, the authorities did pass an order, but by rejecting the first respondent's request for the perpetual renewal of what is ironically a temporary permit. The first respondent nurses a grievance that the rejection was at the behest of the rival operators.
11. The record in fact reveals that the authority while passing the order of rejection did consider the objections filed by a rival operator, too. Questioning the order of rejection, dated 15.01.2016, the first respondent filed WP(C) No.8507/2016. Commendably, he arrayed as party respondents the two rival operators: the Kerala State Road Transport Corporation and the appellant. As the writ petition was filed on 03.03.2016, this Court W.A.No.969/2016 6 issued a notice in response to which all the respondents, including the contesting private respondents, entered their appearance and, predictably, opposed the first respondent's claim for the renewal of the temporary permit. Last, the writ petition came up before a learned single judge on 8.4.2016 and got adjourned to be posted after summer vacation commencing on 09.04.2016.
12. During the vacation, on 28.04.2016, the first respondent is said to have applied for a temporary permit. Alleging that it was not considered by the authorities expeditiously, he filed W.P.(C) No.16525 of 2016 on 28.04.2016 itself, got it listed on 29.04.2016, and had it disposed of on the same day. The result that the first respondent should have the temporary permit for four more months.
Lis Pendens Developments:
13. At the initial hearing, the learned counsel for the appellant has highlighted what is said to be the objectionable conduct of the first respondent in securing the impugned judgment. He has urged that both the first respondent and Sri A.K. Abdul Aziz, the first respondent's counsel here and in the previous writ petition, too, have committed contempt of court. W.A.No.969/2016 7
Prima facie satisfied, we put the first respondent, and also his learned counsel, on notice. On 25.05.2016, we suspended the impugned judgment and called upon the first respondent and his counsel why they should not be proceeded against under the Contempt of Courts Act for sheer of abuse of process they have taken recourse to.
14. The learned counsel, in his defence, has engaged a counsel. Accordingly, the first respondent and his counsel both submitted two identically worded replies defending themselves on the charges of contempt of court as well as on the merits. Submissions:
Appellant's:
15. The learned counsel for the appellant has submitted that the first respondent has suppressed the material facts. According to him, the first respondent obtained the impugned judgment behind the appellant's back, by playing fraud. It is his specific contention that so long as Exhibit P5 subsisted, and so long as a validly instituted legal proceedings are pending in relation to Exhibit P5, the first respondent ought not to have initiated further parallel proceedings, at any rate, suppressing the pending writ W.A.No.969/2016 8 petition, which is an abuse of process.
16. Though the learned counsel has addressed the issue on merits also, we feel there is no need to refer to them for the adjudication is confined to a preliminary issue: Has the first respondent abused the process of the court and obtained the impugned judgment by playing fraud? And whether his counsel is also a party to such fraud?
First Respondent's:
17. Before we examine the pleas taken by the first respondent and his counsel, Sri A.K. Abdul Azeez, it behoves well to remember two things: The first respondent has applied for only one route; he plies only one vehicle.
Oral Submissions:
18. There are no oral submissions on merit. Nevertheless, Sri Deepak, the learned counsel appearing for the counsel on record has submitted that it was unfortunate and that it ought not to have happened. He, thus, requested the Court to give a quietus to the whole issue. He said the first respondent and the counsel have both filed affidavits running into many pages (not on record by then). He has finally submitted that the parties, now contrite, W.A.No.969/2016 9 are going to file another set of affidavits tendering an unconditional apology. He sought an adjournment on that count.
19. On the adjourned date, the learned counsel drew our attention only to the first set of affidavits. They are in defence of the parties' conduct. When asked whether any subsequent pleadings, the learned counsel has said that nothing further has been filed. As such, we shall refer to the pleas taken by the first respondent and his counsel in their respective affidavits:
Explanation Offered by the First Respondent's:
(A) The purpose of the application, dt.08.12.2015 (that invited Exhibit P5 order), ought to have expired on 18.04.2016. (B) The application, dt.28.04.2016 (that invited the impugned judgment), was filed under Section 87(1) (C) of the Act.
[We may add hereafter parenthetically a word or two on the frivolity or unsustainability of the plea: Section 87 (1) (C) of the Motor Vehicles Act speaks of meeting a particular temporary need. The application, dt.08.12.2015, must have been under the same provision for it, too, was with the same purpose: to meet a particular temporary need, for which the temporary permitted is granted.] W.A.No.969/2016 10 (C) The first respondent says he has only one vehicle and submitted applications for different purposes with different dates for Temporary Permit on the same route.
[The admission is loud and clear. But the different purpose is not forthcoming from the record] (D) The former Writ Petition has already become infructuous before the date of filing of WP (C) 16525/2016, i.e., 28.4.2016. It is for the reasons, first, that the period of four months came to an end; second, that "after filing the said Writ Petition on 4.3.2016 and even after issuing notice by Special Messenger, the matter was listed only after 20 days, i.e. on 28.3.2016 and on 1.4.2016, but the same was not taken up. Finally, on the closing day of Summer vacation, i. e. 8.4.2016, it was told that the case was listed, but the matter was adjourned after vacation." [The Petitions do not perish by themselves; they have to be either disposed of or withdrawn, which the contemnor has not done. A petition becoming infructuous needs judicial imprimatur on that count; it cannot be by way of a party's self-proclamation. The second ground, reproduced faithfully, is unintelligible.] (E) While the former writ petition was pending, the first W.A.No.969/2016 11 respondent obtained two temporary permits for twenty days each to operate the service on different routes. Those temporary permits were granted "only on assuring the authorities that I will not press for the permit on the route in question." The counsel, too, was informed of it.
[We wonder whether it has any relevance. If it has, it only shows that the first respondent undertook that he would not press for the temporary permit on that route. But he did press.] (F) As the Court did not grant relief, the first respondent was forced to apply for a temporary permit on whichever route available since he was facing acute financial stringency. Once the first respondent obtained temporary permit in another route, his previous application automatically stands cancelled. [The reply affidavit filed by the first respondent, in general, and this response, in particular, bear out that he is either at the nadir of the naivety or at the zenith of brazenness. Court's refusal to grant an order
--interim at that--is no licence to a litigant to abuse the process of the court. Nothing wrong in the first respondent's applying for other routes. But, here, the subject is the same route.] (G) The first respondent has not enquired whether the former W.A.No.969/2016 12 writ petition is pending or not and "thus presumed that there is no need to mention about the pendency of the said infructuous case while filing WP (C) No.16525/2016, a subsequent case with a different prayer to consider a different application." [Our previous comment holds good here as well. Thanks to the inartistic pleadings, if one accepts that diplomacy has its place even in pleadings and even before the courts, the first respondent has cast his recklessness, if not guilt, indelibly in ink.] (H) Neither of the two rival operators was made a party in any of the earlier Writ Petitions: WP(C) No.31292/2014, WP(C) No. 12580/2015 and WP(C) No. 24772/2015, because there were no proceedings of the 2nd respondent in any of the above writ petitions.
[In the earlier writ petitions, there was no occasion for the appellant to raise objections. At any rate, Exhibit P5 order of rejection was due to the appellant's objections. So long as the objection is on record, the first respondent's every subsequent application shall be examined by the authorities in its light. As such, he is a necessary party thereafter.] (I) WP (C) No.16525/16 was filed on 28.4.2016 due to change of circumstances. It was based on the latest Route Enquiry Report W.A.No.969/2016 13 dated 17.1.2016 and issued on 28.1.2016 by the Motor Vehicle Inspector. The first respondent obtained those reports after Exhibit P5 order.
[If at all this explanation, now given, has any salutary effect, it ought to have been set out in the pleadings. A post factum explanation is hardly a justification, especially, in judicial proceedings having, at least, some solemnity.] (J) The next vacation sitting was only on 3.5.16 and the petitioner could not keep his tax paid vehicle idle "any more". Any delay in considering the application for temporary permit dated 28.4.2016 would cause untold hardships to the first respondent. [We can only admire the audacity of the first respondent. Our response to Ground F above holds good here as well. One needs to declare one's difficulty and, it seems, proceed further in utter disregard of procedure and fair play, for the ends justify the means] (K) The first respondent has forwarded the application to his counsel on 27.04.16 to prepare the Writ petition for which evidence is available.
[Another gaffe. But the application was dated 28.04.2016. Now on oath, W.A.No.969/2016 14 the first respondent admits that he postdated the application for expediency.] (L) It was nowhere mentioned in the Writ Petition that there is a delay in considering the application dated 28.4.2016 but only stated that `any delay in consideration of Ext.P2 will put the petitioner into untold hardships.' [one presumes, safely, that proceedings in vacation court carry their tell-tale signs of urgency with nothing further. The issue is not about what was pleaded, but about what was not.] (M) The first respondent has been highly aggrieved by the cancellation of the direction of this Hon'ble Court in WP (C) 16525/16 on the basis of the wrong and misleading facts presented and convinced before this Hon'ble Court by the appellant.
[Wrong and misleading, but who? Our conclusions, however, are converse. If the first respondent has been highly aggrieved by the interim suspension of the impugned judgment, he is not remediless.] (N) The first respondent, in the end, pleads: "If there is any omission on my part, I once again humbly pray that this Hon'ble W.A.No.969/2016 15 Court may be pleased to pardon the same." He immediately nullifies the supposed contrition of heart by asserting: "I humbly submit before this Hon'ble Court that there no abuse of the process of the court as alleged in the Interim order dated 25.5.16 and as such I am not liable to face any contempt proceedings." [If the first respondent regretted, it was, we may say, mealy-mouthed; and the very expressions employed are mere weasel words, at best. It is further interest to note that we reserved the matter on 21.06.2016; later, on 27.06.2016 the first respondent and Sri A.K. Abdul Azeez filed concise affidavits (dated 21.06.2016) reiterating that they had already filed detailed affidavits along with supporting documents answering all the allegations levelled against them. They were pleased, in that context, to condescend to offer--as they prefer to call it--an unconditional apology to the Court: "However, if this Hon'ble Court is still of the view that there is omission on my part, I am tendering my unconditional apology before this Hon'ble Court." The less said, the better about this `unconditional apology,' which is janus-faced and paradoxical] Explanation Offered by the Counsel for the First Respondent:
20. The affidavit filed by the learned counsel is verbatim to the one filed by the first respondent, save the last two paragraphs. He pleads that he has been practicing for 21 years, W.A.No.969/2016 16 and his record is blemishless. Exactly as has been pleaded by the first respondent prevaricates on what has happened. It has already been reproduced and noted.
The Government:
21. The second respondent in his counter affidavit has submitted that the route overlaps by over 5%. There are already seven stage carriages operating on the route. He eventually states that the Motor Vehicle Inspector has also reported that "there is no urgent temporary need under Section 87 (1) (c) of the Act." Issue:
Have the first respondent and his counsel abused the process of the court and obtained the impugned judgment by playing a fraud and by suppressing the material facts? Discussion:
22. To begin with, bent on operating his vehicle on one temporary permit or another, the first respondent filed WPC No.8507/2016 on 4.3.2016. Neither of the private respondents in WPC No.16525/2016 was made a party. The pleadings in the second writ petition are brief, at best, containing the summary of what was pleaded in the other writ petition. Now, as a matter of W.A.No.969/2016 17 fresh cause of action, the first respondent pleads that on 28.4.2016 he applied for a temporary permit for four months and that the authorities be directed to issue temporary permit acting on his representation.
23. Indisputably, apart from omitting the contesting respondents in the previous writ petition from being the parties in the latter writ petition, the first respondent has not even remotely adverted to the fact that he had already filed a writ petition seeking a temporary permit, and that was pending. Nor has he pleaded his similar request, even for some other period, was already rejected by the authorities. This is despite the mandatory requiremnent as set out in the proviso to Rule 146 of the Rules of the High Court of Kerala, 1971.
24. We may examine the scope of the relief sought in both the writ petitions:
WPC No.8507/2016
i) call for the records leading to Ext.P5 and to quash the same by a writ of certiorari.
ii) issue a writ of mandamus or any other appropriate Writ, order or direction directing the 1st respondent to re-issue temporary permit for four months for the petitioner's vehicle KL-13-J-7585 to operate the service on the route Mundyathadka-Kasaragod-Kambar (via) W.A.No.969/2016 18 Neerchal-B.C.Road - Civil Station by re-considering the application for 4 months Temporary Permit dated 8.12.2015 submitted by the petitioner taking into account that permit was in existence from 20.4.2007 in the name of the petitioner as evidenced in Ext.P6.
iii) Issue a writ of Mandamus or any other appropriate Writ, order or direction directing the 1st respondent to issue a copy of Motor Vehicles Inspector Report dated 27.1.2016 forthwith by considering Ext.P8.
iv) Declare that the act of 1st respondent of issuing Ext.P5 is illegal.
v) Issue any other writ, order or direction which this Hon'ble Court deems fit in the facts and circumstances of the case.
WPC No.16525/2016
i) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to issue a temporary permit for four months for the petitioner's vehicle KL-13-J-7585 forthwith to operate on the route Mundyathadka - Kasaragod - Kambar (via) Neerchal - B.C.Road - Civil Station in the light of Ext.P3 judgment of this Hon'ble Court by considering Ext.P2 application submitted by the petitioner.
ii) Declare that the petitioner is entitled to get the four months Temporary Permit issued as applied for in Ext.P2 in the light of Ext.P3.
iii) Issue any other writ, order or direction which this Hon'ble Court deems fit in the facts and circumstances of the case.
25. In the latter writ petition, the first respondent wants the W.A.No.969/2016 19 respondents to act on his Exhibit P2 representation--so far so good. He wants it to be considered in the light of Exhibit P3 judgment. The fact, however, remains that the authorities earlier considered the first respondent's request, keeping in view particularly Exhibit P3 judgment, and refused to grant temporary permit. The order of refusal is Exhibit P5 in the former writ petition.
26. The inevitable, obvious conclusion is that the authorities have already acted in compliance with Exhibit P3 judgment; their acting on it, once again, does not arise. Yet, the first respondent insists that his latest representation (Exhibit P2) should be considered based on Exhibit P3. It is congruent to consider the well-established legal principle that an administrative authority cannot revisit or review his orders and alter them unless he is conferred with that power. Given the initial rejection by the authorities, the first respondent's repeated applications are of no consequence.
27. The first respondent's defence seems to be that he sought the temporary permit for a particular period (four months) in the former writ petition, and that period was over. According to W.A.No.969/2016 20 him, that writ petition has automatically become infructuous; he is entitled to seek temporary permit for the next four months. The periods being different, the former writ petition does not affect the latter writ petition. Nor has there been any legal impediment in that regard. Outlandish! The defence has already been considered threadbare.
Judicial Dictum on the Issue:
Equity Jurisprudence v Fraud, Suppression of Facts, and Abuse of Process:
28. A person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty-bound to protect itself from unscrupulous litigants who have no respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which affect adjudication of the issue(s) arising in the case[1]. It is not for a 1 []Ramjas Foundation v. Union of India (2010) 14 SCC 38 W.A.No.969/2016 21 litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision-making to the court[2].
29. A person seeking relief in public interest [private interest, too, stands on the same footing] should approach the court of equity, not only with clean hands but also with a clean mind, clean heart and clean objective. Thus, he who seeks equity must do equity. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, means that it is a law of nature that one should not be enriched by the loss or injury to another. The judicial process should never become an instrument of oppression or abuse or means to subvert justice[3].
30. It has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts--it says facts, not law. He must not misstate the law if he can help it--the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully 2 []Bhaskar Laxman Jadhav v. Karamveer Kakasaheb Wagh Education Society, (2013) 11 SCC 531, at page 541 3 []State of M.P.v. Narmada Bachao Andolan, (2011) 7 SCC 639, at p. 705 W.A.No.969/2016 22 and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement[4].
31. Further, where an ex parte application has been made to this Court for a rule nisi or other process, if the Court concludes that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court on the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion, a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further 4 []R. v. Kensington Income Tax Commrs, (1919) 1 KB 486 at p. 514 W.A.No.969/2016 23 from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit[5].
32. The Apex Court, quoting the exhortations of in Scrutton L.J., and Viscount Reading C.J., in Kensington, has emphatically observed that a prerogative remedy is not a matter of course. While exercising extraordinary power, a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done." The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it[6].
33. It hardly needs reiteration in our hand that fraud vitiates all acts how ever solemn they are. The party practicing fraud either on the Court or on the rival suitor disentitles himself from the privilege of being heard by the Court. Merits notwithstanding, the matter must be thrown out, summarily at that. Counsel's Loyalty v Duty 5 []Ibid 6 []K.D. Sharma v. SAIL, (2008) 12 SCC 481, p. 492 W.A.No.969/2016 24
34. Lord Denning, M.R. in Rondel v. W[7] had the occasion to examine the seemingly conflicting role a counsel plays: His loyalty to the client and duty to the Court. The most quoted jurist of the 20th century has observed that it is a mistake to suppose that he is the mouthpiece of his client to say what he wants. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to its discipline.
35. Picking up where Lord Denning has left, Lord Reid in Rondel v. Worsley[8] has succinctly set out the conflicting nature of the duties a counsel has to perform. According to him, every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. As an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal 7 [](1966) 3 All ER 657, p.665 8 [](1967) 3 All ER 993 at p.998 W.A.No.969/2016 25 interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. By so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him.
36. Quoting both the above authorities with approval, the Apex Court has further observed thus: "We are constrained to give expression to our views with a feeling of remorse to remind the counsel of that sense of detachment and non-identification they are expected to maintain with the causes espoused by them and not with a view to belittle the profession or cast aspersions on counsel[9].
37. In Kishore Samrite[10] the Apex Court has observed that the abuse of the process of court and such other allied matters have been arising before the courts consistently. It has, after quoting 9 [][]T.V.Choudhary, In re, (1987) 3 SCC 258, at p. 264 10 [] Kishore Samrite v. State of U.P., (2013) 2 SCC 398, at page 421 W.A.No.969/2016 26 with approval many authorities on the issue, recapitulated the principles of processual fairness thus:
1. Suitors should not approach the courts with intent to deceive and mislead them--an approach of unclean hands. The suitors should not initiate proceedings without full disclosure of facts, for such litigants are neither entitled to be heard on the merits nor are they entitled to any relief.
2. The people who approach the court for relief on an ex parte statement are under a contract with the court that they would state the whole case fully and fairly to the court, and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
3. The obligation to approach the court with clean hands is an absolute obligation.
4. The quest for personal gains should not be a justification to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. Materialism, opportunism, and malicious intent should not overshadow the old ethos of litigative values for small gains.
5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
6. The court must ensure that its process is not abused; to prevent abuse of process of court, it would justifiably insist on the litigant's furnishing security. In cases of serious abuse, the court would be duty-bound to impose heavy costs.
7. Wherever a public interest is invoked, the court must examine the petition carefully to ensure that there is genuine public interest W.A.No.969/2016 27 involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
8. The courts have to maintain a strict vigil over the abuse of process of court and ordinarily meddlesome bystanders should not be granted "visa".
The Motor Vehicle Inspector's Report:
38. First, the Government in its counter affidavit states unambiguously that the Motor Vehicle Inspector (MVI) has also reported that "there is no urgent temporary need under Section 87 (1) (c) of the Act." The second respondent rejected the first respondent's request on 15.01.2016. The cause for rejection is that the route overlaps by over 5%. He has also recorded that the MVI has reported that there is no urgent temporary need.
39. If we examine the MVI's report, dt.17.01.2016, filed by the first respondent along with the reply affidavit, the remarks column reads thus: "Many schools, M.S. College Neerchal, civilisation and Hospitals is situated in the route. So the service will be beneficiary to students, employees and public. Notified area is more than 5% of the total route length." Emphasis is ours.
40. The report seems to have been, for the second time, soon after the second respondent's rejecting the first respondent application--just in one day's gap. He might have given it W.A.No.969/2016 28 oblivious of the second respondent's order of rejection. Be that as it may, MVI too has recorded that the route overlaps by over 5%.
The MVI's change of heart is inexplicable given his earlier stand reflected in the second respondent's proceedings. He has faithfully mentioned about route overlapping, though. Granting temporary permit is, thus, in statutory negation.
The Striking Aspects:
41. If we examine the proceedings and the conduct of the first respondent and, unfortunately, the counsel too, these aspects emerge:
1. W.P. (C) No.16525 of 2016 is the product of a sheer abuse of process;
2. though Rule 146 of the Kerala High Court Rules provides for a declaration about the filing or pendency of any previous case, the first respondent and his counsel have deliberately suppressed the filing and the pendency of W.P. (C) No.8507 of 2016;
3. the first respondent's omitting the appellant and KSRTC, both parties to the previous writ petition filed under identical circumstances, is willful, deliberate, mala fide;
4. the first respondent allegedly submitted his Exhibit P2 representation on 28.04.2016, complained of delay in its consideration by the authorities, filed a writ petition on the W.A.No.969/2016 29 same day, and obtained a judgment--the very next day; lastly
5. the learned counsel for the first respondent has miserably failed--and remained unrepentant--in discharging his duties as the officer of the court.
The Last Straw:
42. The first respondent has vehemently canvassed before us that W.P. (C) No.8507 of 2016 has already become infructuous.
We have expected, at least by the date of our hearing the matter, it might be withdrawn. Today, as we conclude the judgment, the case status of the Court's website shows thus:
Kerala High Court Case Status Information System Case Status : Pending Status Of : WRIT PETITION (CIVIL 8507 Of 2016 Litigants : ABDULLA Vs. SECRETARY Pet's Adv : SRI.A.K.ABDUL AZEEZ Res's Adv : SRI.P.C.CHACKO, SC, KERAL Last Date of Hearing : Thursday, June 16, 2016
43. We are not unduly concerned with the loss or hardship allegedly suffered by the appellant because of the first respondent's conduct or action. We are, in fact, concerned with the institutional integrity and processual purity getting imperilled.
Desperation does not--and must not--lead to deviation from, W.A.No.969/2016 30 much less destruction of, the fairness of the process, the solemnity of the system, the sanctity of the justice delivery system. Expediency is not an established jurisprudential justification for any extreme conduct. Unpleasant but unavoidable is this adjudication: At every turn and every adjournment, we hoped that reason--if not humility towards the majesty of law-- would prevail over hubris, but to no avail. Hence, this exercise. We are, therefore, prima facie, satisfied that the first respondent and his counsel Sri A.K. Abdul Azeez are guilty of contempt of court as defined under Section 2 (c) of the Contempt of Courts Act. They are, therefore, liable to be proceeded against appropriately.
The Counsel's Conduct:
44. We may note another aspect of the issue that concerns the learned Counsel Sri A.K. Abdul Azeez: He is, prima facie, guilty of professional misconduct under Section 35 of Advocates Act, which is in addition to and apart from his putative guilt under the Contempt of Courts Act.
45. In N.G. Dastane[11] the Supreme Court has held that the collocation of the words "guilty of professional or other
11 []N.G. Dastane v. Shrikant S. Shivde, (2001) 6 SCC 135, at page 142 : W.A.No.969/2016 31
misconduct" has been used to confer power on the Disciplinary Committee of the State Bar Council. It is for equipping the Bar Council with binoculars as well as a whip to be on the qui vive for tracing out delinquent advocates who transgress the norms or standards expected of them in the discharge of their professional duties. The central function of the legal profession is to help promotion of administration of justice. Any misdemeanour or misdeed or misbehaviour can become an act of delinquency if it infringes such norms or standards and it can be regarded as misconduct. So much so, an advocate abusing the process of court is guilty of misconduct.
46. A lawyer owes a duty to be fair, held the Hon'ble Supreme Court in P.D. Gupta,[12] not only to his client but also to the court as well as to the opposite party in the conduct of the case.
Administration of justice is a stream which has to be kept pure and clean. It has to be kept unpolluted. Administration of justice does not concern only the Bench. It concerns the Bar as well. The Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of a lawyer. Result:
12 []P.D. Gupta v. Ram Murti, (1997) 7 SCC 147, at page 153 : W.A.No.969/2016 32
47. Without going into the merits of the rival contentions on the issue of the first respondent's entitlement to temporary permit, we allow the writ appeal, as a result of which the impugned judgment stands set aside, and the writ petition dismissed because the first respondent has been guilty of abuse of process, suppression of material facts and fraud. The learned counsel has fared no better. The reply affidavits filed by both have only aggravated their conduct and prima facie established, we are constrained to conclude that there is compunction in neither of them, and their approach to the whole issue is deliberate and calculated.
Costs & Conclusion:
48. The Apex Court in V. Chandrasekaran[13 , while imposing ] exemplary costs of `25 lakh, has observed that the judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, because the court exercises its jurisdiction, only in furtherance of justice.
The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to 13 []V. Chandrasekaran v.Administrative Officer, (2012) 12 SCC 133, at page 151 W.A.No.969/2016 33 achieve an ulterior purpose, amounts to an abuse of process of the court.
49. Their Lordships, in that context, have quoted with approval Dalip Singh[14], Ritesh Tewari [15]and Amar Singh[16]. It pays to mention the pertinent observations in those decisions. In Dalip Singh it is observed that an altogether new creed of litigants, that is, dishonest litigants are the fast emerging breed. Though truth constitutes an integral part of the justice delivery system, the quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
50. In Ritesh Tewari and Amar Singh, as quoted in V. Chandrasekharan, it is observed that the truth should be the guiding star in the entire judicial process. "Every trial is a voyage of discovery in which truth is the quest". An action at law is not a game of chess; therefore, a litigant cannot prevaricate and take 14 []Dalip Singh v. State of UP,(2010) 2 SCC 114 15 []Ritesh Tewari v. State of U.P., (2010) 10 SCC 677 16 []Amar Singh v. Union of India, (2011) 7 SCC 69 W.A.No.969/2016 34 inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings.
51. In Vijay Mallya[17] the Apex Court speaking J. Chelameswar, J., has invoked Anatole France, who poetically, poignantly observed that "The law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread." Having found on facts that the appellant abused the process of court, the Apex Court imposed exemplary costs of ten lakh rupees to be paid to the Supreme Court Legal Services Authority.
52. In Phool Chandra[18], the Apex Court, per curiam, observed, "It is high time that the courts should come down heavily upon such frivolous litigation, and unless we ensure that the wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigation. In order to curb such kind of litigation, the courts have to ensure that there is no incentive or motive which can be ensured by imposing exemplary costs upon the parties as 17 []Vijay Mallya v. Enforcement Directorate, (2015) 8 SCC 799, at page 806 18 []Phool Chandra v. State of U.P.,(2014) 13 SCC 112 W.A.No.969/2016 35 well as on the learned counsel who act in an irresponsible manner."
53. In Messer Holdings Ltd[19] the Apex Court has observed that enormous amount of judicial time of that Court and High Courts (in that case) was spent on litigation that was eminently avoidable and could have been well spent on more deserving cases. All that was in the name of "fight for justice." It has, in that process, quoted with approval Ramrameshwari Devi[20] to hold that the courts must consider, while imposing costs, pragmatic realities and also the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards conducting litigation. The Court deemed it appropriate to impose twenty-five lakh rupees on each of the three parties.
54. Accordingly, taking a cue from the above, apart from allowing the writ appeal, we impose an exemplary cost of `1,00,000/- on the first respondent to be payable within one month from today to Kerala State Mediation and Conciliation Centre (KSMCC), High Court of Kerala. If the first respondent fails to pay the costs, the Director, KSMCC, shall require the District Collector to recover as revenue arrears the costs imposed now. 19 []Messer Holdings Ltd vs Shyam Madanmohan Ruia & Ors, dt.19.04.2016 20 []Ramrameshwari Devi & Others v. Nirmala Devi & Others, (2011) 8 SCC 249, at para 54 W.A.No.969/2016 36 For that purpose, the District Collector shall treat the communication from the Director, KSMCC, as a proceeding under Section 69 (2) of the Revenue Recovery Act and take further steps accordingly.
55. The registry is further directed to send a copy of this judgment to the Bar Council of Kerala. After receiving a copy of the judgment, treating that as a complaint, the Bar Council, shall initiate appropriate disciplinary proceedings under Section 35 of the Advocates Act, 1961, and the Rules made thereunder, agasint Sri A. K. Abdul Azeez, the advocate.
We further direct the registry to place the matter before the jurisdictional Bench to further adjudicate on the issue of contempt.
Sd/- Antony Dominic, Judge
sd/- Dama Seshadri Naidu, Judge
css/ true copy
P.S.TO JUDGE