Himachal Pradesh High Court
Ex.Petty Officer No.114294-K Hari Pal ... vs State Of H.P. Others on 23 June, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
Rev. Petition No. 108 of 2016
.
Decided on: 23.6.2017
Ex.Petty Officer No.114294-K Hari Pal Singh. ...Appellant.
Versus
State of H.P. others. ...Respondents.
_____________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1 Yes
For the Appellant: Mr. B.C. Negi, Sr. Advocate with
Mr. Pranay Partap Singh, Advocate.
For the Respondents: Mr. Shrawan Dogra, Advocate General with
Mr. M.A. Khan and Mr. Anup Rattan, Addl.
AGs and Mr. J.K. Verma, Dy.A.G.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral):
By medium of this Review Petition, the appellant has sought the review of the judgment dated 18.10.2016 passed in LPA No.338/2012 whereby the appeal filed by him against the order passed by the learned Writ Court in CWP (T) No.3052/2009 came to be dismissed.
1Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP 2
2. The review is primarily sought on the ground that this Court while denying relief to the .
appellant had wrongly invoked the principles contained in order 2 rule 2 of the Code of Civil Procedure (CPC) as the same were not applicable to the proceedings under Article 226 of the Constitution of India.
3. In support of his submission, strong reliance was placed by the petitioner on the judgment of the Hon'ble Constitution Bench of the Supreme Court in Devendra Pratap Narain Rai Sharma vs. State of Uttar Pradesh and others, AIR 1962 SC 1334, particularly observations contained in para 12, which read thus:
"[12] The High Court has disallowed to the appellant his salary prior to the date of the suit. The bar of O. 2 R. 2 of the Civil Procedure Code on which the, High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court."
4. Undoubtedly, the aforesaid observations support the contention of the petitioner, but this Court has nowhere in the judgment under review held the provisions of order 2 rule 2 CPC to be applicable but ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP 3 has only made the principles contained therein applicable to the facts of the case.
.
5. It is more than settled that avoiding the multiplicity of legal proceedings should be the aim of all courts and, therefore, a litigant cannot be allowed to split up his claim and file writ petition in piecemeal fashion. If the litigant could have, but did not without any legal justification claim a relief which was available to him at the time of filing earlier writ petition, the same claim cannot be allowed to be subsequently agitated by filing another writ petition.
6. In this context, it shall be apt to refer to the judgment of the Hon'ble Supreme Court in M/s. D. Cawasji and Co., etc vs. State of Mysore and another, AIR 1975 SC 813 wherein it was held as under:
"[18] But, that however, is not the end of the matter. In the earlier writ petitions which culminated m the decision in (1968) 2 Mys LJ 78 = (AIR 1969 Mys 23) the appellants did pray for refund of the amounts paid by them under the Act and the High Court considered the prayer for refund in each of the writ petitions and allowed the prayer in some petitions and rejected it in the others on the ground of delay. The Court observed that those writ petitioners whose prayers had been rejected would be at liberty to institute suits or other proceedings. We are not sure that, in the ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP 4 context, the High Court, meant by 'other proceedings', applications in the nature of proceedings under Article 226, when it is seen that the Court refused to entertain the relief .
for refund on the ground of delay in the proceedings under Article 226 and that in some cases the Court directed the parties to file representations before Government. 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 all courts. Therefore, the appellants could not be allowed to split up their claim for refund and file writ petitions on 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 and directing them to resort to the remedy of suits."
7. In Commissioner of Income Tax, Bombay vs. T.P. Kumaran, (1996) 10 SCC 561, the Hon'ble Supreme Court observed as under:
"[4] The tribunal has committed a gross error of law in directing the payment. The claim is barred by constructive ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP 5 res judicata under Section 11, Explanation IV, Civil Procedure Code which envisages that any matter which might and ought to have been made ground of defence or .
attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. Hence when the claim was made on earlier occasion, he should have or might have sought and secured decree for interest. He did not seek so and, therefore, it operates as res judicata. Even otherwise, when he filed a suit and specifically did not claim the same, Order 2 Rule 2 Civil Procedure Code prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable."
8. Where the principle of constructive res judicata would apply to writ petition was subject matter of consideration before the Hon'ble Supreme Court in Avinash Nagra vs. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534 wherein it was held as under:
"[13] The High court also was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ petition in first instance but withdrew the same without permission of the court with liberty to file the second writ petition which was dismissed. Therefore, the second writ petition is not maintainable as held by the High court in applying the correct principle of law. Thus considered we find no merit in the appeal for interference."
9. Apart from above, the provisions of Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of section 141 but the principles ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP 6 enshrined therein are applicable. (vide Gulabchand Chhotalal Parikh vs. State of Gujarat, AIR 1965 SC .
1153, Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot, AIR 1974 SC 2105 and Sarguja Transport Service vs. STAT, AIR 1987 SC 88)
10. The question posed before this Court otherwise stands directly answered by this Court in Kundlu Devi and another vs. State of H.P. and others, Latest HLJ 2011 (HP) 579 wherein it was held as under:
"4. The contention of the learned counsel for the petitioners is that though the grievance with regard to quantum was dealt with, the grievance with regard to the claim for rent and occupation charges during the period the property was in possession of the Government has not been dealt with. According to the petitioners, they are entitled to the same in view of the decision of the Apex Court in R.L. Jain Versus DDA, (2004) 4 Supreme Court Cases 79. We do not think that it will be proper for this Court at this stage in proceeding under Article 226 of the Constitution of India to go into the question as to whether the petitioners are entitled to that component of compensation. That grievance the petitioners have pursued in accordance with the procedure prescribed under the Land Acquisition Act, 1894 initially before the Collector, thereafter before the Civil Court and finally in appeal before the High Court. According to the petitioners, though this grievance was raised, the same has not been adverted to. If that be so, a civil writ petition or for that matter any other collateral ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP 7 proceeding is not the remedy. All contentions, which a party might and ought to have taken, should be taken in the original proceedings and not thereafter. That is the well .
settled principle under Order II Rule 2 CPC. Order II Rule 2 reads as follows:
"2.Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not r afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs. - A person entitled to more than one relief 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 all such reliefs, he shall not afterwards sue for any relief so omitted."
5. This Rule is based on the principle that the defendant shall not be vexed twice for one and the same cause. The Rule also seeks to prevent two evils, one the splitting of claims and the other splitting of remedies. If a plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the omitted claim or the omitted remedy. The requirement of the Rule is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP 8 claim, he cannot thereafter seek the recovery of the balance of the cause of action by independent proceedings. This principle has been also settled by the Apex Court in .
Sidramappa versus Rajashetty, AIR 1970 SC 1059.
6. Order II Rule 2 applies also to writ proceedings. The left out portion of a cause of action cannot be pursued in a subsequent writ proceedings. All claims which a petitioner might and ought to have taken, should be taken in one proceedings and only in one proceedings. {See the decision of the Supreme Court in Commissioner of Income- tax vs. T.P. Kumaran, 1996(1) SCC 561}.
7. Equally, a person who has filed the suit seeking certain relief in respect of a cause of action is precluded from instituting another suit for seeking other reliefs in respect of the same cause of action. He shall not be entitled to invoke the writ jurisdiction of the High Court for obtaining the very same relief. In other words, if a second suit is barred, a writ petition would also be barred. What is directly prohibited cannot be indirectly permitted. That is the principle underlying under Order II Rule 2 CPC."
11. Even otherwise, the parameters with regard to the maintainability of a review petition are well settled and reference in this regard can be made to the judgment rendered by this Court in Review Petition No. 2 of 2016 titled as Yaspal Pal Singh and others vs State of H.P. and another decided on 24.8.2016 wherein this Court after taking into consideration the law on the subject laid down the broad principles with ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP 9 regard to maintainability or non-maintainability of a petition for review and the same are as under:
.
(A) When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due Review Petition No. 2 of 2016 diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record'
(iii) Any other sufficient reason.
(B) When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
r (ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. Review Petition No. 2 of 2016 ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP 10
(x) Review is not maintainable on the basis of a subsequent decision/judgment of a coordinate or larger Bench of the Court or of a superior Court.
.
(xi) While considering an application for review, court must confine its adjudication with regard to the material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
(xii) Mere discovery of a new or important matter or evidence is not sufficient ground for review. The parties seeking review has also to show that such mater or evidence was not within its knowledge and even after exercise of due diligence, the same could not be produced before the Court earlier."
12. There is no error apparent on the face of the record.
13. Having said so, there is no merit in the petition and the same is dismissed alongwith all pending applications, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan), Judge.
(Chander Bhusan Barowalia), Judge 23.6.2017 *awasthi* ::: Downloaded on - 28/06/2017 23:58:41 :::HCHP