Orissa High Court
M/S.Gulf Oil Corporation Ltd. & Anr vs Vrs on 22 March, 2009
B.P.DAS, J & C.R.DASH, J.
REVIEW PETITION NOS.230,231,232,233,234,235,
236 & 237 OF 2009,( Decided on22.03.2010)
M/S.GULF OIL CORPORATION LTD. & ANR. ...................Petitioner
.Vrs.
STATE OF ORISSA & SIXTEEN ORS. .....................Opp.Parties
CIVIL PROCEDURE CODE, 1908 (ACT NO. 5 OF 1908) - ORDER 47, RULE 1.
For Petitioners - M/s.Jagabandhu Sahoo, N.K.Rout &
P.Mohapatra,Advs.
For Opp.Parties - Addl.Standing Counsel (Revenue).
C.R. DASH, J.These review petitions arise out of common order dated 07.10.2009 passed in writ petitions bearing W.P.(C) Nos. 11866 of 2009 to 11873 of 2009,(covering eight assessment years from 1976-77 to 1983-84).
2. As all the aforesaid matters are between the same parties involving similar facts and questions of law, they are taken up for disposal by this common order.
3. Admittedly, on the self-same cause of action and similar grounds the petitioners had filed writ petitions bearing W.P. (C) Nos. 2503 of 2008 to 2510 of 2008 covering the self- same assessment years from 1976-77 to 1983-84. Those writ petitions were dismissed as withdrawn by common order dated 10.04.2008 passed by this Court, which reads as follows:-
"On the prayer of the leaned counsel for petitioner this writ petition is allowed to be withdrawn without any determination on the merits of the case and all the questions are left open. The Writ Petition is dismissed as withdrawn. This will not in any way prevent the petitioner from approaching other forum in accordance with law.
Misc. Case Nos. 2211 and 2212 of 2008 are also disposed of.
Urgent certified copy of this Order be granted on proper application.
Sd/-
A.K. Ganguly, CJ.
Sd/-
B.N. Mohapatra,J."
A cursory reading of the aforesaid order makes it explicitly clear that the writ petitions have been allowed to be withdrawn with liberty to the petitioners to approach other forum in accordance with law. No sort of interpretation of the aforesaid order makes the same agree with the contention of the learned counsel for the petitioners that permission has been granted to withdraw the writ petitions with liberty to file afresh on the same cause of action as the same (the writ petitions) suffered from non-joinder of parties.
4. However, without approaching the other forums as represented before this Court in the aforesaid writ petitions i.e. W.P.(C) Nos. 2503-2510 of 2008, the petitioners approached the Hon'ble Supreme Court under Article 32 of the Constitution of India and Hon'ble Supreme Court vide order dated 17.11.2008 disposed of the writ petitions with the following order:-
"Mr. Salve, learned Senior Counsel seeks permission to withdraw the petition stating that an appropriate petition will be filed before the High Court. Permission granted".
The writ petition is accordingly disposed of as withdrawn".
5. On disposal of the writ petitions by Hon'ble Supreme Court as aforesaid, the petitioners field fresh writ petitions bearing W.P.(C) Nos. 11866 of 2009 to 11873 of 2009 before this Court admittedly on the same cause of action.
6. This Court taking stock of order dated 10.04.2008 dismissed all the aforesaid writ petitions bearing W.P.(C) Nos. 11866 to 11873 of 2009 by the impugned order dated 07.10.2009 which reads thus:-
"07.10.2009:
Heard learned counsel for the petitioner. In view of the order dated 10.04.2008 passed by this Court in W.P.(C) No. 2503 of 2008 (M/s Gulf Oil Corporation Ltd. Vrs. State of Orissa & Others), nothing remains to be decided in the present writ petition.
The Writ Petition is accordingly dismissed.
Sd/-
B.P. Das, J.
Sd/-
C.R. Dash, J".
7. Before delving into the merit of the review petitions, it is profitable to give the background of the case. Initially, S.J.C. No. 229 of 1995 and STREV No. 14 of 2006 were filed by M/s. IDL Chemical (P) Ltd., Rourkela (now it is known as M/s. Gulf Oil Corporation, as stated by the learned counsel for the Revenue), in which the assessments under the Central Sales Tax Act for the years 1976-77, 1977-78 to 1983- 84, 1989-90 and 1990-91 were the subject matter of dispute. W.P.(C) Nos. 11866 of 2009 to 11873 of 2009 also pertain to the assessment from 1976-77 to 1983-84, which were the subject matter of the aforesaid S.J.Cs. and STREF. Ultimately, while disposing of the aforesaid S.J.Cs. and STREV, the following questions were referred.
"(1) That in view of the quotation offered by the assessee company and supply order issued by M/s. CIL indicating the firm order of rate of payment, quality to be purchased, period of contract etc. on acceptance of the offer, whether the Sales Tax Tribunal was correct in law to hold that it was not the contract of sale but the actual purchase and sale was triggered only when a colliery placed indent with M/s. IDL Chemicals ?
(2) That in view of the fact that M/s. IDL Chemicals moved goods in pursuance to the supply order placed by M/s. CIL, whether the Sales Tax Tribunal was correct in law to hold that the transactions do not constitute sale falling u/S. 3(a) of the C.S.T. Act ?
(3) That in view of the fact that the indents placed by the constituents of M/s.
CIL was mere indents to take delivery of the goods, whether the Sales Tax Tribunal was correct to hold that the actual sales were triggered by such indents and taken place inside the respective State and were intra-State sale subject to levy of tax under the law of that State ?"
Thereafter, examining all the aspects, the questions referred to above were answered as follows :-
"(i) In view of the quotation of the assessee-company, supply order of M/s.
CIL and the surrounding factors noted supra, the Sales Tax Tribunal was not correct to hold that the order issued by M/s. CIL was not a contract of sale and that the actual purchase and sale were triggered only when the collieries placed indent with M/s. IDL Chemicals.
(ii) The movement of goods from M/s. IDL Chemicals, Rourkela to different States constitutes sales under Section 3(a) of the CST Act.
(iii) The sales having taken place at the exit points of M/s. IDL, Rourkela, the State of Orissa was entitled to levy Sales Tax on those goods under the Central Sales Tax Act."
Now for the self-same assessment years, concerning which orders passed by this court has been indicated in the foregoing paragraphs the petitioner has filed in W.P. (C) Nos. 2503 of 2008 to 2510 of 2008 and W.P.(C) Nos. 11866 of 2009 to 11873 of 2009.
8. As the contentions raised by learned counsel for the review petitioners, touch the law on withdrawal of a suit petition and its effect, we feel inclined to address that aspect at the outset.
The issue of withdrawal of writ petition is no more res integra. In Sarguja Transport Service Vrs. State Transport Appellate Tribunal. Gwalior and Others, AIR 1987 SC 88, Hon'ble Supreme Court held as under :-
".....The principle underlying Rule 1 of Order 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 Rule 1, Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code... .
... ... It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition......"
(Emphasis added)
9. Law is further settled on the scope on the part of a court and the ambit thereof in permitting withdrawal of a suit/case with liberty to file afresh. Order XXIII, Rule 1 CPC does not confer an unbridled power upon the Court to grant permission to withdraw the petition, with liberty to file afresh, on the same cause of action; it can do so only on the limited grounds mentioned in the provision of Order XXIII, Rule 1 CPC, and they are, when the Court is satisfied that the suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the same subject matter, and that too, on such term as the Court thinks fit. The grounds for granting a party permission to file a fresh suit, include a formal defect, i.e., in the form or procedure not affecting the merit of the case, such as also of statutory notice, under Section 80 of the Code, mis-joinder of the parties or cause of action, non-payment of proper Court-fee or stamp fee, failure to disclose cause of action, mistake in not seeking proper relief, improper or erroneous valuation of the subject matter of the suit, absence of territorial jurisdiction of the Court or defect in prayer clause etc. Non-joinder of a necessary party, omission to substitute heirs etc. may also be considered a ground in this respect, or where the suit was found to be premature, or it had become in fructuous, or where relief could not be, and where the relief even if granted, could not be executed, may fall within the ambit of sufficient ground mentioned in that provision. (vide, M/s. Konkan Trading Company Vrs. Suresh Govind Kamat Tarkar & Ors, AIR 1986 SC 1009; Muktanath Tewari & Anr. Vrs. Vidyashanker Dube & Ors., AIR 1943 All 67; and Ramrao Bhagwantrao Inamdar & Anr. Vrs. Babu Appanna Samage & Ors., AIR 1940 Bom. 121 (F.B.)).
10. Learned counsel for the review petitioners in course of hearing contended that order dated 10.04.2008 in W.P.(C) Nos.2503 to 2510 of 2008 came to be passed by this Court as it was submitted by learned counsel for the petitioners therein that this Court may not be in a position to give appropriate and effective directions in those writ petitions (W.P. (C) Nos. 2503 to 2510 of 2008) against the other States to annul or to quash the respective completed assessments or order refund or adjustment of taxes against the demand of the opposite parties 3 and 4. It is further contended that the order dated 10.4.2008 clearly records the stand of the petitioners and there was no dismissal of those writ petitions by this Hon'ble Court upon any adjudication of the matters on merits.
11. In course of hearing order dated 10.04.2008 passed by this Court was confronted to learned counsel for the review petitioners to show that said order has not recorded the stand of the petitioners to the effect that withdrawal has been permitted for non-joinder of necessary parties rather the writ petitions were permitted to be withdrawn with liberty to approach other forum in accordance with law. At this, learned counsel for the review petitioners submitted that "Other Forum" mentioned in the order is other Bench of this Court because no other forum can give effective relief/reliefs to the review petitioners against other states except the High Court. Further it is submitted by learned counsel for the review petitioners that in view of order dated 17.11.2008 passed by Hon'ble Supreme Court (as quoted supra), it was not proper on the part of this Court to dismiss the writ petitions (W.P. (C) Nos. 11866 to 11873 of 2009) in limine and such dismissal, was no misconception of law and also facts as this Court proceeded on the premises that the earlier writ petitions were adjudicated on merit.
12. If the contentions raised by learned counsel for the petitioners is considered vis- à-vis the law of withdrawal of the writ petitions discussed supra, there is no hesitation in our mind to hold that the writ petitions were not permitted to be withdrawn for non-joinder of parties as asserted by learned counsel for the review petitioners, but while allowing withdrawal of the writ petition liberty was granted to the petitioners to approach any other forum which is obviously not another Bench of this Court. Further, this Court while passing the order dated 07.10.2009 impugned in the review petitions did not at all proceed on the premise that the order dated 10.04.2008 was passed in W.P.(C) Nos. 2503 to 2510 of 2008 on merit. We only took into consideration the salutary public policy of discouraging successive writ petitions as the petitioners having availed the remedy had abandoned the same by withdrawing the earlier writ petitions with liberty to move other forum. The principles of law which shaped our mind to pass the impugned order has been well explained by Hon'ble Supreme Court in State of U.P. and Another Vrs. Labh Chand, AIR 1994 SC 754, and we feel inclined to make a reference to the following passage :-
"This reason is not concerned with the discretionary power of the Judge or Judges of the High Court under Article 226 of the Constitution to entertain a second writ petition whose earlier writ petition was dismissed on the ground of non-exhaustion of alternative remedy but of such a Judge or Judges having not followed the well established salutary rule of judicial practice and procedure that an order of a Single Judge Bench or a Larger Bench of the same High Court dismissing the writ petition either on the ground of latches or non-exhaustion of alternative remedy as well shall not be bye-passed by a Single Judge Bench or Judges of a Larger Bench except in exercise of review or appellate powers possessed by it..... But as the learned Single Judge constituting a Single Judge Bench of the same Court, who has in the purported exercise of jurisdiction under Article 226 of the Constitution bye-passed the order of dismissal of the writ petition made by a Division Bench by entertaining a second writ petition filed by the respondent in respect of the subject matter which was the subject matter of the earlier writ petition, the question is, whether the well established salutary rule of judicial practice and procedure governing such matters permit the learned Single Judge to bye-pass the order of the Division Bench on the excuse that High Court has jurisdiction under Article 226 of the Constitution to entertain a second writ petition since the earlier writ petition of the same person had been dismissed on the ground of non-availing of alternative remedy and not on merits...Second writ petition cannot be so entertained, not because the learned Single Judge had no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same Court dismissing the earlier writ petition, redundant and nugatory although not reviewed by it in exercise of its recognized power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another Single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petitioner to go on filing writ petitions after writ petition in the same matter, in the same High Court and for it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it would result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 of the Constitution in that any order of any Bench of such Court refusing to entertain a writ petition could be ignored by him with impunity and the relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court, for there could be no finality for an order of the Court refusing to entertain a writ petition. It is why the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting that the writ petition of the same person was dismissed by the same Court even if the order of such dismissal was in limine, be it on the ground of latches or on the ground of non-exhaustion of alternative remedy, has come to be accepted and followed as salutary rule in exercise of writ jurisdiction of the Court".
13. What is the effect of the order dated 17.11.2008 passed by Hon'ble Supreme Court in relation to order dated 10.042008 passed by this Court in W.P.(C) Nos. 2503 to 2510 of 2008 is the question that arise for consideration in view of vehement emphasis of learned counsel for the review petitioners on the same to get salvaged from the situation.
Before Hon'ble Supreme Court learned counsel appearing for the petitioners sought for permission to withdraw the writ petitions stating that an appropriate petition will filed before the High Court. On the basis of such a statement permission was granted and the writ petition was disposed of as withdrawn. Etymologically, the word 'Permission' is a word of wide import. Said word is to be understood in the present case in the context in which it has been used keeping in mind the law settled by Hon'ble Supreme Court on the subject of withdrawal of a suit/case as discussed supra. Permission by Hon'ble Supreme Court to file an appropriate petition before this Court, in the facts and circumstances of the case does not at all relegate the petitioners to a status/ position ante in relation to the order dated 10.04.2008 passed by this Court in W.P.(C) Nos. 2503 to 2510 of 2008. The aforesaid order dated 10.04.2008 passed by this Court without being set aside or quashed stands as it is and it cannot be held to have been avoided. In view of such fact the petitioners by virtue of aforesaid order of Hon'ble Supreme Court dated 17.11.2008 has been relegated to a position to post-order dated 10.04.2008. The permission granted in the order means only leave to do some acts which but for the leave will be illegal. The permission so granted by Hon'ble Supreme Court if understood in the context as aforesaid does not bind this Court to act in the manner as wished by the petitioners without being alive to settled position of law, when order dated 10.04.2008 passed by this Court stares at the face of the petitioner as well as this Bench of this Court.
14. Even otherwise, the order impugned does not come within the ambit of review inasmuch as the same does not suffer from any error apparent on the face of the record and permitting the order to stand shall not in any way lead to failure of justice. We feel inclined to make it clear that our order impugned in the review petitions does not in any way affect the liberty granted to the petitioners vide order dated 10.04.2008 as it must have been clear by now that we have followed the salutary judicial practice only to up keep the sanctity of the earlier order passed by another Bench of this Court on 10.04.2008 .
In the result, we are not inclined to admit these Review Petitions and the same are dismissed in limine.
Review petition dismissed.