Calcutta High Court (Appellete Side)
Asit Kumar Das & Ors vs The State Of West Bengal & Ors on 12 May, 2017
Author: Dipankar Datta
Bench: Sahidullah Munshi, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Sahidullah Munshi
MAT 1507 of 2013
Asit Kumar Das & ors.
v.
The State of West Bengal & ors.
For the appellants : Mr. Subir Sanyal,
Ms. Chaitali Mukhopadhyay.
For the respondents 1 to 3 : Mr. Jahar Lal De,
and Ms. Debaroti Sen.
6&7
For the respondents 4 & 5 : Mr. Bhaskar Prasad Vaisya,
Mr. Gourav Das.
Heard concluded on : March 07, 2017
Judgment on : May 12, 2017
DIPANKAR DATTA, J. :
1. A short order dated August 29, 2013 passed by a learned Judge of this Court dismissing W.P. 10142(W) of 2011 is questioned in this writ appeal. The same reads as follows:
"The issue sought to be raised in the instant writ petition was raised in an earlier writ petition, i.e. W.P. 10029(W) of 2010, which was dismissed on 23rd August, 2010. As such, this writ petition also cannot be entertained and is liable to be dismissed and is accordingly dismissed."
2. Bare perusal of the aforesaid order would not reveal as to whether the earlier writ petition, W.P. 10029(W) of 2010, was dismissed on merit or not. Accordingly, we called upon Mr. Sanyal, learned advocate for the petitioner to place the order of dismissal of W.P. 10029(W) of 2010. He invited our attention to page 247 of the paper book. The date of the order not being printed on such page, we called for the records of W.P. 10029 (W) of 2010 and found the same to have been dismissed for default on August 4, 2010 on second call, owing to non-appearance of anyone to press the same. The reference to order dated August 23, 2010 in the impugned order could be a misprint or because of inadvertence.
3. We find from the records of W.P. 10029 (W) of 2010 that the same was at the instance of 22 petitioners, who were aspirants for the posts of assistant teachers in primary schools within the jurisdiction of the District Primary School Council (South 24-Parganas) (hereafter the DPSC) but were unsuccessful in obtaining offers of appointment. Accordingly, they had prayed for direction on the DPSC and the other respondents in the writ petition to give them appointment, and also to restrain them (the respondents) from giving appointment to any candidate who was not otherwise eligible.
4. The second writ petition i.e. W.P. 10142(W) of 2011 was also at the instance of those 22 aspirants and the relief claimed therein appears to be identical to the relief claimed in the earlier writ petition. In paragraph 25 of this writ petition, dismissal of the earlier writ petiton was duly pleaded and, therefore, Mr. Das, learned advocate appearing for the DPSC rightly did not allege suppression of a material fact. However, Mr. Das has been vociferous in his objection to the maintainability of the second writ petition by submitting that it is an abuse of the process of Court and, therefore, the learned Judge was justified in dismissing the same.
5. In support of his submissions Mr. Das has relied on several decisions of the Supreme Court as well as this Court and other high courts of the country, to which we shall refer at a later stage of this judgement.
6. Mr. Sanyal, learned advocate appearing for the petitioners referred to the provisions of Order IX Rules 4, 8 and 9 of the Code of Civil Procedure (hereafter the CPC) and submitted on the basis thereof that subject to the law of limitation and should the defendant be not present at the time dismissal is ordered on the ground of default, a fresh suit may be instituted even after dismissal of the earlier suit; and, having regard to the provisions contained in Rule 53 of the Writ Rules framed by this Court, there is no bar for the writ court to be guided by the principles flowing from the CPC and adopting it to the extent possible; therefore, the learned Judge erred in the exercise of his jurisdiction in practically holding it to be not maintainable.
7. Elaborating his submission, Mr. Sanyal proceeded to argue that once the law permits a litigant to approach the court a second time after dismissal of an earlier proceeding initiated by such litigant not on merits but on the ground of default of appearance and a fresh proceeding is initiated in accordance with law, that cannot amount to abuse of process. Referring to Black's Law Dictionary, 6th Edition, the Concise Law Dictionary as well as the dictionaries of P. Ramanatha Aiyar and K.J. Aiyar, it was contended that unless the conduct of a party appears to be tainted with malice or is intended to achieve an unlawful object, such conduct cannot be branded as one amounting to abuse of the process of court. He placed reliance on the decisions reported in [1983] 3 All ER 495 [Bailey v. Bailey], [1981] 3 All ER 727 [Hunter v. Chief Constable of West Midlands and another], (1995) 3 SCC 144 [State of Haryana v. K. N. Dutt] and (1996) 4 SCC 297 [Agricultural and Processed Food Products v. Oswal Agro Furane] in support of his contention that the order under challenge ought to be set aside and the writ petition remanded for fresh hearing on merits.
8. Mr. Sanyal also contended that the law laid down by the Supreme Court in the decision reported in AIR 1987 SC 88 [Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others] would not be applicable since there the party sought for leave to withdraw the proceedings, which was granted, and subsequently it instituted fresh proceedings without obtaining the leave of the Court at the time the first writ petition was permitted to be withdrawn.
9. Mr. Sanyal has also placed reliance on an unreported decision of a coordinate Bench of this Court in MAT No. 746 of 2005 [Smt. Sipra Khan v. Hindusthan Petroleum Corporation Ltd. & ors.]. In similar facts and circumstances, the Bench held the decision in Sarguja Transport Service (supra) not to be applicable. He, therefore, urged us to follow the said decision.
10. Mr. De, learned advocate for the State contended that although no limitation is prescribed for institution of proceedings under Article 226 of the Constitution, law is well settled that one has to invoke the jurisdiction of the writ court within a reasonable period of accrual of cause of action. He, however, pointed out that according to the rules of this Court, 30 days has been prescribed for presenting an intra-court appeal as well as an application for recall of an order passed by a learned Judge dismissing a writ petition on the ground of default. According to him, if a party does not either prefer an appeal or seek recall within 30 days of the order and after expiry of the period of limitation approaches the writ court under Article 226 with a fresh proceeding, the appellate court may consider whether it is a proper process/bona fide action or not. It is contended that conduct of the party in moving the second writ petition without furnishing any explanation for not seeking recall of the earlier order dismissing a writ petition for default is crucial and the pleadings in W.P. 10142(W) of 2011 being absolutely silent on the point, the appellate court may in its discretion not interfere and leave the appellants to seek a hearing of W.P. 10029(W) of 2010 on merits after obtaining recall of the order dated August 4, 2010.
11. The question that arises for our consideration on this appeal bearing in mind the arguments advanced by Mr. De and Mr. Das is, whether a previous writ petition having been dismissed for default in the absence of the parties, would a second writ petition by the self-same petitioners on the self-same cause of action presented beyond 30 days of such dismissal be maintainable without any explanation being offered for not seeking recall of the order of dismissal (which majorly is resorted to as we find from our experience on the Bench) as well as on the aspect of delay, and/or, should such writ petition (the second one) be held not maintainable on the ground that there is an attempt to abuse the process of Court? Assuming that such question is answered in favour of the appellants, was the writ petition otherwise maintainable?
12. The aforesaid questions have to be decided looking into the decisions that have been cited by the parties as well as Rule 53 of the Writ Rules framed by this Court. But before we look into the precedents/the law, our conclusion regarding a factual aspect needs to be recorded first.
13. We have compared the two writ petitions starting from the 1st page thereof. The list of dates and the points of law arising for decision are identical. The positions of each of the 22 petitioners in the cause-titles of both the writ petitions are the same. Five of the respondents are common, except that there is an additional respondent in the second writ petition i.e. the Directorate of Employment. Contents of paragraphs 1 to 5 are the same, the only additional pleading is in respect of annexing an order dated October 4, 2005 passed by a learned Judge of this Court in an earlier writ petition. From paragraph 6 onwards, once again the contents are identical till paragraph 23. It is noticed that at the first line of paragraph 13 of the first writ petition there is an omission to fill up a blank space. The same omission appears in paragraph 13 of the second writ petition too. After paragraph 23 of the first petition, the next paragraph has been numbered 18 onwards with the grounds at paragraph 19. In the second writ petition, paragraph 24 bears the same contents as paragraph 18 of the first writ petition. Paragraph 25 of the second writ petition is the additional paragraph wherein reference to the earlier order passed on W.P. 10029(W) of 2010 has been made. Erroneously, it has been pleaded that the writ petition was dismissed for default on August 23, 2010, which finds reflection in the impugned order although the writ petition was actually dismissed on August 4, 2010. The reason assigned for non-appearance is that the learned advocate for the petitioners was suffering from high fever resulting in her non-appearance on August 23, 2010. Unfortunately, for the petitioners, the writ petition was dismissed on August 4, 2010 and, therefore, even if it be assumed as correct that the learned advocate for the petitioners was suffering from fever on August 23, 2010, there is no explanation as to why none appeared on August 4, 2010. We have compared the grounds of the two writ petitions, which are again identical in substance as well as in numbers. The prayers are also all the same. It is in the backdrop of this factual narration that the questions emerging for decision have to be decided by us.
14. In Sarguja Transport Service (supra), it was ruled by the Supreme Court that if a writ petition is withdrawn without permission to file a fresh writ petition that may not bar other remedies like a suit or a writ petition under Article 32 of the Constitution of India but the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the earlier writ petition. We accept Mr. Sanyal's submission that the ratio of the decision may not be applicable here.
15. In Bailey (supra), it was held that the plaintiff's first action having since been struck out for mere failure to observe the rules as to time and the second action having been commenced within the limitation period, the plaintiff was entitled to proceed with the second action. This was on the reasoning that mere failure of the plaintiff to comply with the procedural rules of court in the first action did not prevent him to commence fresh proceedings. Factually, this decision is distinguishable.
16. In Hunter (supra), an interlocutory appeal in a civil action in the high court seeking damages for assault was under consideration. The only question which required examination was whether the plaintiff's action ought to be struck out as an abuse of the process of the court. The trial court refused to strike out the action and it was reversed by the Court of Appeal, which held the action to be an abuse of the process of the Court and the statement of claim against the first and second defendants ought to be struck out. The plaintiff's action was branded to be in abuse of the process because the case exemplified initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the plaintiff, which had been made by another court of competent jurisdiction in previous proceedings in which the plaintiff had a full opportunity of contesting the decision in the court by which it was made.
17. In K. N. Dutt (supra), a writ petition was filed after a contempt petition was dismissed without disclosing the same. It was in such facts and circumstances that an abuse of the process of the court by the litigant was found. According to Mr. Sanyal, there was an attempt to steal a march over the respondents by suppressing material facts in that case which, however, is completely absent here.
18. Paragraphs 29 and 30 of the decision in Oswal Agro Furane (supra) were relied on. Here also, there was suppression of material facts in the writ petition filed before the Delhi High Court. The petitioner Oswal did not plead pendency of a writ petition in the Punjab and Haryana High Court. This was one of the reasons why the Supreme Court interfered with the decision of the Delhi High Court.
19. It is now time to consider the decisions on which Mr. Das placed reliance.
20. The decision of the coordinate Bench of the Rajasthan High Court reported in AIR 1969 Rajasthan 41 [Ram Singh v. The State of Rajasthan] reveals that the first writ petition was dismissed for default in the presence of the respondents and based on such fact the second writ petition was held to be not maintainable, which is not the case here.
21. The other decision of the coordinate Bench of the Rajasthan High Court reported in 2005(3) RLW (Raj) 1619 [S.P. Garg v. Life Insurance Corporation of India] while ruled that "the second writ petition filed by the appellant on the same facts and same cause of action is not maintainable". However such finding was returned considering the fact that the first writ petition was dismissed for default in presence of the learned advocate for the opposite party and its application for restoration was also dismissed on merits. It is for this reason that this decision is distinguishable.
22. The decision of a learned Judge of the Karnataka High Court reported in AIR 2005 (Kar) (NOC) 231 [D. Sangya Naik v. Department of Telecom, Delhi], though supports the contention of Mr. Das but on perusal of the head note or the extract of the decision it does not appear that provisions of Order IX Rule 4, CPC were considered by the learned Judge. In that view of the matter, we refrain from deciding the question formulated above based on this decision.
23. Next in line is the decision of a learned Judge of the Bombay High Court reported in 2003 2 Bom CR 605 [Darachand Harakchand Oswal v. Suresh Waman Karmarkar]. The learned Judge relied entirely on Order IX Rule 9, CPC to hold that the second suit was not maintainable after dismissal of a previous suit for default. A reading of this decision does not make it too clear as to whether the first suit was dismissed in presence of the learned advocate for the tenant/defendant or not. It also does not appear that provisions contained in Order IX Rule 4, CPC were considered; hence, this decision is also not sufficient to guide us.
24. Two unreported decisions of the Gauhati High Court dated February 12, 2015 and March 12, 2015 rendered by the same Judge in Writ Petition (C) No. 1384/2011 [Sri Tarun Hazarika v. The State of Assam and others] and Writ Petition (C) No. 6238/ 2010 [Shri Kushal Konwar Baruah v. The State of Assam and others] were cited. In Tarun Hazarika (supra), the first writ petition was dismissed on merits and, therefore, res judicata was applied. In Kushal Konwar Baruah (supra), the second writ petition was held to be not maintainable in view of principles flowing from Order IX Rule 9, CPC. These decisions, therefore, have no application on facts and in the circumstances.
25. From the unreported decision of a learned Judge of the Chhattisgarh High Court dated April 6, 2015 in WPS No. 5242 of 2014 [Promod Kumar Gajbhiye v. State of Chhattisgarh and others], it is found that the first writ petition was dismissed for want of prosecution since the petitioner did not remove the defects within the stipulated time as allowed by the court. A restoration application followed, which was barred by limitation. The court refused to condone the delay and as a consequence the restoration application stood dismissed. It is thereafter that the second writ petition was presented on the self-same cause of action. Relying on the decision in Sarguja Transport Service (supra) and other decisions of the Supreme Court reported in (2005) 2 SCC 286 [Deb Narayan Shyam v. State of West Bengal & ors.], (2009) 2 SCC 784 [Tamilnad Mercantile Bank Shareholders Welfare Association v. S. C. Sekar] and (1998) 4 SCC 577 [Chetak Construction Ltd. v. Om Prakash & ors.], the learned Judge proceeded to dismiss the second writ petition. Undoubtedly the fact situation in this decision was quite different from those before us and, therefore, although this decision is not applicable, we may seek guidance from the other decisions of the Supreme Court referred to therein.
26. In the decision reported in PLJ 1987 Lahore 338 [Niamat Khan & anr. v. The State], considering the Constitution of Pakistan, 1973 as well as the Civil Procedure Code applicable to the courts in Pakistan it was held that the petitioner having suffered an order of dismissal of his writ petition for default ought to apply for restoration instead of filing a fresh writ petition.
27. The decision reported in 2009 (3) CHN (Cal) 549 [Harsh Vardhan Lodha v. The Institute of Chartered Accountants of India & ors.], decided by one of us (Dipankar Datta, J.) sitting singly, dealt with a question which was quite different. During the pendency of a writ petition, a second writ petition was presented and the writ court was called upon to consider whether the second writ petition should be stayed in accordance with principles flowing from section 10, CPC or should the writ petition be dismissed. On facts, it was held that presentation of the second writ petition was not a bona fide act. The facts and circumstances being different, this decision has no application.
28. Rule 53 of the Writ Rules provides as follows:
"53.Save and except as provided by these Rules and subject thereto, the provisions of the Code of Civil Procedure (Act V of 1908) in regard to suits shall be followed, as far as it can be made applicable, in all proceedings under Article 226 and nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of this Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
29. We agree with Mr. Sanyal that an act to constitute abuse of process must be such that the court is satisfied of a litigant making a conscious effort of obtaining relief by taking recourse to means which would attract the court's frown. In other words, seeking to steal a march over his adversary by acts which are strictly forbidden would amount to abuse of the process of the court. Suppression of material facts, misleading statements, machination, ulterior motives being the driving force, etc. are some instances of forbidden acts.
30. Although provisions of the CPC have limited application in writ proceedings, where the remedy is discretionary, we shall assume for the purpose of a decision on this appeal that principles flowing from Order IX, CPC can be adopted here having regard to Rule 53 of the Writ Rules. At the same time, we are also not unmindful that the power to pass such order that would be necessary to prevent abuse of the process of court is reserved by such rule.
31. The law, as it stands, permitted the appellants to seek recall of the order dated August 4, 2010 within 30 days thereof. Even thereafter, an application for recall could have been presented accompanied by an application for condonation of delay. Judicial notice can be taken of the fact that this Court at the time of considering an application for recall of an order dismissing a writ petition for default and restoration thereof to file is normally lenient in its approach. A decision on the merits of the rival claims is what this Court strives for. We are minded to observe that restoration of the writ petition may not have been too difficult to secure. The petitioners, however, for reasons better known to them, thought it proper not to seek recall of the order dismissing the writ petition for default; instead, nearly ten months after dismissal, the second writ petition was presented. Once the option of presenting a second writ petition is exercised belatedly, and it comes up for admission hearing, the situation prevailing on that date becomes very relevant. The court has to guard against any abuse of process being resorted to by unscrupulous litigants. Over the years, forum shopping or bench hunting by litigants has reached alarming proportions. Without intending to lay down exhaustively, it may be observed that to prevent an abuse of the process of court the writ court would necessarily be required, when approached a second time by the same set of petitioners on the same cause of action, to examine the records and satisfy itself of the explanation offered for the approach itself including delay and laches, if any, ascertain to the extent possible by lifting the veil if there is any hidden agenda behind presentation of the second writ petition without seeking restoration of the first one, and determine whether a strong prima facie case exists or not for entertainment thereof bearing in mind the extent of public interest that would stand affected if at all final relief were granted. If only the writ court were of the opinion after applying the aforesaid tests that the grievance voiced ought to be heard, the respondents may be called upon to state their case on affidavit.
32. Let us now proceed further to apply the tests. The exact date on which the appellants' learned advocate derived knowledge of dismissal of the first writ petition for default is not stated in the second writ petition. Why it took so long to file the second writ petition is also not explained. In terms of principles flowing from Order IX Rule 4, CPC, a second suit can be instituted within the period of limitation. No period of limitation is prescribed for presentation of a writ petition but it is axiomatic that the writ court must be approached within a reasonable period of accrual of the cause of action, and certainly before third party rights accrue. A second writ petition, thus, may be presented within a reasonable period. What is a reasonable period? Obviously, it has to depend on the facts and circumstances of each particular case and there cannot be any precise enumeration. The length of delay, it is well known, is not decisive. What is of relevance is the explanation offered for the belated approach. If the explanation is acceptable, no matter the length of delay, the court proceeds to hear the matter on its merits. Here, the appellants seek offers of appointment. Appointments on the vacancies advertised, have already been made. To offer appointments to the appellants, if at all they succeed, would entail setting aside appointments of some of the candidates upon impleading and hearing them. In the absence of any explanation offered by the appellants for invoking the writ jurisdiction the second time after 10 months of dismissal of the first writ petition, we are constrained to hold that they did not approach the writ court within a reasonable period of time and, therefore, the second writ petition was not maintainable. In that view of the matter, we hold that the appellants are not entitled to the benefit flowing from Order IX Rule 4, CPC.
33. In view of the aforesaid finding, we refrain from examining further as to whether there was an attempt of forum shopping or any other hidden agenda to achieve collateral purposes.
34. In the result, we find no reason to interfere with the impugned order. The appeal stands dismissed, without costs.
This order shall not preclude the appellants to seek recall of the order dated August 4, 2010 in accordance with law.
Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) SAHIDULLAH MUNSHI, J. :
I agree.
(SAHIDULLAH MUNSHI, J.)