Gujarat High Court
Vithalprabhu Education And vs Hemchandracharya North on 19 July, 2013
Author: G.B.Shah
Bench: G.B.Shah
VITHALPRABHU EDUCATION AND CHARITABLE TRUSTV/SHEMCHANDRACHARYA NORTH GUJARAT UNIVERSITY....Respondent(s) C/SCA/10241/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 10241 of 2013 With CIVIL APPLICATION NO. 6917 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE G.B.SHAH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =========================================================== VITHALPRABHU EDUCATION AND CHARITABLE TRUST & 2....Petitioner(s) Versus HEMCHANDRACHARYA NORTH GUJARAT UNIVERSITY....Respondent(s) ================================================================ Appearance: Mr Shalin Mehta, senior Advocate with Mr Saurin Mehta and MS VD NANAVATI, ADVOCATE for the Petitioner(s) No. 1 - 2 Mr Hriday Buch Advocate with Mr SIDDHARTH H DAVE, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE G.B.SHAH Date : 19/07/2013 ORAL JUDGMENT
1. Heard learned senior Advocate Mr Shalin Mehta assisted by learned Advocate Mr Saurin Mehta for the petitioners and learned Advocate Mr Hriday Buch assisted by learned Advocate Mr Siddharth H. Dave for the respondent.
1.1 The respondent herein has filed Civil Application no. 6917/2013 for vacating the stay granted by this court in Special Civil Application No. 10241 of 2013. Accordingly vide order dated 16.7.2013 passed by the Hon ble The Chief Justice, below the office submission dated 16.7.2013, the said Special Civil Application No. 10241/2013 as well as Civil Application No. 6917 of 2013 have been listed before this court on 17.7.2013. Along with the above proceedings, original record and proceedings of earlier Special Civil Application No. 2207 of 2013 between the same parties is also tagged and accordingly the said record is also with this court.
2. Before learned senior Advocate Mr Shalin Mehta commenced with his submissions, learned Advocate Mr Hriday Buch for the respondent-Hemchandracharya North Gujarat University (for short, the University ) has submitted that considering the averments made by the respondent in his affidavit-in-reply dated 10.7.2013 at pages No. 90 to 101, he wants to raise preliminary objection regarding maintainability of this petition and has drawn attention of this court to the order dated 7.5.2013 passed in Special Civil Application No. 2207 of 2013 at page No. 246 and the averments made on oath in para 3 of the affidavit of the respondent and accordingly such permission has been granted. He has further submitted that the preliminary issue regarding the maintainability of this Special Civil Application is required to be decided because as mentioned at length in the affidavit-in-reply by the respondent referred above, the petitioners herein, earlier filed Special Civil Application No. 2207/2013, which had been withdrawn unconditionally on 7.5.2013 and this petition being a second one and is almost on the identical issue, is not maintainable as well as the facts related to previous petition i.e. Special Civil Application No.2207/2013 as well as the order dated 7.5.2013 passed below the same had not been narrated or mentioned in this petition in a true manner and the said conduct of the respondent is nothing but suppression of material facts and so accordingly the request to hear the learned Advocates for the parties on preliminary issue of maintainability of this Special Civil Application is granted for which the other side has declared no objection and this court heard the learned Advocates for the parties on the preliminary issue referred hereinabove.
2.1 For ready reference, prayer sought in para 6 (A) and 6 (B) of this Special Civil Application is reproduced hereunder:
6(A) This Hon ble Court may be pleased to quash and set aside the impugned Resolution No.20 passed by the Executive Committee at its meeting dated 11.6.2013 of Hemchandracharya North Gujarat University-Respondent herein and continue the affiliation with the institutions.
6(B) Pending hearing and final disposal of the petition, this Hon ble Court may be pleased to direct the Respondent University to continue the affiliation of the institutions being run and administered by petitioner trust for the academic year 2013-2014 and further direct the University to allot the students at the institutions being run and administered by Petitioner Trust.
2.2 For ready reference prayer sought for in para 7(A) and 7 (B) of earlier Special Civil Application No. 2207/2013 is reproduced hereunder:
7(A) This Hon ble Court may be pleased to issue a writ of mandamus or any other appropriate writ or direction to quash and set aside Resolution No. 36 dated 12.2.2013 passed by the Executive Committee of Respondent-Hemchandracharya North Gujarat University, Patan and further to quash and set aside the letter bearing No. AK/N.Pravesh (Admission)/1017/2013 dated 20.2.2013 at Annexure A (colly.) and declarer that the said Resolution is prospective.
(7(B) Pending hearing and final disposal of the petition, this Hon ble Court may be pleased to stay the implementation, operation and execution of Resolution No. 36 dated 12.2.2013 passed by Executive Council of University and further to stay the letter dated 20.2.2013 issued pursuant to Resolution No.36 above and further direct University to allot the students in coming academic years.
2.3 For ready reference the oral order dated 7.5.2013 passed in earlier Special Civil Application No. 2207/2013 is reproduced hereunder:
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2207 of 2013 ====================================================== VITHALPRABHU EDUCATION AND CHARITABLE TRUST & 1....Petitioner(s) Versus HEMCHANDRACHARYA NORTH GUJARATUNIVERSITY THRO REGISTRAR....Respondent(s) ====================================================== Appearance:
MR NANAVATI SENIOR COUNSEL with MR SAURIN MEHTA ADVOCATE for the Petitioner(s) No. 1 - 2 DS AFF.NOT FILED (N) for the Respondent(s) No. 1 MR BUCH FOR MR SIDDHARTH H DAVE, ADVOCATE for the Respondent(s) No. 1 ====================================================== CORAM:
HONOURABLE MR.JUSTICE K.M.THAKER Date :
07/05/2013 ORAL ORDER Mr. Saurin Mehta, learned advocate for the petitioners and Mr. Buch, learned advocate for the respondent are present.
Upon conclusion of submission and after arguing the matter at length, learned advocate for the petitioners submitted that the petitioners want to unconditionally withdraw the petition at this stage and that therefore it is requested that the petitioners may be permitted to unconditionally withdraw the petition. Mr. Buch, learned advocate for the respondent submitted that if the petitioners want to unconditionally withdraw the petition, then the respondent has no objection.
In view of the request made by learned advocate for the petitioners and also considering the fact that respondent does not have objection if the request is granted, the petitioners are permitted to unconditionally withdraw the petition. Accordingly the request by learned advocate for the petitioners to unconditionally withdraw the petition is, with consent of learned advocate for the respondent, granted and the petition stands disposed of as unconditionally withdrawn. Notice is discharged. Interim relief, if any, stands vacated.
(K.M.THAKER, J.) (Emphasis supplied)
3. Learned senior Advocate for the petitioners has drawn attention of this court to the earlier order dated 7.5.2013 passed in Special Civil Application No. 2207 of 2013 which is reproduced hereinabove in para 2.3, copy of which is at page No.246 of the petition and submitted that the said order says that the petitioners have requested for unconditional withdrawal of the petition and the other side has acceded to the request and the court has granted the request but it also reveals from the said order that merits of the case were not touched. The reasons for not touching the merits of the case are also not given. He has then submitted that on merit, the adjudication in the earlier round of litigation was there or not is required to be considered and referring the said order dated 7.5.2013, it is clear that unconditional withdrawal was granted without any adjudication.
3.1 Learned senior Advocate Mr Mehta for the petitioners has then submitted that actually the reason for the withdrawal of the petition was for making representation. Drawing attention of this court to page No. 75, he has submitted that within two days i.e. on 9.5.2013, the petitioners have made the said representation for reconsideration of the issue narrated in the said representation. The reason of withdrawal of Special Civil Application No. 2207/2013 is also mentioned in paras 5, 7, 8 and 9 of the said representation at page No. 75. Then the respondent has passed new Resolution dated 11.6.2013 at page No.19 and accordingly the petitioners herein have filed the present petition more particularly when the court has not dismissed the earlier petition i.e. Special Civil Application No. 2207/2013 and the petitioners have unconditionally withdrawn the same with the consent of the other side. He has further drawn attention to two Resolutions
- (1) Resolution No. 36 dated 12.2.2013 at page No.126 and Resolution No.20 dated 11.6.2013 at page No.19 (which is challenged in this petition) and submitted that the resolution under challenge is a new decision in which four aspects have been narrated while the earlier Resolution No. 36 dated 12.2.2013 was related to the meeting held on 12.2.2013 resolving that as the petitioner-trust did not submit the affidavit for providing five acres of land and the building to be constructed thereon, the affiliation of the college for the academic year 2013-2014 be suspended. In the resolution under challenge i.e. Resolution No. 20 dated 11.6.2013 the respondent has considered the earlier affidavit related to the academic year 2012-2013 as well construction of new building on two acres of land. Moreover, in the new resolution/decision dated 11.6.2013 as such the decision of the respondent-University is left to the Lawyer of the University and the Lawyer has opined that nothing is to be done and so Resolution No. 20 under challenge is without application of mind of the respondent-University. This reveals that who is behind the decision-Advocate or the University.
3.2 Learned senior Advocate has then submitted that in a case of res judicata or constructive res judicata whether the petitioner is coming to the court with the same prayer or not and whether the order/resolution under challenge is same or not, is required to be considered and on comparing both the resolutions referred above, they are not the same. In the latest resolution No.20 dated 11.6.2013 much more is said than what was said earlier in Resolution No. 36 dated 12.2.2013. He has then submitted that the petitioners herein claimed relief and challenged the Resolution No. 20 because it is the subsequent development which is challenged before this court as the said subsequent event is a fresh development which directly affects the petitioners. When a petition is filed and is withdrawn and then representation is filed and fresh decision being taken, in such a situation, whether a fresh petition is maintainable or not is decided by the Supreme Court in para 2 of the case law V.D. Barot v. State of Gujarat and Ors [(2002) 10 SCC 668]. Para 2 reads as under:
2.
The order under challenge pertains to discharge of the appellant from the post of probationary Police Sub-Inspector. The appellant had been prosecuted for offences punishable under sections 302, 307, 325, 324, 323, 452 read with sections 147, 148 and 149 of the Indian Penal Code and for the offence punishable under section 135 of the Bombay Police Act. The Additional Sessions Judge, Mehsana acquitted him of all charges by an order made on 25.8.1999. However, the appellant, having been discharged from service by an order made on 13.1.1999 filed a writ petition challenging the same. The appellant sought for withdrawal of the writ petition to enable him to make a representation regarding his discharge and that request was allowed by the High Court. The representation having been rejected, the appellant filed another writ petition challenging the rejection of his representation. The petition was dismissed on the basis that the withdrawal was unconditional and hence the appellant cannot reagitate the same matter. LPA was filed against the said order. The High Court took the view that a fresh petition is not maintainable in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. In substance the appellant is challenging the order of discharge and nor merely the order made rejecting the representation to reconsider the order of discharge.
3.3 Mr Shalin Mehta, learned senior Advocate has then submitted that the facts of this case are identical. In the said case on earlier round fresh order or final order of termination was challenged and he withdrew it with a view to make representation for reconsideration of the discharge order which was not done. He again filed petition which was dismissed on the ground that no liberty was sought for. The Supreme Court has held that it is not correct because ultimately whether the case is abandoned or not, it is for the High Court to come to a conclusion and in case of doubt related to the abandonment, benefits must be in favour of the petitioners.
3.4 Learned senior Advocate for the petitioners has also placed reliance to para 18 of the case law Kandapazha Nadar and Ors. v. Chitranganiammal and Ors [(2007) 7 SCC 65]. Para 18 reads as under:
18.
In Nathji v. Languria it has been held that where in the case of an application to withdraw a suit in terms of Order 23 Rule 1 (2) CPC, the court allows the suit to be withdrawn but refuses permission to bring a fresh suit, the court s order is erroneous. It was held that if the trial court saw no reason for allowing the withdrawal in terms of Order 23 Rule 1 (2), the trial court should have refused the application seeking liberty to file a new suit and it should have proceeded with the suit on merits.
3.5 During the course of submission on the point of suppression of material facts relating to order dated 7.5.2013, learned senior Advocate for the petitioners has drawn attention to the averments made in para 2.12 on page 8 and ground (G) (iv) on page 13 of the petition and submitted that when the petitioners have filed this petition on 26.6.2013, the copy of the withdrawal order passed in Special Civil Application No.2207/2013 by this court is not made available till date i.e. till 26.6.2013, so the petitioners have not annexed the same along with the petition. Under the circumstances, this court has passed order dated 18.7.2013 directing the Registrar (Automation) to put up the exact and up-to-date data related to the same. For ready reference, the said order is reproduced hereunder:
Date :
18/07/2013 ORAL ORDER During the course of their submissions, learned Senior Advocate Mr.Shalin Mehta assisted by learned Advocate Mr. Saurin Mehta has drawn the attention of this Court to paragraph No. 2.12 at page-8 of the petition and submitted that order dated 07.05.2013 passed in Special Civil Application No.2207 of 2013 was, in fact, not available from the computer department and they have made the search to that effect, but they were unable to locate the said order and accordingly, as the same was not available upto 26.06.2013, the day on which the petition was filed, the same has not been incorporated or no concrete averments have been made in the petition.
Under the circumstances, in my view, the exact data is required to be brought on record. Hence, following order is passed:-
The Registrar (Automation) is hereby directed to locate the order dated 07.05.2013 passed in Special Civil Application No.2207 of 2013 which was transmitted into the PDF File on which date, putting the exact data by way of documentary evidence, if at all it is available or by way of written compliance as early as possible and that too before 5:00 p.m. of 18.07.2013.
3.5.1 In compliance of the above order, Registrar (Automation) has submitted data of the order dated 7.5.2013 passed in Special Civil Application No.2207 of 2013 which was available in computer which has been analyzed, by them by way of his submission dated 18.7.2013 and the office is directed to take the said submission on record. The relevant portion of the said analysis reads as under:
-
The order dated 7.5.2013 passed by the Hon ble Court (Coram:
Hon ble Mr Justice K.M. Thakker) was created on 8.5.2013.
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The order in question was transferred to the common pool area of the server for the access of departments on 4.7.2013.
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And, the same was made available on the Gujarat High Court website.
4. Learned Advocate Mr Hriday Buch for the respondent has drawn attention of this court to the prayers made in both the petitions i.e. in this petition as well as in earlier petition i.e. Special Civil Application No.2207/2013 and also drawn attention to both the resolutions i.e. Resolution No. 36 dated 12.2.2013 and Resolution No.20 dated 11.6.2013 and submitted that on comparing the same, it is very clear that the issue is the same and similar which was raised in the earlier round of litigation. He has also drawn attention of this court to paras 3, 4 and 5 of the affidavit-in-reply dated 10.7.2013 at pages No. 91-92 and submitted that if the said averments be considered in light of the order dated 7.5.2013 passed in Special Civil Application No.2207 of 2013, a bare reading of the same reflects that the petitioners herein have, with full understanding, withdrawn the earlier petition i.e. Special Civil Application No.2207 of 2013 unconditionally at the stage when the learned Judge of this court had started dictation of the order after hearing the learned Advocates for the parties extensively for almost two to three days and as such from the perusal of the order dated 7.5.2013, this court will find that it gives strength to his submissions. He has then submitted that the conduct of the petitioners appears nothing but forum-shopping because after all the labour made by all concerned related to Special Civil Application No.2207 of 2013, the petitioners had chosen to unconditionally withdraw the petition without reserving any liberty to approach this court again and hence now in the guise of fresh resolution, the petitioners cannot reagitate the same issue before this court because the entire conduct of the petitioners is nothing but misconceived and the language of para 2.12 and ground (G)
(iv) of the petition is nothing but the clever way of escapism from not providing clear facts on the record. He has also submitted that the petitioners were then having full knowledge of oral order dated 7.5.2013 passed by the court and in spite of the same, the petitioners have approached the court saying that the order dated 7.5.2013 was not made available up to 26.6.2013. Learned Advocate for the respondent has also placed reliance on the following decisions:
(i) (Shri) Bhanubhai Nagjibhaii Patel v. State of Gujarat (1996 (2) GLH 337)
(ii) Upadhyayand Company v. State of Uttar Pradesh [(1999) 1 SCC 81]
(iii) Gulammiya Husainmiya Malek v. Union of India (2000 (2) GLH 545)
(iv) Kumaran Silk Trade (P) Ltd. v. Devendra and Ors [AIR 2007 SC 1185)
(v) Bal Shikshan Samiti Trust v. State of Gujarat (2011 (3) GLR 2681)
(vi) Bhaskar Laxman Jadhav v. Karamveer Kakasaheb Wagh Education Society (Laws (SC)-2012-12-27
5. I have considered the above referred rival submissions made by the learned Advocates for the parties in light of the two Resolutions referred hereinabove and the two prayers sought for in the two petitions and the order dated 7.5.2013 passed by this court in Special Civil Application No.2207 of 2013. So far as the earlier resolution No. 36 dated 12.2.2013 at page No. 126 and the letter dated 20.2.2013 at page 124 are concerned, the same was to the effect that unless the petitioners have 5 acres of land, the affiliation will not be permitted for the academic year 2013-2014 and the said affiliation with the respondent-University be suspended. This decision was challenged by the petitioners by preferring Special Civil Application No.2207 of 2013. The order dated 7.5.2013 in Special Civil Application No.2207 of 2013 at page 246 was passed as the learned Advocate Mr Saurin Mehta for the petitioners therein has shown his desire to withdraw the said petition unconditionally as it appears from the said order itself. After withdrawal, within two days i.e. on 9.5.2013 the petitioners have written letter at page 75 in the form of representation to reconsider the said Resolution No. 36 dated 12.2.2013 and the petitioners wanted that the respondent to reconsider the same but as the petitioners have not got 5 acres of land, the said request was turned down and rejected by passing another Resolution No. 20 dated 11.6.2013 which is under challenge before this court on the ground that it is a fresh decision and so new cause of action has arisen from the date the said request was declined. Learned senior Advocate for the petitioners has also submitted that after the withdrawal of the earlier petition, the petitioners have submitted representation on 9.5.2013 at page 75 shows the conduct of the petitioners that they have not abandoned the issue and the University has also not thought it as abandoned and thus it is the fact that it was taken into consideration for which the respondent was not at all compelled to consider the same. The respondent could have avoided the said representation at page No.75 submitted by the petitioners. Moreover, when the said representation has been considered by the new Resolution No. 20 dated 11.6.2013, adding more grounds, than the earlier one, it is definitely a new Resolution and new cause which the petitioners want to challenge by this petition and if permission sought for is not granted, on the aspect of hyper technicality, the petitioner will be deprived of adjudication on merits forever and accordingly right of the petitioners for challenging the decision goes forever. So far as the submission of the learned senior Advocate on the point that the respondent could have avoided the representation and not considered the same as none has compelled them is concerned, it is without any merit and has no substance because the respondent is the University and if one will give such representation after unconditionally withdrawing the Special Civil Application No.2207 of 2013 then also the respondent is supposed to consider the same inasmuch as the respondent is bound to consider the same otherwise it may be argued the other way that the respondent has not even shown courtesy to consider the representation if at all it is rejected but they should take the decision. In short, the said submission is nothing but a fallacious one.
5.1 Referring to the order dated 7.5.2013 passed by this court in Special Civil Application No.2207 of 2013 it is clear from the bare reading of the initial portion of the order that after conclusion of the submission and after arguing the matter at length, learned Advocate Mr Saurin Mehta who was present on the said date before the court had submitted that the petitioners want to withdraw the petition unconditionally at the said stage and accordingly he has requested that the petitioners may be permitted to unconditionally withdraw the petition. Referring to the said order, it further appears that learned Advocate Mr Buch for the respondent has also submitted that if the petitioners want to withdraw the petition unconditionally, he has no objection and thereafter in view of the request made by the learned Advocate for the petitioners and as the same has not been objected by the other side, the permission to withdraw the said petition i.e. Special Civil Application No.2207 of 2013 unconditionally was granted and accordingly notice was discharged and the interim relief, if any, was ordered to be vacated. In my view, from the perusal of the oral order dated 7.5.2013 passed in Special Civil Application No.2207 of 2013, as observed by the court, it is clear that after fulfledged hearing, on the request made by the learned advocate for the petitioners for unconditional withdrawal of the petition, the same was granted by the court concerned and hence there appears no substance in the submission made by the learned senior Advocate for the petitioners that reasons are also not given as to why merits of the case are not touched by the court in the said order and this court should consider the same to the effect that on merits it was not adjudicated upon. The court concerned has specifically observed that after conclusion of the submissions and after the arguments made at length, the petitioners have submitted for unconditional withdrawal and so in my view, no reasons for the withdrawal of the petition is required to be given because the reasons, if at all, are within the knowledge of the petitioners only for which reason he has made request for withdrawal of the petition unconditionally. The court has considered the desire of the petitioners herein for unconditional withdrawal and it is reflected in the order categorically and the court has also observed that after fulfledged hearing the said request was made and hence in my view, the reasons whatever the court has narrated in the said order is sufficient to come to the conclusion that as such the petitioners at the said stage has realised that they will not get the order in their favour and accordingly the learned Advocate has requested the court concerned not to pass order on merit and permit them for unconditional withdrawal for which the other side had no objection because the request by the petitioners was for unconditional withdrawal and after observing the said specific word in clear terms the order was passed that the court has permitted unconditional withdrawal only. Thereafter, if at all the petitioners have submitted representation to the respondent on 9.5.2013 then that is the action on the part of the petitioners taken by their own without any observation by the court because on 7.5.2013 when the oral order was passed no liberty was reserved. So far as the representation for reconsideration of the issue is concerned, the petitioners have forwarded the same and accordingly the respondent herein has considered the same and passed fresh Resolution No. 20 dated 11.6.2013 but in my view, it cannot be said that by the said decision, new cause of action has arisen because as such the issue involved in this petition as well as in the earlier petition is related to the fact that whether the petitioners were in a position to fuflfil the criteria laid down by the respondent shown in the Resolution No.36 dated 12.2.2013 providing five acres of land and the building to be constructed thereon for the affiliation of the colleges for the academic year 2013-2014. So in my view, this was the same issue to be challenged before the court when the petitioners have filed Special Civil Application No.2207 of 2013 and more so, the said identical issue is here also so far as this petition is concerned and hence there appears no substance in the submission made by the learned senior Advocate for the petitioners that a new/fresh Resolution No.20 dated 11.6.2013 has been passed by the respondent giving more reasons gives them new cause of action for filing fresh petition i.e. for filing this Special Civil Application. Moreover while passing the resolution No. 20 dated 11.6.2013 if at all the respondent has sought advice of their Lawyer then in my view, it cannot be said that the respondent has not applied their mind. In fact, the respondent has taken the decision which they wanted to take and it appears that in addition to the same they have also sought guidance so far as Special Civil Application No.2207 of 2013 which was unconditionally withdrawn by the petitioners.
6. So far as suppression of material facts relating to order dated 7.5.2013 by the petitioners is concerned, as referred above, learned senior Advocate for the petitioners has placed reliance on their averments made in para 2.12 as well as ground (G) (iv) of the petition. I have carefully gone through the same as referred hereinabove. After going through the same and after hearing the learned Advocates for the parties, this court has passed order dated 18.7.2013 directing Registrar (Automation) to put up exact and uptodate data relating to the order dated 7.5.2013 passed in Special Civil Application No.2207 of 2013 that the same has been transferred to the common pool area on which date and as referred above, it is the fact that the order dated 7.5.2013 passed in Special Civil Application No.2207 of 2013 was created on 8.5.2013 which had been transferred to the common pool area on 4.7.2013. So referring to the above referred para 2.12 and the averments made in ground (G) (iv) of the petition, prima facie, the petitioners have tried to convince this court that when they filed this petition, they have not got copy of the order dated 7.5.2013 and accordingly the petitioners were not able to put exact fact on the record whether Special Civil Application No.2207 of 2013 was withdrawn unconditionally or conditionally and hence they have narrated the said facts on the above referred two paragraphs. In my view, there appears no substance in the submissions made by the learned senior Advocate for the petitioners that as the copy of the order of withdrawal passed in Special Civil Application No.2207 of 2013 was not made available till 26.6.2013, they have not been able to annex the same with the petition because if the petitioners really and in fact wanted to produce the same, the petitioners or their learned Advocate Mr Saurin Mehta could have drawn attention of the concerned court that the one page withdrawal order is not available in the computer and could have requested to do the needful. But it is not the submissions of the learned Advocate for the petitioners that in the said circumstances they have made any efforts to draw attention of the Presiding Officer of this court or the concerned PPS of the said court that they are unable to get copy of the order. In my view, the petitioners want to take advantage of the minor lapse on the part of the court official who has not transferred in time, the order dated 7.5.2013 which was created on 8.5.2013 as referred hereinabove and accordingly in my view, the petitioners herein has made clever drafting in para 2.12 and in ground (G) (iv) of the petition by not mentioning the date of the order and by not mentioning whether the same was unconditionally withdrawn or not. On this point, learned senior Advocate has submitted that when the correct picture was not available, the petitioners thought it fit not to mention the said fact on record because if at all any incorrect facts are mentioned by the petitioners then they will have to face serious consequences. As referred above, there appears no substance in the said submission because the petitioners appears to be very vigilant and active who had unconditionally withdrawn Special Civil Application No.2207 of 2013 and according to them they have shown promptness in submitting representation/reconsideration letter dated 9.5.2013, who had received copy of Resolution No.20 dated 11.6.2013 on 19.6.2013 as it appears from page 18 and if at all during the course of the drafting of this petition or prior to the said period or after completion of the summer vacation, 2013 and on reopening of the court on 10.6.2013, the petitioner could have drawn attention of the Presiding Officer or the concerned PPS of the Court, if at all they wanted to get the said copy of the order in real sense. But in my view, the petitioners wanted to make good ground of the minor lapse appears to have made by the court official which in my view appears to be calculative move by the petitioners herein and considering the above discussed conduct of the petitioners, in light of the report of the Registrar (Automation) referred hereinabove, I am of the view that the petitioners herein have suppressed the material fact or the petitioners have not tried their best to get uptodate data related to order dated 7.5.2013 and accordingly, deliberately they have not tried to obtain the data or copy of the order dated 7.5.2013. Thus the petitioners have suppressed the material fact which in my view, goes against the petitioners.
7. Under the above discussed circumstances, in my view, the petitioners has failed to prove the preliminary issue which has been raised as discussed hereinabove in their favour considering the fact that this Special Civil Application being the second one, on the same cause of action the same is not maintainable in law. Moreover, considering the fact that the petitioners have suppressed the material fact regarding order dated 7.5.2013 passed in Special Civil Application No.2207 of 2013 as discussed hereinabove, the same is also not maintainable in law and hence Special Civil Application No.10241/2013 deserves to be dismissed without entering into the merits of the case on the ground of non-maintainability of the same.
8. In the result, this Special Civil Application is dismissed. Notice is discharged. The ad-interim relief stands vacated. In view of the order passed in the main Special Civil Application, Civil Application No. 6917/2013 does not survive and is accordingly disposed of.
[G. B. SHAH, J.] msp Page 26 of 26