(1) The petitioners in w. P. No. 7034 (w) of 2009 and w. P. No. 7038 (w) of 2009, harsh vardhan lodha and aditya vikram lodha respectively, are chartered accountants. They are enrolled members of the institute of chartered accountants of india (hereafter the institute). Since the two petitions involve common questions, the same were heard together and shall be governed by this common judgment and order.
(2) The geneses of the present proceedings require notice. The institute had received complaints against the petitioners, who are brothers, and their father rajendra singh lodha (since deceased) alleging professional misconduct committed by them and had duly registered the same under section 21 of the chartered accountants act, 1949 (hereafter the act). Thereafter, in terms of provisions in the chartered accountants regulations, 1988 (hereafter the said regulations) , it served copies thereof inviting them to file their written statements. The petitioners and their father instead of filing written statements submitted applications seeking dismissal of the complaints. It was contended therein that in view of provisions contained in regulation 12 (4) of the said regulations, the council of the institute was under obligation to consider the complaints for ascertaining whether a prima facie case had been made out or not. Since the institute did not accept their prayer, the petitioners along with their father had the occasion to approach this court earlier in its writ jurisdiction.
(3) The writ petitions were decided by hon'ble jayanta kumar biswas, j. By judgment and order dated 17. 3. 2006, since reported in air 2006 cal 223. : (2006) 2 wblr (cal) 115 (rajendra singh lodha etc. V. The institute of chartered accountants of india and ors.). His lordship while proceeding to dismiss the writ petitions held as follows :
"18. It seems to me that counsel for the respondents are right in what they say. In my reading and understanding of the provisions in regn. 12 (4) , they did not create a duty or obligation of the council to consider the complaint, even before its form is examined by its secretary, for coming to the conclusion whether it made out a prima facie case for admission. There is no doubt that the council is under the obligation to consider the complaint and form an opinion about the existence of a prima facie case, and that only thereafter it can send the complaint to its disciplinary committee for inquiry. This is the mandate of the provisions in the statute. The expressions "prima facie case" and "prima facie of opinion that the respondent is guilty of professional and or other misconduct". Used in sub - regns. (4) and (1) respectively, do not denote creation of two separate obligations of the council in my opinion, the regulations made for the purpose of carrying out the objects of the statue cannot admit of an interpretation which does not emerge from a plain reading of the provisions in the statute. The statute contemplated examination of the complaint by the council only once.
19. Needless to say that in the absence of a prima facie case the complaint is to be filed : that is to say, no further action is to be taken on the basis thereof. This particular consequence is conspicuously absent in the provisions in regn. 12 (4). It is not said there that consequently the complaint shall be filed. The consequence is only regarding forfeiture of the deposit. There is no dispute that at times the deposits are refunded to the complainants. If it is to be held that provisions in regn. 12 (4) contemplate the first examination of the complaint by the council for forming an opinion about the existence of a prima face case, then they have to be rewritten to some extent by the court. The consequence of the opinion of the council against the complainant should lead to the filing of the complaint, and this part has to be inserted by the court in them. This is simply not permissible; and there is no reason to do this.
20. In my opinion, provisions in regn. 12 (4) do not contemplate a stage where the council has to examine the complaint for any purpose whatsoever. They dealt purely with the fate of the deposit accompanying the complaint filed by any one except the central or any state government. If the complaint is not ultimately found to be frivolous or made mala fide, the deposit is not to be forfeited : and this is the only thing contemplated by those provisions. There is absolutely no reason to see such a safety valve in them as is seen by the petitioners. The safety valve for them is available at the sub - regn. (11) stage. I am, however, unable to agree with counsel for the respondents that the petitioners suppressed any material fact, or that they did not approach the writ court with clean hands.
21. For these reasons i hold that the authorities have proceeded with the matter in accordance with the provisions of the regulations. I do not find any merit in the contentions of the petitioners. The writ petitions are accordingly dismissed. There shall be no order for costs in them. "
(4) The father of the petitioners expired and hence the institute did not proceed against him. However, the petitioners were proceeded against.
(5) By separate letters dated 9th april, 2008, the deputy secretary of the institute conveyed to the petitioners that the council of the institute upon considering the joint complaint made against them by the complainants together with the written statement, the rejoinder thereto and the comments offered against such rejoinder was prima facie of the opinion that they are guilty of professional and other misconduct and that it had been decided to cause an enquiry to be made in the matter by the disciplinary committee. It was further conveyed that dates of enquiry, as and when conducted by the disciplinary committee, would be notified by a separate notice.
(6) The petitioners had called upon the institute to provide them copy of the resolution of the council of the institute recording adverse opinion and the grounds of formation of the prima facie opinion that they were guilty of professional and other misconduct. The institute did not respond to such request.
(7) Instead, the deputy secretary of the institute by his letter dated 11th june, 2008 informed the petitioners that 9th and 10th july, 2008 had been fixed for hearing by the disciplinary committee. The hearing, however, was cancelled and by a further letter dated 14th november, 2008, it was conveyed to them that 5th and 6th december, 2008 had been fixed as the dates of hearing.
(8) Since the institute was proceeding to enquire into the complaint lodged by the complainants, the petitioners had the occasion to invoke the writ jurisdiction of this court once again by filing w. P. No. 30083 (w) of 2008 and w. P. No. 30084 (w) of 2008.
(9) The writ petitions were considered by me on 4th december, 2008. In course of hearing of those petitions, mr. Sengupta, learned counsel representing the institute had produced before me an extract of the purported resolution adopted by the council in its meeting held on 29th march, 2008, wherein the following decision was arrived at :
"the council was prima facie of the opinion that the respondent was guilty of professional and/or other misconduct. It was, therefore, decided to refer the case to the disciplinary committee for inquiry''.
(10) It is to be noted that although the principal grievance raised by the petitioners in their respective petitions was that they were being proceeded against without letting them know the grounds on which action was proposed to be taken against them, another grievance voiced by them related to reference of their cases to the disciplinary committee of the institute.
(11) Having heard learned counsel for the parties, by an interim order dated 4th december, 2008 the proceedings scheduled for 5th and 6th december, 2008 were allowed to be conducted by the disciplinary committee upto a particular stage. The interim order was to continue till 31st january, 2009 or until further orders, whichever was earlier. The writ petition was directed to be listed for hearing on 13th january, 2009 and the parties were granted liberty to exchange their affidavits in the meantime.
(12) In terms of liberty granted by order dated 4th december, 2008, the parties exchanged their affidavits. The institute in its counter affidavit disclosed the resolution of its council whereby it was decided to refer the cases of the petitioners to the disciplinary committee. In their respective replies, the petitioners asserted that the decision taken by the council of the institute was not valid, legal, proper and/or tenable.
(13) Since the writ petition could not be heard finally before expiry of the interim order on 31st januray, 2009 allegedly due to reasons beyond the control of the petitioners and the interim order also could not be extended, they filed separate applications on 5th february, 2009 praying for extension of interim order.
(14) Those two writ petitions were then assigned by the hon'ble the chief justice to hon'ble jayanta kumar biswas, j. For consideration. The same, along with the applications for extension of interim order, had been listed for hearing before his lordship on 20th march, 2009 and since the petitioners had not prepared a composite list of dates, the writ petitions were directed to be delisted.
(15) It is not in dispute that the writ petitions alongwith the applications have not been decided as yet. After such delisting of the earlier writ petitions, these two writ petitions were presented by the petitioners before this court on 3rd april, 2009. The prayer clauses of these two petitions are similar. However, those in harsh vardhan's petition are set out hereinbelow :
"a) a writ in the nature of certiorari do issue calling upon the respondents to transmit the prima facie opinion of the respondent no. 3 allegedly taken at the 277th meeting of the council and all records in connection therewith so that the same may be quashed and conscionable justice be done ; b) a writ in the nature of mandamus do issue commanding the respondent nos. 1 to 5 not to give any effect or further effect the decision pertaining to the petitioner taken at the 277th meeting of the council the extract whereof has disclosed to the petitioner being annexure "p - 35" hereto; c) a writ of prohibition prohibiting the members of the disciplinary committee represented by the respondent nos. 4 and 5 from taking step or proceeding against your petitioner in pursuance of or in terms of the opinion formed at the 277th meeting of the council, a copy whereof is annexure "p - 35" hereto; d) a writ in the nature of mandamus do issue commanding the respondents to recall and/or withdraw the resolution concerning the petitioner passed at the 277th meeting of the council being annexure "p - 35" hereto".
(16) These petitions have been assigned to me by an order of the hon'ble the chief justice dated 21st may, 2009 and have been heard on the preliminary objection regarding maintainability thereof.
(17) Mr. Sengupta, learned counsel for the institute has forcefully argued that the present writ petitions are not maintainable. According to him, the earlier writ petitions filed by the petitioners (pending before the hon'ble jayanta kumar biswas, j.) cover the issue of reference of their respective cases to the disciplinary committee of the council for enquiry and there is no new cause of action to move the writ court once again. He contended that by filing the present petitions, the petitioners have abused the process of law and this court. Reliance in this connection was placed on the division bench decision of this court in dr. Vijay pahwa v. Medical council and ors. , reported in (2009) 1 cal lj 880 (cal).
(18) He also argued that the petitioners have indulged in bench hunting tactics and, therefore, these writ petitions ought to be dismissed in limine.
(19) Mr. Anindya kumar mitra, learned senior counsel assisted by mr. Pratap chatterjee, learned senior counsel argued the writ petition of harsh vardhan while the other writ petition of aditya vikram was argued by mr. Sakti nath mukherjee, learned senior counsel assisted by mr. Saptangshu basu, learned counsel.
(20) Mr. Mitra contended that the earlier writ petition and the present one filed by harsh vardhan are not based on the same cause of action and hence the present writ petition is maintainable. The resolution adopted by the council of the institute in its 277th meeting was disclosed to harsh vardhan after the earlier writ petition was moved and, therefore, he had no occasion to challenge the legality, validity and/or propriety thereof in the earlier proceedings.
(21) It was next contended by him that even if the subsequent petition is based on the same cause of action and for the same relief, successive proceedings are allowed by law and what is permitted by law cannot amount to abuse of law. In this connection, reliance was placed on the decision of the apex court in vimlesh kumari kulshrestha v. Sambhajirao, reported in (2008) 5 scc 58.
(22) He, accordingly, prayed that the writ petition of harsh vardhan may be entertained and heard on merits.
(23) I consider it necessary to place on record that while arguing, mr. Mitra submitted that the earlier writ petition filed by harsh vardhan had become infructuous and hearing of the present petition may be adjourned to enable him have the earlier writ petition dismissed as infructuous and then to have the present petition heard and decided on its merits. ,
(24) Mr. Mukherjee, on the other hand, invited my attention to order 2 rule 2, civil procedure code as well as section 10 thereof. According to him, quashing of the resolution adopted in the 277th meeting of the council was not sought for in the earlier writ petition of aditya vikram since the institute did not furnish the same despite request made by him. The extract of the resolution had only been disclosed subsequent to filing of the earlier writ petition and, therefore, the principle underlying order 2 rule 2 which is otherwise applicable in writ proceedings by virtue of rule 53 of the writ rules framed by this court cannot operate as a bar in respect of maintainability of the present petition.
(25) He further contended that assuming that the issue in the earlier writ petition is directly and substantially in issue in the present petition, the court may not be justified in dismissing the petition having regard to provisions contained in section 10, civil procedure code and ought to direct stay of the proceedings.
(26) In reply, mr. Sengupta invited my attention to averments contained in paragraphs 92 to 97 of the petition of harsh vardhan to contend that on the petitioner's own showing, it is clear that the earlier writ petition has not become infructuous. He further contended that question of application of order 2 rule 2 principles does not arise here since the petitioners included in their previous petitions all claims that they could lawfully raise. On applicability of principles of section 10, he urged that the argument of mr. Mukherjee does not deserve consideration in view of the explanation to section 141, civil procedure code. He concluded by reiterating that the petitioners by adopting bench hunting tactics had abused the process of law and this court, and therefore these petitions are liable to be dismissed with costs.
(27) Mr. Chatterjee, after mr. Sengupta had replied, prayed for leave to advance arguments on behalf of the petitioners to counter the serious allegation made against them by mr. Sengupta that they were indulging in bench hunting tactics. Leave was granted and he was heard. He cited sarguja transport service v. State transport appellate tribunal, reported in air 1987 sc 88 whereby the apex court deprecated bench - hunting tactics of unscrupulous litigants. He further contended that in that case the principle underlying order 23, civil procedure code was held to be applicable to proceedings under article 226 and, therefore, there is absolutely no reason to contend in view of the decision of the apex court in vimlesh kumari (supra) that the petitioners had abused the process of law by filing the present petitions during pendency of the earlier petitions, assuming that the cause of action is the same. While reiterating what had been submitted by mr. Mitra, he contended that the decision in dr. Vijay pahwa (supra) is per incuriam and thus does not constitute a binding precedent.
(28) I have heard learned counsel for the parties and considered the decisions cited by them.
(29) The first point that arises for a decision in connection with the preliminary objection raised by mr. Sengupta regarding maintainability of these petitions is whether the issues raised herein are covered by the earlier petitions or not. If the answer on this point is in the negative, there may not be any bar in hearing the petitioners on their prayer for interim relief and inviting the parties to complete their pleadings. However, an affirmative answer to the first point would next require a decision as to whether hearing of these petitions should be stayed or the writ petitions would merit dismissal.
(30) Fact that the petitioners' grievances in the earlier writ petitions were not confined only to the council not furnishing to them the resolution adopted by it while referring their cases to the disciplinary committee would be clear from the following common prayer therein :
"c. A writ of mandamus commanding the respondent nos. 1 to 5 to recall and/or withdraw the letter no. 25 - ca (129) 2005 dated 9th april, 2008 being annexure "p - 1" hereto and the reference of your petitioner's case to the disciplinary committee". (underlining for emphasis)
(31) It was because of the second part of prayer (c) extracted supra that arguments were advanced by mr. Chatterjee on behalf of the petitioners which prompted me to consider the issue as to whether, while forming the prima facie opinion that the petitioners were liable to face enquiry to be conducted into the complaints by the disciplinary committee, the council had the occasion to consider the complaints, the written statements, rejoinder to the written statements and the comments to such rejoinders as is mandatorily required under regulation 2 (11) (ii) of the said. Regulations. Since no material had been placed to show that the council had, in fact, considered the aforesaid documents, the interim order dated 4th december, 2008 was passed.
(32) The petitioners vide prayer (c) of the earlier writ petitions, extracted supra, had undoubtedly claimed relief from the writ court pertaining to the issue of reference of their cases to the disciplinary committee. In course of argument before me, mr. Chatterjee fairly did not dispute that on perusal of the extract of the resolution produced on 4th december, 2008 by mr. Sengupta, he had argued the point of non - compliance of regulations. Since compliance thereof was not reflected in the extract of the resolution produced in court, interim relief followed based on prima facie satisfaction reached in this behalf.
(33) On perusal of the averments made by the petitioners in their reply affidavits in connection with the earlier writ proceedings initiated by them, i am minded to opine that legality, propriety, validity and/or tenability of the resolution adopted by the council of the institute in its 277th meeting held on 29th march, 2008 is the issue that survives for consideration of the court. That is exactly the same issue which has been raised in the present petitions. The submission of learned senior counsel for the petitioners that the issue involved in the earlier writ petitions was only in respect of the grievance of the petitioners that they have not been furnished copy of the resolution of the council of the institute deciding to refer their cases to the disciplinary committee is unacceptable. Had it been the only issue involved in the writ petition, i would not have enlarged the scope of the writ petitions suo motu by calling upon the institute to satisfy the court as to whether the statutory mandate contained in regulation 2 (11) (i) of the said regulations had been complied with or not. This aspect fell for consideration in view of prayer (c) of the earlier writ petitions, as argued by mr. Chatterjee and, therefore, the conclusion is irresistible that the issues involved in the previous proceedings and the present proceedings are not incidentally and collaterally but directly and substantially the same. Also, if the petitioners' grievance as expressed in the earlier writ petitions were redressed once extract of the resolution was furnished to them, i fail to comprehend why first, the prayer for interim relief was pressed and secondly, applications for further interim order were made without seeking withdrawal of the writ petitions with liberty to challenge the resolution, either on 4th december, 2008 or even thereafter. By their very conduct, it is clear that the petitioners did not intend to relinquish any part of their claim, particularly the issue of reference of their cases to the disciplinary committee. Receipt of the resolution adopted in the 277th meeting of the council dated 29th march, 2008 in its entirety via the counter affidavit of the institute is considered to be an additional fact in the bundle of facts which does not in any manner alter the respective petitioners' cause of action to question the decision of the council to refer their cases to the disciplinary committee. I have, therefore, no hesitation in holding that the earlier petitions cover the issue raised herein.
(34) Now that the first point is answered, i would consider the aspect of the next course of action on these petitions. Should the present proceedings be stayed in accordance with principles flowing from section 10, civil procedure code or should the petitions be dismissed? it shall be my endeavour to find out the answer.
(35) The scheme of the civil procedure code would show that in order to prevent abuse of process of court it bars institution of (i) a subsequent suit, if a previous suit between the same parties on the same cause of action has been decided on merits; and (ii) a subsequent suit based on the same cause of action on which a previous suit had been withdrawn except without leave of court. Section 11 and order 23, civil procedure code respectively are the provisions in this respect.
(36) Section 11, civil procedure code embodies 'res judicata' and analogous principles. In g. K. Dudani v. S. D. Sharma, reported in 1986 supp scc 239, it has been held by the apex court that "the principle of res judicata does apply to all writ petitions under article 226. "
(37) Order 23, on the contrary, requires a party to obtain a permission of the court to file a fresh suit after establishing either of the two grounds mentioned in rule 1 thereof. The rule is founded on public policy. It is intended to discourage a litigant from indulging in forum shopping. That principles of order 23 should be extended in the interests of administration of justice to cases of withdrawal of writ petitions has been held in sarguja transport service (supra). The requirement under order 23 rule 3 can be pressed into service even in writ proceedings is also the ruling in k. Venkatachala bhat and mr. V. Krishna nayak (d) by lrs. And ors. , reported in (2005) 4 scc 117 : (2005) 1 wblr (sc) 808.
(38) Although in view of the explanation to section 141 of the civil procedure code, the code in terms does not apply to writ proceedings, the procedure prescribed by it accords with rules of natural justice and, therefore, the calcutta high court has deemed it fit and proper to follow it in exercise of its inherent jurisdiction subject to rules framed by it and as far as it can be made applicable. Rule 53, however, makes it clear that nothing therein would affect the court's inherent power to pass an order which is necessary either in the interest of justice or to prevent abuse of the process of the court. Of course, discretion is to be judiciously exercised keeping in mind that the wide jurisdiction under article 226 would remain effective and meaningful only when it is exercised prudently and in appropriate situations. It is to be remembered that the high court does not act like a proverbial "bull in a china shop" in the exercise of such jurisdiction.
(39) A situation could arise before a writ court in respect whereof provisions are not found in the writ rules. Thus, in those situations which are not specifically dealt with by the writ rules, the provisions of the civil procedure code, as far as they can be made applicable, may act as a guide and be applied to proceedings under article 226.
(40) But remedy under article 226 of the constitution being discretionary, it is exercised when the court is satisfied that it is equitable to do so. There is no invariable rule that the writ court must be bound by the shackles of procedural laws governing suits in each and every case where even the writ rules are silent.
(41) At this stage it would be of some assistance to note certain other decisions of the apex court touching the issue at hand.
(42) In paragraph 17 of its decision in commissioner of endowments and ors. V. Vittal rao and ors. , reported in (2005) 4 scc 120 : (2005) 2 wblr (sc) 794, this is what the apex court observed :
"17. The high court while exercising jurisdiction under article 226 of the constitution has jurisdiction to pass appropriate orders. Such power can neither be controlled nor. Affected by the provisions of order 23 rule 3 c. P. C. It would not be correct to say that the terms of order 23 rule 3 should be mandatorily complied with while exercising jurisdiction under article 226 of the constitution. Otherwise an anomalous situation would arise such as before disposing of the writ petition, issue should be framed or evidence should be recorded, etc. Proceedings under article 226 of the constitution stand on a different footing when compared to the proceedings in suits or appeals arising therefrom".
(43) In babubhai muljibhai patel v. Nandlal khodidas barot, reported in air 1974 sc 2105, the apex court was considering as to whether in proceedings under article 226 of the constitution which normally are decided on the basis of affidavits the court of writ could summon a deponent for cross - examination in order to arrive at the truth. While holding so, it was observed as follows :
"it is not necessary for this case to express an opinion on the point as whether the various provisions of the code of civil procedure apply to petitions under article 226 of the constitution. Section 141 of the code, to which reference has been made, makes it clear that the provisions of the code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the high courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the high court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions. The entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under article 226. It needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under article 226. The high court is not deprived of its jurisdiction to entertain a petition under article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under article 226 the high court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. *****" (underlining for emphasis)
(44) It is, however, noticed that this case was decided prior to introduction of the explanation to section 141 of the civil procedure code by the civil procedure code (amendment) act, 1976.
(45) In exercise of extra - ordinary jurisdiction under article 226, it being the aim of the high court to secure a very speedy and efficacious remedy to a person who approaches it claiming that any of his fundamental or other rights have been infringed and writ proceedings being absolutely different from suits, application of the elaborate and technical rules laid down in the civil procedure code to writ proceedings may frustrate the very object and purpose of exercising writ powers.
(46) The scope and effect of section 10, civil procedure code came up for consideration before the apex court in national institute of mental health and neuro sciences v. C. Parameshwara, reported in air 2005 sc 242. It was ruled as follows :
"the object underlying section. 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under anv other statute. The object of section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject - matter in both the suits is identical. The key words in section ware 'the matter in issue is directly and substantially in issue' in the previous instituted suit. The words 'directly and substantially in issue' are used in contradistinction to the words 'incidentally or collaterally in issue'. Therefore, section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject - matter in both the proceedings is identical", (underlining for emphasis)
(47) The constitution of india under which writ proceedings are instituted is no ordinary statute but the supreme statute, the fountainhead of all statutes, the source and sustenance of all statutes. If section 10 principles are not applicable to proceedings instituted under ordinary statutes, it stands to reason that principles flowing from the civil procedure code provisions cannot control or regulate exercise of writ powers. It should, therefore, exercise the consideration of the writ court as to in which situation it would be guided by the principles flowing from the procedural law laid down in the civil procedure code.
(48) To extend principles underlying section 10 to petitions filed under article 226 of the constitution by the same petitioner on the same cause of action involving similar issue and for similar relief cannot, in my considered opinion, be countenanced. In such case, exercise of powers by the high court under article 226 of the constitution would no longer remain in the realm of discretion and the writ court would have to receive a petition, filed subsequent to institution of a previous petition, and allow it to be added to the ever mounting arrears and restrain itself from passing any effective order on it till such time the previous petition is decided. Such a course of action, which ought to necessarily follow if principles of section 10, civil procedure code are held to be applicable, would amount to placing fetters on exercise of judicial discretion by the writ court. Provisions in the writ rules for admission of a writ petition in such a case would cease to have any meaning and the writ court would stand denuded of its power to exercise discretion according to recognized principles while deciding whether to receive a petition or not. I hold that the writ court is not bound to stay subsequent proceedings in tune with section 10, civil procedure code principles in each and every case where such a prayer is made. No court should permit distortion of the law by an unscrupulous litigant to achieve wrongful gain. The court having regard to the special facts and circumstances presented before it and upon due application of mind must reach a conclusion backed by reasons in respect of applicability/non - applicability thereof. Facts of each case have to be examined to ascertain whether the subsequent petition has been filed to abuse judicial process and/ or for ulterior motives or not. If the finding is jn the affirmative, the writ court must not hesitate to throw away the petition at the threshold. Judicious exercise of discretion, on the contrary, would be called for if unknowingly a party approaches the writ court with a petition agitating an issue, which is directly and substantially in issue in a previously instituted petition or knowingly does it but offers an explanation justifying its action, which commends to the court as satisfactory.
(49) In the present cases, however, the explanation furnished by the petitioners is far from convincing. The petitioners' previous petitions were received by the court being satisfied that the issues raised therein require consideration after full - fledged hearing. They are ripe for final hearing and had even been listed for hearing before the learned judge to whom they had been assigned. They had been diligently pursuing the earlier petitions till at least 20th march, 2009 when the earlier petitions were listed for final hearing. After delisting thereof, the present petitions were filed. The sudden change of mind to present these petitions, allegedly influenced by opinion of experts in the field, does not seem to me to be bonafide. Considering the facts of these cases i find no plausible reason as to why an unjust claim made by the petitioners to keep the proceedings stayed has to be entertained. I am afraid, by filing these petitions the petitioners have resorted to tactics which can aptly be described as abuse of judicial process.
(50) The decision reported in vimlesh kumari (supra) would reveal that the same was decided on its peculiar facts. A suit for specific performance was filed on 9th september, 1986. Proper court fees were not paid. An objection was raised in this respect by the first defendant in his written statement. Subsequent thereto, another suit was filed by the plaintiff on 23rd march, 1987. The first suit was sought to be withdrawn on the premise that another suit has been filed. The application for withdrawal was allowed. The learned trial judge decreed the suit. By reason of the impugned judgment, however, the high court reversed the same holding, inter alia, that in view of order 23 rule 1, civil procedure code, permission for filing another suit on the same cause of action having not been obtained, the second suit was not maintainable. The apex court proceeded to hold as follows :
"9. Admittedly, the second suit was filed before filing the application of withdrawal of the first suit. The first suit was withdrawn as an objection had been taken by the respondent in regard to payment of proper court fee. We, therefore, are of the opinion that order 23 rule 1 of the code was not applicable to the facts and circumstances of the present case. 14. The application filed for withdrawal of the suit categorically stated about the pendency of the earlier suit. The respondent, therefore, was aware thereof. They objected to the withdrawal of the suit only on the ground that legal costs therefor should be paid. The said objection was accepted by the learned trial court. The respondent even accepted the costs as directed by the court, granting permission to withdra w the suit. In a situation of this nature, we are of the opinion that an inference in regard to grant of permission can also be drawn from the conduct of the parties as also the order passed by the court. It is trite that even a presumption of implied grant can be drawn."(underlining for emphasis)
(51) It is, however, true that the apex court approved the decisions of lahore, kerala, and punjab and haryana high courts to the effect that order 23, civil procedure code does not bar filing of a second suit when the first suit is pending. But what would be material is the reason for which the plaintiff was driven to file the subsequent suit during pendency of the earlier one and acceptability thereof by court.
(52) The fact situation in the present cases is substantially different and therefore, the authority cited is of no assistance to the petitioners,
(53) I do not find substance in the contention that in view of the decision in vimlesh kumari (supra) , the division bench decision in dr. Vijay pahwa (supra) is per incuriam. On the contrary, the said decision appears to be consistent with the decision in udayami evan khadi gramodyog welfare sanstha v. State of u. P. , reported in (2008) 1 scc 560.
(54) The writ petitions are accordingly dismissed.
(55) The petitioners shall pay to the institute, within a month from date, costs quantified at rs. 51,000/ - to be borne equally.
(56) Copy of this order, duly countersigned by the assistant court officer, shall be retained with the records of w. P. No. 7038 (w) of 2009.
(57) Urgent photostat certified copy of this judgment and order shall be furnished to the applicant as early as possible but positively within four days from putting in requisites therefor.
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