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Sumer Mal v/s State of Rajasthan & Others


    Civil Writ Petition No. 1747 of 1994

    Decided On, 22 April 1999

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE BHAGWATI PRASAD

    For the Appellant: M.R. Singhvi, Advocate. For the Respondent: Dinesh Maheshwari, Advocate.



Judgment Text

1. Petitioner in this writ petition has claimed that he is an owner of plot No. 42 situated in P.W.D. Colony, Jodhpur. This plot was purchased by petitioner along with one Shri Gopal Mal from Shri Parmanand. The sale deed was executed on 18-1-1961. Originally the plot was in the joint name of Shri Gopal Mal and petitioner Sumer Mal. Thereafter the property was divided in two portions of 100' x 100' each and Shri Gopal Mal and petitioner were to have a plot of 100' x 100' each.

2. Petitioner was desirous of raising construction on the plot and for that matter he applied to the Urban improvement Trust, Jodhpur (referred to hereinafter as 'the U.I.T.') for seeking permission. The U.I.T. felt that division of plot in between petitioner and Shri Gopal Mal is a sub-division and, therefore, sub-division charges and penalty was imposed on the petitioner. The same was deposited by petitioner. After the aforesaid deposit the matter was processed for granting permission for raising construction and the permission was granted to the petitioner vide Annex. 2. This permission was granted subject to certain conditions. The construction started on 11-2-1994.

3. Petitioner claims that he had taken all possible care and precaution to abide by the conditions mentioned in the permission letter. While the construction was going on peacefully, petitioner received a communication dated 7-3-1994 sent by the U.I.T. By this communication, petitioner was informed that the permission granted to him vide letter dated 18-12-1993 Annex. 2 was stayed till further orders and petitioner was directed not to raise any construction over his plot. A copy of the communication dated 7-3-1994 has been produced as Annex. 3. Petitioner further states that Annex. 3 makes a reference of Government's letter dated 22-2-1994. A copy of the letter of the Government dated 22-2-1994 has been produced as Annex. 4.

4. According to the petitioner, the letter Annex. 4 reveals that some complaints have been filed before the State Government and the State Government is proceeding to make an enquiry in the matter and ordered stoppage of construction over the plot in question. Petitioner claims that the letter dated 22-2-1994 is penal in nature and it visits petitioner with evil and civil consequences. The order has been passed without any notice to the petitioner and without hearing. Petitioner has not been apprised of the cause for passing such an order.

5. Petitioner further submits that so far as the provisions for grant of permission is concerned, the same finds place in Chapter IX of the Urban improvement Trust Act, 1959 (referred to hereinafter as 'the Act of 1959'). In accordance with the provisions of the Act of 1959, petitioner applied for permission, which was processed in accordance with Chapter IX of the Act of 1959 and thereafter the permission was granted to petitioner. Petitioner has contended that the permission granted to him became final, as it was not challenged by way of an appeal, as provided under the Act of 1959. No appeal, as provided under Sub-section (9) of Section 73 of the Act of 1959, was ever preferred and the order granting permission, thus, became final. According to petitioner, no power is given to any authority, howsoever high it may be, to cancel the same. Petitioner further states that a number of persons have been granted permission to raise high rise buildings. The construction, which was raised by petitioner, was going on till 5-4-1994.

6. Petitioner claims and impugns the order of the State Government Annex. 4 on the ground that the State Government cannot question the permission once granted by the U.I.T. Petitioner claims that the State Government and its functionaries are under a legal obligation to act in accordance with the spirit of the Act of 1959 and it was not open to the State Government to embark upon an enquiry in the matter where the permission has been granted by the autonomous body like U.I.T. There is no power vested under the Act with the State Government to entertain the complaints with regard to grant of permission. Therefore, the entertainment of complaints by the State Government was per se without jurisdiction. It has also been claimed that once the Legislature has prescribed a particular mode, method for doing a particular thing then the things are required to be done in that manner, mode/method only and by implication all other modes/methods/procedure are forbidden by law. The Legislature has prescribed the procedure/mode/method in which the permission is to be granted and challenged. The challenge is provided in the form of an appeal under Sub-section (9) of Section 73 of the Act of 1959. No such appeal having been filed, no other mode is available to challenge the same,

7. Petitioner further contends that the permission granted to the petitioner preceded the demand of sub-division charges and penalty and, therefore, the permission was granted after the petitioner deposited the amount of sub-division charges and penalty. After the grant of permission the petitioner has acted upon the same and changed his position while acting upon the permission granted to him and started the construction. Thus, there is a legitimate expectation of the petitioner that he will not be stopped from raising the construction.

8. It has further been contended by petitioner that the respondent U.I.T. cannot disown its own order and challenge the same. Since the U.I.T. itself has granted the permission vide its order dated 18-12-1993 Annex. 2, now it cannot impugn the same. The State Government's order dated 22-2-1994 Annex. 4, on the face of it is discriminatory and violative of Article 14 of the Constitution of India inasmuch as the same or similar kind of permissions have been granted to the persons other than the petitioner. Denial of such permission to the petitioner tantamounts to hostile discrimination. The order of the State Government dated 22-2-1994 Annex. 4, apart from being discriminatory is highly arbitrary as there is no legal sanction behind it.

9. Petitioner has been stopped at a stage where the construction was at the advance stage of laying down the roofs. Before the order of stoppage there was no notice given. Therefore, such order is in flagrant violation of the basic principles of natural justice. No powers of review are vested with the authorities and, therefore, the permission could not have been impugned in the manner sought to be done by the State Government.

10. The Government has acted without any power having been vested in it. Further the respondent U.I.T. in issuing the communication dated 7-3-1994 has acted mechanically without applying its own mind under the influence of order dated 22-2-1994. Thus, it is not an independent exercise of power by the U.I.T.

11. Petitioner averred in his writ petition that when he was served with the letter dated 7-3-1994 and his construction was going on, he filed a suit for permanent injunction against the U.I.T. and some other respondents. Along with the suit for permanent injunction, an application for temporary injunction was also filed.

12. At the time when the petitioner was served with the letter of the U.I.T. dated 7-3-1994 Annex. 3, he was not apprised of the State Government letter dated 22-2-1994. Therefore, he has no knowledge about the Government's order on the date when he was served with the letter of the U.I.T. dated 7-3-1994 Annex. 3. Therefore, the State Government was not impleaded as a party in the injunction suit.

13. Petitioner has further averred that the application for temporary injunction filed along with the suit was rejected by the trial Court on 4-4-1994. The learned trial Court, while rejecting the application for temporary injunction, has held that the Government order has not been challenged by the plaintiff/petitioner nor the Government has been added as a party in the suit.

14. Keeping in view the observations of the trial Court in the injunction matter, the petitioner felt that the suit filed by him has become meaningless and the petitioner has taken steps to withdraw the same. The petitioner has further averred that in the suit, the Government letter dated 22-2-1994 Annex. 4 was not under challenge. Therefore, in the present writ petition, he can challenge the Government order dated 22-2-1994 Annex. 4. He has further contended that the entire act of the respondents is wholly without jurisdiction. Therefore, the petitioner is well within his rights to approach this Court.

15. Respondents Nos. 2 and 3 have contested the writ petition. In their reply, they have raised preliminary objections regarding the maintainability of the writ petition. It has been stated that the writ petition has been filed by concealing material facts and by stating partial and incomplete facts and, therefore, the writ petition deserves to be dismissed on this count alone.

16. Respondents Nos. 2 and 3 submitted that though the petitioner has made a reference to the suit filed by him before the Court of Additional Munsif No. 2, Jodhpur and have also stated that his injunction application has been rejected. But the petitioner has wrongly stated that he was not aware of the order of the Government at the time of filing of the suit. The petitioner had admittedly knowledge of the order dated 7-3-1994 and he has stated that this is the cause of action in the suit.

17. The answering respondents have contested that in the order dated 7-3-1994, there is a clear mention about the order of the State Government dated 22-2-1994. Petitioner got knowledge of the order dated 22-2-1994 when he received the order dated 7-3-1994. In this order, there was a clear reference of the order dated 22-2-1994 Annex. 4. The petitioner still deliberately did not challenge the order of the State Government dated 22-2-1994 and simply prayed for a relief of injunction against the respondent Trust.

18. It has been submitted by the answering respondents that on 22-3-1994 a detailed reply was filed to the injunction application. A specific objection was raised that the plaintiff was aware of the order of the State Government. He has not impleaded the State Government as a party. He has also not asked for any relief against the State Government. The necessary facts were placed before the trial Court. Having come to know of such objections, the petitioner took no effective steps to correct his stand. He took his chances before the Munsif Court and argued the application for temporary injunction.

19. The trial Court, after hearing the parties, came to the conclusion that petitioner has no prima facie case in his favour or balance of convenience. Aspect of irreparable injury was not held in his favour. The answering respondents have placed a copy of the order of rejection of the temporary injunction dated 4-4-1994 on record as Annex. R. 2/1, It has further been averred by the answering respondents that the petitioner has strangely averred in the writ petition that the suit has become meaningless and he has taken steps to withdraw it. The answering respondents have stated that the trial Court, after hearing the parties, did not accept the contention of the petitioner and rejected his application for withdrawal of suit.

20. Respondents contended that by mere writing, the suit cannot be said to be rendered meaningless. A specific finding has been recorded by the trial Court against petitioner. Petitioner has not been able to get the order of permission, to withdraw the suit. After his temporary injunction application having been rejected, he has turned areund and stated that the suit itself has become meaningless.

21. Petitioner, having failed in his attempt to obtain an injunction on 4-4-1994, has approached this Court i.e. on 6-4-1994. It has falsely been stated by petitioner that at the time of filing of the writ petition he has taken steps to withdraw the suit. The application for withdrawal of the suit was filed by the petitioner before the trial Court on 6-4-1994 but the same was refused by the trial Court vide its order dated 19-4-1994. A copy of the application has been filed as Annex. R. 2/2 and the rejection order has been filed as Annex. R. 2/4. Thus, it is clear that on the day when the writ petition was filed i.e. on 6-4-1994 only an application in the shape of Annex. R. 2/2 had been filed and, thus, the suit had not been ordered to be withdrawn by that day. Ultimately, the trial Court vide its order dated 19-4-1994 refused permission for withdrawal of the suit to petitioner. The order of refusal has been produced as Annex. R. 2/4. Thus, the contention of the answering respondents is that the manner in which petitioner has approached this Court is clearly an attempt to overreach the process of the Court. The writ petition, therefore, deserves to be dismissed on this ground alone.

22. It has further been contended by the answering respondents that petitioner, having failed in his attempt before the Court of Munsif to obtain an injunction against the answering respondents, has approached this Court in its extraordinary jurisdiction and on the basis of the same averments and allegations a fresh inning of litigation, by way of writ petition, has been started. The intention of the petitioner is not bona fide and thus, on this ground also the writ petition deserves to be dismissed.

23. Apart from the aforesaid preliminary objections, the respondent-Trust has contested the writ petition on merits also. It has been stated that once the answering respondents have received specific objection regarding the construction as contained in Annex. R. 2/5 then u/s 91-B of the Act of 1959 they had the power to order the stoppage of construction. Thus, the action of the answering respondents was hot an action without jurisdiction. In any case the order was only an interlocutory in character. The petitioner could have raised his objection before the answering respondents. It was not a final adjudication and could have been contested before the answering respondents.

24. The answering respondents have further averred that the construction of the petitioner is in violation of the master plan. Thus, after receiving complaints, the respondent-Trust only asked for stoppage of the building operations in good faith until the enquiry into the complaint was made. Thus, the petitioner had come against an interlocutory order and it has been contended that even in the matter of grant of permission, if the permission was granted in contravention of the master plan, the Trust was entitled to stop the building operations.

25. The parties were heard and in addition to their oral submissions, written submissions were also filed by the parties.

26. It has been contended by petitioner in the written submissions that the interim order can only be passed when statute provides for the same. If the statute is silent, then the authority or Court or Tribunal cannot make an interim order and in this behalf the learned counsel for the petitioner has placed reliance on a case decided by the Hon'ble Supreme Court in the matter of Morgan Stanley Mutual Fund Vs. Kartick Das, wherein the Hon'ble Supreme Court has observed as under :--

There is no power u/s 14 to grant any interim relief or even an ad interim relief. Only a final relief could be granted, if the jurisdiction of the Forum to grant relief is confined to the found clauses mentioned u/s 14, no interim injunction could ever be granted disregarding even the balance of convenience."

27. Thus, it has been contended on behalf of the petitioner that the orders Annexs. 3 and 4 were in violation of the law laid down by the Hon'ble Supreme Court.

28. Meeting the grounds of the respondent U.I.T. raised in the reply, that the writ petition is hit by the principle of res judicata, petitioner, in his written submissions, has stated that the principle of res judicata would come intd play only when the litigation in question is in between the same parties. In the civil suit filed by the petitioner, the State Government was not a party and the private respondents were there and in the writ petition the State Government is a party. Thus, in view of the provisions of Section 11, C.P.C. the principle of res judicata cannot be invoked in the present case. The principle of res judicata can be made applicable only when pre-requisites for raising the plea of res judicata are there, which are missing in the instant case because here neither the State Government was a party in the suit nor its order dated 22-2-1994 was in question in the civil suit. Thus, the plea of res judicata deserves to be rejected.

29. The petitioner has further stated that the U.I.T. cannot press into service the provisions of Order 2, Rule 2, C.P.C. In the present case, the litigation in the suit and the writ petition is entirely different, distinguishable and separate and, therefore, there is no application of Order 2, Rule 2, C.P.C. It has further been contended that the technical rules of res judicata are usually not entertained while the extraordinary jurisdiction is exercised by the High Court under Article 226 of the Constitution of India. Learned counsel for the petitioner has placed reliance on a decision of the Supreme Court rendered in the Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, wherein it has been observed as under :--

"A writ proceeding is a different proceeding. Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the SLP cannot be reopened. But the technical rule of resjudicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided."

It was further observed as under :--

"If the writ petition is dismissed by a speaking order either at the threshold or after contest, say only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either y way of suit or any other proceedings obviously will not be barred oh the principle of res judicata."

30. Learned counsel has further relied upon a decision rendered by the Supreme Court in the case of The Amalgamated Coalfields Ltd. and Another Vs. The Janapada Sabha, Chhindwara, wherein it has been observed as under :--

".......... .and since this point had not been taken in the petition and relevant material was not available on record, this Court refrained from expressing any opinion on it. The appellants contend that the order passed by this Court refusing permission to the appellants to raise this point on the earlier occasion does not mean that this Court has decided the point on the merits against the appellants; it may mean that the appellants were given liberty to raise this point later; but even otherwise, the point has not been considered and should not be held to be barred by constructive res judicata. It is significant that the attack against the validity of the notices in the present proceedings is based on the grounds different and distinct from the grounds raised on the earlier occasion............."

31. Learned counsel for the petitioner has further relied upon a decision of the Hon'ble Supreme Court delivered in the case of Forward Construction Co. and Others Vs. Prabhat Mandal (Regd.), Andheri and Others, wherein it has been observed as under :--

"Held, that in view of Section 11, Expln. IV it could not be said that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence."

32. Respondents have submitted that the petition filed by the petitioner is hit by Order 2, Rule 2, C.P.C. The civil suit was filed by the petitioner seeking a relief of injunction when the answering respondents directed for stopping of the construction by the petitioner vide its letter dated 7-3-1994 (Annex. 2). The application for temporary injunction was refused by the trial Court on 4-4-1994. In this order, the fact of the instructions of the Government received by the answering respondents vide letter dated 22-2-1994 has also been referred.

33. When petitioner received the letter dated 7-3-1994 he rushed to the Civil Court. Civil Court dismissed the injunction application on 4-4-1994. Thereafter, the plaintiff immediately rushed to this Court by way of filing the present writ petition making cryptic averment that the suit has become meaningless and he has taken steps to withdraw it. The application for withdrawal of the suit was dismissed by the trial Court vide Annex. R. 2/4. Petitioner wants to avoid the natural consequences of the dismissal of the suit by alleging that the principles of res judicata are not applicable to the writ petition and wants to invoke the jurisdiction of this Court by alleging that the provisions of Order 2, Rule 2, C.P.C. cannot be enforced against it. The provisions of Order 2, Rules 2 (2) and 2 (3), C.P.C. reads as under :--

"2(2) Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished."

"2 (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."

34. In the background of the aforesaid provisions of the Code of Civil Procedure, the plaintiff was entitled to sue for all the reliefs in respect of the same cause of action when he was asked to stop the building operations. He omitted to sue against the order of the State Government, which forms part and parcel of the same cause of action. It is clearly a case of intentional relinquishment of such claim by the plaintiff-petitioner in the suit.

35. Petitioner cannot be permitted to take advantage of his own wrong vide G.S. Lamba and Others Vs. Union of India (UOI) and Others, wherein the Hon'ble Supreme Court has observed that the Union of India cannot take any advantage of its failure to consult the Commission.

36. It is further important that after refusal of the application for withdrawal of the suit, the petitioner intentionally remained absent in the suit and permitted the suit to be dismissed in default on 27-2-1996. Once the suit is dismissed in the manner in which it has been dismissed, the plaintiff is precluded from bringing a fresh suit on the same cause of action and in this background, the petitioner is not entitled for issuance of a writ, in his favour.

37. The question raised in the suit was whether the U.I.T. is entitled to stop the building operations of the petitioner or not. The dismissal of the suit in default results in a decree where the claim of the petitioner against the action of the U.I.T. has been rejected meaning thereby that the action of the U.I.T. has been upheld , The issuance of writ in the present case would be contrary to the rejection of the injunction application of petitioner.

38. The respondents have contended that the questions of res judicata and constructive resjudicata, which have been raised by the petitioner, are fundamentally misplaced and a 5-Judge Bench of the Hon'ble Supreme Court in the case of Daryao and Others Vs. The State of U.P. and Others, has held as under :--

The argument that the res judicata is a technical rule and as such is irrelevant in dealing with petitions under Article 32 cannot be accepted. The rule of res judicata as indicated in Section 11 of the CPC has no doubt some technical aspects, for instance the rule of constructive resjudicata may be said to be technical; but the basis of which the said rule rests is founded on the consideration of public policy."

39. Learned counsel has stressed that it is in the interest of public at large that a finality should attach to the binding decisions pronounced by the Courts of competent jurisdiction and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. It is further held in Daryao and Others Vs. The State of U.P. and Others, as under :--

"The binding character of the judgment pronounced by Courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis."

40. In this perspective the learned counsel for the respondents has urged that the Hon'ble Supreme Court has applied the principle even in the cases relating to fundamental rights and, therefore, the writ petition filed by the petitioner is barred.

41. It is also contended by the learned counsel for the respondents that in the case referred to by the learned counsel for the petitioner reported in Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another, the Hon'ble Supreme Court in para 8 observed as under :--

"It is well-known that the doctrine of res judicata is codified in Section 11 of the CPC but it is not exhaustive. Section 11 generally comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by Courts in England, India and other countries. The rule of constructive resjudicata is engrafted in Explanation IV of Section 11 of the CPC and in many other situations also principles not only of direct resjudicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as resjudicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication: then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and therefore, is taken as decided."

42. Thus, the reliance placed on this case by the learned counsel for the petitioner is misplaced. The Hon'ble Supreme Court in G.K. Dudani and Others Vs. S.D. Sharma and Others, has also held that the principle of res judicata does apply to all petitions under Article 226 of the Constitution of India. The Hon'ble Supreme Court in The Amalgamated Coalfields Ltd. and Another Vs. The Janapada Sabha, Chhindwara, has explained the applicability of the general principle of res judicata. Learned counsel for the answering respondents has further relied upon a Division Bench decision of the Punjab and Haryana High Court delivered in the matter of Ram Kishan and Others Vs. Secretary to Govt. State of Haryana, Co-operative Dept., Chandigarh and Others, wherein the writ petition was dismissed being based on the same grounds on which the suit was instituted.

43. At the time of arguments, learned counsel for the parties agreed that the record of the suit instituted by the petitioner be also called. The same was summoned and perused by the Court. From the record of the suit, it is apparent that the suit was dismissed in non-prosecution. The order of the U.I.T. Annex, 3 dated 7-3-1994 was the subject-matter of the suit.

44. From the perusal of the record of the suit, this is also apparent that the injunction application filed by the petitioner was rejected by the trial Court on 4-4-1994. The present writ petition is filed on 6-4-1994. The timing of filing of the writ petition, thus, assumes importance. If the petitioner was of the opinion that the Civil Court can legitimately adjudicate the dispute in between him and the respondents then he should have pursued his remedy there only. He has chosen to move this Court only after the rejection of his injunction application. The election of the forum is the domain of the litigant. Once he has elected to litigate in a particular forum then he has to stick to it. The manner in which petitioner has tried, does not appear to be appropriate. When he fails to get injunction he shifts to High Court. In this light, suffice it to say, that the act of the petitioner was not actuated by the considerations of proprietary. His action appears to be one which is guided by the instinct of survival. He was prepared to adopt any mode, which turns out to be in his advantage.

45. When the petitioner filed the suit he had the order of 7-3-1994 in his possession. The order of the U.I.T. referred to hereinabove, clearly mentions of the order of the State Government dated 22-2-1994. The State Government order having been clearly mentioned in the order of the U.I.T. it cannot be said that the petitioner had no knowledge of the State Government order when he filed the suit. The stand of the petitioner that it was only subsequent to the filing of the suit that he came to know of the State Government's order is incorrect. Thus, it is nothing but an attempt on the part of the petitioner to camouflage his inaction in not incorporating the relief against the State Government's order in the suit. Petitioner had tried to evade the issue of order of the State Government in the frame of the suit. It does not appear that his action, in not impleading the State Government as a parry to the suit and in not incorporating the relief against that order was bona fide. When a litigant knows that an order is against him, and goes to the Court to challenge it then it is generally expected of him, that he would incorporate his entire grievance in the litigation.

46. In the writ petition the petitioner has averred that he was not aware of the order of the State Government, is a clear attempt to mislead the Court. A reading of the order of the U.I.T. dated 7-3-1994, which was the basis of the suit, clearly shows that the State Government had passed an order. On this count when the petitioner attempts to mislead the Court, then the Court has to examine the conduct of the petitioner as well. If it lacks bona fides then interference at the instance of the petitioner can always be denied to him.

47. In the instant case, petitioner has failed to make out his lack of knowledge of the order of the State Government on the day when he filed the suit. It can safely be said that the petitioner lacks bona fides on this count.

48. The conduct of the petitioner be-comes important from another angle as well. On 4-4-1994 when he had lost his injunction application, he planned to file the present writ petition and ultimately filed it on 6-4-1994. On that day he only filed an application to withdraw the suit. Thus, on the day when the writ petition was filed a suit was pending. Though he had filed an application for withdrawal of the suit. He could have first sought an order of withdrawal of the suit and then filed the writ petition. Such a course of action could have added to the bona fides of the petitioner. When during the pendency of the suit the writ petition is filed, obviously his anxiety in attempting to get some relief, shows that he tried to overreach the process of the Court as well. Merely filing of the application for withdrawal cannot be considered to be a fact that the petitioner had withdrawn the suit.

49. In the instant case, the situation becomes more grave because the application for withdrawal of the suit was not allowed by the trial Court and thus, whole sequence of events suggests that the petitioner has tried to misuse the process of the Court.

50. As and when a petitioner tries to misuse the process of the Court, indulgence to the petitioner under Article. 226 of the Constitution of India is likely to be refused. This Court in Uda Ram Vs. Central State Farm and Others, has observed as under :--

"Even, if a party did not pray for the relief in the earlier writ petition, he cannot file a successive petition claiming same relief, which he ought to have claimed in the earlier one, as it would be barred by the principle enshrined in O. 2, R. 2 of the Civil P. C."

it was further held as under :--

The conduct of such party is reprehensible and deserves not only to be deprecated but censured. A litigant cannot be permitted to drag the Court in such a manner and force it to decide the case in a particular manner he wants."

51. A reading of the orders dated 7-3-1994 and 22-2-1994 only shows that the petitioner was required to stay his construction for a while until some enquiry which was pending with the State Government was concluded. It was not such a contingency that the petitioner had to come to the Civil Court in a hot haste to challenge the order. Rather he could have gone before the respondents and contested their stand and obtained a final order and then come to the Court. Both the orders i.e. 7-3-1994 and 22 2-1994 are in the nature of interlocutory orders and such orders could first be contested before the authorities and then the petitioner could have approached this Court. Approaching the Courts against the interlocutory orders of the administrative authorities is not a fact, which can be appreciated and thus, on this ground also the petitioner's stand cannot be appreciated.

52. The respondents have stated that the, permission to construct a high rise building in the residential area is against the Master Plan of the City of Jodhpur. If that is the position, then any permission granted by the respondent-U.I.T. to construct a high rise building was obviously in contravention of the Master Plan. If an illegal order has been passed in favour of the petitioner, then to protect such an illegal order the writ petition is not the correct forum. One of the grounds of declining of the issuance of a writ is that the illegal orders cannot be perpetuated. On this ground also no indulgence could be granted to the petitioner. A Full Bench of this Court in Jagan Singh Vs. St

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ate Transport Appellate Tribunal, Rajasthan and Another, has observed as under :-- "Held (without deciding the controversy) that, as allowing the writ petition would result in restoring the illegal order of the R.T.A. and as there had been no failure of justice in the instant case, the High Court refused to interfere with the appellate order." 53. Petitioner has first preferred a civil suit then after having failed to get an interim order in the civil suit, he approached this Court without finally obtaining an order of withdrawal of the civil suit. The sequence of events shows that there is an attempt on the part of the petitioner in creating a situation where conflicting orders could come into existence. This reflects on the functioning of the judicial hierarchy. Such situation obviously would be injurious to the health of the institution as such and in this backdrop also the petitioner's action is against the pubic policy. 54. May be that a technical rule of res judicata is not applied to the proceedings under Article 226 of the Constitution with that rigour with which it applies to the civil proceedings. But effect of challenging the order dated 7-3-1994 was that the plaintiff was also forgetting the order of 22-2-1994 passed by the State Government. The order of 7-3-1994 was the consequential order of 22-2-1994. In this perspective by design the petitioner has tried to evade the implication of res judicata proper. But he cannot go out of the import of constructive res judicata. 55. In the present case, as has been stated hereinabove, on the date when the civil suit was filed, the petitioner had the knowledge of the State Government's order dated 22-2-1994. Thus, in omitting to sue the State Government order, the petitioner had violated the principles, as enunciated in Order 2, Rule 2, C.P.C. and, therefore, has created a situation where he disentitles himself from discretionary remedy under Article 226 of the Constitution of India. 56. In Kartik Narain v. Karan Singh (S. B. Civil Writ Petition No. 504/1988, decided on 1-5-1996) this Court has held that the writ petition cannot be entertained by this Court when the Civil Court had been approached by the petitioner for the same relief. The same view has been taken by a Division Bench of this Court in D. B. Civil Special Appeal No. 380/1996 decided on 15-7-1994. as well as in J. S. Rawat v. Nation Air Port Authority (1991 (2) RLR 210; Mangi Lal v. Rajasthan State Road Transport Corporation (1991) 2 R LR 466 and Ram Charan Dasv. State of Rajasthan 1986 RLR 680. 57. From the aforesaid discussion, it is clear that the petitioner had, in moving this Court, misused the process of the Court. The petitioner's act has also been held to be not bona fide. In this background, his writ petition is not liable to be considered. An-other impediment, which has been noticed by this Court, is that the petitioner, while filing the civil suit, was aware of the order of the U.I.T. dated 7-3-1994 and that order had a clear mention of the order of the State Government dated 22-2-1994. Having not sued in relation to the order of the State Government the present writ petition is barred under the provisions of Order 2, Rule 2, C.P.C. and, thus, this Court is refraining itself from entering into the merits of the case because it finds that the present writ petition is not maintainable. It is also observed that if the authorities would come to the conclusion at the enquiry that the permission granted for construction is against the Master Plan then it would amount to protection of an illegal order, which is also impermissible in writ jurisdiction. Consequently, the writ petition is liable to be dismissed on the ground of maintainability. 58. In the result, the writ petition fails and the same is dismissed. No orders as to costs. Final Result : Dismissed.
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