Court No. - 40
Case :- SPECIAL APPEAL No. - 890 of 2018 Appellant :- Akhilesh Kumar Singh Respondent :- Honble High Court Of Judicature And Another Counsel for Appellant :- Anand Prakash Paul,Brij Bhushan Paul Counsel for Respondent :- Manish Goyal
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Bachchoo Lal,J.
Supplementary affidavit filed today is taken on record.
Heard Sri Paul, learned counsel for the appellant and Sri Sameer Sharma for the respondents.
This appeal has been preferred against the judgment of the learned Single Judge refusing to exercise discretion in allowing the appellant to file a fresh writ petition keeping in view the fact that certain other orders, copies whereof were produced by the respondents before the Court had to be brought on record.
The learned Single Judge has permitted the appellant to withdraw the writ petition but on grounds of unexplained laches has dismissed the plea to file a fresh writ petition.
The contention of the learned counsel is that if laches were to be explained, the appellant ought to have been given an opportunity to file a better affidavit keeping in view the law laid down by the Apex Court in case of AIR 1966 SC 81 Dwarkanath Vs. Income Tax Officer. It is further submitted by the learned counsel for the appellant that after the orders would have been brought on record, the laches if remained unexplained, it will still remain a ground for consideration for dismissing of the writ petition, but once the petition had been allowed to be withdrawn on the request of the appellant with liberty to file a fresh writ petition the discretion ought do not to have been refused.
We have heard Sri Sameer Sharma learned counsel for the High Court of Judicature submits that the ground of laches was clearly available and was writ large as there were no explanation about delay.
We have considered the submissions raised and we are of the considered opinion that if there were laches then it was the duty of the appellant to have explained the same for which he should have been given an opportunity to file a better affidavit. Secondly, if the writ petition was being permitted to be withdrawn then too even this liberty of explaining laches should have been given and it was still open for the respondents to raise a dispute about the laches in the writ petition.
We therefore do not find sufficient justification for denying this opportunity to the appellant to file a better writ petition. The appeal, is accordingly, allowed. The judgment of the learned Single Judge dated 14th August 2018 is set aside with liberty to the appellant to file a fresh writ petition explaining the laches and with liberty to the High Court to take all objections in relation to the laches that may be available under law.
Allowed.
Order Date :- 18.9.2018 S.Chaurasia