Hon'ble Ritu Raj Awasthi,J.
Order (Oral) We have heard learned counsel for parties and perused the pleadings of review petition.
Learned counsel for petitioner submitted that all other employees of the Organization of the petitioner were accommodated in Agriculture Department but the case of the petitioner was not taken up for consideration, and finally his services were dispensed with in 1993. Therefore, the petitioner filed a writ petition in 1993, wherein no interim order was passed. Therefore he filed an application for withdrawal of the petitioon on 11.05.1993. During the pendency of application, barely after two days, the petitioner filed another Writ Peittion on 13.05.1993. It appears that the earlier writ petition remained pending and was withdrawn later after 11 years in 2004, but during its pendency, the petitioner obtained an interim order in the second writ petition soon after its filing in 1993, on the first date of hearing without disclosing the factum of pendency. The second writ petition with interim relief came up for final hearing before a learned Single Judge in 2011 and it was allowed.
The State filed an Special Appeal wherein the impugned order dated 30th January, 2012, was passed by a Co-ordinate Division Bench in which one of us ( Ritu Raj Awasthi, J.) was a member, with following observations which are reproduced as under:
"...........In the instant case, admittedly, the same order of termination dated 16th March, 1993 was the subject matter of challenge in the earlier writ petition bearing No. 2208 (SS) of 1993 and therefore, the second writ petition was not maintainable; simply because the first writ petition was got dismissed as withdrawn, the second writ petition was not maintainable.
That being so, the writ petition itself was not maintainable, thus, the order passed by the learned Single Judge cannot be sustained, which hereby set aside. The writ petition is dismissed."
Learned counsel for review-petitioner submitted that it was a bonafide mistake on the part of petitioner that he filed two writ petitions. He filed the second one, namely, 3770 (S/S) of 1993 on 13.05.1993, after filing of application for withdrawal of the first one namely, Writ Petition No. 2208 (SS) of 1993 on 11.05.1993.
Learned counsel has also referred to two judgments of Hon'ble the Apex Court in support of his contentions.
In the first judgment which is reported in (2007) 6 SCC 120 (Arunima Baruah vs. Union of India and Others), learned counsel, in particular, placed reliance on paragraphs 18 and 22 to argue that a litigant can, though not ordinarily, pursue two parallel remedies and it would not create a bar of res judicata. Paragraphs 18 and 22 of the judgment, for convenience, are reproduced as under :
"18. There is another doctrine which cannot also be lost sight of. The court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject-matter. (See Jai Singh v. Union of India). But, where one proceeding has been terminated without determination of this lis can it be said that the disputant shall be without a remedy?
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22. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the Court's jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, and the Court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice, and keeping in view the fact that judicial review is a basic feature of the Constitution of India."
As regards the second judgment cited by learned counsel for review petitioner which is reported in (2007) 10 SCC 158 (Mahendra and others. vs. State of Uttaranchal and Another.), learned counsel submitted that Hon'ble the Apex Court irrespective of the fact that the petitioner had filed two writ petitions on the same subject matters, remanded the case for consideration on merit to the High Court.
On due consideration of submissions of learned counsel for review-petitioner, we are not able to persuade ourselves to accept his contentions. Though, after filing of first writ petition in 1993, the petitioner filed an application for withdrawal of the same on 11.05.1993 but two days later, he filed a second writ petition, wherein he did not disclose the factum of filing of first writ petition as also the application for withdrawal thereof. In the filing of second writ petition, wherein the interim relief was granted, it appears that the petitioner demonstrated an undue haste and impatience, without disclosing the pendency of earlier writ petition alongwith application for withdrawal, for whatever reason, best known to him, and also without waiting for the outcome of the application for the withdrawal of writ petition. The least, which was expected of the petitioner, was to have obtained the liberty of Court for filing the second writ petition, during the pendency of earlier one, even though the application for withdrawal was not taken up for one reason or other and was disposed of much later after a gap of 11 years, in 2004.
Thus, we are in disagreement with the contentions of learned counsel for review-petitioner that the ratio laid down in the aforesaid judgment would cover the case of petitioner.
In the judgment of Arunima Baruah (Supra), the Court has discussed the question of pursuing two parallel remedies before different forums. Moreover it has been rendered only in the context of deciding the question, as to whether the pendency of the proceedings before one forum, would act as res judicata for another proceeding before another forum.
In the judgment in the matter of Mahendra and others (supra), it appears that there was a bonafide mistake on the part of petitioner due to some confusion in allotting registration number of petitions, though, two writ petitions were filed on the same subject matter. The second writ petition was registered earlier (Crl. Misc. Application no. 950 of 2011) and the first one (Crl. Misc. Application No. 953 of 2011) later. It is only in this background that Hon'ble the Apex Court remanded the matter to the High Court for consideration of the case on merit.
Thus, we are of the considered view that it is not a case of bonafide mistake but it is rather a case where the factum of filing of first writ petition was deliberately suppressed in second one, inspired by some collateral and oblique motive, which would amount to misuse of the process of the Court. Hence, we are not inclined to entertain the review petition.
Besides, this Court, in the matter of Review Petition No. 254 of 2010 (State of U.P. and others vs Gyan Singh Yadav and others), while dealing with the grounds for filing review has held as under:-
"Besides it would be apposite to note that the review of a judgment or order as provided under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, could be sought only on the grounds like: (a) that there is discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) that some important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) that there was some mistake or error apparent on the face of record or there is any other sufficient reason. It is also settled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.
In the judgment of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tiruymale reported in (1960) 1 SCR 890, it has been held as under:-
"An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ."
Further that this ratio has been reiterated in the judgment of Hon'ble the Apex Court in Parsion Devi v. Sumiri Devi reported in (1997) 8 SCC 715. The observations of Hon'ble the Apex Court reads as:
"Under Order XLVII, Rule 1, CPC a judgment may be open to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under order XLVII, Rule 1, CPC. In exercise of the jurisdiction under Order XLVII, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise."
The aforesaid views have again been reiterated by Hon'ble the Apex Court in a later judgment reported in AIR 2006 SC 1634 (Haridas Das vs. Smt. Usha Rani Banik and others). A similar view was also taken in another judgment reported in JT 2009 (9) SC 537 : (2009) 14 SCC 663 (Inderchand Jain (D) through L.Rs. Vs. Motilal (D) through L.Rs.)".
Review petition is, thus, dismissed.
Order Date :- 2.3.2012 vks