Abdul Ghaffar and Another vs Ishtiyaq Ahmad and Others

S.D. Agarwala, J.—This is a petition under Article 226 of the Constitution of India arising out of tbe proceedings u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as ''the Act''.

The property in dispute is premises No. 101/114, Talaq Mohal, Kanpur. Ishtiyaq Ahmad Respondent No. 1 is the tenant. The Petitioners are the landlords. The Petitioners moved an application for release u/s 21 of the Act on tbe ground of personal need. The Prescribed Authority by an order dated 30th September, 1981 allowed the release application in part and directed the tenant to handover the vacant possession of one room adjacent to the portion in possession of tbe landlord along with a verandah in front of that room to the landlords within a month.

Aggrieved by this decision dated 30th September, 1981, two appeals were filed before the District Judge u/s 22 of the Act. Rent Appeal.

No. 325 of 1981 was filed by the landlords and Rent Appeal No. 327 of 1981 was filed by the tenants. Both these appeals were heard by the IIIrd Additional District Judge, Kanpur. The tenants'' appeal was allowed and the landlords'' appeal was dismissed. The release application of the landlords was dismissed as whole. This judgment in appeal was passed on 8-3-1982.

The Petitioners filed this petition challenging the order dated 8-3-82 as well as the order passed on 30-9-81 by means of the present petition.

I have heard'' learned Counsel for the parties. Learned Counsel for the tenant-Respondents Sri. M.A. Qadeer has raised a preliminary objection that the present petition is not maintainable as the Petitioners had filed an earlier petition against the same judgment which was dismissed by this Court on 21-7-82. No permission was sought by the Petitioners for filing a fresh petition.

I have heard Sri. P.N. Saxena, learned Counsel for the Petitioners on this preliminary objection and I also sent for the record of writ petition No. 4226 of 1982 which was earlier filed by the Petitioners and which was dismissed by this Court on 21-7-82.

On a perusal of the record of this petition and the record of writ petition No. 4226 of 1982, the facts which emerge are as follows:

This writ petition is carbon copy of writ petition No. 4226 of 1982, hereinafter referred to as the first petition. The affidavit in support of this titlon as well as tbe first petition was sworn at the same date at Kanpur on 30-3-82. The first petition was got reported in this Court on 30-3-82. It was filed before Hon''ble M.P. Mehrotra, J. on 27-4-82 and the following order was passed by Hon''ble M.P. Mehrotra, J.

"Put up as unlisted part heard tomorrow." On 28-4-82 tbe following order was passed on the request of learned Counsel for the Petitioner:

On the request of tbe learned Counsel for the Petitioner this petition is directed to be listed for admission as a part heard one on 3-5-82." Thereafter, this petition was listed on many dates before Hon''ble M.P. Mehrotra, J. and it was passed over on one or the other reasons. Ultimately tbe matter came up before Hon''ble M.P. Mehrotra, J. on 21-7-82. No body appeared before him to press the petition and accordingly the petition was dismissed in default. Tbe following order was passed by Hon''ble M.P. Mehrotra, J.

No one appears to press this petition; it is accordingly dismissed in default.

This petition (second petition) which was a carbon copy of the first petition was got reported on 5-7-82 and filed in this Court before Hon''ble Banerji, J. on the same day. He directed to be listed this petition after two weeks. This second petition came up for admission before Hon''ble B.D. Agarwal, J. on 18-1-83 and on that date the petition was admitted and notice was issued.

From the above facts it is, therefore, clear that both the petitions were filed against the same order. The first petition was dismissed on 21-7-82 after being kept as part heard for a number of days. Thereafter, tbe second petition came up for admission on 18-1-83 and this petition was admitted without bringing it to the notice of the Court tbat first petition was dismissed on 21-7-82. This act on the part of the Petitioners is highly deplorable. He could not file two petitions against the same judgment and when the first petition had been dismissed it was incumbent upon the Petitioners to have brought to the notice of the Court that against tbe same judgment one petition has already been dismissed. This was not done.

In Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, , tbe Hon''ble Supreme Court has laid down that a Petitioner cannot file a fresh writ petition in respect of the same cause of action under Article 226 of tbe Constitution of India if the earlier petition filed by him in the High Court under Article 226 was withdrawn without getting permission to institute a fresh petition.

Hon''ble Venkataramiah, J. opined for tbe Court as follows:

But we are of the view that the principle underlying RI of XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res-judicata but on tbe ground of public policy as explained above. It would also discourage the litigant from indulging in bench hunting tactics. In any event there is no justifiable reason in such a case to permit a Petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of tbe Constitution once again.

The principle laid-down in the aforesaid case is fully applicable to the facts of this petition. In fact the facts of this petition are even worse. The first petition was filed, it was part heard before an Hon''ble Judge of this Court, it was kept part heard for a number of days and ultimately no body appeared to press this petition obviously for the reason that the Judge may not be agreeing to tbe submissions of the learned Counsel. No permission was taken from the Hon''ble Judge who was dealing with the first petition to file a fresh petition. In this view of the matter this second petition was clearly not maintainable and it is clearly an abuse to the process of the Court.

Learned Counsel for the Petitioners has tried to justify the conduct on the part of tbe Petitioners on the ground that since two appeals were decided by the same judgment he had got prepared two writ petitions. In fact when both these appeals arose out of the order in the same release application, the question of filing two writ petitions did not arise. But in any case even for the sake of argument it is taken tbat the Petitioners bonafide believed that two petitions could be filed then the subsequent conduct of the Petitioners in not bringing the fact of the dismissal of tbe first petition to the notice of the court entertaining the second petition is a conduct most reprehensible.

In Busching Schmitz Private Limited Vs. P.T. Menghani and Another, tbe Hon''ble Supreme Court has observed as follows:

Every tribunal has the inherent power to prevent its machinery from being made a sham, thereby running down the rule of law itself as an object of public ridicule. It will and must prove any stratagem self-defeating if a party indulges in making the law the laughing stock for, the court will call him to order.

In another case T. Arivandandam Vs. T.V. Satyapal and Another, , the Hon''ble Supreme Court had an occasion to consider almost a similar matter where a second suit had been filed on the same cause of action and it was found that the plaint of the second suit was a carbon copy of the old plaint. It was consequently observed as follows:

We have not the slightest hesitation in condemning the Petitioner for tbe gross abuse of tbe process of the court repeatedly and unpretently resorted to From the statement of tbe High Court, it it perfectly plain that the suit now pending before the First Munsif''s Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints.

Learned Counsel for the Petitioners has sought to rely on the provisions of Chapter XXII Rule 2(1) and 7 of the Rules of the Court. They read as follows:

Rule 2(1): "If the court does not find a sufficient reasons to admit the application it may reject it. Where the application is not so rejeoted, notice thereof shall be served on such opposite parties named in the application and on such other persons, if any, as the Court may direct.

Rule 7: Where an application has been rejected, it snail not be competent for tbe applicant to make a second application on tbe same facts.

The submission is tbat since the first petition was not dismissed on merits, the second petition was maintainable. I do not agree. Rule2(1) quoted above clearly provides that if the Court does not find sufficient reasons to admit the petition it may reject it. Tbe rule does not say that the rejection can only be on merits. The non appearance of a Petitioner can also be one of the reasons on the basis of which the petition can be rejected. If once tbe application is rejected there is clear prohibition in Rule 7 that the second application shall not be competent on the same facts. The Rules in my opinion are against the Petitioners'' case. The first petition having been rejected, the second petition was dearly not competent. The preliminary objection raised by the learned Counsel for the Respondents is correct.

In view of the fact that the Petitioners acted on tbe advice of the Counsel and since by tbe impugned order two appeals were decided though arising out of one release application, I am not taking any further action against the gross misconduct on the part of the Petitioners.

In view of the above, the writ petition is dismissed with costs.