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Judgment
An application has been filed to seek vacation of interim order passed by this Court on 28.09.2018. It is mainly in reference to maintainability of the appeal itself on the ground that before filing the appeal, petitioner had availed remedy of review before the Family Court against the same order.
In view of the above, appellant had taken two remedies simultaneously and the present one was subsequent to the earlier remedy of review. The fact about filing of review has been suppressed from the Court and it was withdrawn when appellant remained successful to get an interim order from this Court. This highlights the conduct of appellant. On the aforesaid ground itself, appeal can be dismissed while vacating the stay.
Learned counsel for the appellant has contested the argument made by learned counsel for the respondent. It is stated that review petition was withdrawn immediately on passing of interim order by this Court thus the ground raised by the respondent no more survives. Accordingly, prayer is to maintain the interim order while dismissing the application filed by the respondent for vacation of the stay order.
We have considered rival submissions of the parties and perused the record.
It is not in dispute that prior to filing of this appeal, petitioner preferred a review petition before the Family Court against the same order. The fact aforesaid has not been mentioned in the appeal thus it was suppressed from this Court.
The Court was persuaded to grant interim order without narrating that on the same issues, review petition is pending before the Family Court. The review petition was withdrawn when interim order was passed by this Court. The subsequent withdrawal of review petition would not affect the issue raised by the respondents herein.
In our opinion, the appeal was not maintainable simultaneously while the review petition was pending before the Family Court against the same order. A litigant cannot take two remedies simultaneously for one and the same cause and that too with suppression of a fact. The appellant has suppressed a material fact from the Court while maintaining the appeal. This even shows his conduct. He has not approached this Court with clean hands.
Accordingly, the appeal is dismissed on the aforesaid ground while allowing the application preferred by the respondents as a result of which stay granted by this Court stands vacated. Stay application also stands dismissed.