# J.C. Saxena v. Union of India and others

- **Citation:** (2007) 2 ILRA 540
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-05-18
- **Case number:** Civil Misc. Writ Petition No. 15161 of 2000
- **Bench:** Anjani Kumar, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/j-c-saxena-v-union-of-india-and-others-40925
- **Pages:** 5

## Headnote

High Court Rules, Chapter XXII Rule- 7Second writ petition for same cause of
action-without
disclosing
the
earlier
petition-held-not
maintainablepetitioner is also committed criminal
contempt by filing false affidavit-must be
saddled with liability of heavy cost.

Held: Para 12

A litigant who has approached this Court
in extra ordinary equitable jurisdiction
with unclean hands, his conduct makes
him liable to pay an exemplary cost for
abusing the process of the Court besides
2 All] J.C. Saxena V. Union of India and others
541
wasting precious time of the Court which
could have been utilized for other more
deserving cases. Moreover, he is also
guilty of swearing a false affidavit. Thus
the petitioner must be saddled with the
liability of heavy cost so that in future
such thing may not recur.
Case law discussed:
AIR 1987 SC-88, 2003 (3) ESC-1333, 2005
ACJ-359, 2006 (2) SCC-541, 2003 (Suppl.) 3
SCR-352, AIR 2005 SC-3110, AIR 2005 SC3330, J.T. 2004 © SC-88, AIR 1964 SC-345,
2003 (9) SCC-401

## Text

540 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
holder on the same date on which power
of attorney was executed makes it
abundantly clear that the said agreement
and power of attorney were part of the
same transaction. Accordingly, I hold that
the earnest money given under the
agreement of the same date was the
consideration for power of attorney. One
agreement had already been executed six
months before, hence it may reasonably
be inferred that no further earnest money
or part of sale consideration would have
been paid by Lakhpat Rai, in case power
of attorney had not been executed by the
vendors in favour of his son i.e. Petitioner
Subhash Chandra.

7. By virtue of Section 202 of the
Contract Act, a power of attorney given
for consideration is irrevocable. The fact
that in the power of attorney in question,
it is mentioned that 'it is irrevocable' is a
strong indicator of the fact that it was for
consideration.

8. Neither in the deed of power of
attorney nor in the impugned orders, it has
been mentioned that what amount was
paid under the agreement executed on the
date of execution of power of attorney,
i.e. 30.01.1985.

9. Accordingly, writ petition is
allowed. Both the impugned orders are set
aside. The matter is remanded to District
Stamp Officer, Bijnor to charge the stamp
duty and registration fees on the power of
attorney
in
question
taking
the
consideration to be the amount paid under
agreement for sale executed on the same
date, i.e. 30.01.1985 by the executants of
power of attorney in favour of Lakhpat
Rai-father of the petitioner.

10.

Under
the
facts
and
circumstances of the case, I am of the
opinion that there was absolutely no
occasion
to
impose
any
penalty.
Accordingly, it is further directed that no
penalty shall be imposed.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 15161 of 2000

J.C. Saxena

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri K.C. Sinha
Sri Rakesh Sinha
Sri Ashish Srivastava
Sri P.P. Pandey
Sri Manoj Kumar Srivastava

Counsel for the Respondents:
Sri B.N. Singh
Sri Subodh Kumar
S.S.C.

High Court Rules, Chapter XXII Rule- 7Second writ petition for same cause of
action-without
disclosing
the
earlier
petition-held-not
maintainablepetitioner is also committed criminal
contempt by filing false affidavit-must be
saddled with liability of heavy cost.

Held: Para 12

A litigant who has approached this Court
in extra ordinary equitable jurisdiction
with unclean hands, his conduct makes
him liable to pay an exemplary cost for
abusing the process of the Court besides
2 All] J.C. Saxena V. Union of India and others
541
wasting precious time of the Court which
could have been utilized for other more
deserving cases. Moreover, he is also
guilty of swearing a false affidavit. Thus
the petitioner must be saddled with the
liability of heavy cost so that in future
such thing may not recur.
Case law discussed:
AIR 1987 SC-88, 2003 (3) ESC-1333, 2005
ACJ-359, 2006 (2) SCC-541, 2003 (Suppl.) 3
SCR-352, AIR 2005 SC-3110, AIR 2005 SC3330, J.T. 2004 © SC-88, AIR 1964 SC-345,
2003 (9) SCC-401

(Delivered by Hon'ble Anjani Kumar, J.)

1. The petitioner having been
allowed
to
retire
voluntarily
under
Voluntarily
Retirement
Scheme
(hereinafter referred VRS) on 21.5.1994
has
sought
a
writ
of
mandamus
commanding respondents to count his
service from 27.5.1964 to 2.6.1973 and to
give him 5 years weightage in calculating
benefit of VRS or in the alternative to let
him continue in service and revoke his
VRS.

2. The facts in brief are that the
petitioner was appointed as Technical
Supervisor
Grade-III
under
Chief
Inspectorate of Textile and Clothing,
Government of India, Ministry of Defence
on 7 May 1964 (Annexure 1). The
appointment was temporary and on
probation of 2 years. He was declared
quasi permanent w.e.f. 1st July 1967
under Rules 3 and 4 of the Civilians in
Defence Service (temporary service)
Rules 1949. In 1973, Export Council of
India (hereinafter referred to as the
''Council') advertised vacancy of technical
officer. The petitioner applied and after
his selection, vide appointment letter
dated 22 September 1973 he was
appointed as technical officer in the pay
scale of Rs.300-600 in the Council. The
appointment
was
temporary
and
terminable without any notice. The
petitioner joined pursuant to the said
appointment at Bhadohi and continued to
work under the said Council. The Council
is an undertaking of Government of India
and a subsidiary company of State
Trading Corporation of India Limited. It
is "State" within the meaning of Article
12 of the Constitution of India. In 1993,
the Council took a decision to close down
export inspection agencies and offered a
golden handshake permitting VRS to its
employees vide scheme dated 21 May
1994
(Annexure
4).
The
petitioner
submitted his option for accepting VRS
on 19th July 1994 along with a
representation that his service rendered as
Technical Supervisor under Ministry of
Defence, Chief Inspector of Textile and
Clothing should be counted for the
purpose of retrial benefits. Respondent
No. 2 accepted his application for VRS on
19th July 1994 itself and he was relieved
on 10 August 1994. In the meantime he
made various representations including
dated
26.8.1998
and
27.6.1998
to
respondent No. 2 to give benefit of the
said period when he has worked in
Government of India. The petitioner also
made a representation to the Director,
Ministry
of Defence and thereafter
preferred this writ petition.

3. The respondents No. 1 to 3 have
filed counter affidavit stating that the
petitioner has not approached this Court
with clean hands and therefore, his writ
petition is liable to be dismissed. He has
received and enjoyed a huge amount
under VRS as long back as in 1995 and
now after lapse of about five years, has
filed this writ petition for reopening an
issue which is a closed chapter. It is
pointed out that VRS scheme was
542 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
accepted by 870 persons including the
petitioner and 991 persons did not accept
but opted to continue in service. Under
the scheme the petitioner has accepted
and was paid over Rs. 3.38 lakhs and now
after such a long time he has filed this
petition. It is also pointed out that earlier
also he filed writ petition No. 43851 of
1999 with same cause of action in which
there were 21 petitioners including the
present petitioner and without disclosing
the factum of the aforesaid writ petition,
this second writ petition has been filed
and therefore, it is liable to be dismissed
under Chapter XXII Rule 7 of the Rules
of the Court. On merits it is pointed out
that there is no provision under law
entitling the petitioner to count his past
services rendered in Ministry of Defence
Government of India. VRS was voluntary
and was not forced upon him. If he was
not satisfied with his option, he should not
have accepted it and petitioner should not
have
received
monetary
benefits
thereunder. It is not open to the petitioner
to resile there from now. The writ petition
is wholly misconceived and is liable to be
dismissed.

4. The petitioner has filed rejoinder
affidavit
wherein
he
has
reiterated
averments made in the writ petition by
generally denying the averments of the
counter affidavit.

We have heard learned counsel for
the parties and perused the record.

5. Assailing VRS Scheme and
seeking a mandamus for giving 5 years
weightage, the petitioner and 20 others
have filed writ petition No. 43851 of 1999
wherein the following reliefs have been
sought.

(A) to issue a writ order or direction in the
nature
of
certiorari
quashing
and
declaring
the
Voluntary
Retirement
Scheme dated 19.7.1994 (Annexure '2' to
the writ petition), as ultravires;
(B) to issue a writ, order or direction in
the nature of mandamus directing the
respondents to permit the petitioners to
work as regular employees of the
respondents as if they have never filled
the form of option under Voluntary
Retirement Scheme dated 19.7.1994;
(C) to issue a writ, order or direction in
the nature of mandamus permitting the
petitioners to discharge their function as
they are performing prior to 19.7.1994
and their continuity of service may be
maintained;
(D) to issue a writ, order or direction in
the nature of mandamus directing the
respondents to grant facilities of 33%
commutation of pension and 67% of
regular pension;
(E) to issue writ, order or direction in the
nature
of
mandamus
granting
the
respondents to grant 5 years of weightage
in
payment
of
ex-gratia
who
has
completed 20 years service;
(F) to issue writ, order or direction in the
nature
of
mandamus
directing
the
respondents to grant all the reliefs which
has been granted to the employees who
have completed 20 years of service, to
those employees also who have not
completed 20 years of service;
(G) to issue a writ, order or direction in
the nature of mandamus to grant all the
reliefs to the petitioners after 19.7.1994
which is being given to other Central
Government employees after retirement,
as per the provision of C.C.S. (Pension)
Rules 1972;
(H) to issue any other writ, order or
direction which this Hon'ble Court may
2 All] J.C. Saxena V. Union of India and others
543
deem fit and proper in the circumstances
of the case;
(I) to award costs in favour of the
petitioners.

6. During the pendency of the said
writ petition, the petitioner has filed the
present writ petition. We found that
reliefs No. 1, 2 and 4 of the present writ
petition are similar to reliefs No. b, c and
e of earlier writ petition. It is also evident
from record that the petitioner in the
present writ petition has not said anything
about his earlier writ petition. Chapter
XXII rule 7 of Allahabad High Court
Rules provides where an application has
been rejected, the petitioner has no right
to move second application on the same
cause of action. The petitioner has made a
declaration in para 1 of the present writ
petition that this is the first writ petition
he has filed for the relief, which he has
sought. Apparently the declaration is false
and incorrect inasmuch as substantial
reliefs which he has sought in this writ
petition are same, which were sought by
him in Writ Petition No. 43851 of 1999.

7. The earlier writ petition of the
petitioner has been dismissed by a
Division Bench by this Court vide order
dated 27.3.2003 observing that there is no
illegality in VRS, petitioners were given
option on their own choice which has
been accepted and they have also
accepted benefit, therefore, no there is no
justification to interfere in the present writ
petition.

8. We are therefore satisfied that
though it is a second writ petition but the
petitioner has not disclosed about the
earlier writ petition. Filing of successive
writ petition on the same fact is not only
against public policy but also amounts to
abuse of the process of the Court.
(Sarguja Transport Service Vs. State
Transport Appellate Tribunal, Gwalior
and others, AIR 1987 SC 88).

9. Learned counsel for the petitioner
sought to argue that there is an additional
prayer in the present writ petition that he
should be given benefit of past service
rendered in Ministry of Defence but this
by itself would not make this writ petition
based on different cause of action.
Admittedly when the earlier writ petition
was filed even this relief could have been
claimed by the petitioner. In Rakesh
Kumar Agarwal Vs. State Bank of
India, Mumbai and others, 2003(3)
ESC 1333 a Division Bench of this Court
held:-

"Even if a party does not pray for the
relief in the earlier writ petition, which he
ought to have claimed in the earlier
petition, he cannot file a successive writ
petition claiming that relief, as it would be
barred by the principle of constructive res
judicata."

10. The same view has been taken
by Full Bench in Farhat Hussain Azad
and others Vs. The State of U.P. and
others, 2005 ACJ 359. A successive writ
petition or second writ petition for the
same cause of action is therefore not
maintainable and liable to be dismissed.

11. Even otherwise we find that by
not disclosing the fact of earlier writ
petition in the present one, the petitioner
is guilty of approaching this Court with
unclean hands.

In Ram Saran Vs. IG of Police,
CRPF and others, (2006) 2 SCC 541, the
Apex Court observed "A person who
544 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
seeks equity must come with clean hands.
He, who comes to the court with false
claims, cannot plead equity nor would the
court be justified to exercise equity
jurisdiction in his favour. A person who
seeks equity must act in a fair and
equitable manner. ..............."

In Ram Preeti Yadav Vs. U.P. Board
of
High
School
and
Intermediate
Education and others, 2003 (Suppl.) 3
SCR 352, it was reiterated after referring
to various earlier decisions of the Apex
Court that fraud misrepresentation and
concealment of material fact vitiates all
solemn acts. In State of Andhra Pradesh
& another Vs. T. Suryachandra Rao,
AIR 2005 SC 3110, the Apex Court after
referring to various earlier decisions held
that suppression of a material document
would also amount to a fraud on the
Court. The same view has been reiterated
in Bhaurao Dagdu Paralkar Vs. State of
Maharashtra & others, AIR 2005 SC
3330. In R. Vishwanatha Pillai Vs. State
of Kerala & others, JT 2004(1) SC 88 the
Apex Court observed that a person, who
seeks equity, must act in a fair and
equitable manner. In Rajabhai Abdul
Rehman
Munshi
Vs.
Vasudev
Dhanjibhai Mody, AIR 1964 SC 345, it
was held that if there appears on the part
of a person, who has approached the
Court, any attempt to overreach or
mislead the Court by false or untrue
statements
or
by
withholding
true
information which would have a bearing
on the question of exercise of the
discretion, the Court would be justified in
refusing to exercise the discretion or if the
discretion has been exercised in revoking
the leave to appeal granted even at the
time of hearing of the appeal. The same
view was reiterated and followed in Vijay
Syal & another Vs. State of Punjab &
others (2003) 9 SCC 401.

12. A litigant who has approached
this Court in extra ordinary equitable
jurisdiction with unclean hands, his
conduct makes him liable to pay an
exemplary cost for abusing the process of
the Court besides wasting precious time
of the Court which could have been
utilized for other more deserving cases.
Moreover, he is also guilty of swearing a
false affidavit. Thus the petitioner must be
saddled with the liability of heavy cost so
that in future such thing may not recur.

13. The writ petition is accordingly
dismissed
with
cost
quantified
at
Rs.10,000/-. The cost of Rs.10,000/- shall
be deposited by the petitioner within two
months with the Registrar General of this
Court, who shall forward 50% thereof to
the Legal Aid Society of Allahabad High
Court and 50% to the Mediation Centre,
Allahabad High Court. In case of failure
by the petitioner to pay the amount of
cost, it shall be recovered as arrears of
land revenue for which the Registrar
General
of
this
Court
shall
take
appropriate steps.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.05.2007

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE V.C. MISRA, J.

First Appeal From Order No. 639 of 1992.

Ramesh Prasad Tripathi and others
...Appellants
Versus
Ibrahim and others
...Respondents