TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 1067
X X X X Extracts X X X X
X X X X Extracts X X X X
....r and issuing of the impugned penalty notice and after going through the same and examining the question of legality thereof quash, cancel and set aside the impugned notice dated 30th March, 2015 (Exhibit C), impugned order dated 19th August, 2015 (Exhibit M) and impugned penalty notice dated 24th August, 2015 (Exhibit Q). (b) that this Hon'ble Court may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus, or any other appropriate Writ, Order or Direction under Article 226 of the Constitution of India, ordering and directing the Respondents to withdraw the impugned notice dated 30th March, 2015 (Exhibit C), impugned order dated 19th August, 2015 (Exhibit M) and impugned penalty notice dated 24th August, 2015 (Exhibit Q);" 2. Upon such petitions and on copies thereof being served, an affidavit in reply in each of these petitions has been filed on behalf of the respondents in which they have raised a preliminary issue to the maintainability of these petitions. The argument is that this very petitioner had filed a earlier petition being Writ Petition No.2823 of 2015 on the same cause of action and claiming identical reliefs, as are reproduced above. Tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4th December, 2016, coupled with the likelihood of change in assignments, post vacation, it may not be advisable to hear the Petitions partly i.e. only on one issue. Therefore, it would be best that Petition be heard fully at the stage of admission by the Bench hearing Income Tax matters post vacation. 6 We, therefore, adjourn the hearing of this Petition to 18th January, 2017 at a date convenient to both parties. 3. It is then claimed that the earlier petition was placed on 1722017 and noting the earlier order, this Court had heard the petition for some time on 1522017 but eventually on 1722017 it passed the following order: "2. Thereafter the petition was heard for sometime on 15th February, 2017 and then it was adjourned to today and shown as part heard. 3. Today Mr. Mistri, learned Senior Counsel appearing for the petitioner seeks to withdraw these petitions. 4. Petition's are allowed to be withdrawn. 5. Adinterim orders, if any, stand vacated. 6. Petitions dismissed as withdrawn. No order as to costs." 4. Mr. Anil Singh, learned Additional Solicitor General, appearing for the respondents, would rely upon the first affidavit in reply filed on behalf of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s status, particularly about his citizenship. He suppressed the fact that he was an Indian resident, according to the respondents. However, according to Mr. Mistri, the record would indicate that despite prolonging the matter, seeking to reopen the assessment and after a substantial period, it is discovered that there is no suppression. There is no suppression of the material fact which was sought to be highlighted in the earlier round of litigation. If there is no such suppression and that is evident from the statement made in para 10 of the additional affidavit in reply tendered today, then, this Court should not uphold a hypertechnical objection. Mr. Mistri would rely upon the averments in the earlier petitions and the present petitions about the status of the petitioner. Mr. Mistri submits that the allegation is that there was a misstatement about a material fact in the earlier writ petitions and when it is discovered now, there is no such misstatement on a material fact, then, the effect of the orders passed in the earlier petitions should not influence the maintainability of the present writ petitions. 9. Mr. Mistri would submit that in the later Judgments of the Hon'ble....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tizenship, but the fact remains that the entire memo reveals a challenge to that very notices and order, namely, 3032015, 1982015 and 2482015. 13. It is common ground that the earlier writ petitions were heard by this Court on several occasions. When Writ Petition No.2823 of 2015 was heard on 21122016, the learned Additional Solicitor General pointed out that the petition should not be entertained for it contains incorrect statements. Thus, incorrect statements were referred to and extensively in the order passed on 21122016. When the order was passed on 21122016, the Court noted that the petitioner is making an attempt to satisfy it that there is no suppression of any material fact. However, the hearing of the earlier writ petition was adjourned and when it was placed on 1522017, it was argued and was treated as a partheard case. When it was placed again on 1722017, the above reproduced order came to be passed. 14. At this stage, one must notice the Judgment in the case of Sarguja Transport Service (supra), which is heavily relied upon by the Additional Solicitor General. The appellant before the Hon'ble Supreme Court, Sarguja Transport Service, alleged that on the expiry of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... petition. Besides, we do not find any merit in this petition. The Appellate Tribunal has granted the permit to the respondent No.3 as he has been found superior to the petitioner. Besides, he being a practising lawyer could not be doing the transport business. Similar petition of other operators has already been dismissed by this Court. Accordingly, the petition is dismissed summarily." 15. Aggrieved by this order of the High Court dismissing the writ petition at the stage of admission, Sarguja Transport filed a Special Leave Petition in the Hon'ble Supreme Court. The main contention was that the High Court was in error in rejecting the writ petition out of which the cases arises, on the ground that the petitioner had withdrawn the earlier writ petition without permission of the High Court to file a fresh petition. The argument canvassed precisely was that the earlier petition was not decided on merits but simpliciter withdrawn. That would not constitute a bar to the maintainability of the second/subsequent writ petition. Pertinently, the cause of action was identical, so also reliefs and the parties. The precise argument before the Hon'ble Supreme Court was that Arti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssion of the Court to file a fresh suit after establishing either of the two grounds mentioned in subrule (3) of R. 1 of O. XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit. or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in subrule (4) of R. 1 of O. XXIII of the Code when the first suit is withdrawn with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inciple underlying R. 1 of O. 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 the ground of public policy as explained above. It would also discourage the litigant from indulging in benchhunting 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 Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Art. 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subjectmatter since the earlier writ petition had been withdraw....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d rates. That petition was placed before a learned single Judge of the Allahabad High Court who passed the order quoted in para 3 of the Judgment of the Hon'ble Supreme Court. That order remained alive for a period of less than two years until the Hon'ble Supreme Court interfered with it and as noted in para 4. 19. Undaunted by the order of the Hon'ble Supreme Court, a new writ petition was filed in the Allahabad High Court by the very petitioner Upadhyay in which, on 2331997, a Division Bench passed the order quoted in para 5. The State of Uttar Pradesh challenged that order by a Special Leave Petition in the Supreme Court and when it was pending, another Division Bench of the High Court vacated the earlier order dated 2331997. When the said development was brought to the notice of the Hon'ble Court, the Special Leave Petition came to be disposed of. Then the petitioner being aware of the said order of the Hon'ble Supreme Court adopted another strategy by reporting to the High Court that he was not pressing his earlier petition of 1991. The Division Bench before which that writ petition was placed was alerted on account of several intervening circumstances. It....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... could not be moved. In the meanwhile, the writ petition came up for preliminary hearing, notice was issued. In the meanwhile, the trial Court took up the application for withdrawal of the suit and allowed the withdrawal on 3042001. A learned single Judge of the Delhi High Court, however, dismissed the writ petition on the ground of suppression of material facts. The intracourt appeal was also dismissed on the same ground. 23. That is why the appellant approached the Supreme Court and urged that as on the date of the hearing of the writ petition, the suit already stood withdrawn and in such circumstances the writ petition could not have been dismissed on the ground of availability of alternate remedy. It is in this context that all the observations relied upon by Mr. Mistri have been made. We cannot forget this context and the background. Secondly, existence of an alternate remedy by itself and without anything more may not be a relevant factor as the Hon'ble Supreme Court holds but additionally even if that remedy is existing, efficacious, still, it is the discretion of the High Court to entertain a writ petition despite the existence of an alternate, equally efficacious reme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ved on 1152007. 26. It is in this context that the challenge raised by the workmen to the maintainability of the second closure application was decided by this Court. The writ petition was filed in the Bombay High Court by the workmen praying that the Deputy Commissioner of Labour should be directed not to take any further proceedings in relation to the second/fresh application for closure. However, that writ petition was dismissed. Hence, the Special Leave Petition. 27. It is in this context that the argument of the workmen/Union and relying upon Sarguja Transport (supra) was considered by the Supreme Court. Pertinently, Sarguja Transport's was a case of a writ petition filed in the High Court, withdrawn unconditionally and without liberty and thereafter a second writ petition in the High Court on the same cause of action. The Hon'ble Supreme Court in Sarva Shramik Sanghatana (supra) refused to extend the principle therein to the maintainability of the second closure application. Thereafter, the Hon'ble Supreme Court found and relying upon the observations in paras 8 and 9 of Sarguja Transport reproduced above, that Bench hunting should not be permitted. However, in ....