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Judgment
D.K. Seth, J.—This is an application for review of the order dated 23.9.1996 disposing of the Writ Petition No. 30171 of 1996 on the ground that the Petitioner who was a proper and necessary party, was not impleaded in the said writ petition and that the writ petition suffers from suppression of material facts and the dispute sought to be referred u/s 16A(7) of the U.P. Intermediate Education Act being frivolous one, could not have been referred to.
Sri A. P. Sahai, learned counsel for the applicant in the application for review has contended that in absence of proper and necessary party the writ petition was not maintainable and, therefore, the order disposing of the same is liable to be recalled. He contends further that the Committee of Management of which the applicant is the Manager was elected on 11.3.1996, his signatures was attested on 14.3.1996 by the District Inspector of Schools. Bhadohi. The dispute u/s 16A (7) of the Act between four group of people claiming to be in effective control of the institution was decided by decision dated 11.11.1994 by the Deputy Director of Education. In the said decision the claim of the writ Petitioner was rejected on the ground that he was not even a member of the general body. The above facts having not been brought on record, the Court was misled to pass the aforesaid order by reason of deliberate concealment of material facts. He has also contended that one of the parties to the said decision dated 11.11.1994 had challenged the said order by means of a writ petition and having been unsuccessful had filed a suit. The application of the writ Petitioner to get himself added as a party in the said suit stood dismissed. Thus, the writ Petitioner had never challenged the order dated 11.11.1994. Therefore, this is a fit case where the applicant should be allowed to be added as a party to the writ petition and thereafter to review the said order disposing of the writ petition or in the alternative the order should be recalled.
Dr. Padia, learned counsel for the writ Petitioner on the other hand contends that the writ Petitioner was never aware of any election, as alleged. He has assailed the election held on the ground that the life of the Committee of Management was to expire in May, 1996, whereas the alleged election had taken place on 11.3.1996, for which process ought to have been initiated in January, 1996 and attestation was done on 14.3.1996. Therefore, It was not necessary to implead the applicant, who has not disclosed or indicated in his application as to how and in what manner the election had taken place. According to him the election held by the writ Petitioner was undertaken after it was published in the newspaper, which are Annexures 1 and 2 to the petition respectively in April and May, 1996. Despite such advertisement the applicant did not issue any counter advertisement claiming themselves to be the Committee of Management.
Dr. Padia, learned counsel for the writ Petitioner contends that the applicant not being a party to the writ petition cannot seek review of the order disposing of the same. The court becomes functus officio as soon as the writ petition is disposed of. Therefore, there cannot be any scope of reviewing the order on the basis of application made by the applicant. According to him, there cannot be any impleadment after the matter is disposed of inasmuch as the review application can be entertained only after the applicant is added as a party. The applicant cannot be added as a party in a disposed of matter.
In reply to the above contention of Dr. Padia. Sri Sahai learned counsel has relied on various decisions to which I shall refer to at the appropriate stage.
On the basis of the submission made by Mr. Sahai and Dr. Padia the fact as is obtained in the present case are that there was a dispute between four groups with regard to the claim of the Committee of Management which was ultimately decided by an order dated 11.11.1994 wherein it was held that the Committee of Management headed by the Manager Sri Ram Achal Dubey, was in effective control of the Institution and duly elected management thereof and accordingly recognition was granted to the said Committee of Management. Admittedly, the election had taken place on 11.5.1993. Therefore, the life of the Committee of Management was due to expire in May 1996. At the same time the claim of Sri Prabhu Nath Misra and Sri Dridwat Misra as the second group and Sri Surendra Nath Burnwal as the third group, were held to have no claim because of the reasons that their member list was not approved and that they have not been able to prove that they were members of the general body and that none of them has any effective control over the Management of the institution. This order was challenged by means of writ petition by Sri Prabhu Nath Misra and Sri Dridwat Misra. But it was never challenged by Sri Surendra Nath Burnwal. The said writ petitions were rejected by this Court. Thereupon Sri Prabhu Nath Misra filed Original Suit No. 33/96 in the Court of Civil Judge (Senior Division), Bhadohi. In the said case the application under Order 1, Rule 10 of the CPC filed by Sri Surendra Kumar Burnwal, claiming himself to be lawfully registered Committee of Management of the institution, was rejected by an order dated 17th July, 1996 on the finding that there was no basis of his claim. Aggrieved by the said order Sri S. N. Burnwal filed Civil Revision No. 33 of 1996 before the Additional District Judge, Bhadohi. The said revision was also dismissed by an order dated 16.8.1996. The present writ petition was moved after rejection of the said application on 17.9.1996. The fact remains that in the writ petition a reference has been made to the order dated 11.11.1994 but no particulars thereof were either disclosed or the fact that the said order having been challenged in the writ petition by one of the other claimant stood dismissed and that the Petitioner did not challenge the same at all has not been disclosed. It was also not brought to the notice of this Court that the dispute has once been decided in the manner concerned in the order dated 11.11.1994. Nothing was disclosed about filing of the suit by Sri Prabhu Nath Misra and rejection of the application of the writ Petitioner to get himself added in the said suit.
In the facts and circumstances of the case, the above facts were very much material for the purposes of determining real question at issue in the said writ petition. Admittedly the writ Petitioner was held not to have any claim over the management. Therefore, by no stretch of imagination the writ Petitioner could have held election and it is only the Committee of Management can hold election. An outsider and stranger cannot hold any election. Such stranger cannot claim to raise any dispute with regard to the Committee of Management. Such a situation would be brought about negative impact treating great, difficulty. After the order dated 11.11.1994 the writ Petitioner had a remedy only by means of civil suit and not otherwise, which the writ Petitioner had never undertaken. On the other hand without disclosing the material facts the writ petition was moved and order was obtained which though appears to be very innocuous but would have devastating effect in the matter which has so been settled in the order dated 11.11.1994 and the claim in respect whereof is sending determination in the civil suit in which the writ Petitioner was unsuccessful in getting self added. The order that has been passed would have the effect of pre-empting the decision in the civil suit and negativating the impact of the order dated 11.11.1994. On the face of it the claim laid by the writ Petitioner appears to be frivolous. The ground lost by the writ Petitioner in the order dated 11.11.1994, has been sought to be regained by means of the order sought to be reviewed keeping the court in dark about the material facts which the writ Petitioner was duty bound to disclose. In case such a situation is allowed to continue the same would amount to allowing premium to designing people, who comes with unclean hands and obtains order by concealment of facts. Such a manoeuvre is nothing but an abuse of process of law and deliberate attempt to mislead the Court. It is very difficult to accept that the writ Petitioner did not know that there was any other claimant claiming to have held election of the institution, because of the reasons that he had been fighting long drawn battle which can very well be ascertained by simple method of seeking Information from the Office of the District Inspector of Schools as to whether any claim has been lodged by any other group.
Then again the writ Petitioner did not challenge the said order dated 11.11.1994. Nor he had filed any suit for establishing his right. Once it is held that the Committee of Management of the writ Petitioner was not in effective management of the School and the Committee of Management of the applicant was recognised, the writ Petitioner is precluded from holding any election. It is only the Committee of Management recognised can hold the election within the life time or the grace period of one month of expiry of life. Therefore, the claim of the writ Petitioner to have held the election appears to be frivolous.
In absence of these relevant facts it was not possible to decide as to whether the Petitioner had legal right which he can enforce by invoking writ jurisdiction reason of such concealment the court had proceeded on the basis that the writ Petitioner had a legal right and on the basis whereof the court had invoked its writ jurisdiction to enforce such legal right when on the facts disclosed it is abundantly clear that the Petitioner did not have any such legal right. The Petitioner had misled the court to believe that the Petitioner had a legal right by clever manoeuvre through which he had fraudulently managed to obtain the above order for reviving his claim since lost long before.
Thus, it appears that the court had been led to commit an error in passing the aforesaid order which appears to be apparent on the face of the record and thereby gave rise to a situation where great injustice is supposed to ensue.
Now with regard to the question of court''s jurisdiction to review its own order on the basis of application made by stranger, not being a party to the writ petition, Dr. Padia, has sought to assail the same on the ground that the order is not a kind of order as has been described in the decision in the case of Shivdeo Singh v. State of Punjab. As observed earlier, the order which has been sought to be reviewed, satisfies the test laid down in Para 8 of the said judgment in the case of Shivdeo Singh (supra) which are reproduced below:
(8) The other contention of Mr. Gopal Singh, pertains to the second order of Khosla, J., which in effect, reviews his prior order. Learned counsel contends that Article 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without Jurisdiction. It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J., affected the interests of persons who were not made parties to the proceedings before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the Respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though" their interests were sought to be affected, by the decision of the High Court, that the second application was entertained by Khosla, J.
The above argument of Dr. Padia was secondary but his primary argument on the point was that the court become functus officio as soon the writ petition is disposed of, particularly in view of the fact that a person who has not been made a party has a right to prefer an appeal, as has been envisaged in the Allahabad High Court Rules, being Chapter X, Rule 1 read with Rule 7 thereof. Therefore, there is no scope for adding the stranger as a party to the proceeding and then to allow the application for review.
In the case of M.V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, , it has been held that while exercising writ jurisdiction the High Court being a court of plenary jurisdiction is vested with the power to review its own order which is inherent in it. The said proposition cannot be doubted and which is by now an accepted proposition in the legal arena. Now the question to implead a party after the writ petition is disposed of is very difficult proposition to establish. But at the same time in case of mistake committed by the court it is for the court who has to correct it. The court cannot be expected to be an idle onlooker or powerless to correct its own mistake in cases where such mistake is a glaring one. As soon it is brought to the notice of the court through any source the court has power to recall its order even without adding a person or source from which such information is forthcoming. The Apex Court in the case of Shivdeo Singh (supra) has recognised the principle that in cases which come within the ambit as specified in Para 8 of the said decision the court has every right to implead a stranger and to do justice by recalling its own order. The present case, in my view, comes within the ambit and scope of the said decision in the case of Shivdeo Singh and therefore, there is no scope to resile from the ratio decided in the said case.
Mr. Sahai contends that admittedly, the writ Petitioner has to blame himself for bringing about such a situation to pass which he ought not to have done in the manner he has done it. If such a conduct of a person is spared the Court''s process would become more prone to abuse. A person while affirming a petition on oath he is not supposed to conceal or suppress some facts. The suppression or concealment of facts is a grave misdemeanour on the part of a person affirming the affidavit. A person swearing an affidavit must be aware of the responsibility cast on him. In the present case the responsibility having not been discharged and on account of great misdemeanour on the part of writ Petitioner it is necessary that he should be made aware of the consequences of such endeavour which should convey a message down the line so as to create an example for being set down so as to deter such misdemeanour by the Petitioner himself as well as others who may come to know of such a situation.
In my view the submission of Mr. Sahai appears to be full of substance inasmuch as on perusal of the records it appears that the contention raised by Mr. Sahai is supported by the material placed before the court. But at the same time it must be remembered that the writ petition has since been disposed of. As soon the writ petition is disposed of the court become fundus officio except for certain purposes. Giving right to the stranger to get himself added as a party to the proceeding, after the writ is disposed of, might have devastating effect and would open flood gate of proceeding forestalling the conclusion of the decision which appears to be susceptible of being misused. The procedural method and system is introduced in order to bring about an efficient system of dispensing Justice. Such a remedy may not be helpful in dispensing Justice namely in that matter it might prolong litigation indefinitely. So long the writ petition is pending a stranger may apply for being-added as a party, as provided in Rule 5A, Chapter XXII of the Allahabad High Court Rules, 1952 read with Order 1, Rule 10 of the Code of Civil Procedure. The court may also if necessary suo motu add a stranger party to the proceeding if it so feels necessary, in the given facts and circumstances of the case, in terms of Rules 2 (i) and (8), Chapter XXII of Allahabad High Court Rules. But as soon the matter is disposed of even if the order is contained in abuse of process in that event it was necessary for the court itself to correct the wrong or undo the injustice done because of its being misled, by reason of suppression of facts or otherwise and the court is empowered to do so as has been held in the decision cited above. Inasmuch as the remedy as provided in Shivdeo Singh''s case (supra) is a desperate remedy in a desperate need. Though, however such power is inherent in the court but the same is dependent on the individual facts and circumstances of the case, which again is to be exercised only in exceptionally deserving cases. Normally such power is the power which is inherent in Justice dispensing system to undo injustice, particularly when the court is exercising Jurisdiction under Article 226 of the Constitution, which is primarily an equitable Jurisdiction. Where equity demand procedure can be molded to the need and requirement in desperate cases for dispensing Justice. But the court normally exercises such power with care and caution and to certain amount of restriction. Such desperate remedy in desperate need is resorted to in exceptional cases when there is no alternative left.
While framing Allahabad High Court Rules the framers of the Rules were alive of the situation, due to which proviso in Rule 2 (i) read with Rule 6A and Chapter XXII has been made so as to render complete justice during the continuance of the case. The situation where the order passed in a case affecting right of stranger has also been conceived after such a case is disposed of without such stranger, being a party to the proceeding. Therefore, the framer had recognised the right of stranger to protect his interest. While recognising such right the framer had introduced in the form of Rule 5, Chapter VIII and Rule 10, Chapter IX and Rule 1 read with Rule 7, Chapter X enabling the stranger to assail the decision affecting his right rendered in a case where he was stranger. Therefore, specific procedure having been laid down in the rule itself desperate need has the remedy provided in the Rule itself, by reason whereof necessity to resort to desperate remedy evaporates. When there is existence of specific remedy available it is not necessary to resort to extraordinary or desperate remedy. The inherent powers are exercised when there is no remedy available and the procedure does not provide any adequate relief. The court exercises its inherent power without being saddled by the procedural quagmire. But herein the case the procedure is not obstacles in the matter of rendering justice.
Special Appeal is provided in Rule 5, Chapter VIII. Admittedly an appeal can be preferred by a person aggrieved though he may not be a party to the proceeding, by leave of the court. However, specific provision have been provided. The procedure for preferring an appeal is provided in Rule 10, Chapter IX specifying that a person desiring to prefer special appeal may present the Memorandum. The expression has not confined procedure only with regard to the party to the proceedings. A person though not party, if desired, may file an appeal Rule 1, Chapter X of the said Rules provides right of appeal to a person whose interest is affected specifying characteristic of such person in clauses (a), (b), (c) and (d). The said four clauses does not include absolute stranger. The characteristic provided in the said clauses does not comprehend the present applicant within its fold and ambit. In order to come under Rule 1, Chapter X, such person has to be; (a) legal representative of the deceased party; (b) an assignee of a party obtaining assignment subsequent to the decree; (c) beneficiary of the property in the hands of the trustee etc., who were party of the property in the hands of the trustee etc., who were party to such decree; and (d) a person acquiring interest after the decree by reason of creation or devolution of interest by through or from a party to the decree.
In the present case the applicant does not come within any of the four categories. Neither the applicant nor its predecessor-in-interest was made a party to the proceeding. He is altogether a stranger and not claiming through any party to the proceeding. By reason of Rule 7 of Chapter X, the provisions of Rule 1 of Chapter X is equally applicable to an application for review or revision. In the present case the present application is an application for review. But then the applicant does not come within the scope and ambit of Rule 1.
The procedure are handmaids of justice, therefore when it is necessary in the interest of justice that the procedure cannot be allowed to overshadow the Justice. In a case where wrong order has been passed by the court for some reason or the other, it is the court itself which is duty bound to undo such wrong without being frettered by any procedural tentacles. Here is the case where the court was misled to pass the order impugned, as observed earlier. In my view this one is a fit case where this Court should activate itself in undoing the wrong done by it being unaware of the facts now brought before it. In such cases even if the court may not allow the applicant to be added as a party but even then on the basis of information brought before the court it is well within the court''s discretion to act upon the same when it is satisfied that it had passed wrong order because of the absence of those informations which are now brought to its notice. In such cases the court is empowered to act suo motu as soon it becomes aware that it had passed a wrong order because of absence of adequate information and that its attention was not drawn to a particular set of facts, which if were noted, the court would nor have passed the order. A person obtaining such an order cannot be allowed to reap the benefit of an order passed in exercise of equity jurisdiction, in view of the principles that the person seeking equity to be exercised in his favour, must come with clean hands, which is not a case in the present one. The writ Petitioner having come with unclean hands he cannot be allowed to reap the benefit of his misdemeanour.
I have taken such a view for the purposes of maintaining sound and efficient Justice dispensing system. In case such cases are overlooked there would be encouragement in opening up a scope of attempting to over-reach the system. In case Justice is bonded within the labrynth of procedural quagmire it would be allowing premium to a person seeking to abuse the process of law.
In that view of the matter the order sought to be reviewed being order dated 23.9.1996, aforesaid, is hereby recalled. In the facts and circumstances of the case the writ petition is dismissed, both on the ground of merit as well as suppression of material facts, as indicated above. In order to create an example the writ Petitioner should be made to pay a cost of a sum of Rs. 5,000 which would be recoverable by the applicant, so as to convey a proper message about the responsibility of general litigants.
The application for review is thus allowed and disposed of.