Arunima Baruah v. Union of India, (SC) BS129385
SUPREME COURT OF INDIA

Before:- S.B. Sinha and Markandey Katju, JJ.

Civil Appeal No. 2205 of 2007 [Arising out of SLP(Civil) No. 9283 of 2006]. D/d. 27.4.2007.

Arunima Baruah - Appellant

Versus

Union of India & Ors. - Respondents

For the Appellant :- Ms. Lata Krishnamurthy, Ms. Rekha Pandey, Saurab Ajay Gupta and Raj Kumar Tanwar, Advocates.

For the Respondents :- Nikhil Nayyar and Ankit Singhal, Advocates.

A. Writ jurisdiction - Suppression of material facts - Discretionary jurisdiction - Material fact would mean material for the purpose of determination of the lis - If the fact suppressed is not material for determination of the lis between the parties, the Court may not refuse to exercise its discretionary jurisdiction - Lis may be viewed from the human rights concept of access to justice.

[Paras 10 and 11]

B. Two parallel remedies - Court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter.

[Para 13]

C. Ubi jus ibi remedium - Suppression of facts - The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing.

[Para 16]

D. Constitution of India, Article 226 - Writ jurisdiction - Suppression of facts - Judicial Review - Appellant filing writ petition when civil suit was pending but no order of interim injunction was passed - It was obligatory on the part of the appellant to disclose the said fact - However suppression of filing of the suit was no longer a material fact - Second writ petition disclosing all the facts - With a pair of clean hand - Court will be entitled to determine the case on merits - Judicial review is a basic feature of the Constitution.

[Para 14]

Cases Referred :-

S.J.S. Business Enterprises (P) Ltd. v. State of Bihar, [(2004)7 SCC 166]

Dwarka Prasad Agarwal (D) by Lrs. v. B.D. Agarwal, 2003(4) RCR (Civil) 258 : (2003)6 SCC 230.

Bhagubhai Dhanabhai Khalasi v. State of Gujarat, 2007(5) SCALE 357].

Hatton v. United Kingdom, 15 BHRC 259.

Zee Telefilms Ltd. v. Union of India, (2005)4 SCC 649.

Moody v. Cox [1917(2) Ch 71]

Dering v. Earl of Winchelsea 1 Cox, 318

Jai Narain Parasrampuria (Dead) v. Pushpa Devi Saraf, (2006)7 SCC 756]

Meyers v. Casey [(1913)17 CLR 90]

Jai Singh v. Union of India [(1977)1 SCC 1]

M/s. Tilokchand and Motichand v. H.B. Munshi [(1969)1 SCC 110]

Chandra Bhan Gosain v. State of Orissa, AIR 1967 Supreme Court 767.

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. How far and to what extent suppression of fact by way of non-disclosure would affect a person's right of access to justice is the question involved in this appeal which arises out of a judgment and order dated 23.07.2003 passed by the High Court of Delhi in LPA No. 68 of 2003.

With a view to advert to the said question, we may notice the admitted facts.

3. Indian Council for Child Welfare is a Society registered under the Societies Registration Act and is governed by its Memorandum of Association as well as Rules and Regulations framed thereunder. Appellant herein was an employee of the said Society which is a 'State' within the meaning of Article 12 of the Constitution of India. She was offered an appointment. Her services, however, were terminated allegedly without complying with the principles of natural justice despite the fact that she was confirmed in her service.

4. Appellant filed a suit in the District Court on 28.03.2001. An application was filed for grant of injunction. On or about 9.04.2001, only a notice to the defendant was issued but no order of ad-interim injunction was passed. She filed a writ petition before the Delhi High Court on 10.04.2001. Admittedly, in the said writ petition, the fact in regard to pendency of the said suit was not disclosed. However, before the writ petition came up for preliminary hearing, she filed an application for withdrawal of the suit on 12.04.2001. The said application allegedly could not be moved because of the strike resorted to by the lawyers. The writ petition came up for preliminary hearing on 18.04.2001. A notice was issued therein. Her application to withdraw the suit dated 12.04.2001 came up for consideration before the Civil Court and upon a statement made by her, the same was permitted to be withdrawn by an order dated 30.04.2001. The writ petition, however, was dismissed by a learned Single Judge of the Delhi High Court by an order dated 29.11.2002, opining :

5. An intra-court appeal preferred thereagainst has been dismissed by the impugned judgment stating :

6. Ms. Lata Krishnamurthy, learned counsel appearing on behalf of the appellant, would submit that the learned Single Judge as well as the Division Bench of the High Court failed to take into consideration that in the rejoinder filed by the appellant to the counter affidavit of the respondents, the circumstances in which the writ petition was moved as also the legal advice on which the appellant had acted were disclosed.

7. The learned counsel would submit that as on the date of hearing of the writ petition, the suit already stood withdrawn, the question of dismissal of the writ petition on the ground of availability of alternative remedy would not arise and, thus, the writ petition could not have been dismissed on that premise. Strong reliance in this behalf has been placed on S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Others [(2004)7 SCC 166]

8. The learned counsel appearing on behalf of the respondents, however, would submit that as a writ court exercises a discretionary jurisdiction, it can refuse to do so when material facts have been suppressed.

9. On the one hand, judicial review is a basic feature of the Constitution, on the other, it provides for a discretionary remedy. Access to justice is a human right. [See Dwarka Prasad Agarwal (D) by Lrs. and Another v. B.D. Agarwal and Others, 2003(4) RCR (Civil) 258 : (2003)6 SCC 230 and Bhagubhai Dhanabhai Khalasi & Anr. v. The State of Gujarat & Ors., 2007(5) SCALE 357] A person who has a grievance against a State, a forum must be provided for redressal thereof. [See Hatton and Others v. United Kingdom, 15 BHRC 259. For reference see also Zee Telefilms Ltd. v. Union of India, (2005)4 SCC 649]

10. The court's jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands but to what extent such relief should be denied is the question.

11. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.

In Moody v. Cox [1917(2) Ch 71], it was held :

12. In Halsbury's Laws of England, Fourth Edition, Vol. 16, pages 874-876, the law is stated in the following terms :

[See also Snell's Equity, Thirtieth Edition, Pages 30-32 and Jai Narain Parasrampuria (Dead) and Others v. Pushpa Devi Saraf and Others, (2006)7 SCC 756]

In Spry on Equitable Remedies, Fourth Edition, page 5, referring to Moody v. Cox (supra) and Meyers v. Casey [(1913)17 CLR 90], it is stated :

Although the aforementioned statement of law was made in connection with a suit for specific performance of contract, the same may have a bearing in determining a case of this nature also.

In the said treatise, it was also stated at pages 170-171 :

In S.J.S. Business Enterprises (P) Ltd. (supra), it was stated :

13. There is another doctrine which cannot also be lost sight of. The court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter. [See Jai Singh v. Union of India and Others, (1977)1 SCC 1] But, where one proceeding has been terminated without determination of the lis, can it be said that the disputant shall be without a remedy ?

14. It will be in the fitness of context to notice M/s. Tilokchand and Motichand & Others v. H.B. Munshi and Another [(1969)1 SCC 110] wherein it is stated :

15. Existence of an alternative remedy by itself, as was propounded in S.J.S. Business Enterprises (P) Ltd. (supra) may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction but it is another thing to say that the court refuses to do so on the ground of suppression of facts.

16. Ubi jus ibi remedium is a well known concept. The court while refusing to grant a relief to a person who comes with a genuine grievance in an arguable case should be given a hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this case, however, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact.

17. In this case, however, suppression of filing of the suit is no longer a material fact. The learned Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the court's jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India.

18. The judgment of the High Court, in a case of this nature, shall not operate as a res judicata.

19. For the reasons aforementioned, while we uphold the judgment of the High Court, are of the opinion that in the event the appellant files a fresh writ application, the same may be considered on its own merits. The appeal is dismissed with the aforementioned observations. No costs.

Appeal dismissed.