M/S Maya Press Pvt. Ltd. And Anr. vs Union Of India Thru. Prin. Sec. And ...
2015 Latest Caselaw 5552 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Special Appeal No. (647) of 2015
 

 
M/s. Maya Press Pvt. Ltd. & Anr.	-------			Appellants
 
						Versus
 
Union of India & Ors.			-------			Respondents
 

 
Hon'ble Krishna Murari, J.

Hon'ble Amar Singh Chauhan, J.

(Delivered by Hon'ble Krishna Murari, J.)

This intra court appeal under the Rules of the Court is directed against the judgment and order dated 31.07.2015 passed by learned Single Judge dismissing the Writ Petition No. 39655 of 2015.

First appellant is a company incorporated under the provisions of the Companies Act, 1956 having registered office at 281 Muthiganj, Allahabad and the second appellant is the Director of the company. Both the appellants filed writ petition seeking a writ of certiorari to quash the notice dated 22.05.2015 issued by Assistant Regional Provident Fund Commissioner/Recovery Officer, respondent no. 3 herein under Section 8-B (i) of the EPF & MP Act, 1952 (hereinafter referred to as Act, 1952) and Income Tax Act, 1961 issued to appellant no. 2 to show cause why he may not be detain in civil prison for failure to satisfy the demand raised by Recovery Certificate RRC No. 5065 dated 20.04.2001, 40731 dated 08.04.2004, 45857 dated 27.04.2000 for a sum of Rs.71,81,297/- and has also failed to pay the interest under Section 7Q of the Act, 1952.

An objection was raised by the respondents in the writ petition that the present petition is the second petition for the same cause of action. Learned Single Judge after hearing the matter on 20th July, 2015 passed the following order.

"By means of present writ petition, the petitioners have prayed for rejecting the impugned recovery notice dated 22.5.2015 under Section 8-B (i) of the EPF & MP Act, 1952 and the Income Tax Act, 1961 issued by the respondent no.3 to the petitioner no.2 and further prayed for direction to the respondents to decide the petitioner's representation dated 11.1.2014and 4.7.2014 after affording due opportunity of hearing to the petitioners.

Shri Amit Negi, learned counsel for the contesting respondents states that the petitioner had earlier filed Writ Petition No.11936 of 2009 (M/s Maya Press (P) Ltd. & Anr. v. Union of India & Ors.) for quashing the warrant of arrest dated 26.11.2008 issued by the Recovery Officer, Employees Provident Fund Organization, Varanasi, pursuant to the recovery certificate issued under Section 8-C of the Employees Provident Fund and Misc. Provisions Act for recovery of Rs.71,81,297/-. This Court vide order dated 6.3.2009 had disposed of the writ petition with following observations:-

"The petitioners will file an application under Section 8-E of the Employees Provident Fund and Miscellaneous Provisions Act before the authorised officer seeking time to make the payment. This application shall be filed on or before the 31st March, 2009. If such an application is filed, the authority will pass appropriate orders on the said application expeditiously after affording an opportunity of hearing to the petitioners. In the meantime, the warrant of arrest dated 26.11.2008 shall remain in abeyance till the disposal of the petitioners' application provided the petitioners deposits a sum of Rs. twenty lac within four weeks from today.

The writ petition is disposed of.

A certified copy of this order shall be made available to the petitioners on payment of usual charges within 24 hours.

Shri Negi, learned counsel for the respondents submits that there is material concealment in the matter. Nowhere it has been averred regarding the previous writ petition. He further apprised to the Court that in compliance of the order passed by this Court the petitioner had also not deposited Rs.20 lacs within stipulated time and had filed Special Appeal No.670 of 2009 (M/s Maya Press (P) Ltd. & Anr. v. Union of India & Ors.) assailing the aforesaid order dated 6.3.2009. The special appeal was dismissed by order dated 6.5.2009. It is submitted that the petitioner had deliberately violated the earlier order even though the same had attained finality on the ground that the appeal was also rejected and as such no interference may be made in the present writ petition. This writ petition may be treated as second writ petition for the same cause of action.

Shri Krishna Mohan, learned counsel for the petitioners prays for week's time to obtain instructions in the matter. Put up this matter on 27.7.2015 as fresh."

When the matter was taken up subsequently, the petitioner-appellants made an application with a prayer to dismiss the writ petition as withdrawn. The application was supported by affidavit of Shri S.K. Bhattacharya alleging himself to be the pairokar of the petitioners. In paragraph 2 of the affidavit, it was stated that upon inspection of the record, it transpires that the previous litigation was done by the second petitioner personally and deponent is a pairokar and had no knowledge of the previous litigation.

Learned Single Judge on a perusal of the record while returning a finding that the petitioners in both the writ petitions are the same and affidavit of both the petition was sworn of Shri S.K. Bhattacharya and, thus, the second petitioner and the deponent of the writ petition were very well aware that an earlier writ petition was filed and was dismissed and the judgment was also affirmed by dismissal of the special appeal, held that not only a 2nd writ petition based on the same cause of action has been filed without disclosing the facts pertaining to the fact of filing and dismissal of the earlier writ petition and special appeal, a false affidavit has also been filed in support of the withdrawal application as well.

Learned Single Judge on a detail examination of facts and after appreciating the various case laws dismissed the writ petition with the heavy cost of Rs.1 lac to be recovered from the second appellant and pairokar of the writ petition Shri S.K. Bhattacharya by the District Magistrate, Allahabad.

The first submission advanced by Shri B.P. Singh, learned Senior Advocate assisted by Shri Krishna Mohan for the appellant is that the learned Single Judge erred in holding that writ petition was a second writ petition, inasmuch as the amount of recovery or the period of dues even if may be same, the relief claimed in the earlier Writ Petition No. 11936 of 2009 was entirely different from the relief claimed in the subsequent writ petition and the stage of recovery were also different. It is further submitted that two writ petitions challenging the different notice of recovery cannot be said to be treated as writ petitions for the same cause of action. Writ Petition No. 11936 of 2009 was filed by the present appellants seeking the following reliefs.

"(i) call for record of the case and issue a writ, order or direction in the nature of certiorari quashing the impugned warrant of arrest dated 26.11.2008 (contained in Annexure No. 8 to the writ petition) and further recovery proceedings in pursuance thereof.

(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to execute the impugned warrant of arrest.

(iii) issue any other suitable order or direction as may be deemed to be necessary under the facts and circumstances of the case.

(iv) award the costs of the writ petition to the petitioners."

Annexure 8, quashing of which, was sought in the said writ petition was a warrant of arrest issued by Recovery Officer, Employees Provident Fund Organisation in respect of failure on the part of the two petitioners to satisfy the demand made by certificate Nos. 5065, 8518, 40731 and 45857 dated 20.04.2001, 05.04.2002, 08.04.2004, and 17.04.2006 forwarded by the Authorised Officer for an amount of Rs.71,81,297/- towards outstanding against appellant no. 1-company.

Before the learned Single Judge, liability was admitted and the stand taken was that sometime be provided to secure the liability. Learned Single Judge disposed of the writ petition vide judgment and order dated 06.03.2009 by making following observations.

"The petitioner admits his liability and only seeks indulgence of the Court to get some breathing time to clear its liabilities.

Considering the facts and circumstances of the case that has been brought on record, I dispose of the petition with the following directions:

The petitioners will file an application under Section 8-E of the Employees Provident Fund and Miscellaneous Provisions Act before the authorised officer seeking time to make the payment. This application shall be filed on or before the 31st Marhc, 2009. If such an application is filed, the authority will pass appropriate orders on the said application expeditiously after affording an opportunity of hearing to the petitioners. In the meantime, the warrant of arrest dated 26.11.2008 shall remain in abeyance till the disposal of the petitioners' application provided the petitioners deposits a sum of Rs. twenty lac within four weeks from today.

The writ petition is disposed of.

A certified copy of this order shall be made available to the petitioners on payment of usual charges within 24 hours."

The order was challenged in Special Appeal No. 670 of 2009, which was dismissed by a Division Bench vide judgment and order dated 06.05.2009 by passing the following order.

"Writ petitioner-appellant, aggrieved by the order dated 6th March, 2009 passed by the learned Single Judge in Writ Petition No. 11936 of 2009, has preferred this Appeal under Rule 5 of Chapter VIII of the Allahabad High Court Rules.

On failure to make payment of the statutory dues under the Employees Provident Funds & Miscellaneous Provisions Act, 1952 (hereinafter referred to as the 'Act'), the Recovery Officer, Employees Provident Funds Organisation, Varanasi issued warrant of arrest dated 26th November, 2008. The petitioner-appellant challenged the aforesaid warrant of arrest in the writ petition which has given rise to the impugned order. Neither before the learned Single Judge nor before us the writ petitioner-appellant has denied its liability and, in fact, admits the liability.

In fact, before the learned Single Judge, it was the stand of the appellant that he be given some breathing time to clear its liability. Taking note of the aforesaid stand, the learned Single Judge gave liberty to the writ petitioner-appellant to make an application under Section 8(E) of the Act seeking time to make payment by 31st March, 2009. It also observed that if such an application is filed, the Competent Authority will pass an appropriate order and in the meantime the warrant of arrest dated 26th November, 2008 shall remain in abeyance till the disposal of the applicant's application provided it deposits a sum of Rs. 20 lacs within four weeks from the date of the said order.

Writ petitioner-appellant instead of complying the said order has chosen to file this appeal.

Mr. Ashok Khare appearing on behalf of the appellant submits that the learned Single Judge erred in holding that the application dated 30th April, 2003 was an application under Section 8(E) of the Act and according to him, the said application was also under Section 8(F) of the Act. We are of the opinion that the aforesaid submission has no bearing to the facts of the present case. The petitioner has admitted its liability and the learned Single Judge gave indulgence to him to file application seeking time to make the payment and on condition of deposit of a sum of Rs. 20 lacs, directed that the warrant of arrest shall be kept in abeyance.

The Writ Court is a Court of equity and in the face of the appellant's own admission of its liability, any interference by this Court shall be inexpedient. We do not find any merit in the appeal and it is dismissed accordingly."

Without disclosing the factum of filing the earlier Writ Petition No. 11936 of 2009 and its dismissal as well as filing and dismissal of Special Appeal No. 670 of 2009, the present writ petition was filed. Incidently the affidavit in both the writ petition is of the same person, i.e., Shri S.K. Bhattacharya, who happens to be the deponent of the affidavit filed in support of the stay application in the present special appeal. Admittedly, in the subsequent writ petition, there was not even a whisper with respect to dismissal of the first writ petition and special appeal.

A perusal of the two writ petitions, which are on record of this special appeal as Annexure to the affidavit filed in support of the stay application, we find that they are based on the same cause of action, i.e., warrant of arrest, pursuant to the recovery certificate issued under Section 8-c of the Act, 1952 for the same amount of recovery, i.e., Rs.71,81,297/-. The date of warrant of arrest in the two writ petitions may be different, but there can be no manner of doubt that both the writ petitions are based on the same cause of action and, thus, the subsequent writ petition being a second writ petition for the same cause of action, is not liable to be entertained and has rightly been dismissed by the learned Single Judge.

The argument advanced by the learned Senior Counsel for the appellant that both the writ petitions are based on different cause of action, is misconceived and liable to be rejected.

The cause of action in both the writ petitions is the same, i.e., warrant of arrest issued by Recovery Officer, Employees Provident Fund Organisation for failure on the part of the applicant to satisfy the recovery certificate issued under Section 8-c of Act, 1952 towards outstanding statutory dues under the said Act.

The next submission advanced by the learned counsel for the appellants that in view of the subsequent developments, after dismissal of Writ Petition No. 11936 of 2009, which was affirmed in appeal does not prevent the appellant from challenging the order passed in proceedings subsequently and the said writ petition cannot be said to be a second writ petition for the same relief.

This argument is again misconceived and has only been advanced to be rejected.

From a perusal of the pleadings of the writ petition, we do not find details of any subsequent developments, which might have taken place after the dismissal of earlier Writ Petition No. 11936 of 2009 on the basis of which it could be said that the fresh cause of action has accrued to the petitioner to file another writ petition. In the absence of pleadings in the writ petition in respect of subsequent developments, the argument has no legs to stand and cannot be accepted.

The issue being well settled that a second writ petition for the same cause of action is not liable to be entertained, we find no fault with the judgment of the learned Single Judge in dismissing the writ petition.

Coming to the question of deliberate concealment of fact by the deponent in the writ petition and making false averment in the affidavit filed in support of the withdrawal application, again on a perusal of the record, we do not find any fault with the finding of the learned Single Judge on this aspect.

Admittedly, the averments in the 1st Writ Petition No. 11936 of 2009 were supported by the affidavit of Shri S.K. Bhattacharya as pairokar and the affidavit in support of the subsequent writ petition was also filed by him. Thus, there is no justification in not disclosing the fact of filing and dismissal of the earlier writ petition and special appeal. Again in the affidavit filed by Shri S.K. Bhattacharya in support of the withdrawal application, it was stated as under.

"1. That the deponent is the pairokar on behalf of the petitioners in this writ petition. He had no knowledge of the previous litigations as such he could not brief the facts to the petitioners counsel and as such is fully acquainted with the facts of the case deposed to below.

2. That after getting intimations before this Hon'ble Court the deponent inspected the records and came to know that the previous litigation were done by the petitioner no. 2 personally, who is aged about 79 years and has been keeping ailing health and is unable to move from Kolkata to Allahabad."

The falsity in the statement made by Shri S.K. Bhattarcharya in the affidavit filed in support of the withdrawal application becomes writ large from a perusal of the aforesaid averments. Even if it is presumed for the sake of argument that he forgot the fact of filing and dismissal of the earlier writ petition and special appeal, but once it is asserted that the deponent inspected the record, there was absolutely no reason or occasion to make the abovequoted averment in the said affidavit, it is a deliberate attempt on his part and the allegations made in the affidavit are patently false.

It is crystal clear that the deponent deliberately did not disclose the fact of filing and dismissal of the earlier writ petition and special appeal in the subsequent writ petition and when this fact came to the notice of the learned Single Judge, on an objection being raised by the respondents, he again made totally false allegations in the affidavit filed in support of the application to dismiss the writ petition as withdrawn. Hence, we find no flaw in the judgment of the learned Single Judge holding that the appellant and the deponent misused the process of this Court, firstly in order to procure an order by concealing material facts in the writ petition and subsequently filing a false affidavit to save himself from the wreath of this Court.

Learned Single Judge has relied upon various pronouncements of the Hon'ble Apex Court laying down that if a litigant is found guilty of concealment of material facts or making an attempt to pollute the pure stream of justice, the Court not only has the right but a duty to deny relief to such a person. A litigant, who seeks shelter of falsehood, misrepresentation and suppression of facts in invoking the extraordinary equitable jurisdiction of this Court conferred by Article 226 of the Constitution of India, is not liable for any indulgence.

Hon'ble Apex Court in the case of A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430 held as under:-

"43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts.

43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful.

43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrongdoer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice.

43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process."

Again in the case of Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114, Hon'ble Apex Court noticed that an altogether new creed of dishonest litigants, have flooded the Court. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings.

Supreme Court in the case of V. Chandrashekaran & Anr. vs. Administrative Officer & Ors., [(2012) 12 SCC 133] held that a petition or affidavit containing misleading or inaccurate statement amounts to abuse of process of Court, a litigant cannot take inconsistent positions. In paragraph 45 of the report, Hon'ble Apex Court held as under.

"45. The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court."

For the aforesaid facts and discussions, we do not find any good ground to interfere with the order of the learned Single Judge dismissing the writ petition of the petitioner-appellants and imposing cost on both of them and the same is hereby affirmed.

The special appeal, accordingly, stands dismissed.

18.12.2015

VKS