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1998 DIGILAW 479 (KER)

Marakkar v. Government of Kerala

1998-10-05

K.S.RADHAKRISHNAN

body1998
Judgment :- K.S. Radhakrishnan, J. Petitioner is the President of the Thrithala Service Co-operative Bank Ltd. He has approached this Court seeking a writ of mandamus directing the second respondent to keep in abeyance all proceedings pursuant to his order No. C.R.P. 587/97 dated 15.6.1998, and also for a direction to the second respondent to forward all necessary papers in relation to that proceedings to the Government so as to take a decision on Ext. P1 appeal petition, and Ext. P2 stay petition pending before the Government, and also for other consequential reliefs. 2. Second respondent, Joint Registrar of Co-operative Societies passed order No. C.R.P. 587/97 dated 15.6.1998 under S.68(1) of the Act, appointing Unit Co-operative Inspector, Thrithala, to conduct an enquiry and also to submit a report before 16.7.1998 with regard to certain allegations against the petitioner for unauthorised detention of the bank's fund, and also for spending an amount of Rs. 2,88,024/- without prior permission from the department. Unit Co-operative Inspector was also directed to assess the loss caused to the bank due to the above mentioned conduct of the petitioner. Petitioner, aggrieved by the above mentioned order dated 15.6.1998 of the second respondent, preferred an appeal before the Government, Ext. P1, and stay petition, Ext. P2. Petitioner also filed C.M.P. No. 32486of 1998 for a direction to the respondents to keep in abeyance of the order C.R.P. 587/97 dated 15.6.1998 pending disposal of the appeal and stay petition. 3. Learned Government Pleader Sri. N. Reghu Raj pointed out when the Original Petition came up for admission, that petitioner had earlier filed O.P. No. 13991 of 1998 on 24.7.1988 seeking similar reliefs in respect of the same subject matter, and this court refused to grant the same. Learned Government Pleader submitted the said fact was not disclosed in the Original Petition. On the said submission. I called for the files in O.P. No. 13991 of 1998, and I find a similar writ petition was filed by the same petitioner earlier seeking similar relief that is for a writ of mandamus to the Joint Registrar forbearing from proceedings further with his order dated 15.6.1998 pending disposal of the revision petition or passing orders on the application for stay by the first respondent. A direction was also sought for in that O.P. to the first respondent, the Government to take up the revision and dispose of the same in accordance with law. This Court disposed of the said Writ Petition at the admission stage on 27.7. 199 8 declining to stay further proceedings pursuant to the order dated 15.6.1998 of the Joint Registrar. Learned Government Pleader who appeared in O.P. No. 13991 of 1998 had submitted that the order dated 15.6.1998 was only an order passed under S.68(1) of the Kerala Co-operative Societies Act and that notice would be given to the petitioner under S.68(2). This Court noticed that the order dated 15.6.1998 was not a final order, and held that if the petitioner is aggrieved he had to work out his remedies before the appropriate authorities. C.M.P. No. 24691 of 1998 seeking stay of the order dated 15.6.1998 of the Joint Registrar was also dismissed. 4. On going through the averments in both the Writ Petitions I find that the relief sought for in OP 13991 of 1998 and C.M.P. No. 24691/98 and the present Writ Petition and CMP are similar and pertaining to the same subject matter. In both the Writ Petitions challenge was against the order of the Joint Registrar dated 15.6.1998 and in both the Writ Petitions interim relief sought for was to keep in abeyance/stay of the same order dated 15.6.1998. 5. In O.P. No. 13991 of 1998, in the affidavit filed along with the Writ Petition, petitioner had stated as follows: "The petitioner has notified earlier, petitions seeking similar and identical reliefs in respect of the same subject matter". However, hi the affidavit filed along with the present O.P. Petitioner has stated as follows: "The petitioner has not filed earlier for disposal of Exts. P1 and P2 pending before the Government". R.146 of the Rules of the High Court of Kerala, 1971 reads as follows: "146. Contents of the applications.- Every application shall set out the provision of law under which it is made, the name and description of the petitioner, and the respondent, a clear and concise statement of facts, the grounds on which the relief is sought and shall be signed by the petitioner and by his Advocate, if he has appointed one, as in Form No. 10". In exercise of the powers conferred by Art.225 of the Constitution of India, S.122 of the Code of Civil Procedure, 1908, and all other powers enabling it in this behalf, the High Court of Kerala after previous approval of the Government of Kerala, conveyed in G.O. Rt. No. 2115/97/Home dated 12.5.1997 issued a notification No. D1-52026/95 dated 18.7.1997, by which the following proviso was added to R.146: "Provided that no petition shall be entertained by the Registry unless U contains a statement as to whether the petitioner had filed any petition seeking similar reliefs in respect of the same subject matter earlier and if so, the result thereof. R.150 relates to interim orders. The said provision is extracted below: "150. Interim orders.- In admitting the application it shall be competent for the court to pass interim order on motion made for the same as to meet the ends of justice. Provided ". By the above mentioned notification dated 18.7.1997, the following proviso was also added to R.150: "Provided that no petition shall be entertained by the Registry unless it contains a statement as to whether the petitioner had filed any petition seeking similar reliefs in respect of the same subject matter earlier, and if so, the result thereof." It is evident from the above mentioned provisos added to R.146 and 150, that it is mandatory on the part of the petitioner to make a statement in the Writ Petition as to whether the petitioner had filed any petition seeking similar reliefs in respect of the same subject matter earlier and if so the result thereof. Similar statement has also to be made in the interim petition as well, if interim relief was sought for earlier, and the result thereof. 6. We have to consider the issue involved in this case in the light of the above mentioned rules. As I have already noted, in the affidavit filed along with O.P. No. 13991 of 1998, petitioner stated that he had not filed earlier petitions seeking similar and identical reliefs in respect of the same subject matter. But in the present Writ Petition petitioner has stated that he has not filed earlier for disposal of Exts. P1 and P2 pending before the Government, but not stated as to whether he had filed any petition seeking similar reliefs in respect of the same subject matter earlier, and if so, the result thereof. But in the present Writ Petition petitioner has stated that he has not filed earlier for disposal of Exts. P1 and P2 pending before the Government, but not stated as to whether he had filed any petition seeking similar reliefs in respect of the same subject matter earlier, and if so, the result thereof. Petitioner has not stated either in the body of the Writ Petition or in the affidavit of the filing of the earlier O.P. or C.M.P. and the result thereof. There is complete suppression of those facts in the present Writ Petition. Failure to state in the affidavit of the filing of O.P. No. 13991 of 1998 and C.M.P. No. 24691 of 1998 in the present Writ Petition, and the result thereof, is an abuse of the process of this Court. Due to non-disclosure of those facts and in the absence of the statement as provided under the proviso to Rr.146 and 150, this Writ Petition is not liable to be entertained. It is so declared. Writ Petition is dismissed with costs of Rs. 500/-to be paid to the Kerala State Legal Aid and Advice Board, Kochi. Registry is directed to see that proviso to R.146 and 150 of the Rules of the High Court of Kerala i s strictly complied with not only when Writ Petitions are filed along with interim application, but also when interim applications are filed in pending Writ Petitions as well. Proviso to R.150 says that no petition shall be entertained by the Registry unless it contains a statement as to whether the petitioner had filed any petition seeking similar reliefs in respect of the same subject matter earlier, and if so, the result thereof. In very many cases, petitions after petitions are being filed in pending Writ Petitions for the same relief. In that case also the Registry should insist a Statement that in case petition seeking similar relief in respect of the same subject matter had been filed earlier, the result thereof.