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2006 DIGILAW 880 (GAU)

Mustt. Beula Khatun v. State of Assam

2006-09-18

BIPLAB KUMAR SHARMA

body2006
JUDGMENT B.K. Sharma, J. 1. This writ petition come up for motion hearing on 4.9.2006 and on perusal of the averments made in the writ petition, this Court remembered filing of another writ petition on the same set of facts. Accordingly, learned Counsel for the petitioner on being asked as to whether another writ petition was filed on the same cause of action, admitted of having done so. However, he could not provide the particulars of the writ petition and accordingly the matter was adjourned to 6.9.2006 enabling him to furnish the particulars. 2. On 6.9.2006, learned Counsel for the petitioner furnished the particulars of the earlier writ petition being WP(C) No. 6403/2004, disposed of on 7.9.2004. With such information, the matter was ordered to be listed alongwith the said writ petition and this is how, the matter is before this Court for motion hearing alongwith the said writ petition. 3. To avoid repetition of the facts involved in both the writ petitions, the order passed in the earlier writ petition, i.e., WP(C) No. 6403/2004 is quoted below: W.P. (C) No. 6403/2004 BEFORE THE HON'BLE MR. JUSTICE B.K. SHARMA 7.9.2004 Heard Mr. B. Islam, the learned Counsel for the petitioner and Mr. H.K. Mahanta, learned State Counsel. By this writ application the petitioner has prayed for a direction to the respondents to pay compensation to the tune of Rs. 10 lakh on account of death of his son. The story narrated in the writ petition is that the son of the petitioner Md. Fakar Uddin came to Guwahati on 22.5.2004 from his native village in search of work in Guwahati. He spent the night at Adabari Bus Station, Guwahati and in the morning the people of the locality chased him suspecting him to be a thief. The son of the petitioner on being so chased ran for his life. However, the people caught hold of him and tortured him. The police intervened and the son of the petitioner was taken to hospital where he succumbed to his injuries. The son of the petitioner was identified by his nephew who lodged an FIR with the police on 24.5.2004. It is on the above ground, the petitioner has claimed compensation from the respondents to the tune of Rs. 10 lakh. The police intervened and the son of the petitioner was taken to hospital where he succumbed to his injuries. The son of the petitioner was identified by his nephew who lodged an FIR with the police on 24.5.2004. It is on the above ground, the petitioner has claimed compensation from the respondents to the tune of Rs. 10 lakh. As per the facts narrated in the FIR, the son of the petitioner was chased by unknown persons at Adabari Bus Station shouting at him to be a thief and caught hold him. The deceased tried to escape from the scene and fell down on the road. The police party on duty admitted the deceased in hospital where he died. Jalukbari Police Station has registered a case being Jalukbari P.S. Case No. 213/04. From the above, it appears that the petitioner was suspected to be a thief and the public shouted at him and the deceased wanted to flea from the scene. However, while doing so, he fell down on road and the police petrol party on duty took him to hospital where he died. No allegation of torture on the deceased by any of the officers of the respondents has been alleged. Even if the story made out in the writ petition is held to be correct, no mandamus can be issued for awarding compensation to the petitioner. The police has already registered a case and everything will depend on the outcome of the said case about the liability of the accused persons. The grievance made by the petitioner is within the private law domain and not in the public law domain. Subject to the outcome of the case registered by the police, the petitioner will be entitled to pursue his remedy elsewhere against the guilty persons, if found to be any and as may be admissible under the law, but certainly not by filing a writ petition claiming compensation against the official respondents for the incident narrated above. No State action is under challenge in the writ petition. The writ petition is misconceived and accordingly stands dismissed. SD/- Judge 4. The father of the deceased filed the aforesaid writ petition and the mother of the deceased has filed the present writ petition and the counsel arguing the case on both the occasions is one and the same. No State action is under challenge in the writ petition. The writ petition is misconceived and accordingly stands dismissed. SD/- Judge 4. The father of the deceased filed the aforesaid writ petition and the mother of the deceased has filed the present writ petition and the counsel arguing the case on both the occasions is one and the same. Thus, it cannot be said that the learned Counsel was unaware of the earlier writ petition. However, being confronted with the fact of dismissal of the earlier writ petition, the learned Counsel for the petitioner tried to justify filing of the present writ petition on ground of procuring some more materials. Whether any new materials have come to light or not having regard to the nature of the order passed towards dismissal of the earlier writ petition, there is no scope for filing another writ petition on the same cause of action and with the same prayer. The prayer made in the earlier writ petition was for awarding compensation to the tune of Rs. 10,00,000 on account of death of the son of the petitioner. In this writ petition also, the mother of the deceased, with the enhancement of the compensation amount (Rs. 17,76,000 as against earlier Rs. 10,00,000), has made the same very prayer. 5. If the first writ petition filed by the father of the deceased was not maintainable, there cannot be any second opinion that the second writ petition filed by the mother of the deceased on the same set of facts, on the same cause of action and on the same relief is also not maintainable. Merely because, some more documents have been annexed to the writ petition and this time the prayer for compensation has been made by the mother of the deceased, the writ petition does not become maintainable. Except the fact that, it is the mother of the deceased, who has filed the instant writ petition with few more documents, but with the same very prayer, the nature and character of both the writ petitions are the same. However, surprisingly enough, the learned Counsel for the petitioner, who was the counsel in the earlier writ petition, has tried to justify filing of the second writ petition instead of acknowledging the fault on his part, although, he was reminded of the same time and again. 6. However, surprisingly enough, the learned Counsel for the petitioner, who was the counsel in the earlier writ petition, has tried to justify filing of the second writ petition instead of acknowledging the fault on his part, although, he was reminded of the same time and again. 6. Apart from the above, the instant writ petition also does not disclose filing of the earlier writ petition. It is only by chance, the writ petition having been listed before this court, which had dismissed the earlier writ petition, the illegal course of action adopted by the petitioner as well as the learned Counsel could be detected. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolve out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. 7. Apart from the above, the issue raised in the present writ petition having already been decided in the earlier writ petition and the cause of action for both the writ petitions being the same, the instant writ petition is barred by the principles of res-judicata/constructive res-judicata. The earlier writ petition having been considered on merit and having been dismissed, the second writ petition on the same cause of action with the same relief prayed for, by no stretch of imagination can be said to be maintainable. 8. In view of the above, there is no manner of doubt that the instant writ petition is misconceived and has been filed with the sole purpose of taking a chance for favourable consideration and that too with material suppression of fact. 9. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice and as such no action can be permitted which may shake the very foundation itself. The interest of an efficient judiciary calls for a strong and efficient bar, independent in outlook and not afraid to respectfully and boldly present the controversy in question. But at the same time, a lawyer has to be circumspect in what he does. The interest of an efficient judiciary calls for a strong and efficient bar, independent in outlook and not afraid to respectfully and boldly present the controversy in question. But at the same time, a lawyer has to be circumspect in what he does. As observed by the Apex Court in Prem Surana v. Additional Munsiff and Judicial Magistrate, reported in 2002 CriLJ 4092, in the justice delivery system of the country, members of the Bar are as much a party there to as the judges and it is a closest possible harmony between Bar and the Bench that can yield the best results in achieving the objectives as enshrined in the Constitution. 10. The kind of approach, adopted by Mr. B. Islam, learned Counsel for the petitioner, even after pointing out the fact that the second writ petition is not maintainable and that he was the counsel in the earlier writ petition does not bespeak good gesture on his part, neither suits an advocate. This Court passed the order in the earlier writ petition in a manner as was thought fit under the circumstances and no litigant, far less an advocate has any right to flout with the same and approach the court again suppressing the said order. The liberty of approaching the writ court cannot be equated or confused with a licence to make a mere repetition of overruled arguments, a second trip over ineffectually covered ground. 11. As has been observed by the Apex Court in Radha Mohon Lal v. Rajasthan High Court reported in 2003 CriLJ 1207, an advocate is not merely an agent or servant of his client. He is an officer of the court. He owes a duty towards the court. There can be nothing more serious than an act of an advocate if it tends to impede, obstruct or prevent the administration of law or it destroys the confidence of the people in such administration. 12. Before I part with the case, I am tempted to quote Harry R. Blythe (cited in 21 Green Bag, 224) and as has been referred to in J.S. Jadhav v. Mustaffa Haji reported in (1993) II LLJ 1225 SC. Great God! 12. Before I part with the case, I am tempted to quote Harry R. Blythe (cited in 21 Green Bag, 224) and as has been referred to in J.S. Jadhav v. Mustaffa Haji reported in (1993) II LLJ 1225 SC. Great God! the hour has come when we must clear the legal fields from poison and from fear; We must remold our standards, build then higher, and clear the air as though by cleansing fire, weed out the damning traitors to the law. Restore her to her ancient place of awe. 13. The writ petition is dismissed awarding a cost of Rs. 2,500 to be realized from the petitioner and with a note of caution to Mr. B. Islam, counsel representing the petitioner to be careful in future. The cost shall be realized by the Registry in accordance with the High Court Rules. 14. Let copies of this order be furnished to the President, Bar Council, Assam, Guwahati and the President and Secretary of the Gauhati High Court Bar Association as well as the Lawyers Association, Guwahati for their appraisal. Petition dismissed.