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CASE NO.: Appeal (civil)  2205 of 2007

PETITIONER: Arunima Baruah

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.      2205            OF 2007 [Arising out of  SLP (Civil) No. 9283 of 2006]

S.B. SINHA, J :                  Leave granted.

       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.

       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.

       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came up for consideration  before the Civil Court and upon a statement made by her, the same was  permitted to be withdrawn by an order dated 30.04.2001.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:

       "The petitioner has filed the present writ  petition for issuance of a writ of mandamus for  quashing the order dated 19th March, 2001  terminating the services of the petitioner.

       Notice was issued in the writ petition.

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       In the counter affidavit filed by Respondent  No. 3, it has been disclosed that the petitioner had  filed a civil suit in the District Court on 28th  March, 2001.  A photocopy of the civil suit filed  by petitioner for a declaration and permanent  injunction is filed with the counter affidavit as  Annexure R3/A.  The prayer made in the suit is for  a declaration that the order dated 19th March, 2001  is illegal, null and void.  An application was also  filed for the grant of an ex-parte ad interim  injunction.  It appears that no ex-parte ad interim  injunction was granted to the petitioner.

       However, without disclosing all these facts,  the present writ petition was filed on 10th April,  2001.  There is not even a whisper in the writ  petition about the civil suit.  Learned Counsel for  the petitioner does not dispute that such a civil suit  was filed.  It is stated in the rejoinder affidavit that  a civil suit was subsequently withdrawn but the  relevant orders have not been filed along with the  rejoinder affidavit.

       In view of gross concealment of fact by the  petitioner, it appears that the petitioner is doing  nothing more than forum hunting.  Having failed  to obtain any injunction in the civil suit, the  Petitioner has resorted to filing the present writ  petition.

       In view of the conduct of the petitioner and  a material concealment of fact, I am not inclined to  entertain the writ petition.  The same is,  accordingly, dismissed."          

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

"\005When the writ petition was filed, in the writ  petition the factum of filing the suit and non-grant  of ex-parte injunction was not mentioned,  therefore, there appears to be concealment of facts.   The ld. Single Judge rightly came to the  conclusion that since the appellant concealed the  facts in the writ petition, therefore, did not deserve  any relief and dismissed the same as if was found  abuse of the process of court.  It is well settled law  that a party who comes to the court by concealing  facts is not entitled to relief under Article 226 of  the Constitution of India."

       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.

       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]

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       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.

       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) 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 Vs. United Kingdom 15 BHRC 259.  For  reference see also Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649]

       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.

       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:

"It is contended that the fact that Moody has given  those bribes prevents him from getting any relief in  a Court of Equity. The first consequence of his  having offered the bribes is that the vendors could  have rescinded the contract. But they were not  bound to do so. They had the right to say "No, we  are well satisfied with the contract; it is a very  good one for us; we affirm it". The proposition put  forward by counsel for the defendants is: "It does  not  matter that the contract has been affirmed;   you still can claim no relief of any equitable  character in regard to that contract because  you  gave a bribe in respect of it. If there is a mistake in  the contract, you cannot rectify it, if you desire to  rescind the contract, you  cannot rescind it, for that  is equitable relief. With some doubt they said: "We  do not think you can get an injunction to have the  contract performed, though the other side have  affirmed it, because an injunction may be equitable  remedy." When one asks on what principle this is  supposed to be based one receives in answer the  maxim that any one coming to equity must come  with clean hands. It think the expression" clean  hands"  is used more often in the text books  than it  is in the judgments, though it is occasionally used  in the judgments, but I was very much surprised to  hear that when a contract, obtained by the giving  of a bribe, had been affirmed by the person who

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had a primary right to affirm it, not being an illegal  contract, the courts of Equity could be so  scrupulous that they would refuse any relief not  connected at all with the bribe. I was glad to find  that it was not the case, because I think it is quite  clear that the passage in Dering v. Earl of  Winchelsea 1 Cox, 318 which has been referred to  shows that equity will not apply the principle about  clean hands unless the depravity, the dirt in   question on the hand, has an immediate and  necessary relation to the equity sued for. In this  case the bribe has no immediate relation to  rectification, if rectification were asked, or to  rescission in connection with a matter not in any  way  connected with the bribe. Therefore that  point, which was argued  with great strenuousness  by counsel for the defendant Hatt, appears to me to  fail, and we have to consider the merits of the  case."                                          In Halsbury’s Laws of England, Fourth Edition, Vol. 16, pages 874- 876, the law is stated in the following terms:

"1303.  He who seeks equity must do equity.   In granting relief peculiar to its own jurisdiction a  court of equity acts upon the rule that he who seeks  equity must do equity.  By this it is not meant that  the court can impose arbitrary conditions upon a  plaintiff simply because he stands in that position  on the record.  The rule means that a man who  comes to seek the aid of a court of equity to  enforce a claim must be prepared to submit in such  proceedings to any directions which the known  principles of a court of equity may make it proper  to give; he must do justice as to the matters in  respect of which the assistance of equity is asked.   In a court of law it is otherwise: when the plaintiff  is found to be entitled to judgment, the law must  take its course; no terms can be imposed.

***                     ***                     ***

1305.   He who comes into equity must come with  clean hands.  A court of equity refuses relief to a  plaintiff whose conduct in regard to the subject  matter of the litigation has been improper.  This  was formerly expressed by the maxim "he who has  committed iniquity shall not have equity", and  relief was refused where a transaction was based  on the plaintiff’s fraud or misrepresentation, or  where the plaintiff sought to enforce a security  improperly obtained, or where he claimed a  remedy for a breach of trust which he had himself  procured and whereby he had obtained money.   Later it was said that the plaintiff in equity must  come with perfect propriety of conduct, or with  clean hands.  In application of the principle a  person will not be allowed to assert his title to  property which he has dealt with so as to defeat his  creditors or evade tax, for he may not maintain an  action by setting up his own fraudulent design.

       The maxim does not, however, mean that  equity strikes at depravity in a general way; the  cleanliness required is to be judged in relation to

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the relief sought, and the conduct complained of  must have an immediate and necessary relation to  the equity sued for; it must be depravity in a legal  as well as in a moral sense.  Thus, fraud on the part  of a minor deprives him of his right to equitable  relief notwithstanding his disability.  Where the  transaction is itself unlawful it is not necessary to  have recourse to this principle.   In equity, just as  at law, no suit lies in general in respect of an  illegal transaction, but this is on the ground of its  illegality, not by reason of the plaintiff’s  demerits."                  

       [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 C.L.R. 90], it is  stated :

"\005that the absence of clean hands is of no account  "unless the depravity, the dirt in question on the  hand, has an immediate and necessary relation to  the equity sued for".  When such exceptions or  qualifications are examined it becomes clear that  the maxim that predicates a requirement of clean  hands cannot properly be regarded as setting out a  rule that is either precise or capable of satisfactory  operation\005"

       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:

"\005In these cases, however, it is necessary that the  failure to disclose the matters in question, and the  consequent error or misapprehension of the  defendant, should be such that performance of his  obligations would bring about substantial hardship  or unfairness that outweighs matters tending in  favour of specific performance.  Thus the failure of  the plaintiff to explain a matter of fact, or even, in  some circumstances, to correct a misunderstanding  of law, may incline the court to take a somewhat  altered view of considerations of hardship, and this  will be the case especially where it appears that at  the relevant times the plaintiff knew of the  ignorance or misapprehension of the defendant but  nonetheless did not take steps to provide  information or to correct the material error, or a  fortiori, where he put the defendant off his guard  or hurried him into making a decision without  proper enquiry\005"

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

"14. Assuming that the explanation given by the  appellant that the suit had been filed by one of the  Directors of the Company without the knowledge

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of the Director who almost simultaneously  approached the High Court under Article 226 is  unbelievable ( sic ), the question still remains  whether the filing of the suit can be said to be a  fact material to the disposal of the writ petition on  merits. We think not. The existence of an adequate  or suitable alternative remedy available to a  litigant is merely a factor which a court  entertaining an application under Article 226 will  consider for exercising the discretion to issue a  writ under Article 226 5 . But the existence of such  remedy does not impinge upon the jurisdiction of  the High Court to deal with the matter itself if it is  in a position to do so on the basis of the affidavits  filed. If, however, a party has already availed of  the alternative remedy while invoking the  jurisdiction under Article 226, it would not be  appropriate for the court to entertain the writ  petition. The rule is based on public policy but the  motivating factor is the existence of a parallel  jurisdiction in another court. But this Court has  also held in Chandra Bhan Gosain v. State of  Orissa 6 that even when an alternative remedy has  been availed of by a party but not pursued that the  party could prosecute proceedings under Article  226 for the same relief. This Court has also held  that when a party has already moved the High  Court under Article 226 and failed to obtain relief  and then moved an application under Article 32  before this Court for the same relief, normally the  Court will not entertain the application under  Article 32. But where in the parallel jurisdiction,  the order is not a speaking one or the matter has  been disposed of on some other ground, this Court  has, in a suitable case, entertained the application  under Article 32 7 . Instead of dismissing the writ  petition on the ground that the alternative remedy  had been availed of, the Court may call upon the  party to elect whether it will proceed with the  alternative remedy or with the application under  Article 226 8 . Therefore, the fact that a suit had  already been filed by the appellant was not such a  fact the suppression of which could have affected  the final disposal of the writ petition on merits."

       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?

       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:   "6. Then again this Court refrains from acting  under Article 32 if the party has already moved the  High Court under Article 226. This constitutes a  comity between the Supreme Court and the High  Court. Similarly, when a party had already moved  the High Court with a similar complaint and for  the same relief and failed, this Court insists on an  appeal to be brought before it and does not allow

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fresh proceedings to be started. In this connection  the principle of res judicata has been applied,  although the expr ession is some what inapt and  unfortunate. The reason of the rule no doubt is  public policy which Coke summarised as " interest  reipublicae res judicatas non rescindi" but the  motivating factor is the existence of another  parallel jurisdiction in another Court and that  Court having been moved, this Court insists on  bringing its decision before this Court for review.  Again this Court distinguishes between cases in  which a speaking order on merits has been passed.  Where the order is not speaking or the matter has  been disposed of on some other ground at the  threshold, this Court in a suitable case entertains  the application before itself. Another restraint  which this Court puts on itself is that it does not  allow a new ground to be taken in appeal. In the  same way, this Court ’has refrained from taking  action when a better remedy is to move the High  Court under Article 226 which can go into the  controversy more comprehensively than this Court  can under Article 32."                                                 [Emphasis supplied]

       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.

       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.

       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.

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

       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.