Judgment:
V.S. Dave, J.
1. Both these writ petitions by which the challenge has been made to the newly elected Management Committee, have been hotly contested, more on the ground of impropriety in filing second writ petitions after the stay was vacated in the earlier one after a chequred pendency of the same in this court. Since both these writ petitions arise out of a dispute about the elections to the Managing Committee of Islamia senior Higher Secondary School Society (Institution), Sikar, they were taken up together. A preliminary objection was raised for maintainablity of the writ petitions and the same is decided by this order.
2. In writ petition No. 3404/90 the petitioners have prayed that elections of respondent Nos. 3,4,5, and 6 to the post of President, vice President, Manager and Treasurer held on 5.8.1990 be declared illegal and invalid and that a mandamus be issued directing the Registrar, Co-operative Societies to decide the petitioner's dispute in accordance with the provisions of Section 75 of the Rajasthan Co-operative Societies Act, 1965 (hereinafter re ferred to as 'the act'). It was further prayed that proceedings undertaken by respondent No.2 in validating the elections held on 5.8.1990 be also set aside.
3. In S.B. Civil Writ Petition No. 5091/90 which has another set of petitioners, it is also prayed that the election held on 5.8.1990 of respondent Nos. 2,3,4 and 5 as office bearers of the New Management Committee of the Society be set aside and further to set aside the order of validation of the election by Assistant Registrar, Co-operative Societies, dated 24.8.1990, Annexure 5.
4. Thus, infact the Prayer in both the writ petitions is identical.
5. The earlier Writ petition No. 3404/90 was filed on 9.8.90. Notices were issued on 10.8.1990 after admitting the same and an interim order was passed staying the recognition granted to the newly elected office bearers respondent Nos.2 and 3. This stay was granted for a period of four weeks. An application Under Article 226 of the Constitution was filed on behalf of the respondents on 17.8.1990, i.e., within a week of granting the interim stay. It was listed in court after 7 days, i.e., on 24.8.1990 when the petitioners counsel prayed for time to file reply and the court directed the case to be listed on 27.8.1990. The office on this day mentioned that the case could not be listed as ordered by the Court. It was listed on 28.8.1990, but due to illness of Shri Bharat Vyas it was adjourned to 31.9.1990. It was not listed on 31.9.1990 but was listed then on 3.9.1990 when it was adjourned on 5.9.1990. It was not-listed on 5.9.1990 and also on 6.9.1990. On 6.9.1990 learned Counsel for the parties brought it to the knowledge of Hon'ble Justice I.S. Israni that the file was not traceable inspite the best efforts of the Reader and the parties were directed to file copies of the paper book and it was directed that the case shall be heard on the next day. The Addl. Registrar (Judicial) was directed to get the file traced. It was thereafter that detailed arguments were heard on 7.9.1990 and by a very detailed order, dated 11.9.1990, the stay application was rejected and the interim order, dated 10.8.1990 was vacated. The main writ petition how ever, remained pending notice.
6. Consequent upon the vacation of the stay order in writ petition No. 3404/90 on 11.9.1990, a writ petition was filed by 12 persons who claimed to be the resident of Sikar and members of Muslim Community on 8.10.1990 have filed writ petition No. 5091/90 in public interest on identical allegations as made in the earlier writ petition and identical prayers though differently worded. This writ petition came up for admission on 26.10.1990 before me where in I ave observed as under:
It is submitted that the Returning Officer appointed for conducting the elections to the Management Committee of Islamia Senior Higher Secondary School Society himself became a candidate for the election and this act of respondent No. 2 vitiates the entire elections as under the Scheme of the Constitution of the Society he is Returning Officer and thus deprived from con testing the election.
7. Issue Notice returnable within two weeks. An interim order was also passed to the effect that respondent No. 2 shall not take any decision in matter of financial implications of the society of the School nor will participate in the meeting where the financial matters are to be discussed.
8. An application Under Article 226 of the Constitution of India has been filed on the same day but file again remained missing and came up for orders on 28.11.1990. I directed both the writ petitions to be listed together and this is how they have come up for orders and learned Counsel for parties submit that they be heard and disposed of finally.
9. A preliminary objection has been raised in writ petition No. 5091/90 that it should be dismissed in limine in as much as material facts have been suppressed in the writ petition. It is submitted that same set of the lawyers has filed the earlier Writ Petition No. 3404/90 where detailed arguments have been made at the time of argument on stay petition and one of the questions argued was that the elections are illegal as Haji Hussain Bux, respondent No.2, was himself a Returning Officer and got himself elected as Chairman and it was on this ground that the stay was prayed for, which was rejected and this fact had not been brought to the notice of this court by the learned Counsel who had argued this writ petition. It is submitted that assuming for a moment that the petitioners were not within the knowledge of filing of the earlier writ petition, yet since the same set of lawyers appeared in the earlier case and the contention raised by them was not accepted by this court, it was obligatory for them to have brought to the notice of this court that another Bench of this Court has not accepted this contention and has vacated the stay order. The submission of the learned Counsel for the respondents is that no material fact should be suppressed from the court muchless by counsel representing the parties if they are in the knowledge of the same. It is submitted that lawyers are the officers of the court and they are expected to assist the court in doing justice rather than in obtaining an order favorable to their client, which otherwise would not have been passed by the court, had the facts within the knowledge of the learned Counsel, been brought to the notice of the court.
10. Replying to the preliminary objection the learned Counsel for the petitioners submitted that all the petitioners are other than the petitioners in the earlier writ petition and they were not expected to be in the knowledge of the facts mentioned in the earlier writ petition and it was not at all essential for the counsel to have informed the petitioners of the fact of the earlier writ petition as it is not the duty of the lawyer to disclose the facts of some other case to his clients. It is submitted that disclosing the facts for one case to other clients otherwise amounts to misconduct.
11. I would like to decide the preliminary objection first. It is submitted by the learned Counsel for the petitioners that the court must be fully satisfied that the party has tried to overreach the court and so-called suppression of the facts has no bearing on the facts of the case or was essential for the just decision of the case. If the petitioners have come to this court for their own rights and they were not parties to the earlier case, then there is absolutely no necessity of mentioning the facts, even if, they were in the knowledge, It is further contended that in the instant case the petitioners had no knowledge of the filing of the earlier proceedings. It was further submitted that it was not within the competence of the lawyer to have disclosed the facts of the earlier case as it would have amounted to professional misconduct about divergence of the fact of some other party to this party. It is then submitted that there was no motive to over-reach the court and there was no question of suppressing the information wilfully.
12. Learned Counsel placed reliance on Nathu Ram v. State Trans port Appellate Tribunal and Ors.: , Jasraj v. State of Rajasthan and Ors: , Sheo Koran and Ors. v. State of Raj. and Ors.: , Raghbir Singh v. Municipal Board of Hardwar Union, Hardwar and Anr.: : AIR1956All324 , Bhagwana v. The Divisional Canal Officer and Ors. and Basant Bitthal and Ors. v. Indian Huge Pipe Co. Ltd. and Ors. (1970) 2 LLJ 328.
13. On behalf of the respondents it is submitted that Shri Mohd. Haneef Khatri is the person who had sponsored the earlier Writ Petition No. 3404/90 and in the present writ petition also he is person who had accompanied the petitioners. It is submitted that dispute in both the writ petitions is identical and Shri Khatri after loosing the battle, in the earlier writ petition got this writ petition filed in the name of the present petitioners and all the members belong to the same group. It is submitted that some of these petitioners are signatories to the appeal which was circulated to the general Muslims of Sikar not to participate, in the election of 31st May, 1990. It is submitted that the matter is so hotly contested and has divided Muslims of Sikar in two groups that entire population of Sikar Knows about the dispute and further fact of the filing of the civil suit. It is further submitted that this writ petition has been filed after vacation of the stay order in the earlier writ petition which also shows the malafides. It is submitted that assuming for a moment that the parties were not within the knowledge of fact of earlier writ petition and vacation of the stay order but the lawyers appeared in the subsequent writ petition being same it was within their knowledge that on the same subject matter the writ petition has been filed where stay has been vacated and if was bounden duty of these counsel to have informed the court in all propriety. It is submitted that a lawyer is an officer of the court whose duty is to assist the court in coming to a just conclusion and he must bring true and correct facts to the knowledge of the court. It is submitted that had the earlier stay order been brought to the notice of the court this court would not have issued notice and granted stay in this writ petition. Learned Counsel for the respondents in support of their case have relied on Gange Dutt v. Bhagwan Das Taparia and Ors.: ILR (1958) 8 Raj. 364, Ram Narain v. Municipal Board, Pali and Anr.: 1971 WLN, 452, Om Prakash v. State of Raj.: RLW 1977,470 Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors.: : [1983]3SCR674 and Jagannath Pundlik Date and Ors. v. Sukhdeo Onkar Wankhede and Ors. AIR 1967 Bombay 387. I have given my due consideration to the rival contentions and perused the-case law.
14. I will first like to deal with the case law cited by learned Counsel for the parties. In Nathu Ram v. State Transport (supra) scope of 12 permits was fixed over Bikaner-Salasar Via Nokha- Sujangarh route by R.T.A. Bikaner. This was increased to 18 after 7 years. 16 vehicles were plying on 12.12.67 when R.T.A. resolved to amalgamate route Nokha-Sujangarh, Sujangarh-Salasar and Nokha-Bikaner. In 1969 scope of amalgamated route was increased and 24 vehicles were given permits with six returned trips. The disputes were raised by certain Operators and writ petitions had been filed challenging the amalgamation and the grant of permits. There was dispute in the pleadings in that petition about petitioners' referring three routes; where as in point of fact amalgamation was of four routes and a prayer was raised that the writ petition should be dismissed on the ground of suppressing the material fact. The court held that subject title of Ex. P/2 refers only to three routes and it is likely that the petitioner while drafting the petition was misled on that account. This is not a case of any concealment or avoidance of a fact motivated by any advantage to be derived there from. It is merely an incomplete description. This case, in my opinion, is not applicable to the facts of the present case as this is not a case where incomplete description or incorrect description might have been under challenge. Further what has to be seen is as to whether the concealing is motivative by any advantage to be derived there from; which will be seen hereinafter. In Jasraj v. State of Rajasthan: an argument was raised on behalf of the State that deliberate a false submission has been made in the petition and the petition does not deserve to be heard on merits. Argument was based with reference to the averment in petition that the petitioner obtained copy of the order dated 12.11.1975, on 13.11.75 and that they made the Collector respondent No. 2 on 14.11.75 and showed him the typed copy of the order dated 12.11.75. But in spite of that the Collector directed respondent No. 4 Tehsildar to take possession of the petitioners' land. This allegation was denied in reply and a letter by the Collector, dated 20.11.75 written to the Secretary, Town planning was placed where in it was noted that on 17.11.75 the counsel for the petitioner had presented an order of 12.11.75 deacquiring the land. Suggestion of the Government's counsel was that as in the application filed on 17.11.75 there, was no mention that the order dated 12.11.75 was shown to the Collector to conclusively prove that the version of the petitioner was untrue. This court after reference to several cases held that, 'if an applicant deliberately suppresses the material facts from the court in order to obtain an interim order, he will not be allowed a hearing on the merits'. The court further went oh to say that, 'I do not see how the principle laid down in those cases are applicable here'. Thus, the principle laid down does not help the petitioner. Further in facts of that case the court did not consider it to be material suppression. In Sheo Karan and Ors. v. State of Raj and Ors. (supra) on facts the court held that, 'in its opinion the concealment of fact had no bearing on the main point in the petition and, therefore, it is not possible to say that by concealing the aforesaid facts, the petitioners have tried to mislead the court and have not come with clean hands'. Thus in this case also it was on merits that the concealment was not held proved but the principle has been established. In Raghvir Singh v. Municipal Board of Hardwar Union,: : AIR1956All324 the question was that fact of pendency of a civil suit was not mentioned in a writ petition and in the circumstances of that case the court held that the omission was not such a material fact in the circumstances of the case that writ could be rejected on that ground. In Bhagwana v. The Divisional Canal Officer and Ors. a similar fact of non-mention of suit in the petition was not considered to be such an omission so as to dismiss the writ petition on preliminary ground. In Ganga Dutt v. Bhagwan Das Taparia and Ors. ILR. (1958) 8 Raj. 364 the principle of deliberate concealment of material fact of obtaining an interim order in an application was considered by the Division Bench of this court. The principle was laid down as under:
Where the court has reason to be satisfied that there has been a deliberate concealment of material facts so as to obtain an interim order by deceiving it, the court will decline to consider the merits and reject the application.
In Kabool Chand v. Deputy Custodian, Alwar ILR (1958)1 Raj. 958 it was held by this court that,' A party who comes to the court and asks it to exercise its extraordinary jurisdiction Under Article 226 of the Constitution of India should place full and true facts before it and should not word the application or affidavit in such a way as to create a completely misleading picture of the facts leading to the making of the application in order to de ceive the court in passing interim orders in his favour. A party applying for a writ has to come to the court with clean hands and should state the true facts fully before the court. Where the court has reason to be satisfied that there has been deliberate concealment of material facts so as to obtain an interim order by deceiving it, the court will decline to consider the merits and reject the application'.
15. In Ram Narain v. Municipal Board, Pali and Anr.: 1971 WLN 452 the court considered various cases about the law concerning full and correct disclosure of material facts in a writ of certi orari or mandamus and for obtaining a stay and it was held that, 'it is settled law that a petitioner is not entitled as a matter of course, to a writ of certiorari or mandamus, and he perfectly frank and open to the court. He is under an obligation to the court to make a full and correct disclosure of all material facts within his knowledge, and if he does not do so, and suppresses any material fact and thereby obtains a rule nisi or a stay order, the court will not grant any relief to him on the merits'.
16. In Om Prakash v. State of Rajasthan: RLW 1977 470 the court considered the similar question of obtaining stay order by not making true and randed disclosure of material facts. The court after consideration of all the previous cases on the point ac cepted the preliminary objection holding that the petitioner disentitles himself of any relief on merits if he obtained exparte rite stay order by not making true and randed disclosure of material facts.
17. In Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. : [1983]3SCR674 their Lordships considered the question of suppression of material facts at the time of obtaining exparate stay order. On facts their Lordships came to the conclusion that unfair advantage was obtained by the petitioners by exparte stay suppressing the material facts and therefore, they were not entitled to any relief on merits.
18. Cozens Hardy M.R. in Rex v. Kensingon: Income Tax Commission (1917) 1 K.B.486 held that, 'on an exparte application uberrima fides is required, and unless that can be established if there is anything like deception practised on the court, the court ought not to go into the merits of the case, but simply say we will not listen to your application because of what you have done'. Similar observations were made by Lord Scrution L.J. also.
19. On a study of the aforesaid case law no doubt is left that the settled law on question of suppression of material facts is that a petitioner is not entitled as a matter of course, to a writ of certiorari or mandamus or of any other type, unless he is perfectly frank and open to the court. The party seeking relief is under an obligation to the court to make full, frank and correct disclosures of all the relevant and material facts in a candid manner and if he does not do so and suppresses the mated al fads and obtains a rule nisi or an exparte order no relief should be granted to him on merits.
20. Keeping the aforesaid principle of law in mind the preliminary objection will have to be dealt with in S.B.Civil Writ Petition No. 5091/90. I have already mentioned above the sequence in which this writ petition has been filed. A perusal of the documents filed along with the writ petition clearly goes to show that there are two groups of Muslims in Sikar who are sharply divided and daggers drawn. Each of them is fighting vigorously on taking over the control of Islamiya School and behind both the groups there are several other persons. The matter has not been only contested before the Asstt. Registrar, Co-operative but the parties have gone to length of institution of criminal cases and to the press. Pamphlets have already been distributed and suits have been filed prior to even filing the earlier writ petition No. 3404/90. The relation between both the groups are thus highly strained and from that it can easily be inferred that petitioners had the full knowledge of what is going on about the management of the School and that they had been in the knowledge of the suit and the earlier writ petition. Same set of lawyers who had been engaged in the earlier writ petition, have been engaged in the subsequent writ petition and same exhibits have been placed on record. There are enough circumstances to infer that the petitioners had the full knowledge of the fact of filing of the earlier writ petitions and the vacation of the stay thereof and for that reason I have no hesitation in holding that the petitioners have suppressed the fact of filing of the earlier writ petition deliberately. There is yet another angle of looking at the preliminary objection. When the S.B.Civil Writ Petition No. 5091/90 came up for admission before me a point was canvassed before me which has not found favour with my learned brother Hon'ble Israni J., when agitated before him in earlier Writ Petition No. 3404/90 Hon'ble Mr. Justice I.S.Israni J. by a detailed order has rejected the stay application and vacated the ad-interim order earlier passed. Assuming for a moment that the petitioners were not in knowledge of the facts of filing earlier writ petition or vacation of the stay thereof, yet it was very much within the knowledge of the learned Counsel arguing the case. I am not prepared to accept the contention of the learnsed counsel for the petitioner that disclosing fact to the petitioners in the later case would have resulted in professional misconduct. On the contrary it would have advanced the cause of justice. A counsel who is an officer of a court has a duty towards even his client when he is engaged to make all such full and frank disclosure which relates to his interest or about the controversy involved in the matter particularly when ones of the party to both the litigations is common and more so on the question of law. What is prohibited is communication of particulars facts which are within the knowledge of the lawyer and disclosure of which is likely to affect the case of his party. The royalty of the counsel to his client in one case does not mean that when an identical matter comes within the identical prayer he should not inform the subsequent client that on the similar facts and circumstances he is already handling a matter more so where the question of law involved is the same and in the earlier case already an order has been passed on a miscellaneous application. Otherwise also learned Counsel has a duty towards the court to inform about the correct position of the facts and law as the duty of a counsel is primarily to assist the court in doing justice rather than procuring the order in favour of his client. When this matter was argued before Hon'ble Mr. Justice Israni J a point was raised before him that elections are illegal as respondent NO. 3 in that case had himself become Returning Officer and got himself elected as Chairman. This contention was not accepted for granting the stay and after considering various case laws stay application was rejected and the interim stay dated 10.8.1990 was vacated, same learned Counsel who had raised this contention which is not accepted before one Bench was raised befodre me and the order was obtained. The test is had the case been listed before the same Bench could the learned Counsel raise same issue before the same Bench and the simple answer would be. no, unless it was a review petition and even if the question would have been raised reference ought to have come to the earlier order. A similar application involving same point when subsequently made, normally should be heard by the same Bench is a rule 65 in the Rajasthan High Court Rules, of course that rule relates to a second application in the came case But qua a lawyer the analogy must apply atleast to the extent that if on a particular point one Bench has not accepted the contention and rejected by a specific order it is the duty of the learned Counsel to bring that fact to the knowledge of the court else it would bring the court into a great disrepute. Granting stay in a case against the same party by another Judge as he is ignorant of the order in the earlier case on the same subject matter, may be because of the ignorance of the fact, is bound to lower down the dignity of the judicial courts in the mind of the litigants against whom the order is passed. High Court is an Institution and every order passed by this court is the order of the court and name of the Judge has no relevance there to. In this view of the matter when one Bench had dismissed the application on the same point even though the parties were different, yet it is bounden duty of the learned Counsel appearing to bring it to the knowledge of the Judge hearing the subsequent case, the fact of earlier order. It is all the more necessary when counsel is the same which may be that the Judge hearing the subsequent writ petition on the same point may, in order to avoid the conflict of decision, request Hon'ble Chief Justice to place the matter before the same Bench or if does not agree to place before the Larger Bench, but would not like to pass an order which is contradictory and which is likely to bring the court to disrepute and made mockery of justice. In the instant case my conscience is shaken as operation of the order has been stayed by me on a point on which it is already vacated on identical facts by another Bench. I have therefore, no hesitation in coming to the conclusion that this was a material fact suppressed from the court and the petitioner in S.B. Civil Writ Petition No. 5091/90 has disentitled himself to be heard on merits.
21. It is submitted by learned Counsel that other questions had also been raised and there is no suppression about them and then this case also particular of mentioning detailed facts, did not arise as the court immediately accepted the contention and petitioner may not press this point on merits. Whatever may be the situation it is bound to affect the decision of the case when the fact has already come to the notice of the court and may be that a similar circumstance came in a case before their Lord ships of the Supreme Court in Hari Narain v. Badri Das : [1964]2SCR203 where Special Leave granted was revoked because a mis statement was found in application for Special Leave. Their Lordships observed as under:
On the other hand, Mr. Setalvad contended that he had appeared at the time when special leave was granted and to the best of his recollection he had not referred to these grounds, but had merely urged his contention that the High Court had mis-construed Section 13(1) (a) of the Act. We have no hesitation in accepting Mr. Setalvad's statement; but, in our opinion, in dealing with the respondent's prayer that special leave granted to the appellant should be revoked what was actually urged before the court cannot be decisive of the matter and may not even be very material. It is true that in the present case, special leave was granted on the 26th September, 1962 and it is possible for Mr. Setalvad to recall what he argued before the court when special leave was granted. But it is necessary to bear in mind that the appeal may come on for hearing long after special leave is granted, that counsel appearing at the stage of admission may not be same as at the stage of final hearing, and the Bench that granted spsecial leave may not necessarily deal with the appeal at the final stage. Therefore, it is no answer to the respondent's contention that though the material statements in the special leave petition maybe substantially inaccurate, though not wholly untrue, those statements may not have influenced the court in granting special leave. Mr. Setalvad has also invited our attention to the fact that the impugned statements and grounds are substanyially copied from the averments made in the appeal before the High Court. That may be so, but the fact still remains that two important statements which, if true, may have been of considerable assistance to the appellant in invoking the protection of Section 13(1) (a) even on the construction placed by the High Court on that section are found to be untrue, and that, in our opinion, is a very serious infirmity in the petition itself. It is of utmost importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the court naturally, takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, spsecial leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent.
22. In view of the aforesaid discussions I accept the preliminary objection and dismiss the writ petition No.5091/90, Mohd. Akhtar Quadri and Ors. v. State of Rajasthan and Ors. with cost which I assess at Rs. 1,000/- without going into the merits. Consequently the stay order passed on 26.10.1990 stands vacated. So far as S.B. Civil Writ Petition No. 3404/90 is concerned that writ petition has been filed much before S.B. Civil Writ Petition No. 5091/90. After preliminary hearing the same was admitted vide order dated 10.8.90 and an interim order was passed which was subsequently vacated on 10.9.1990. The writ petition how ever, since was admitted requires to be disposed of on merits and cannot be dismissed on a preliminary objection raised by the learned Counsel for the respondents. Hence S.B. Civil Writ Petition No. 3404/90, Mohiuddin and Ors. v. State of Rajasthan and Ors. is ordered to be delinked and shall be listed for hearing in due course before regular bench.