ORDER
1. These petitions coming on for hearing on this day upon perusing the petition the orders of the Lower Courts below and the record in the case and upon hearing the arguments of Mr. K. Chandru for Mr. R. Yashod Vardhan Advocate for the petitioner in the both petitions and of Mr. T. Theageswaran for M/s. Waraon & Sairams Advocate for the 1st respondents in both the petitions and of Mr. R. Swami-nathan Addl. Govt., pleader (CS) on behalf of the respondents 2 & 3 in CRP 2939/93 and 2nd respondent in CRP. 3292/93 court made the following order :--
The above revisions involve similar and overlapping issues and, therefore, submissions have been made in common by thecounsel appearing on either side and are dealt with together.
2. CRP No. 2939 of 1993 has been filed under Article 227 of the Constitution of India challenging the order dated 22-9-1993 by which the court below (S. Thamizhvanan. III Assistant Judge, City Civil Court, Madras) recorded the factum of an endorsement made by the plaintiff that the suit O. S. No. 9188 of 1992 is withdrawn as not pressed as against the third defendant, the petitioner herein. The suit O. S. No. 9188 of 1992 came to be filed by the plaintiff Suhura Beevi Educational Trust represented by its Chairman S. Sharofudin, Kanyakumari, praying for the following reliefs :--
(a) To pass a judgment and decree declaring that the plaintiff, Suhura Beevi Educational Trust at Railway Campus, Kanyakumari District, was a muslim religious minority trust and its M. G. R, Law College, Kanyakumari come within the meaning of Tamil Nadu Private Colleges (Regulations) Act, 1976, and (b) for a consequential permanent injunction, restraining the defendants, their subordinates, agents or servants from implementing Sections 7(1), 10, 11 to 14. 13(2), 22, 27 to 29, 35(4). 37 to 41 of the Tamil Nadu Private Colleges (Regulations) Act. 1976 and Rules 5, 7 to 10, 12 to 14, 18 to 20 of the Tamil Nadu Private Colleges (Regulations) Rules, 1976 and Statute 21 ot Chapter XXVI of the Law of University to the plaintiff Suhura Beevi Educational Trust and its M. G. R. Law College at Railway Campus, Kanyakumari District (unnecessary reliefs are omitted).
3. In the plaint, it is contended that the plaintiff-Educational Trust was being administered by its Chairman from 11-5-1992, that the trust was constituted under a registered deed of trust on the file of the Sub-Registrar of Assurances at Kotaram under Registration No. 38/ 13-5-1992, that the primary object of the Educational Trust was to set up educational institutions, with a view to uplift the downtrodden and under privileged masses of the society by providing them witheducation and in pursuance of such objects, the plaintiff trust decided to start a Law College in Kanyakumari District under the name and style of 'M. G. R. Law College', It is claimed that the founders of the trust belong to Muslim community which is a religious community. In the body of the plaint, it is also averred that the plaintiff started the M.G.R. Law College and the same is being administered from the year 1992, for five year integrated course in B. L., three year degree based full time in B. L., and three year degree based evening college in B. L. and that the founders of the plaintiff belong to Muslim Community which is a religious minority. It is also claimed in the plaint that all the minorities are entitled to the protection guaranteed under Article 30(1) of the Constitution of India and accordingly, the Law College run by the plaintiff trust is entitled to administer without any interference by the Educational Department and other defendants. It is also contended that the statutory provisions contained in the Tamil Nadu Private Colleges (Regulations) Act and the Rules made thereunder are not applicable to the minority institutions. A right is also asserted that the plaintiff is entitled to start educational institutions without permission from the defendants, appoint teachers and other staff members, admit students at its choice who fulfil the prescribed qualifications. It is also claimed that the plaintiff applied for recognition on 1-7-1992 before the second respondent, namely, the Director of Legal Studies, that he has not considered the application and that the application made by the petitioner trust for affiliation before the third respondent-University on 29-7-1992 was also kept pending for want of a declaration from the competent Civil Court about the minority status. It is in such circumstances, the suit has been filed for the relief as noticed above.
4. The suit appears to have been presented in the court below on 14-10-1992 and was being posted before the learned VI Assistant Judge, City Civil Court, Madras initially. A transfer petition O. P. 215 of 1993 was said to have been filed by the plaintiff seeking the transfer of the suit to either the II Assistant Judge or the III Assistant Judge,City Civil Court, Madras, before the Principal Judge, City Civil Court, Madras and the learned Principal Judge has directed the transfer of the case to the III Assistant Judge, City Civil Court, Madras. The case was said to have been posted before the III Assistant Judge on 30-9-1993, when on 20-9-1993 the plaintiff filed I. A. No. 15580 of 1993 to advance the hearing of the suit, notice was ordered on the same day. On 23-9-1993 when the matter came before court, on the basis of an endorsement said to have been made, when the suit was taken up, to give up the third defendant and the Presiding Officer has recorded it upder his initials. The second defendant appears to have filed a Written Statement which was adopted by the first defendant. After framing of the issues, the suit was posted for trial on 6-10-1993. On 6-10-1993, it appears that P.W. 1 was examined and certain documents were marked and for evidence and documents of the defendant, the matter was adjourned to 12-10-1993. It was at this stage that on 5-10-1993, the revision C. R. P. No. 2939 of 1993 came to be filed in this court and in C.M.P. No. 13891 of 1993, this court, while admitting the revision, granted interim stay of all further proceedings in the court below initially for eight weeks on 7-10-1993 and continued the said orders subsequently.
5. It may be noticed even at this stage that when the plaintiff has also filed I. A. No. 19239 of 1992 seeking for an injunction against the defendants/ respondents, Application No. 19212 of 1992 also appears to have been filed to dispense with the Notice under Section 80 C.P.C. and the same was dismissed on 14-10-1993 itself, At this stage only I.A. No. 15580 of 1993 appears to have been filed by the petitioner on 20-9-1993 to advance the hearing of the suit from 13-9-1993 to an earlier date, Though notice has been ordered returnable by 23-9-1993, notice does not appear to have been served on the third respondent, but appears to have been served only on the counsel for respondents 1 and. 2. So far as the third respondent is concerned, an endorsement appears to have been made by the counsel for the plaintiff that as against the third respondent, there is no relief in the suitand, therefore, he is not pressing the suit against the third respondent/defend ant. On this application, it is found on the docket sheet of the petition that in view of the endorsement made by the learned counsel for the petitioner, the application against the third respondent is dismissed, and that in other respects petition is allowed and hearing is advanced to 23-9-1993. This order was passed on 23-9-1993 itself. I. A. No. 17762 of 1993 also appeasrs to have been filed by the plaintiff to advance the hearing of the suit from 15-12-1993 to an earlier date. In the affidavit filed in support of the said petition, it is stated in paragraph 2 that since the petitioner is not pressing the above suit, it became necessary for the petitioner to withdraw the suit and, therefore, the hearing may be advanced to enable the petitioner/ plaintiff to withdraw the same. Notice appears to have been ordered to defendants 1 and 2 alone who were made respondents in the said petition since already the third respondent has been given up and the suit against him was not pressed. The counsel for the first respondent appears to have made an endorsement that, notice was taken and there is no counter. Instantly, on 28-10-1993 itself an order appears to have been made by the Presiding Officer that notice given is heard and petition is allowed and the hearing is advanced for that day. It is only at that stage in view of the orders granted by this court on 7-10-1993 on which a memo was said to have been filed in the court below on 12-10-1993, further proceedings have been kept in abeyance in the suit.
6. C. R. P. No. 3292 of 1993 has been filed under Article 227 of the Constitution of India challenging the decree dated 6-10-1993 in O. S. No. 6549 of 1993 on the file of the II Assistant Judge, City Civil Court, Madras (A. Sudataikannu) where under the suit came to be decreed as prayed for with costs. The plaintiff in this suit also is the same as the plaintiff in O. S. No. 9188 of 1992. The suit O. S. No. 6549 of 1993 came to be filed by the educational trust in question for the following relief :--
'.....declaring that the plaintiff trustSuhura Beevi Educational Trust represented by its Managing Trustee, 5/5 Poevankulathu Villai, Railway Campus, Kanyakumari-629 702 is a Muslim religious minority trust managed by members of Muslim minority community within the meaning of Tamil Nadu Private Colleges (Regulations) Act, 1976'. (Other unnecessary reliefs are omitted).
In the plaint therein, it has been stated that the plaintiff trust was constituted under a registered deed of trust registered as document No. 38/13-5-1992 before the Sub Registrar of Assurances at Kottaram, Kanyakumari District, that the primary object of the trust was to set up educational institutions with a view to uplift the downtrodden and under privileged masses of the society by providing them with education, that in pursuance of the said object, the plaintiff trust decided to start various educational institutions like Law College, Teachers Training Institute, Dental College, Pharmacy, Nursing and Lab Technician Course, etc. at Kanyakumari District and that the founders of the plaintiff belong to the Muslim minority community which is a religious minority community within the meaning of Article 30(1) of the Constitution of India and is entitled to start educational institutions of their choice. It is also stated therein that the plaintiff trust applied for recognition with regard to the above educational institutions to the concerned departments and for affiliation before the concerned Universities and that the same are pending before the respective authorities. It is stated that the plaintiff trust was reliably given to understand that it is a mandatory requirement to produce the minority declaration along with the application for recognition and also affiliation and, therefore, the plaintiff trust has no other alternative except to approach the said Court by way of the said suit seeking a declaration that the plaintiff trust belong to a minority community which is a religious minority under the Constitution of India within the meaning of the provisions of Tamil Nadu Private Colleges Regulations Act, 1976. While further reiterating the minority character of the institution, it is stated that all the minorities are entitled toprotection guaranteed under Article 30(1) of the Constitution of India and that, therefore, the educational institutions run by the plaintiff ttust are entitled to establish and ad-minister them without any interference by the educational department and the defendants, and that the statutory provisions contained in the Tamil Nadu Private Colleges Regulations Act and the rules made thereunder have no application to the minority institutions. It is also asserted that the plaintiff trust being a minority institution is entitled to start educational institutions without permission from the defendant, appoint teachers and other staff membeiv admit students of its choice who are fulfilling the prescribed qualifications. In para 8 of the plaint, it is stated that the plaintiff trust applied for recognition and affiliation for its educational institutions before the concerned authorities and Universities respectively and the same are pending before the said authorities and Universities tor want of production of the declaration that the plaintiff that belongs to minority community from a competent civil court, and, there-fore, there is no alternative for the plaintiff trust except to approach the said Civil Court for a declaration regarding the minority status of the plaintiff, It may be noticed even at this stage lhat in the list of documents annexed to the plaint from filing the community certificate issued by the Tahsildar of Kanyakumari.. the copy of the deed of trust, the application dated 23-5-1992 claimed to have been sent for recognition for starting Law College along with acknowledgement (xerox copy) have also been filed. The other four remain ing documents annexed were only community certificates relating to the members of the plaintiff trust. This inevitably would indicate, the exercise undertaken in this suit also relates to the so called law college alleged to have been stated by the Plaintiff Trust.
7. The said suit was presented in the Court below on 19-8-1993 and was assigned the number O. S. No. 6549 of 1993. I.A. No. 13555 of 1993 appears to have been filed seeking for an injunction, restraining the defendants, respondents from implementing Sections 7 (1), 10. 11 to 14, 18(2), 23, 27 to 39, 35 (4), 37 to 41 of the Tamil Nadu PrivateColleges (Regulations) Act, 1976 and Rules, 5, 7 to 10, 12 to 14, 18 to 20 of the rules made thereunder to the petitioner trust. In the said application, notice alone appears to have been ordered and the matter was being ad-journed for the counter of the respondents. I.A. No. 13500 of 1993 appears to have been also presented to dispense with the notice under Section 80 C.P.C. along with the suit and it is seen on the reverse of the docket sheet of the petition that the Presiding Officer has ordered dispensing with of the notice on 19-8-1993 itself.
8. The suit itself appears to have been taken up on 6-10-1993 for disposal ex parte and after examining P.W. 1 and marking Exhibits A -- 1 to A-7 which were the documents annexed to the plaint of which a reference has already been made above, by just a cryptic use of the two words that the 'claim proved' the suit has been decreed as prayed for.
9. Mr. K. Chandru, learned counsel appearing for the petitioner contended, so far as the revision petition in C. R. P. No. 2939 of 1993 is concerned, that the Court below committed a grave error in dismissing the suit so far as the petitioner is concerned without notice to the petitioner, which course of action, according to the learned counsel, is against law and constitute materially irregular exercise of jurisdiction. It is also contended that since the University, which is the petitioner in the above revision, is the only competent authority to grant affiliation to the plaintiff institution, it would be a necessary and proper party to the suit and when the suit is, by consent, of the plaintiff allowed to be dismissed as not pressed against the petitioner herein, who was the 3rd defendant in the suit, the very maintainability of the relief of the nature sought for in O. S. No. 9188 of 1992 stood undermined and such a perfunctory suit would have no legal justification to survive and consequently deserves to be dismissed. It is also contended that once the petitioner, the 3rd defendant in the Court below has filed written statement in the suit and also counter affidavit in the injunction application, even the act of giving up the petitioner herein orallowing the suit to be dismissed as not pressed, so far as the petitioner is concerned, could not have been allowed to be done except in the presence of the petitioner and that the strange procedure adopted smacks of ulterior motives amounting to gross abuse of process of Court. So far as the petitioner in C. R. P No. 1292 of 1993 is concerned, the learned counsel would contend that the plaintiff in O.S. No. 6549 of 1993 (also the plaintiff in O. S. No. 9188 of 1992). must be considered to have played fraud on court and committed gross abuse of process of Court in suppressing the filing and pendency of the earlier suit O.S. No. 9188 of 1992 and consequently the decree passed on 6-10-1993 is not only contrary to law, but constitute materially irregular exercise of jurisdiction, rendering the emire decree Non-est and Ab inilio void. It is also contended by the learned counsel for the petitioner that notwithstanding the absence ol the party-defendants to the suit, the court below (11 Assstant Judge, City Civil Court. Madras), hud a duly in law to objectively consider the claim made in the suit in the light of the so called ex parte evidence and materials placed for the consideration and armed at proper and sufficiency findings to justify the decree. The decree passed without any reference to any of the materials, discloses total non application of mind and the same could not he said to be in conformity with the judicial norms and proprieties. The further plea on behalf of the petitioner is that the learned II Assistant Judge, City Civil Court, Madras, ought not to have entertained and perused the suit, for the relief sought for therein written the petitioner-University being nude a party to the same, which is not only a proper, but necessary party to the suit and the Court below had a duty in law to direct the plaintiff to bring on record such nece.ssary parties before over taking up the suit for consideration on ments. It is also contended that the decree passed by the Court below and obtained by the plaintiff by suppressing the relevant, vital and valid material constitute gross abuse of process of law and court on this ground also the decree requires to be set aside. Finaly it has been contended that the procedure adopted in dispensing withthe notice under Section 80, C.P.C. also is contrary to law and the suit ought to have been dismissed on the ground of want of proper and sufficient notice under Section 80 C.P.C. In support of the submission made for the petitioner in this court, the learned counsel placed reliance upon the decisions in Advocate-General, State of Bihar v. Madhya Pradesh Khair Industries, : 1980CriLJ684 , Ramchandra G. Shinde v. State of Maharashtra, : AIR1994SC1673 and S. P. Chengalvaraya Naidu v. Jaaannath. : AIR1994SC853 .
10. Per contra. Mr. Thaageswaran, learned counsel for the ist respondent in these revision petitions, the plaintiff in both the suits in the courts below would contend that it was well within the rights of the plaintiff to give up any party to the suit at any stage of the proceedings and the petitioner herein has no right to challenge the competency of the plaintiff to do so in the best interest of the plaintiff. The further contention of the learned counsel for the 1st respondent is that there is absolutely no bad faith in the course of conduct adopted by the plaintiff and in the manner in which the proceedings were conducted and that at any rale the second suit O. S. No. 6549 of 1993 cannot be said to be hit by any principles of Res Judicata. While contending that the second suit is maintainable, the learned Counsel would contend that the decree passed therein was quite in accordance with law and cannot be said to be vitiated for any of the infermities alleged by the petitioner herein. Finally it has been contended that if this court is of the view that the decree in O. S. No. 6549 of 1993 was passed hurriedly without following due procedure of law, the matter may be relegated to the Court below after setting aside the decree for disposing of the matter afresh in accordance with law and the claim made on behalf of the petitioner that the said suit deserves to be dismissed in reversal of the decree granted in favour of the petitioner, has no merit. The learned counsel placed reliance upon the decisions in Ajita Debi v. Hossendara Begum, : AIR1977Cal59 , Mangi Lal v. Radha Mohan, AIR 1930 Lahore 599 2, TulisonTraders v. Gurdit Singh, : AIR1974Delhi190 , Viswanathan v. Abdul Wajid, : [1963]3SCR22 and S. Govindan v. L.A. Bharathi, : AIR1964Ker244 .
11. I have carefully considered the submissions of the learned counsel appearing on other side. I would consider it appropriate to deal with the claim of the plaintiff/1st respondent about the right of the plaintiff in absolute terms to give up any party to the suit at any stage of the proceedings and withdraw the suit as not pressed against any one of the parties on record. Reliance has been placed by the learned counsel for the Ist respondent, on Order 23 Rule 1 C.P.C., according to which, at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants abandon his suit or abandon a part of his claim or withdraw his suit.
12. The decisions relied upon by the learned counsel for the 1st respondent may be referred to at this stage. The decision in Mangi Lal v. Radha Mohan, AIR 1930 Lahore 599 2 is one where the plaintiffs claimed that they owned 450 square yards of land, that on 305 square yards of which defendant 2 had put stones with a view to building some structure and consequently sued defendant 2 for a permanent injunction restraining him from interfering with the plaintiffs right. After issues were framed, the plaintiff appears to have moved an application to amend the plaint to make the Secretary of State as a party. This request was said to have been refused and a date was set for the hearing of the suit. Before the said date of hearing, the plaintiffs seems to have appeared before Court and stated that they did not desire to proceed with the suit and in the presence of the plaintiffs, but in the absence of the defendant, who had no knowledge of the application, the court appears to have dismissed the suit, purporting to act under Order 9 Rule 3 C.P.C. At the same time, prior to the dismissal of the suit, the plaintiffs appear to have instituted another suit, making the Secretary of the State and 2nd defendant as defendants..... to the subsequent suit,making the same nature of grievances and claims as in the first suit. The first suit wasbefore the Munsif's Court and the second suit was before the Sub Court. When the second suit was decreed by the sub court, the matter was pursued on appeal and the suit was dismissed in the appellate Court on the ground that the second suit was barred under Order 23 Rule I C.P.C. It was in that context, the learned Judges of the Lahore High Court held that Order 23 Rule 1 C.P.C. had no application so as to bar the second suit since on the facts of the said case it was found that the second suit came to be filed even during the pendency of the first suit. Thus, it could be seen that the point that was adverted to and considered in the said judgment was as to whether the second suit was hit by the rule of bar of a second suit on the same claim, which was the subject matter of an earlier suit. Such is not the plea taken before me. The decision in Ajita Debi v. Hossenara Begum, : AIR1977Cal59 is one where a Division Bench of the Calcutta High Court expressed the view that where an application simpliciter, has been made under Order 23 Rule I C.P.C., the Court cannot compel the plaintiff to proceed with the suit and the defendants cannot be allowed to complain against such an order, but at the same time, it is noticed in the said judgment itself that where there is an affinity or identity of interests between the plaintiffs and one or more of the defendants, the plaintiffs cannot be allowed to withdraw or to compromise the suit with one of the defendants if an application on behalf of the other defendants, having any interest in the suit, is made for their transposition to the category of plaintiffs and for transposition of the plaintiffs to the category of the defendants. This decision, in my view, does not support the case of the 1st respondent in the present proceedings. The decision in Viswanathan v. Abdul Wajid, : [1963]3SCR22 , S. Govindan v. L. Bharathi, : AIR1964Ker244 and Tuli-son Traders v. Gurdit Singh, : AIR1974Delhi190 are, in my view, wholly irrelevant for the issue raised in these revision petitions. Those decisions have relevance to a plea of the principle of res judicata. It is not the case of the petitioner before me that the plea of res judicata is applicable to the case, warranting dismissal of the suits. Though liberty may liewith the plaintiff in a suit to withdraw or iabancion at any time after the institution of the suit, the whole of the suit or part of his claim, yet, in my view, it cannot be considered to be so absolute as to permit or encourage or ratify an abuse of process of Court or fraud to be played upon parties as well as Court. The :so called abandonment ought not to be a ruse ito d lid of a party but yet to get the same relief prayed for earlier. Even that apart, sub-rule (3) of R. 1 of O. 23, C.P.C. would show that where the plaintiff withdraws or abandons a part of the claim even without permission to lay a fresh suit, he shall be liable for such costs as the Court many award and shall be precluded from instituting any fresh suit in respect of the subject matter or such part of the claim. As noticed earlier, in the case on hand, the 3rd defendant before this Court has already filed its written statement and has also filed its counter affidavit in the injunction application. The petitioner-University has its scat of office at Tirunelveli and it has been dragged by the plaintiff to the Courts at Madras. Therefore, it has every legitimate right to press for costs, even if the plaintiff is desirous of withdrawing its suit or abandoning the claim partly against any one of the parties. Merc abandonment of the party alone without the claim against such party and proper amendment of the plaint would be a trick and amount to deception. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself is no licence to the plaintiff to claim a right to do so to the detriment of the legitimate rights of a party-defendant behind us back and with ulterior motive and oblique purpose and courts could not be held to be p,,v.'cricss to prevent such onslought on the institute of administration of justice. Therefore the question for consideration would be as to whether the plaintiff acted bona fide in the move to abandon a part of the claim (which is not the fact in this case) or withdrawing the suit so far as the 3rd defendant is concerned in O.S. No. 9188 of 1982. This aspect will be dealt with separately, Hereinafter.
13. Before adverting to the considerationof the points raised for the petitioner, it would be useful to refer to some of the decisions relied upon by the learned counsel for the petitioner. The decision in Advocate General. State of Bihar v. Madhya Pradesh Kh^air Industries, : 1980CriLJ684 is that of the Supreme Court rendered under the Contempt of Courts Act, 1971. While construing S. 2(c) of the said Act, the Supreme Court had an occasion to consider as to what constitutes misuse or . abuse of Court's process, affecting parties outside the action and public interest in the administration of justice. The Court while holding that it must take into account the whole course of the continuing contumacious conduct of a person from the beginning adverted to the fact that the petitioner in that case, before the learned single Judge of the High Court, was not acting bona fide, but was acting wkh an intention to harass and oppress the opposite parties by going on filing application after application with a design to circumvent, defeat or nullify the orders of Courts and on that view, expressed the opinion that every one of such application was a daring raid on the Court and each was an abuse of the process of the Court, calculated to obstruct the due process of judicial proceedings and administration of justice. The decision in Ramachandra G. Shinde v. State of Maharashtra, : AIR1994SC1673 is also one dealing with the issue of abuse of judicial process involved in the action of a party obtaining a Court's order by collusion and fraud through henchmen with a format of legal process. The Apex Court once again expressed grave concern about the orders being obtained by abuse of process of the Court or by playing fraud or collusion and declared the position that such order should not be allowed lo remain operative even for a moment since il would amount to. putting a premium on fraud, collusion or abuse of the process of the Court creating disbelief and disillusionment of the efficacy of judicial process and rule of law, resulting in the generation of feeling that the persons capable to manoeuvre and abuse the judicial process would reap the benefit thereof and get away with the orders. TheSupreme Court further emphasised about the endeavour that should be made by Courts to inculcate respect for fair judicial process and faith of the people in the efficacy of law. The decision in S. P. Changalvaraya Naidu v. Jagannath, : AIR1994SC853 is one where a partition suit was said to have been filed by the respondent before the Apex Court without disclosing the deed of release executed by him, relinquishing his rights in the property and obtained a preliminary decree. When the application for a final decree was filed, the appellants-defen-dants came to know about the want of locus standi of the respondent and challenged the application on the ground of fraud. The Apex Court held that non-disclosure of the vital document by a party vitiate the proceedings and the preliminary decree obtained by such a party in his favour by playing fraud on Court was really a nullity and can be questioned even in collateral proceedings. In that context, the Apex Court observed that a litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation and if he withholds a vital document in order to gain advantage on the other side, then he would be guilty of play ing fraud on the Court as well as oh the opposite party.
14. As could be seen from the contentions urged on behalf of the petitioner, the main ground of attack on the orders and judgment passed by the Courts below are the grave lapses in respect of vital procedural safeguards and suppression of material so as to render the action of the plaintiff, suffer the vice of playing fraud on the Court as well as on the opposite party, deliberately to deceive and get an undue advantage. The matter has to be viewed and considered from the said angle and perspective.
15. The prayer and relief sought for in the suit O.S. No. 9188 of 1992. which has been already adverted to, would go to show that the declaration of minority status was specifically sought for with reference to the Trust as also M.G.R. Law College, Kanyakumari with particular reference to the provisionsof the Tamil Nadu Private Colleges (Regulation) Act, 1976 and the Rules made thereunder as also Statute 21 of Chapter XXVI of the Law of University, which is stated to be the same as the one applicable to the Madurai Kamaraj University. In the context of such a prayer involving also the 3rd defendant-University, perhaps the suit could not have been maintained without making the University as a party defendant to the proceedings in the Court below. Though it is the right of the plaintiff to choose the party respondent or defendants to a cause to be instituted or to give up or aband on a party at any stage of the suit or proceedings, such things cannot bel allowed to be done without consequential amendment of pleadings. It is preposterous to claim a relief against a party or a relief, in terms, which will directly affect the rights of a party, but yet claim a right also either not to implead such a person or authority who may be directly affected as a party or give up or abandon such a person once earlier made a party to the proceedings. In such cases, in the absence of consequential amendments and deletion of the relief prayed and relief sought for as well as the allegations pertaining to such a party, who is not impleaded or given up subsequently the proceedings will suffer the vice of not having before the Court the necessary parties and on such ground alone the proceedings will have to fail without there being any enquiry or adjudication on the merits of the claim. The Court in such cases cannot also pretend to be either ignorant or oblivious to such patent manoeuvres and manipulations or itself allow it to be made in gross abuse of the judicial process. De hors the presence of the 3rd defendant as a party to the suit O.S. No. 9188 of 1992. the petitioner could not be permitted to have the declaration of the nature claimed in the suit or in the injunction application without violation of the procedure of taw as well as the course of justice. Even that apart as has been indicated earlier, the petitioner herein who was a party and who has filed its written statement and also its counter-affidavit to the injunction application, cannot be given up behind its back, depriving its right to insist upon either the costs or even to raise a plea that inconsequence of such giving up or withdrawal or abandoning, the suit itself would be rendered futile and cannot be as it has been framed and filed and pursued. The trial Court (III Assistant Judge, City Civil Court, Madras) also, in my view, ought to have seen that the parties do not take undue advantage of the Courts and Court procedures and should not also willingly allow itself to be abused by either one or the other of the parties to the proceedings before it at the expense of the other or in denigration and abuse of process of Court. In this case, I find from what has happened, the incidents which, have been set out in detail in the earlier portion of this order, that the Court below has voluntarily contributed itself by willingly allowing it to be abused in order to help the plaintiff reap in undeserved benefit, which would ultimately have a serious consequence of undermining the respect for a fair judicial process and faith of the people in the efficacy of law.
16. So far as the suit O.S. No. 6549 of 1993 is concerned, it is distressing to notice that the plaintiff has totally suppressed the filing of the earlier suit and the pendency of the same in the very Court, though before another Presiding Officer. Though the University has not been specifically implcad-ed as a party, the ultimate decree that has been prayed for, was for a declaration of the minority status of the petitioner-institution for purposes of Tamil Nadu Private Colleges (Regulation) Act. 1976. In the body of the plaint, as has been earlier noticed, not only a reference is made to the various educational institution, including the law college, but a definite and positive indication has been given that the declaration is sought for to protect those various categories of institutions referred to in paragraph 3 of the plaint by claiming rights as a minority institution, of which, the law college is one. That apart, in the list of documents filed along with the plaint, which also appear to have been marked at the lime of the ex parte trial, besides the deed of trust and the community certificates relating to the trustees of the plaintiff-Trust, the only other remaining document that has been marked, was the application for recognition forstarting law college, along with an acknowledgement. Though the learned counsel for the 1st respondent, at the time of the argument of the case before this Court, contended that the second suit was not with reference to the issue relating to the law college it is beyond comprehension as to why then of all the other institutions the application for recognition for the starting of the law college has alone been marked as a document, without reference to any other institutions referred to in the plaint or the documents relating to such other institutions. On a careful analysis of the nature of the claim sought to be rejected in the subsequent suit O.S. No. 6549 of 1993, one is constrained to come to the inevitable conclusion that it is for the very same purpose and with the same object, for which the earlier suit was filed, the second suit also came to he filed by the plaintiff apparently with an oblique and sinister motive and move. In addition thereto, undue haste and urgency appears to have been exhibited in seeking orders for dispensing with the compliance of the requirement of the notice under S. 80, C.P.C., notwithstanding the pendency of the earlier suit. There could be no urgency at ali worth credence to justify or warrant the grant of permission dispensing with the statutory S. 80, C.P.C. notice. The Court also, before proceeding with the ex parte trial, has deliberately omit ted to keep itself alive to the position that it has earlier dispensed with the notice under S. 80, C.P.C. and even without ensuring whether the defendant has been properly served in the second suit and whether the detcndant state had been allowed sufficient time to defend itself, it should not have hurried up with the ex parte trial, resulting in an ex parte decree. The plaintiff cannot pretend ignorance of the fact that the other suit is being contested by this State. I have had the documents and records in the second suit also, called for. A perusal of the ex parte evidence recorded would go to show that neither the one and half pages of the so called deposition recorded by the Presiding Officr of the II Assistant City Civil Court is intelligible, nor, in my view, the same can be even considered to be a record of evidence. Inmany places I notice except the first letter, in respect of some of the words, the Presiding Officer has drawn oniy a straight line with no following letter and apparently it is on that account, he could not even refer to the contents of the so called ex parte evidence, recorded by him. The farce of a conduct of the proceedings by the II Assistant Judge, City Civil Court, Madras, in the manner in which he has done and the manner in which he has recorded the proceedings, is highly derogatory of the judicial norms and proprieties. It is surprising that the Presiding Officer should have indulged in such type of recording of evidence in spite of the repeated circulars of this Court that the recording of evidence should be intelligible and clear. The manner in which the II Assistant Judge, City Civil Court. Madras has chosen to rush through the whole gamut of proceedings and perhaps recording the evidence also deliberately in an unintelligible manner and passing a laconic judgment without adverting to any of the materials warranting the grant of reiief as prayed for with serious and far-reaching consequences, would only go to show that he has willingly played into the hands of the plaintiff/1st respondent herein and paved way and facilitated the plaintiff's unscrupulous manoeuvres and manipulations amounting to a daring raid on the Court and oppression of the defendant State. I cannot refrain from expressing my displeasure as well as condemnation of this manner of imparting justice by the II Assistant Judge, City Civil Court, which, in my view, amount to not dispensing justice, but really dispensing with justice. The extraordinary interest that the Couct below has chosen to exhibit in the matter to throw to winds all the procedural safeguards devised to prevent abuse of process of Court, hardly befits judicial process or the status of the Presiding Officer of a Court of Justice. The plaintiff could not have sought for the relief of the nature prayed for in the second suit also without the presence of the petitioner-University, which is a necessary and proper parly to the proceedings. The provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 would show that apart from getting recognition from theGovernment concerned the affiliation of the concerned University must also be obtained to start an educational institution and it is beyond comprehension as to how the plaintiff could have chosen to institute a suit with a relief of protection in the nature of a declaration of minority status of the plaintiff qua the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 and the Rules made thereunder without arraying the necessary and proper parties to the said proceedings. The second suit appears to be a deliberately schemed one to play fraud on the Courts as also the opposite party, in gross abuse of process of Court.
17. Viewed in the above perspective, I am of the view that though the principles of res judicata or constructive res judicata or the bar of the suit contemplated under O.23, R. 1, C.P.C. would not be attracted the filing of the second suit in the manner and circumstances it was done should be discouraged and should not be allowed in the interest of justice and in order to preserve and maintain the efficacy of judicial process and the rule of law and to inculcate respect for fair judicial process and faith of the people in the cfficiancy of law. The fraud played upon the Courts and the opposite parties by the plaintiff in suppressing the filing and pendency of the earlier suit and getting an order dispensing with the procedure to be complied with under S. 80, C.P.C. itself would be sufficient to castigate the plaintiff as well as the proceedings filed in the second suit to be guilty of an attempt deliberately made to withhold the relevant and vital material from the knowledge of the Court as also keep out the necessary and proper party to the proceedings and by such acts of deception, gain an undue and undeserved advantage. The judgment and decree obtained by playing such fradulent manoeuvres and manipulations on the Court as also the necessary and proper party, behind whom such judgment and decree has been obtained, is a nullity and non-est in the eye of law. The universal declaration made by the Supreme Court in the decision in S. P. Chengalvaraya Naidu's case (supra) would be more opposite to be quoted in the context of the present case, in the following terms (at page 855; of AIR 1994) :--
'The courts of law are meant for impartingjustice between the parties. One who comes tothe Court, must come with clean hands. Weare constrained to say that more often thatnot, process of the Court is being abused.Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous personsfrom all walks of life find the Court-process aconvenient lever to retain the illegal-gainsindefinitely. We have no hesitation to say thata person, who's case is based on falsehood,has no right to approach the Court. He can besummarily thrown out at any stage of thelitigation.'
18. For all the reasons stated above, I am of the view that the orders passed by the Courts below in O.S. No. 9188 of 1992 and the judgment and decree in O.S. No. 6549 of 1993 deserve to be and are liable to be set aside and the following directions shall be issued to ensure effective justice being rendered and which course alone will be in the interest of all parties concerned and also in order to maintain respect for the rule of law and administration of justice :--
(a) The judgment and decree passed by the II Assistant Judge, City Civil Court, Madras in O.S. No. 6549 of 1993 shall stand heareby set aside and the suit shall stand dismissed with no costs in the suit.
(b) The order of the III Assistant Judge, City Civil Court, Madras passed on 22-9-1993 in O.S. No. 9188 of 1992 permitting the withdrawal of the suit against the 3rd defendant/petitioner herein, as not pressed, shall stand set aside and that the 3rd defendant shall stand restored as party 3rd defendant in the suit as well as in the corresponding applications filed in the suit for injunction.
(c) If for any reason during the trial of the suit, the plaintiff persists in giving up or abandoning the 3rd defendant, the Court is obliged to consider in the presence of the 3rd defendant the legality and propriety of such a claim and also regarding the maintainability of such suit in the absence of a proper and necessary party like the 3rd defendant as a preliminary issue even before entering into an adjudication on the merits of the claims.
(d) There shall be a direction to the Principal Judge, City Civil Court to post the suit O.S. No. 9188 of 1992 now on the file of the III Assistant Judge, City Civil Court, to any other learned Judge of the City Civil Court, than the present incumbents in the II and in the III Assistant Courts, and on such posting being ordered by the learned Principal Judge, City Civil Court, Madras, the Court shall entertain the suit O.S. No. 9188 of 1992 and proceed to dispose of the same on merits and in accordance with law after due notice and opportunities to all the parties to the proceedings.
The above revisions shall stand allowed in the above terms with costs of Rs. 1,000/- (one set).
19. Order accordingly.