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what is the suppression of material fact ?=Constitution of India, 1950: Article 226-Exercise of jurisdiction under-Suppression of material fact by petitioner-Writ petition filed suppressing the fact of filling of suit in District Court and non-granting of interim injunction-However, after filing the writ petition suit was withdraw-High Court declining to entertain the writ petition-Held, though appellant had suppressed a material fact and High Court may be correct that in a case of this nature, Court’s jurisdiction may not be invoked, however, suppression of filing of the Suit is no longer a material fact, and incase another writ petition is filed disclosing all the facts, 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 basic feature of the Constitution-Judgment of the High Court, on facts, shall not operate as res judicata-Judgment Review-Human Right of access to justice-Res judicata. Maxim-Ubi jus ibi remedium-Applicabilitty of. Words and Phrases: `Material facts’-Meaning of in the context of Court’s refusal to exercise its discretionary jurisdiction on petitioner suppressing material facts. Services of appellant, who was a confirmed employee of Indian Council for Child Welfare, a Society registered under the Societies Registration Act, were terminated. She challenged the said order by filing a suit in the District Court with an application for an ad interim injunction. The court notice but granted no ad interim injunction. Soon thereafter, the appellant filed a writ petition in the High Court challenging the termination order. In the Writ petition pendency of the suit was not disclosed. She filed an application for withdrawal of the suit and the District Court permitted the Suit to be withdrawn. Later, a Single Judge of the High Court, declined to entertain the writ petition on the ground of concealment of material fact by the writ petitioner. The intra-court appeal having been dismissed by a Division Bench of the High Court, the Writ petitioner filed the present appeal. On the question : how far and to what extent suppression of fact by court appeal having been dismissed by a Division Bench of the High Court, the writ petitioner filed the present appeal. =Dismissing the appeal, the Court HELD: 1.1. 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. A person who has a grievance against a State, a forum must be provided for redressal thereof. 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 to be considered. [Para 10] S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., [2004] 7 SCC 166; Dwarka Prasad Agarwal (D) by Lrs. and Anr. v. B.D. Agarwal & Ors., [2003] 6 SCC 230; Bhagubhai Dhanabhai Khalasi & Anr. v. The State of Gujarat & Ors., [2007] 5 SCALE 357; Zee Telefilms Ltd. v. Union of India, [2005] 4 SCC 649 and Hatton & Ors. v. United Kingdom, 15 BHRC 259, relied on. Hatton & Ors. v. United Kingdom, 15 BHRC 259, referred to. 1.2. 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. [Para 11] S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., [2004] 7 SCC 166, relied on. 1.3. 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 when the said dirt is removed and the court is approached with clean hands. The court at that point of time will be entitled to determine the case on merits. [Para 11] Jai Narain Parasrampuria (D) and Ors. v. Pushpa Devi Saraf and Ors., [2006] 7 SCC, relied on. Moody v. Cox, (1917) 2 Ch 71, referred to. Halsbury’s Laws of England, Fourth Edn., Vol. 16, pg.874-876 and Equitable Remedies, Fourth Edn., pg. 5 by Spry, referred to. 2.1. Further, the court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter. But, where one proceedings has been terminated without determination of the lis, it cannot be said that the disputant shall be without a remedy. [Para 18] Jain Singh v. Union of India and Ors., [1997] 1 SCC 1 and M/s. Tilokchand and Motichand & Ors. v. H.B. Munshi and Anr., [1969] 1 SCC 110,, relied on. 2.2. Existence of an alternative remedy by itself, 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. A person who comes with a genuine grievance in an arguable case should be given a hearing. [Para 20 and 21] 3. In the instant case, 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. The 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. [Para 21 and 23] Lata Krishnamurthy, Rekha Pandey, Saurabh Ajay Gupta and Raj Kumar Tanwar for the Appellant. Nikhil Nayyar and Ankit Singhal for the Respondents.=, 2007(5 )SCR904 , 2007(6 )SCC120 , 2007(6 )SCALE293 ,

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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.

 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:

"When 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]

 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 
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 
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 :

"that 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"

 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:

"In 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"

 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 
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 
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.

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