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SCA/4062/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4062 of 2009
===================================
PARMINDER
G MULTANI - Petitioner
Versus
PRINCIPAL
& 2 - Respondents
===================================
Appearance
:
MR
RS TALREJA for Petitioner.
MR NV GANDHI for Respondent No. 1.
MS
MANISHA NARSINGHANI, AGP for Respondent No. 3.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 28/04/2010
ORAL ORDER
The petitioner
has filed this petition under Articles 226 & 227 of the
Constitution of India praying for quashing and setting aside the
impugned order dated 23.10.2008 in Darkhast No.20 of 2006 whereby
the Tribunal has rejected the Darkhast application of the petitioner
only on the ground of constructive resjudicata.
This Court has
issued notice for final disposal on 27.04.2009 and the impugned
order of the Tribunal was stayed.
Heard Mr. R.S.
Talreja, learned advocate appearing for the petitioner, Mr. N. V.
Gandhi, learned advocate appearing for the respondent No.1 and Ms.
Manish Narsinghani, learned Assistant Government Pleader appearing
for the respondent No.3.
The brief
facts are that decree was passed by the Tribunal in favour of the
petitioner wherein certain directions are given. Those directions
have not been complied with by the respondent No.1 School and hence,
the petitioner filed Darkhast No.20 of 2005. The said Darkhast came
to be withdrawn on 18.08.2005 pursuant to the withdrawal purshish
filed by the petitioner on the basis of settlement arrived at
between the parties.
The main
dispute between the parties is that the earlier withdrawal was
unconditional and no liberty was reserved to the petitioner for
filing second Darkhast and hence, as per the provisions contained in
Section 11 of the Code of Civil Procedure, the second Darkhast is
not maintainable as it is barred by the principles of resjudicata.
The Tribunal has proceeded on that footing and only on the basis of
constructive resjudicata, the second Darkhast filed by the
petitioner was rejected.
The say of the
petitioner is that at the time of withdrawal of the earlier
Darkhast, an assurance was given that the petitioner would be paid
Rs.1,15,000/-. However, the petitioner was paid only Rs.25,000/-
and balance amount of Rs.90,000/- was not paid. Therefore, the
petitioner has filed second Darkhast.
Mr. N. V.
Gandhi, learned advocate appearing for the respondent No.1 School
has submitted that the School has to recover certain amount from the
petitioner and for that purpose, letter dated 06.09.2006 was issued
to the petitioner.
The content of
this letter was not, however, brought to the notice of the Tribunal
when the decree was passed. No such defence was raised. It appears
that this is simply a pressure tactics adopted by the School
management and as a result of this letter, the petitioner was
compelled to withdraw the earlier Darkhast. Apart from this, an
assurance was given to the effect that the petitioner would be paid
Rs.1,15,000/-. Since the said amount as per the settlement has not
been paid even after withdrawal of first Darkhast, the petitioner
would certainly agitate the grievance and claim the amount either as
per the decree or as per the understanding arrived at between the
parties. For this purpose, if subsequent Darkhast is filed by the
petitioner, the same would not be thrown away by the Tribunal only
on the ground of resjudicata.
The parties to
the proceedings are bound by their understanding, either oral or
written arrived at between them and on that basis if the order is
invited from the Court and if the parties are not acting as per the
said order, the plea regarding applicability of resjudicata would
not be entertained by the Court.
The petitioner
has invoked the equitable writ jurisdiction of this Court. Equity
lies with the petitioner and to render substantial justice in the
matter, the Court takes the view that only on the basis of assurance
given by the School management to pay Rs.1,25,000/-, the earlier
Darkhast was withdrawn and since that amount has not been paid, the
petitioner has filed second Darkhast. Hence, the Tribunal should
have considered the Darkhast on its own merits.
Considering
the facts and circumstances of the case and only with a view to
render substantial justice in the matter, the present petition is
allowed. The impugned order passed by the Tribunal is quashed and
set aside and the Tribunal is directed to proceed with the Darkhast
No.20 of 2006 filed by the petitioner and the same shall be decided
in accordance with law and on merits.
Sd/-
[K. A. PUJ, J.]
Savariya
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