TMI Blog2007 (4) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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came up for consideration before the Civil Court and upon a statement made by her, the same was permitted to be withdrawn by an order dated 30.04.2001.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta 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 The learned counsel would submit that as on the date of hearing of the writ petition, the suit already stood withdrawn, the question of dismissal of the writ petition on the ground of availability of alternative remedy would not arise and, thus, the writ petition could not have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 remed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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