WA/2542/2005 of M/s.Surya Tronics Pvt.Ltd., represented by its Chairman AND Vs The Regional Provident Fund Commissioner, Barkatpura, on 29 December 2005

::JUDGMENT::

Counsel for appellant : Sri Raghavan K.Tallapaka Counsel for respondent : Smt. B.Kavitha Yadav.

Per G.S.Singhvi, C.J.

Undeterred by the dismissal of writ petition No.3854 of 2005 filed by it for issuanceof a mandamus to the respondents to stay the sale proceedings initiated vide noticedated 3[rd] March, 2005 till the reconciliation of accounts between the Accounts andEnforcement Departments of Provident Fund organization, the petitioner filed writpetition No.5527 of 2005 with identical prayer, which was dismissed by the learned Single Judge as barred by res judicata.

In the course of hearing, we repeatedly asked the learned counsel to show the orderpassed by this court in writ petition No.3854 of 2005, but he failed to produce therelevant order. Ultimately, counsel representing the Provident Fund organizationproduced a copy of order dated 1.3.2005 passed in W.P.No.3854 of 2005, therelevant portions of which are extracted below:

“This writ petition is filed aggrieved by the proclamation of sale dated 28.1.2005 issued by therespondent for sale of the property in question in pursuance of the certificate dated 30.4.2004 issuedfor recovery of a sum of Rs.14,44,192/- recoverable with interest in accordance with Section 7Q of theEmployees Provident Fund and Miscellaneous Provisions Act, 1952 (for short ‘the Act’).

As can be seen from the material on record, the order under Section 7A of the Act passed against thepetitioner has become final and as on today, no appeal is pending challenging the said order. Hence, Ido not find any reason to interfere with the sale proceedings initiated by the respondent.”

Since identical prayer made by the appellant in the previous writ petition wasnegatived by the learned Single Judge on merits, the second writ petition filed by itwas clearly barred by res judicata and the learned Single Judge did not commit anyerror by refusing to entertain the same. The view taken by the learned Single Judgeis in consonance with the law laid down by the Supreme Court in SargujaTransport Service v. S.T.A. Tribunal, Gwalior and Upadhyay & Co. v. State ofU.P..

We are further of the view that the appellant should have been non-suited bythe learned Single Judge only on the ground that it had not approached the courtwith clean hands. In our opinion, the appellant was duty bound to produce a copy oforder dated 1.3.2005 passed in writ petition No.3854 of 2005 and then made aneffort to convince the learned Single Judge that there was a valid ground for taking aview different than the one taken in the previous writ petition.

We would have saddled the appellant with the exemplary costs for its contumaciousconduct, but refrain from doing so because the appeal is being dismissed at theadmission stage.

With the above observation, the appeal is dismissed.

G.S.SINGHVI, C.J.

29.12.2005.

R.SUBHASH REDDY, J.

VR