IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 WA.No. 1972 of 2004() --------------------- AGAINST THE JUDGEMENT IN WPC.20731/2004 Dated 02/08/2004 .................... APPELLANT: PETITIONER: ------------------------- SIMON ALEXANDER, S/O. ALEXANDER, LAL BHAVAN, N M C 9/315, KACHERY, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.A.K.ALEX RESPONDENT: --------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. 2. STATE OF KERALA REP. BY COMMISSIONER & SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. REV. C.H. ALFRED, CALVERY LUTHERAN CHURCH, LUTHERAN MISSION COMPOUND, PEROORKADA, THIRUVANANTHAPURAM-5. R1 & 2 BY GOVT. PLEADER SHRI. NOBLE MATHEW R3 ADV. SRI.P.GOPALAKRISHNAN NAIR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 6/1/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.A. NO: 1972 OF 2004 ----------------------------------------------------------------------------------- Dated this the 6th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. The appellant is the writ petitioner. Respondents herein were the respondents in the writ petition. 2. The appellant filed W.P(C) 20731/2004 praying for a direction to the DPI to consider and pass orders on Annexure I representation dated 14.6.2004. The prayer in that writ petition was to approve the appointment of the petitioner as Manager of Lutheran Schools for a period of three years from 28.11.2003. The learned Judge who considered the writ petition found that practically seeking the very same relief the petitioner has approached this Court by filing writ petition (Civil) No: 39673/2003. The said writ petition was dismissed as withdrawn. The learned Single Judge Court noticed that Writ petition (Civil)No: 37459/2003 set aside the order of the government approving the appointment of the petitioner as Manager of Luthern Schools. The learned Judge found that the said fact was not pleaded in the writ petition. In view of the above supression of material facts, the writ petition was W.A. 1972/2004 2 dismissed by the judgment under appeal and the petitioner was mulcted with a cost of Rs.25,000/- which has to be paid to the Kerala High Court Legal Services Committee. It was also ordered that if the writ petition happened to be filed on the wrong advice of his Advocate, he can realise the cost from his counsel. 3. Aggrieved by the said judgment the appellant has preferred this appeal. He submits that though writ petition (Civil) 37459/2003 was withdrawn, he has come up with the present writ petition based on a new cause of action. Further it is pointed out that by the judgment in W.P(C) 37459/2003 his appointment as Manager for the previous term which ended on 28.11.2003 was set aside. The same has no relevance concerning the validity of the election for the second term from 28.11.2003. Therefore, non- mentioning of the judgment of this Court in W.P(C) 37459/2003 cannot be taken as a misconduct from the part of the appellant. So, the appellant prays that the judgment under appeal may be reversed and the writ petition may be allowed. 4. We notice that the non-mentioning of the judgment in W.P W.A. 1972/2004 3 (C) 37459/2003 may not be strictly relevant when he seeks approval of the second term of his appointment. But for approving the second term he has approached this Court by filing W.P(C) 39673/2003. The said writ petition was withdrawn without reserving liberty to approach this Court again for the very same relief. So, the non-mentioning of the withdrawal of the writ petition is a serious misconduct. The contention of the appellant that the second writ petition was filed based on new grounds is not an answer to the suppression made in this regard. So, we find that the original petition was liable to be dismissed and the appellant was liable to be mulcted with costs. The same was rightly done by the learned single Judge. But regarding the quantum of costs the appellate court cannot interfere as it is a matter within the discretion of the learned single Judge. Unless discretion exercised is shown to be perverse, the appellate court is not justified in interfering with the exercise of discretion by the learned single Judge. But we feel that the liberty given to the appellant to recover the amount from the counsel should be recalled. The W.A. 1972/2004 4 appellant is the manager of an school. He has been a party to several litigations and it can be presumed that he knows the consequences of his actions. He cannot be equated with an uninstructed rustic villager. Therefore the last sentence in the judgment under appeal is deleted. With the above modification the judgment of the learned single Judge is affirmed and the writ appeal is dismissed. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: