Delhi High Court
Ashok Kriplani vs Dr.Jethanand Jethwani & Anr. on 18 September, 2013
Author: S. P. Garg
Bench: S.P.Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 18th SEPTEMBER, 2013
+ CRL.A.955/2012 & CRL.M.A. 14166/2012
ASHOK KRIPLANI ..... Appellant
Through : Appellant in person.
versus
DR.JETHANAND JETHWANI & ANR. ..... Respondents
Through : Mr.M.N.Dudeja, Amicus Curiae.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG S.P.Garg, J. (Open Court) CRL.M.A. 14166/2012 (delay) Heard. For the reasons mentioned in the application delay in filing the appeal is condoned.
The application for condonation of delay is disposed of. CRL.A.955/2012
1. The appellant (Ashok Kriplani, Advocate) has preferred the appeal to challenge an order dated 04.02.2012 by which application under Section 340/190 Cr.P.C. against the respondents was dismissed. I have heard the appellant (in person) and Mr.M.N.Dudeja, Advocate/ amicus curiae.
Crl.A. 955/2012 Page 1 of 5
2. The appellant seeks enquiry under Section 340 Cr.P.C. as respondent No.1 (Dr.Jethanand Jethwani) has taken a false plea that there was a 'family settlement' among the parties and it was acted upon.
Allegations against respondent No.2 (A.K.Mishra, Advocate) are that he filed application under Order 7 Rule 11 C.P.C. on behalf of the respon0dent No.1 without verifying the facts. It is further alleged that he furnished wrong information to the Court and falsely claimed that Chamber No.102, New Lawyers' Chambers, Supreme Court, was allotted to him. Appellant's contention is that the impugned order cannot be sustained as no such 'family settlement' was acted upon.
3. I have examined the record. It reveals that Civil Suit No. 101/2005 was filed by Narianlal Jethwani and Ors. against Gordanlal Jethwani and Ors. for declaration of 'family settlement' as null and void and consequential relief. It was pleaded by the plaintiffs therein that Lekhraj Jethwani, father of the parties (except plaintiffs No.3 & 4) had executed a Will dated 24.01.1992 during his life time regarding movable and immovable property owned by him. Lekhraj Jethwani left for heavenly abode on 06.03.1992. Dr.Jethanand Jethwani (Defendant No.2 in the suit) executor of the Will did not execute it as per the directions of the deceased. He remained in possession of the prime family property at 78, Crl.A. 955/2012 Page 2 of 5 Shopping Center, Kota, Rajasthan and did not allow any other to enter till 2002. When defendant No.2 was forced to execute the Will, he concocted a false and fabricated 'family settlement' and asked the parties to take the properties as per the 'family settlement'. It was further pleaded that the family settlement was bad in law and void ab initio as it was not registered. Signatures of the parties were procured forcibly on it. Application under Order 7 Rule 11 C.P.C. was filed on behalf of the respondent No.2 for dismissal/ rejection/ return of the plaint as Court at Delhi had no territorial jurisdiction to entertain the suit. Vide order dated 10.08.2011, learned Additional District Judge decided preliminary issues and ordered return of original plaint to the plaintiffs for presentation before the competent court of jurisdiction at District Kota, Rajasthan. Counterclaim filed by defendant No.3 in the suit was also returned with similar directions.
4. The trial court was of the opinion that there was no attempt on the part of respondent No.1 to create false evidence with the intention to interfere in the administration of justice or to influence the opinion of the Court. It was further observed that appropriate Court at appropriate time would take the decision on the stands of the parties at the time of culmination of trial. It further observed that at no stage respondent No.2 Crl.A. 955/2012 Page 3 of 5 impersonated to get allotment of Chamber No. 102, New Lawyers' Chambers, Supreme Court. The plaintiffs' case for partition of the property was based upon the execution of Will dated 24.01.1992 by deceased Lekhraj Jethwani. The defendant No.2 categorically denied execution of any Will and pleaded that there was a family settlement dated 12.01.2003 among the parties and it was acted upon. The plaintiffs have denied the existence of any such 'family settlement'. The trial court at preliminary stage found that it had no territorial jurisdiction to entertain and decide the suit and returned the plaint. The parties are yet to establish their respective pleas by adducing evidence during trial. The defendant No.2 cannot be restrained to set up the plea of existence of 'family settlement' in the pleadings. A copy of family settlement has been placed on record by the plaintiffs though signatures on it are alleged to have been obtained forcibly. That aspect is to be decided by the Trial Court. Taking a specific plea in the pleadings to set up one's case cannot be considered as false plea with an intention to fabricate the documents to influence the Court's verdict. It is a matter of trial whether the plea taken by the defendant No.2 in the suit is correct or not. I also find no substance that any proceeding can be initiated under Section 340 Cr.P.C. against respondent No.2 for filing the reply without verification of facts or that he Crl.A. 955/2012 Page 4 of 5 had filed power of attorney where the address was shown as Chamber No. 102, New Lawyers' Chambers, Supreme Court. The Trial Court was justified to observe that there are no allegations/ evidence that respondent No.2 impersonated before any authority to claim allotment of the said chamber.
5. Under Section 340 Cr.P.C., the Court must satisfy that it was expedient in the interests of justice to make enquiry into the offence complained. The Court has to come to the conclusion that for the eradication of the evils of forgery and fabrication of false evidence and in the interests of justice, it was expedient that a witness / party should be prosecuted for the offence which appears to have been committed by him. The mere fact that a particular / specific plea has been taken by the defendant No.2 in the application under Order 7 Rule 11 C.P.C., is not by itself sufficient to justify the prosecution for forgery under Section 193 IPC. The Court cannot enter into facts on contentious issues existing between the parties which are subject matter of trial.
6. The appeal is unmerited and is dismissed.
(S.P.GARG) JUDGE SEPTEMBER 18, 2013/tr Crl.A. 955/2012 Page 5 of 5