Himachal Pradesh High Court
Unknown vs State Of on 13 September, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
CMP(M) No.836/2016 .
13.9.2017 Present: Mr. Y.P. Sood, Advocate, for the appellant-
applicant.
Mr. Vivek Sharma, Advocate, for the respondents- non-applicants.
By medium of this application, the applicant has sought condonation of delay of 2 years 8 months and 21 2 to days that has crept up in filing of the main appeal.
It is alleged that the applicant had engaged Mr. Jagdish Rajta, Advocate, to file the appeal before the learned first appellate court and the said Advocate put in appearance on 28.3.2006 and later on, it transpired that the Advocate so engaged had been appointed as Assistant District Attorney in the Department of Prosecution, Government of Himachal Pradesh. At that time of engagement, Mr. Jagdish Rajta, Advocate, had informed the applicant that his presence on each and every date of hearing would not be required in the appeal and, therefore, he did not attend the Court hearing. It was only in the last week of February, 2016, when the applicant happened to meet Mr. S. N. Sharma, Advocate, at Rohru, who was the opposing counsel that he came to know that the appeal had been decided on 14.5.2013. The applicant thereafter collected the copies of the zimini orders as also the certified copy of the judgment and decree passed by ::: Downloaded on - 19/09/2017 12:36:34 :::HCHP the learned first appellate court and it is only then that he .
came to know that after 28.3.2006, Mr. Jagdish Rajta, Advocate, had not put in appearance, but the presence of one Mr. S.L. Ranjta, Advocate, had been marked on his behalf and on some occasions, certain other counsel also appeared on his behalf and none of them had been engaged by him. It is on these allegations, the applicant has sought condonation of delay.
3 The application has been vehemently contested by the respondent, who has filed the reply, wherein preliminary objections regarding maintainability of the application, the applicant having not approached the Court with clean hands, having suppressed the material facts and estoppel etc. have been raised.
4 On merits, it has been averred that even though Mr. Jagdish Rajta, Advocate, was appointed as Assistant District Attorney in the year 2007, however, the applicant continued to be represented by the counsel throughout the proceedings. The other averments regarding the applicant having met Mr. S.N. Sharma, Advocate, at Rohru etc. have been denied.
5 I have heard the learned counsel for the parties and have also gone through the material placed on record.
::: Downloaded on - 19/09/2017 12:36:34 :::HCHP6 At the outset, I may observe that the applicant has .
resorted to falsehood while filing the application seeking condonation of the delay. Why I observe so is because in the appeal so filed by the applicant before the learned first appellate court, the notice issued to respondents No. 2 and 3 were received back un-served as is evident from the order passed on 28.3.2006, when for the first and last time, Mr. Jagdish Rajta, Advocate, had put in appearance on behalf of the applicant. However, thereafter, it would be noticed that it is Mr. S.L. Ranjta, Advocate, who had put in appearance on behalf of the applicant and also took steps for the service of the un-served respondents in the appeal, meaning thereby that not only the applicant was pursuing the litigation before the learned first appellate court, but he had also been imparting instructions to Mr. S.L. Ranjta, Advocate, as the un-served respondents came to be duly served on the steps taken by the applicant as is evident from the order passed by the learned first appellate court on 13.6.2007.
7. It is settled law that a party who seeks to avail the jurisdiction of the court must come to the court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a court of law.
A person whose case is based on falsehood has no right to ::: Downloaded on - 19/09/2017 12:36:34 :::HCHP approach the court and he can be thrown out at any stage .
of the litigation. The applicant cannot be permitted to abuse the process of the court. Save and except age by his side, the applicant on account of the falsity of his claim has nothing to fall back upon. But even age in this case can be of no help or assistance to the applicant as this would not only be a bad precedent but would also amount to granting premium to dishonesty. It cannot be denied that grant of relief apart from law on the subject is also governed by principles of "justice, equity and good conscience" and it is the duty of the court of equity to prevent legal fraud and the Court is expected to do justice by promoting honesty and good faith as far as it lies within its power. Therefore, it is all the more incumbent for the party seeking relief and equity that he must come to the court with clean hands.
8. This court is not oblivious to the fact that in matters of delay an extremely liberal and justice oriented approach has to be adopted but then can any indulgence be shown in favour of a party who has not approached the court with clean hands. It cannot be disputed that applicants have sought to abuse the process of law by resorting to falsehood and misrepresentation, which are required to be viewed very seriously by this court. The ::: Downloaded on - 19/09/2017 12:36:34 :::HCHP position of law has been succinctly dealt with by the .
Hon'ble Supreme Court in Dalip Singh vs. State of Uttar Pradesh and others (2010) 2 SCC 114 in the following terms:-
"1. For many centuries, Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence).
Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the Courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the Court proceedings.
2. In last 40 years, a new creed of litigants has cropped up.
Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order, to meet the challenge posed by this new creed of litigants, the Courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
3. In Hari Narain v. Badri Das AIR 1963 SC 1558, this Court adverted to the aforesaid rule and revoked the leave granted to the appellant by making the following observations:
"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and ::: Downloaded on - 19/09/2017 12:36:34 :::HCHP grounds of fact contained in the petitions at their face .
value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
4. In Welcome Hotel and others v. State of Andhra Pradesh and others etc., AIR 1983 SC 1015 the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.
5. In G. Narayanaswamy Reddy and others v. Govt. of Karnataka and another, AIR 1991 SC 1726, the Court denied relief to the appellant who had concealed the fact that the award was not made by the Land Acquisition Officer within the time specified in Section 11-A of the Land Acquisition Act because of the stay order passed by the High Court. While dismissing the special leave petition, the Court observed :
"2.......Curiously enough, there is no reference in the Special Leave Petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank ::: Downloaded on - 19/09/2017 12:36:34 :::HCHP and full disclosure of facts. If he fails to do so and .
suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the Special Leave Petitions."
6. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others, JT (1993) 6 SC 331, the Court held that where a preliminary decree was obtained by withholding an important document from the Court, the party concerned deserves to be thrown out at any stage of the litigation.
7. In Prestige Lights Ltd. v. State Bank of India (2007) 8 SCC 449, it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a Court of law, but is also a Court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, LJ. in R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486, and observed:
"In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ Courts would become impossible."::: Downloaded on - 19/09/2017 12:36:34 :::HCHP
8. In A.V. Papayya Sastry and others v. Government of A.P. .
and others, AIR 2007 SC 1546 the Court held that Article 136 does not confer a right of appeal on any party. It confers discretion on this Court to grant leave to appeal in appropriate cases. In other words, the Constitution has not made the Supreme Court a regular Court of Appeal or a Court of Error. This Court only intervenes where justice, equity and good conscience require such intervention.
9. In Sunil Poddar & Ors. v. Union Bank of India, (2008) 2 SCC 326 :(2008 AIR SCW 556), the Court held that while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court, will non-suit him on the ground of contumacious conduct.
10. In K.D. Sharma v. Steel Authority of India Ltd. and others (2008) 12 SCC 48l : (2008 AIR SCW 6654), the Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayshree and others v. Bhagwandas S. Patel and others (2009) 3 SCC 141 : (2009 AIR SCW 1311). 1311)."
9. Even otherwise, what would be the sufficient cause would vary from case to case. The Hon'ble Supreme Court in Parimal vs. Veena Alias Bharti (2011) 3 SCC 545 has ::: Downloaded on - 19/09/2017 12:36:34 :::HCHP construed the expression "sufficient cause" in the following .
terms:
"13. " Sufficient cause" is an expression which has been used in a large number of statutes. The meaning of the word "sufficient"
is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the a act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party had not acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, Lonand Grampanchayat v. Ramgiri Gosavi, AIR 1968 SC 222, Surinder Singh Sibia v. Vijay Kumar Sood (1992) 1 SCC 70 : AIR 1992 SC 1540 and Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corpn., (2010) 5 SCC 459).
14. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with o on a lesser degree of proof than n that of a "sufficient cause". (See also Brij Indar Singh v. Kanshi Ram, AIR 1917 PC 156, Manindra Land and Building Corpn. Ltd. vs. Bhutnath Banerjee, AIR 1964 SC 1336 and Mata Din v. A. Narayanan (1969) 2 SCC 770 : AIR 1970 SC 1953.)
15. While deciding whether there is sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the ::: Downloaded on - 19/09/2017 12:36:34 :::HCHP judgment impugned before it. (Vide State of Bihar v. Kameshwar .
Prasad Singh, (2000) 9 SCC 94 : AIR 2000 SC 2306, Madanlal v.
Shyamlal, (2002) 1 SCC 535 :AIR 2002 SC 100, Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd. , (2002) 3 SCC 156 :AIR 2002 SC 451, Ram Nath Sao v. Gobardhan Sao (2002) 3 SCC 195 : AIR 2002 SC 1201, Kaushalya Devi v. Prem Chand, (2005) 10 SCC 127, Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95 and Reena Sadh v. Anjana Enterprises, (2008) 12 SCC 589 :AIR 2008 SC 2054".
10. Keeping in mind the object of doing substantial justice to all the parties concerned and leaving aside the technicalities, this Court has to take into consideration whether the applicant in this case has shown sufficient cause whereby it can be said that he has not acted in a negligent manner or there was a want of bona fide on his part in view of the peculiar facts and circumstances of this case or the applicant could be said to have "not acted diligently" or "remained inactive".
11. After going through the contents of the application, and reply, which have otherwise been dealt with in detail hereinabove, it is absolutely clear that the applicant has only put up a cock and bull story and has not been able to make out sufficient cause for not filing the appeal within the prescribed period of limitation, as he has acted in a negligent manner and there is no bona fides on his part. It is he who never acted diligently and it can safely be held that he remained inactive.
::: Downloaded on - 19/09/2017 12:36:34 :::HCHP12. It is more than settled that even though the .
expression "sufficient cause" should only be given a liberal interpretation to show that the substantial justice is done, but the same is only so long as negligence, inaction or lack of bona fide cannot be imputed to the party concerned. It is equally settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provisions may table cause hardship or inconvenience to a particular party, but the Court has no choice but to enforce it giving full effect to the same.
13. The legal maxim "dura lex sed lex", which means "the law is hard but it is the law", stands attracted in such a situation.
14. The applicant was required to satisfy the Court that he was prevented by any "sufficient cause" from prosecuting the case and in absence of any satisfactory explanation being furnished, this Court cannot allow the application for condonation of delay, particularly when the application lacks bona fide and is otherwise a devise to cover up the ulterior motive.
::: Downloaded on - 19/09/2017 12:36:34 :::HCHP15. Having said so, I find no merit in the application .
and the same is dismissed.
RSA No. 2017 In view of dismissal of the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal, this appeal cannot be held to be legally and validly constituted and therefore, dismissed as such, leaving the parties to bear their own costs.
Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan), Judge September 13, 2017 (pankaj) ::: Downloaded on - 19/09/2017 12:36:34 :::HCHP