Madhya Pradesh High Court
Trilok Chand Badariya vs Gyan Chand Badariya on 3 May, 2016
WP-4899-2015
(TRILOK CHAND BADARIYA Vs GYAN CHAND BADARIYA)
03-05-2016
ORDER
(Passed on 03.05.2016.) Per : Sujoy Paul J.
In this petition filed under Article 227 of the Constitution, petitioner has challenged the order dated 19.2.2015 whereby his application to recall the order dated 11.11.2014 is rejected by the court below. The court below by order dated 11.11.2014, closed the right of the petitioner to file his written statement. This order was sought to be recalled on the basis of the application dated 17.11.2014 (Annexure P/6). This application is rejected by the court below by impugned order.
2. Criticizing this order learned counsel for the petitioner submits that the petitioner earlier filed W.P.No.7563/14 before this Court. This court by order dated 17.6.2014 stayed the proceedings of instant civil suit No.172-A/13. This interim order remained in operation till decision of the writ petition which was disposed of on 22.9.2015. He submits that since there was an interim order prevailing, the petitioner could not file his written statement. Reliance is placed on para-5.5 of the petition wherein it is averred that the trial court told the petitioner that copy of the order is received by it. It is further averred that for that reason the petitioner/ defendant did not press to take the order on 11.11.2014. Since the averments of para-5.5 of the petition and contention of Shri Bhoop Singh were not matching with the reason assigned in the application dated 17.11.2014 (Annexure P/6), this Court passed a detailed order on 14.12.2015. This court prima facie found that the petitioner has not approached the court with clean hands. There was no reason for not informing the court below about the interim order passed on 27.06.2014. Accordingly, by order dated 14.12.2015, petitioner was directed to file his affidavit. Shri Bhoop Singh drew attention of this court to the affidavit dated 29.2.2016 wherein it is mentioned that the interim order of this court dated 27.06.2014 was produced by the petitioner before the court below. However, the learned Presiding Judge told that he has already received the order, hence petitioner did not forcibly submit the said order before the court below. It is further averred that the said copies were also produced/ received before the court below on 5.5.2015 and 14.5.2015. Shri Bhoop Singh, counsel for the petitioner submits that order sheet dated 2.3.2015 annexed with the return shows that the said order of the High Court was produced before the court below.
3. Shri Badariya, counsel for the respondent supported the impugned order. He submits that in the application (Annexure P/6), the petitioner has not disclosed about filing of the writ petition and interim order. The affidavit is an after thought. The dates mentioned in para-3 of the affidavit are subsequent to date of closer of the right of filing the written statement. The said dates are even subsequent to passing of the impugned order dated 19.2.2015 (Annexure P/7). He submits that petitioner has not approached this court with clean hands and, therefore, he is no entitled to get any relief. No other point is pressed by learned counsel for the parties.
4. It is seen that the court below on 11.11.2014 closed the right of the petitioner to file the written statement. Thereafter, the petitioner filed the application dated 17.11.2014 which reads as under :-
2. izfroknh dh vksj ls fuEu vuqlkj izkFkZuk gS%& 1& ;g fd mijksDr izdj.k esa fnukad 11@11@2014 dks izfroknhx.kksa dk tckonkok izLrqr djus dk volj lekIr dj fn;k x;k gSA vkSj izdj.k okn gsrq fu;r gSA 2& ;g fd izfroknh chekj gksuss ds dkj.k U;k;ky;
}kjk le; fn, tkus ij Hkh tckonkok izLrqr ugha dj ldk gSA 3& ;g fd mijksDr izdj.k U;k;ky; }kjk tckonkok izLrqr u djus ds dkj.k U;k;ky; }kjk izdj.k esa fu.kZ; ikfjr ugha fd;k x;k gSA izdj.k esa vHkh oknh dh lk{; Hkh izkjEHk ugha gqbZ gSA 4& ;g fd U;k;fgr esa izfroknh ekeys esa tckonkok izLrqr djuk pkgrk gwa rkfd U;k;ky; ds le{k viuk i{k j[k ldsaA lkFk gh vkns'k 39] fu;e 1 o 2 O;0iz0la0 dk tcko Hkh izLrqr dj jgk gwaA 5& ;g fd vkosnu i= ds leFkZu esa izfroknh 'kiFki= izLrqr dj jgk gwaA vr% izkFkZuk gS fd tckonkok izLrqr djus dh vuqefr iznku dj nh tk, o tckonkok fjdkMZ ij ys fy;k tk,A
5. A plain reading of this application shows that there is no iota of pleading regarding filing of W.P.No.7563/14 by the petitioner and passing of interim order in the said case.
6. In the opinion of this court, normally in such cases litigant immediately brings the interim order to the notice of court below, so that proceedings are stayed and no adverse or prejudicial order is passed against him. Petitioner has not assigned a singular reason as to why said material fact was suppressed by him while filing application (Annexure P/6). For this reason, the court raised serious doubts about the conduct of the petitioner and passed a detailed order on 14.12.2015. The petitioner although filed the aforesaid affidavit but said affidavit does not inspire any confidence for the simple reason that if petitioner was a bonafide litigant, he should have mentioned about pendency of W.P.No.7563/14 and passing of the interim order by the High Court in his application Annexure P/6. There is no material on record which shows that petitioner produced copy of the interim order dated 27.6.2014 before the court below before passing of the order dated 11.11.2014 and 19.2.2015. I find force in the argument of Shri Badariya that the petitioner has not approached the court with clean hands, clean heart, clean mind and clean objective. The court cannot be permitted to be used as battle ground for unscrupulous litigants. A person who does not come with clean hands, is not entitled to get any relief. This is trite law that conduct of the parties itself can be a ground for non adjudication of the matter on merits. The conduct of the parties can lead to a conclusion that such party is not entitled for adjudication of matter on merits. In catena of judgments, the Supreme Court has emphasized the need of disclosure of full and correct facts. It is profitable to quote certain judgments on this aspect.
In Vijay Syal v. State of Punjab, ((2003) 9 SCC 401) this Court stated:(SCC p.420,para 24).
â24. In order to sustain and maintain the sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take the consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters is either mistaken or lightly taken instead of learning a proper lesson. Hence there is a compelling need to take a serious view in such matters to ensure expected purity and grace in the administration of justice.â In Prestige Lights Ltd. v. State Bank of India, (2007) 8 SCC 449 ,the Apex Court held in para 35 as under:-
35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear 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, the court may dismiss the action without adjudicating the matter. 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.
In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh, (2008) 1 SCC 560, the Apex Court held as under in para 16:-
16. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law.
In Advocate General, State of Bihar v. M.P. Khair Industries this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt.
In K.D. Sharma v. Steel Authority of India Limited, (2008) 12 SCC 481, the Apex Court held as under:-
33. The learned counsel for SAIL is also right in urging that the appellant has not approached the Court with clean hands by disclosing all facts. An impression is sought to be created as if no notice was ever given to him nor was he informed about the consideration of cases of eligible and qualified bidders in pursuance of the order passed by the High Court in review and confirmed by this Court. The true facts, however, were just contrary to what was sought to be placed before the Court. A notice was issued by SAIL to the appellant, he received the notice, intimated in writing to SAIL that he had authorised Ramesh of Rithwik Projects to appear on his behalf.
Ramesh duly appeared at the time of consideration of bids. Bid of Respondent 2 was found to be lowest and was accepted and the contract was given to him (under Tender Notice 4). The said contract had nothing to do with Tender Notice 5 and the contract thereunder had been given to the appellant herein and he had completed the work. Thus, it is clear that the appellant had not placed all the facts before the Court clearly, candidly and frankly.
34. 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. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, 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.
35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commrs in the following words: (KB p. 514) â... it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts âit says facts, not law. He must not misstate the law if he can help itâ the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts ; and the penalty Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh, (2008) 1 SCC 5 by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement.â (Emphasis supplied)
36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, âWe will not listen to your application because of what you have done .â The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. In Kensington Income Tax Commrs. Viscount Reading, C.J. observed: (KB pp. 495-96) â... Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of Uttar Pradesh, (2008) 1 SCC 5 he applicant in a proceeding which has only been set in motion by means of a misleading affidavit.â
38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play âhide and seekâ or to âpick and chooseâ the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because âthe court knows law but not factsâ.
39. If the primary object as highlighted in Kensington Income Tax Commrs. is kept in mind, an applicant who does not come with candid facts and âclean breastâ cannot hold a writ of the court with âsoiled handsâ. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.â In Dalip Singh v. State of Uttar Pradesh and others, (2010) 2 SCC 114 , the Apex Court held in para 7 as under:-
7. In Prestige Lights Ltd. v. SBI 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 a petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R. v.
Kensington Income Tax Commissioners , and observed: ( Prestige Lights Ltd.case , SCC p. 462, para 35) 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.
In Manohar Lal (Dead) By Lrs. v.
Ugrasen,(2010) 11 SCC 557, the Apex Court held in para 48 as under :-
48. The present appellants had also not disclosed that land allotted to them falls in commercial area. When a person approaches a court of equity in exercise of its extraordinary jurisdiction under Articles 226/227 of the Constitution, he should approach the court not only with clean hands but also with clean mind, clean heart and clean objective.
âEqually, the judicial process should never become an instrument of oppression or abuse or a means in the process of the court to subvert justice.â Who seeks equity must do equity. The legal maxim â Jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletioremâ, means that it is a law of nature that one should not be enriched by the loss or injury to another. (Vide Ramjas Foundation v. Union of India , K.R. Srinivas v. R.M. Premchand and Noorduddin v.Dr. K.L.Anand at SCC p. 249, para 9.) (Emphasis supplied) In State of Madhya Pradesh v.
Narmada Bachao Andolan and another, (2011) 7 SCC 639,the Apex Court in para 164 held that it is a settled proposition of law that a false statement made in the Court or in the pleadings intentionally to mislead the Court and obtains favourable order amounts to criminal contempt.
This Court in Rajendra Singh Rawat Vs. State of M.P. (I.L.R. 2012 MP 2660) after considering the aforesaid Supreme Court judgment, culled out the principles as under:-
1. A writ remedy is an equitable one.
While exercising extraordinary power a Writ Court certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court.
2. Litigant before the Writ Court must come with clean hands, clean heart, clean mind and clean objective. He should disclose all facts without suppressing anything. Litigant cannot be allowed to play âhide and seekâ or to âpick and chooseâ the facts he likes to disclose and to suppress (keep back)/ conceal other facts.
3. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation which has no place in equitable and prerogative jurisdiction.
4. If litigant does not disclose all the material facts fairly and truly or states them in a distorted manner and misleads the Court, the Court has inherent power to refuse to proceed further with the examination of the case on merits. If Court does not reject the petition on that ground, the Court would be failing in its duty.
5. Such a litigant requires to be dealt with for Contempt of Court for abusing the process of the Court.
6. There is a compelling need to take a serious view in such matters to ensure purity and grace in the administration of justice.
7. The litigation in the Court of law is not a game of chess. The Court is bound to see the conduct of party who is invoking such jurisdiction.
7. In the light of aforesaid principles, it is clear that petitioner is guilty of suppression of material fact and non-disclosure of correct facts. There is no scope for such unscrupulous litigants before this Court. At no cost, the stream of justice can be permitted to be polluted by such unscrupulous litigants. The Supreme Court has laid down that such conduct amounts to abuse of process of law and contempt proceedings can be initiated against such litigant.
8. Considering the aforesaid, contempt proceedings can very well be initiated against the petitioner. However, I am not inclined to devote further precious time of Court on this aspect. I deem it proper to impose costs on the petitioner for the aforesaid conduct.
9. In the light of aforesaid, I am of the view that there was no material produced by petitioner before the court below before passing of the order dated 11.11.2014 and 19.2.2015 showing that W.P.No.7563/14 is pending and interim order was passed. Hence, no fault can be found in the impugned order. In the case of Bismilla Bee Vs. Arjuman Aara-2014(3) MPLJ-593, the court opined that written statement must be filed within time stipulated. After that the permission can be granted only if adequate reasons are assigned. The court below in its discretionary jurisdiction and as per material on record reached to a plausible conclusion. No fault can be found in the said conclusion because relevant material was never produced before passing the impugned order.
10. In absence of any procedural impropriety or palpable perversity, I find no reason to interfere in this matter. I deem it proper to dismiss this petition with exemplary cost on the petitioner because of the aforesaid conduct. Resultantly, this petition is dismissed by imposing Rs.10,000/- (Rupees ten thousand) as cost on the petitioner which shall be paid to the High Court Legal Aid Committee within thirty days from today, failing which the said committee shall inform this court by filing appropriate application. Let a copy of this order be sent to the High Court Legal Aid Committee for necessary action.
11. Petition is dismissed with cost.
(SUJOY PAUL) JUDGE