Jammu & Kashmir High Court
Mani Ram vs . Janak Singh & Ors. on 9 April, 2019
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Reg. List
Item No.33
LPAOW No. 82/2019 (O&M)
In OWP No. 903/2018
Date of order: 09.04.2019
Mani Ram Vs. Janak Singh & ors.
HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
CORAM:
HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
Appearance:
For the Petitioner(s) : Mr. R. K. S. Thakur, Advocate.
For the Respondent (s) : Mr. K. L. Pandita, Advocate.
Rajesh Bindal, J.
01. The present appeal has been filed against order dated 09.05.2018 passed by the learned Single Judge. The appellant was impleaded as respondent No.6 in the petition. Order was passed without issuing notice to the present appellant. The order reads as under:
"In this petition, the petitioner, inter alia, seeks the following reliefs:
" Taking into account the order which this Court proposes to pass today, it is not necessary to issue notice to the respondent No.6.
The petition is admitted for hearing. With the consent of the learned counsel for the parties, the matter is heard finally.
Writ of Mandamus commanding the official respondents to allow the petitioner to cultivate the suit property by sowing the seeds falling under Survey No.382 measuring 48 Kanals and 9 Marlas, Survey No.671 LPASW No. 82/2019 Page 1 measuring 3 Kanals and 15 Marlas, Survey No.671/1 measuring 17 Marlas, Survey No.596, 4 Kanals and 14 Marlas, Survey No.582, 5 Kanals 10 Marlas, Survey No.383, 1 Kanal and 3 Marlas, Survey No.610, l Kanal and 17 Marlas, Survey No.393 measuring 4 Kanals and 1 Marlas, situated at Village Hubbi Tehsil Koteranka, District Rajouri which is absolutely and exclusively owned and possessed by the petitioner as the private respondents 1n connivance with the official respondents are interfering in the peaceful possession of the petitioner and are not allowing him to cultivate the same.
Writ of Prohibition restraining the official respondents from interfering into the peaceful possession of the petitioner With regard to the suit property falling under Survey No.382 measuring 48 Kanals and 9 Marlas, Survey No.67l measuring 3 Kanals and 15 Marlas, Survey No.671/1 measuring 17 Marlas, Survey No.596, 4 Kanals and 14 Marlas, Survey No.582, 5 Kanals 10 Marlas, Survey No.383, 1 Kanal and 3 Marlas, Survey No.610, 1 Kanal and 17 Marlas, Survey No.393 measuring 4 Kanals and 17 Marlas, situated at Village Hubbi Tehsil Koteranka, District Rajouri, which is absolutely and exclusively owned and possessed by the petitioner as the official respondents in connivance with the private respondents are not allowing the petitioner to cultivate the same and are trying to dispossess the petitioner from the suit property."
When the matter was taken up today, learned counsel for the petitioner submitted that the petitioner is the owner of land mentioned in Paragraph 1 of the petition. However, the respondents without any authority of law are trying to interfere with the possession of the petitioner over the land in question. On the other hand, learned counsel appearing on behalf of the official respondents submitted that no action for dispossession of the petitioner shall be taken except in accordance with law.
In view of the aforesaid submissions and in the facts of the case, the writ petition is disposed of with the direction that the respondents shall not interfere with the cultivation and possession of the petitioner over the land in question, except in accordance with law.
LPASW No. 82/2019 Page 2 With the aforesaid directions, the writ petition is disposed of along with connected MP."
02. Learned counsel for respondent No.1/writ petitioner submitted that he has no objection if the aforesaid order is set aside and the writ petition filed by him is dismissed as withdrawn.
03. The aforesaid plea was raised by counsel for respondent No.1 as the counsel for the appellant submitted that the writ petition was filed by respondent No.1 concealing material facts from this Court. He claimed in the writ petition that he was owner in possession of the property as mentioned in the writ petition. Prayer was made that he being owner in possession, his possession needs to be protected. Whereas the fact remains that respondent No.6 got revenue entries changed wrongly, which was challenged by the appellant before the Revenue Authorities. The same were set aside vide order dated 22.09.2016. Respondent No.1 filed appeal against the same, which is pending. There is no interim stay.
04. He further submitted that for the reliefs prayed for in the writ petition filed by him, he filed a Civil Suit, which was dismissed in default on 23.02.2016 and to his knowledge no application for restoration has been filed till date. He further submitted that the zeal of the respondent No.1 to harass the appellant did not end here as he filed petition bearing OWP No. 809/2018 in this Court seeking a direction for registration of criminal case against the present appellant without impleading him as party in the writ petition. Same was disposed on 27.04.2018. As the order was passed without hearing the present appellant, he challenged the same by filing LPA No. 28/2019. The order was set aside therein and the matter was remitted back to learned Single Judge for further proceedings. He further submitted that respondent No.1 had filed two other writ petitions bearing OWP Nos. 795/2017 and 409/2018, pertaining the same land, which are still pending.
LPASW No. 82/2019 Page 3
05. Learned counsel further submitted that in the writ petition filed by respondent No.1 he had concealed the material facts, namely, setting aside of revenue entries in his favour vide order dated 22.09.2016 and pendency of appeal filed by him against that order. As a consequence of which, respondent No.1 was no more the owner of the property in question. Further he had concealed the factum of filing of Civil Suit for the same relief which was dismissed in default. As the appellant had not approached this Court with clean hands, he does not deserve any relief from this Court. He further submitted that conduct of the respondent No.1 otherwise also needs to be deprecated for the reason he had flooded the Court with different cases without there being any basis and with wrong pleadings.
06. He further submitted that conduct of respondent No.1 is further evident from the fact that he made the prayer for withdrawal of all the above referred writ petitions filed by him, namely, OWP No. 795/2017, OWP No. 409/2018 and 809/2018 and also had no objection for setting aside of the order passed by the learned Single Judge in his favour with further prayer to permit him to withdraw the writ petition itself.
07. In response, learned counsel for respondent No.1 submitted that whatever facts were conveyed to him by respondent No.1, the same have been pleaded. He further submitted that property in question was transferred to him by way of a Will and he is contesting the same. He could not dispute the factum of setting aside of revenue entries in his favour and filing of Civil Suit and dismissal thereof in default, have not been pleaded in the writ petition and further that it was a fact wrongly pleaded that respondent No.1 was the owner of the property.
08. Heard learned counsel for the parties and perused the paper book.
LPASW No. 82/2019 Page 4
09. Though respondent No.1/writ petitioner had conceded that order passed by the learned Single Judge in his favour be set aside and the writ petition filed him be permitted to be withdrawn but still seeing his conduct we do not find appropriate to allow him to adopt the course suggested by him.
10. Certain facts need to be noticed.
11. The land involved in the dispute, as mentioned by respondent No.1 in OWP No. 809/2018, is falling under Survey Nos. 382, 581, 596, 671, 388, 399, 390, 392, 393, 538, 543/1, 582, 583, 584, 610, 619, 636 and 671/1, situated at village Hubbi, Tehsil Koteranka, District Rajouri and as mentioned by him in OWP Nos. 795/2017 and 409/2018 is land measuring 3 kanals and 12 marlas falling under Survey No. 382 situated at the same place. Respondent No.1 got revenue entries changed in his favour claiming that property had come to him by way of a Will. The aforesaid change of revenue entries was challenged by the present appellant. The order was set aside vide order dated 22.09.2016 passed by the Tehsildar, Magistrate Ist Class, Kotranka in File No. JK/II. Respondent No.1 preferred appeal against that order, which is stated to be pending.
12. This is one fact which was concealed by respondent No.1 while filing writ petition before this Court.
13. Respondent No.1 filed Civil Suit praying for permanent prohibitory injunction pertaining to the same property, which was dismissed in default on 23.02.2016. No application for restoration thereof was filed.
14. The aforesaid fact was also concealed in the writ petition filed by him.
LPASW No. 82/2019 Page 5
15. Subsequent thereto, the respondent No.1 filed OWP No. 795/2015 with a prayer to command the official respondents not to encroach upon the suit property of the petitioner measuring 3 kanals and 12 marlas falling under Survey No. 382 situated at village Hubbi, Tehsil Koteranka, district Rajouri, owned by the petitioner and adjacent to land already acquired by the department for public purpose and it was further prayed to command the official respondents to consider the pending representation of the petitioner regarding redressal of the grievances of the petitioner by ensuring that ownership rights of the petitioner with regard to the land. Vide order dated 26.05.2017 passed by this Court status quo as it existed on the day was directed to be maintained. The aforesaid writ petition is stated to be pending.
16. Thereafter, respondent No.1 filed OWP No. 409/2018 with a prayer to command the official respondents not to encroach upon the suit property of the petitioner measuring 3 kanals and 12 marlas falling under Survey No. 382 situated at village Hubbi, Tehsil Koteranka, District Rajouri, owned by the petitioner and adjacent to the land which was already acquired by the department for public purpose, with a further prayer to command the official respondents to consider the pending representation of the petitioner regarding the redressal of the grievances of the petitioner by ensuring that the ownership rights of the petitioner with regard to the land measuring 3 kanals and 12 marlas falling under Survey No. 332 situated at village Hubbi, Tehsil koteranka, District Rajouri, may not be changed. It was further prayed that the official respondents be directed not to change the nature of the disputed land. It was further prayed in the petition that official respondents be directed not to utilize the suit property of the petitioner, which was owned and possessed by the petitioner, in compliance to the order passed by this court in OWP No 795/2017 on 26-05-2017. In the writ petition, vide order dated 03.03.2018, respondents were directed to raise construction of Gujjar Hostel and Sports stadium strictly in accordance with law taking recourse to the Jammu and Kashmir Land Acquisition Act, Svt. 1990.
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17. The finding that there was no merit in the writ petition filed, when the present appeal was taken up for hearing, the learned counsel for respondent No.1 prayed that he may be permitted to withdraw the aforesaid writ petitions, namely, OWP No. 795/2017, OWP No. 409/2018 and 809/2018. Same were permitted to be withdrawn vide separate order passed today in the aforesaid petitions.
18. A litigant approaching the court with unclean hands and misleading the court is not entitled to be heard on merits. It has been so opined by Hon'ble the Supreme Court.
19. In Abhyudya Sanstha v. Union of India, (2011) 6 SCC 145, Hon'ble the Supreme Court, while declining relief to the petitioners therein, who did not approach the court with clean hands, opined as under:
"16. In our view, the appellants deserve to be non suited because they have not approached the Court with clean hands. The plea of inadvertent mistake put forward by the learned senior counsel for the appellants and their submission that the Court may take lenient view and order regularisation of the admissions already made sounds attractive but does not merit acceptance. Each of the appellants consciously made a statement that it had been granted recognition by the NCTE, which necessarily implies that recognition was granted in terms of Section 14 of the Act read with Regulations 7 and 8 of the 2007 Regulations. Those managing the affairs of the appellants do not belong to the category of innocent, illiterate/uneducated persons, who are not conversant with the relevant statutory provisions and the court process. The very fact that each of the appellants had submitted LPASW No. 82/2019 Page 7 application in terms of Regulation 7 and made itself available for inspection by the team constituted by WRC, Bhopal shows that they were fully aware of the fact that they can get recognition only after fulfilling the conditions specified in the Act and the Regulations and that WRC, Bhopal had not granted recognition to them. Notwithstanding this, they made bold statement that they had been granted recognition by the competent authority and thereby succeeded in persuading this Court to entertain the special leave petitions and pass interim orders. The minimum, which can be said about the appellants is that they have not approached the Court with clean hands and succeeded in polluting the stream of justice by making patently false statement. Therefore, they are not entitled to relief under Article 136 of the Constitution. This view finds support from plethora of precedents. In Hari Narain v. Badri Das AIR 1963 SC 1558, G. Narayanaswamy Reddy v. Govt. of Karnataka (1991) 3 SCC 261 and large number of other cases, this Court denied relief to the petitioner/appellant on the ground that he had not approached the Court with clean hands. In Hari Narain v. Badri Das (supra), the Court revoked the leave granted to the appellant and observed:
"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 or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it LPASW No. 82/2019 Page 8 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 characterises 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."
In G. Narayanaswamy Reddy v. Govt. of Karnataka's case (supra), the Court noted that the appellant had concealed the fact that the award could not be made by the Land Acquisition Officer within the time prescribed under Section 11A of the Land Acquisition Act because of the stay order passed by the High Court and observed:
" ...... 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 LPASW No. 82/2019 Page 9 petitioner who approaches this Court for such relief must come with frank 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."
In Dalip Singh v. State of U.P. (2010) 2 SCC 114, Hon'ble the Supreme Court noticed the progressive decline in the values of life and observed:
" For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahinsa" (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 the justice- delivery system which was in vogue in the 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 overshadowed 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. In the 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 LPASW No. 82/2019 Page 10 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."
19. In Moti Lal Songara v. Prem Prakash @ Pappu and another, (2013) 9 SCC 199, Hon'ble the Supreme Court, considering the issue regarding concealment of facts before the court, while observing that "court is not a laboratory where children come to play, opined as under:
"18. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused- respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expression faisi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the LPASW No. 82/2019 Page 11 accused- respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum. The High Court, as we have seen, applied the principle "when infrastructure collapses, the superstructure is bound to collapse".
However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand."
20. Similar view has been expressed by Hon'ble the Supreme Court in Amar Singh v. Union of India and others, (2011) 7 SCC 69, Kishore Samrite V. State of Uttar Pradesh and others, (2013) 2 SCC 398 and High Court of Punjab & Haryana in M/s Manu Sharma and Company v. State of Haryana and others, 2017(1) RCR (Civil) 608 (PH).
21. Considering the undisputed facts on record where respondent No.1/writ petitioner had approached this Court by concealing the material facts, he does not deserve to be heard on merits at all. Rather the narration of facts as above shows that it was not the only writ petition filed by the respondent No.1 rather he had filed number of them either impleading the present appellant as party or not and in all the petitions he claimed himself to be owner of the property, whereas he is not. Though with the acceptance of the present appeal, writ petition deserves to be dismissed with heavy costs. However, considering the fact that counsel for respondent No.1 realizing the blunder committed had prayed for withdrawal of the writ petitions after acceptance of the appeal, we refrain from imposing any cost on him.
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22. For the reasons mentioned above, present appeal is allowed. Impugned order passed by the learned Single Judge is set aside. Writ petition filed by respondent No.1 is dismissed being misconceived.
(Sindhu Sharma) (Rajesh Bindal)
Judge Judge
JAMMU
09.04.2019
Sunita.
Whether the order is speaking? : Yes/No
Whether the order is reportable? : Yes
SUNITA KOUL
2019.04.25 16:56
I attest to the accuracy and
integrity of this document
LPASW No. 82/2019 Page 13