Allahabad High Court
Bhagwan Das Chela Balram Das vs District Magistarate Ambedkarnagar ... on 20 December, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Sitting at Lucknow ********************** RESERVED AFR Judgment Reserved on: 30.11.2022 Judgment Pronounced on: 20.12.2022 Court No. - 18 Case :- WRIT - C No. - 1000602 of 1999 Petitioner :- Bhagwan Das Chela Balram Das Respondent :- District Magistarate Ambedkarnagar And Others Counsel for Petitioner :- Rakesh Pathak,Gyanendra Kumar Pandey Counsel for Respondent :- Chief Standing Counsel,Prasiddha Narayan Singh,Vijai Kumar Shukla,Yogesh Singh Hon'ble Jaspreet Singh, J.
By means of the instant petition instituted by Bhagwan Das, Chela Balram Das, a challenge was laid to the order dated 11.11.1998, passed by the District Magistrate, Ambedkar Nagar, a copy of which is annexed as Annexure No.6 to the writ petition, whereby the revision preferred under Section 219 of the U.P. Land Revenue Act, 1901 was allowed and the order passed by the Additional Tehsildar, Tanda dated 13.01.1992 was set aside and the name of Mahant Narayan Das, Chela Ram Newaz was directed to be recorded in the revenue records.
It will be relevant to notice that initial proceedings were instituted before this Court by Bhagwan Das, Chela Balram Das, who during the proceedings had died and is now substituted by Mahant Dhananjay Das. Even the respondent no.4-Shiv Shankar Singh expired and is now represented by his son Sri Ravindra Pratap Singh.
The issue in the instant petition relates to the mutation in respect of the properties which are dedicated to Thakur Ji Maharaj installed in a temple situate in Village Jiyapur, District Ambedkar Nagar.
The dispute arose when the erstwhile Mahant Sri Narayan Das expired in the year 1985. The dispute regarding mutation relating to the Plot No.122, situated in Village Nausanda and dedicated to the temple Thakur Ji Maharaj became alive. The records also indicate that apart from the properties situated in Village Nausanda there are several other properties which are dedicated to Thakur Ji Maharaj and the said properties were being managed by the Sarbarkar Mahant Narayan Das.
As per the customs and rituals upon death of the Mahant whosoever is nominated as successor Sarbarkar takes charge. In the instant case, it is alleged that upon the death of Mahant Narayan Das in the year 1985 several persons came forward to stake claim over the properties of the temple and each claiming to be the Chela of Narayan Das. Amongst such stake holders, a mutation application was moved by one Sri Balram Das alleged disciple (Chela) of deceased Mahant Narayan Das. Another application for mutation was moved by Ram Das and another by Mangal Das. Ram Das claimed himself to be disciple of Mahant Narayan Das, whereas Mangal Das claimed himself to be the disciple of Ram Newaz Das who was the Guru of deceased Mahant Narayan Das. All three applications for mutation were clubbed together and were being considered as Case No.193. Mahant Mangal Das and Ram Das withdrew their applications with the consequence that the application moved by Balram Das remained uncontested.
In the case of Mahant Balram Das four witnesses were examined namely Prahlad Verma, Babu Ram, the Halka Lekhpal and Bhagwan Das who is the original petitioner of this petition. It is stated that Sri Balram Das in Case No.193 made deposition to the effect that Balram Das had been nominated and was in control of the properties of the temple and as such after the death of Mahant Narayan Das, it was a legitimate claim of Balram Das to be considered as Sarbarkar of the temple property.
The record indicates that by means of order dated 31.03.1986 the Tehsildar did not find favour with the contentions on the ground that no written proof was submitted to establish the death of Mahant Narayan Das, moreover, the applicant of Case No.193 namely Sri Balram Das also did not appear in the witness box nor filed any document to indicate that he was nominated as the successor by Mahant Narayan Das, hence, he rejected the mutation application.
Being aggrieved against the said order dated 31.03.1986 Balram Das preferred an appeal under Section 210 of Land Revenue Act, 1901. The appellate court noticing an alleged agreement/compromise found that neither the said compromise as filed inspired confidence as there was nothing on record to substantiate the death of Mahant Narayan Das and it also noted that in case if Mahant Narayan Das had nominated his successor then there would have been some written document or instrument in favour of Balram Das which was also not brought on record hence in absence of such vital documents the appellate Court did not find favour with the appellant and dismissed the appeal of Balram Das by means of an order dated 28.07.1987.
Leaving the narrative for the moment as noticed above at this juncture, a new line of litigation was instituted by Sri Bhagwan Das, Chela Balram Das by moving a fresh application for mutation in his own name and took a divergent plea that Mahant Narayan Das executed a will in favour of Bhagwan Das dated 07.02.1982, whereby he was nominated as his successor.
Bhagwan Das in support of his contentions had examined the attesting witness of the alleged will namely Sri Dwarika Das and Sri Prahlad Verma. On the basis of the said statements the Additional Tehsildar, Tanda by means of an order dated 13.01.1992 allowed the mutation application in favour of Bhagwan Das and ordered the deletion of the name of Mahant Narayan Das on the basis of the unregistered will dated 07.02.1982.
The private respondent no.4 namely Sri Shiv Shankar Singh moved an application for recall of the order dated 13.01.1992 which came to be rejected. Thereafter he preferred a revision before the respondent no.2 and the said revision came to be allowed by means of order dated 11.11.1998 and the name of Bhagwan Das was deleted and the properties were directed to be recorded in the name of the deceased erstwhile Mahant Narayan Das.
It is in the aforesaid backdrop that Sri Bhagwan Das the original petitioner filed the instant petition assailing the said order dated 11.11.1998 primarily on the ground that in a summary mutation proceedings Bhagwan Das had been able to establish that Mahant Narayan Das had executed a will in his favour nominating him as his successor and it was duly proved in accordance with law and that he was also in possession and control of the temple properties as established in the light of the statements given by the witnesses and thus the order of Tehsildar dated 13.01.1992 was not required to be interfered with but while passing the order dated 11.11.1998 the respondent no.2 not only erred in exercise of his jurisdiction but also committed an error to get the property recorded in the name of erstwhile deceased Mahant Narayan Das as the mutation could not remain in the name of a dead person.
The record indicates that by means of the order dated 12.03.1999, this court has passed an interim order staying the operation of the order dated 11.11.1998.
The private respondent no.4 has filed counter affidavit and raised certain questions regarding authenticity, genuineness of the claim made by Bhagwan Das the original petitioner. It was stated that the petitioner Bhagwan Das had not approached the Court with clean hands and that his petition suffered from concealment of material facts. It was stated that the petitioner Bhagwan Das had not disclosed the first round of litigation which had taken place wherein Sri Balram Das had staked a claim on the properties of the temple and at that point of time the original petitioner Bhagwan Das himself was pursuing the case on behalf of Sri Balram Das.
It was also stated in the counter affidavit that Bhagwan Das had made statement in the mutation case instituted by Sri Balram Das favouring Sri Balram Das. It was also pointed out that if Mahant Narayan Das had executed a will in favour of Bhagwan Das dated 07.02.1982 then there was no occasion for Bhagwan Das to have supported the case of Balram Das in the first round of litigation which came to be dismissed and even the appeal preferred by Sri Balram Das was dismissed. It is also stated that Sri Bhagwan Das had made statement in the proceedings instituted by Balram Das and all these aforesaid facts including his own statement was concealed from the authorities including this Court at the time of institution of the present petition.
The private respondent no.4 also stated that Mahant Narayan Das knew that there was no worthy disciple who could be nominated as his successor and it is in this view of the matter that several persons namely Balram Das, Ram Das, Mangal Das had staked their claim. Since, Mangal Das and Ram Das withdrew from the race and the claim of Balram Das remained uncontested but even that came to be dismissed so also the appeal preferred by Balram Das. It is only thereafter that Bhagwan Das realised that the attempt of Balram Das had failed then Bhagwan Das staked a claim on the basis of an alleged will dated 07.02.1982 which prior to it has never seen the light of the day. It was also stated that by the aforesaid means an attempt was made to usurp the temple properties to the detriment of the deity and as such the order of mutation dated 13.01.1992 which was procured by Bhagwan Das by suppression of material facts deserves to be set aside and the order passed by the revisional Court requires no interference.
During pendency of this petition Bhagwan Das expired so also the original respondent no.4 and in place of Bhagwan Das, Mahant Dhananjay Das has been duly substituted who is represented by Mr. Gyanendra Kumar Pandey, learned counsel. The private respondent no.4 is now substituted by his son and is represented by Mr. Prasiddha Narayan Singh, learned counsel and Dr. Krishna Singh, learned Standing Counsel appears on behalf of the State respondent.
The record further indicates that apart from the factual matrix as noticed above, another Mahant namely Baba Laxmi Das also claiming to be a Chela of Mahant Narayan Das moved an application seeking his impleadment bearing C.M. Application No.82922 of 2017. In his application for impleadment it is stated that he is one of the disciples of the erstwhile Mahant Narayan Das and that in the case filed by Balram Das the said Baba Laxmi Das had also given his statement. It is also alleged that after the order dated 13.01.1992 which was procured by Mahant Bhagwan Das he sold some property of the temple and that as soon as Baba Laxmi Das became aware of the illegal acts he instituted a case before Civil Judge, Senior Division, Ambedkar Nagar bearing Case No.549/2004 and another case was filed under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act before the concerned Sub Divisional Officer. On the basis of the aforesaid submissions an attempt was made to indicate that Bhagwan Das was misusing his powers and he sought his impleadment to protect the properties of the temple.
Significantly the said application for impleadment remained undisposed and while this matter was listed on 31.10.2022, 16.11.2022, 23.11.2022 as well as on 30.11.2022 none appeared on behalf of the Baba Laxmi Das to press the application and it is in the aforesaid backdrop that the court heard Mr. Gyanendra Pandey, learned counsel for the petitioner, learned Standing Counsel and Mr. Prasiddha Narayan Singh, learned counsel for the private respondent on 30.11.2022 when the judgment was reserved.
It will also be relevant to notice that this Court by means of its order dated 31.10.2022 had required the learned Standing Counsel to examine the matter and seek instructions from the District Magistrate, Ambedkar Nagar regarding the properties of Thakur Ji Maharaj including its extent. In furtherance thereof on 14.11.2022 the written instructions have been provided indicating several properties in the name of Thakur Ji Maharaj is recorded in the revenue records and are managed by the temple Sarbarkar and that there is pending litigation between persons claiming Sarbarkarship before the civil court. The said instructions have been taken on record.
Mr. Gyanendra Kumar Pandey, learned counsel who represents the present petitioner namely Mahant Dhanajay Das submits that it is not disputed that it is the properties dedicated to the temple Thakur Ji Maharaj and the deity installed therein. It is urged that Mahant Narayan Das was the undisputed Mahant in control of the properties who died in the year 1985. As per the petitioner Mahant Narayan Das had executed a will nominating Bhagwan Das as his successor whereas it is disputed by respondent no.4 who submits that Mahant Narayan Das had not executed any will.
Learned counsel for the petitioner further submitted that on the basis of the will which was placed before the Tehsildar, Tanda, it was duly proved in accordance with law and it was also found that Sri Bhagwan Das was in possession and based on this an order of mutation was passed in favour of Bhagwan Das on 13.10.1992. Further contention of the learned counsel for the petitioner is that the revisional court had no jurisdiction to set aside the order of mutation and moreover it could not make the mutation in the name of a dead person and this order is impugned in this writ petition. It is also urged that once the mutation had taken place if at all there was any dispute regarding Sarbarkarship the same could be adjudicated before the competent court but there was no requirement to interfere in the order dated 13.01.1992, passed in favour of Bhagwan Das.
It has also been urged by the learned counsel for the petitioner that the respondent no.4 has got no locus standi to raise any objection as he is neither the disciple of the erstwhile Mahant Narayan Das nor has any interest in the properties in question which nevertheless vests with Thakur Ji Maharaj, a deity, which is a juristic person and for the said reason the respondent no.4 had no right to assail the order dated 13.01.1992 nor the revision at the behest of respondent no.4 could have been entertained thus the revision wherein the impugned order dated 11.11.1998 was passed as it was not maintainable hence the order passed therein is also bad in the eyes of law accordingly, the writ petition deserves to be allowed.
Mr. Prasiddha Narayan Singh, learned counsel for the respondent no.4 could not dispute the fact that he did not have any direct locus in the dispute in question, however, he submits that his forefathers had gifted the properties to the temple and being devotees he had substantial interest to inform the court regarding the fraud being practiced at the behest of the petitioners as they had concealed the material facts while filing the present petition and in a surreptitious manner was attempting to take control of the properties of the temple which has also been sold to the detriment of the temple and the deity.
After the death of Bhagwan Das the person who has sought impleadment as successor of Bhagwan Das also cannot take control of the proceedings as prima facie it has been established that the alleged will which is the basis of the claim of Bhagwan Das was fictitious so no rights could flow from Bhagwan Das to the person substituted i.e. Mahant Dhananjay Das. Accordingly, in the aforesaid circumstances till such time the issue regarding the right of Sarbarkarship is settled by the competent court, the properties of temple may be protected by passing appropriate orders.
Dr. Krishna Singh, learned Standing Counsel appearing on behalf the State also submitted that though certain proceedings are pending before the Civil Court but in view of the interim order granted by this Court staying the operation of the order dated 11.11.1998 Bhagwan Das remained in control and he executed a registered will deed in favour of Dhananjay Das and on the basis of the said will name of Dhananjay Das has been mutated vide order dated 31.05.2019 against which Baba Laxmi Das has moved an application for recall and in the said proceedings the order of mutation passed in favour of Dhanajaya Das has been stayed. It has further been stated that there is no clear verdict in favour of any person having rights to manage the properties from a regular court rather rights are being controlled in light of orders passed in summary proceedings.
Having taken note of the aforesaid factual matrix, this court finds that it is not disputed that the properties belong to a juristic person namely Thakur Ji Maharaj. The property of the temple needs to be preserved and protected for the benefit of deity.
Mr. Gyanendra Kumar Pandey, learned counsel for the petitioner could not explain as to why and in what circumstances Bhagwan Das was pursuing the case on behalf of Balram Das for mutation if Bhagwan Das had a will in his favour dated 07.02.1982 and why the said will was not placed and mad the basis of right of Bhagwan Das till the proceedings instituted by Balram Das came to be dismissed by the appellate court in 1987 and for the first time in the year 1992 on the basis of an alleged will dated 07.02.1982 did Bhagwan Das get his name mutated.
Mr. Pandey, learned counsel for the petitioner could not indicate why the facts regarding the earlier mutation proceedings were not brought on record and that once the private respondent no.4 in his counter affidavit had disclosed about the earlier litigation instituted by Balram Das and that it was also dismissed by mutation court so also the appeal with specific observation that there was no document regarding the death of Mahant Narayan Das or the manner in which the property of the temple were being administered including the manner and mode of nomination of successor and in absence of such vital document yet no rejoinder was filed contradicting the said facts rather the facts were concealed even from the mutation court who in absence of such material passed an order in favour of Bhagwan Das on 31.01.1992.
Mr. Pandey, learned counsel for the petitioner also did not indicate the pending status as well as the out come of the proceedings which were instituted by the rival contestant Baba Laxmi Das and it was known only through the learned Standing Counsel who informed that the matter is still pending before the appropriate Court and the matter was fixed on 09.12.2022, but the learned Standing Counsel could not give the exact details or the stage at which the said suit was pending. The fact of proceedings pending before the Sub Divisional Officer and Civil Court was mentioned in the application for impleadment of Baba Laxmi Das even then the petitioner did not bring the facts on record nor denied the same.
Admittedly, the respondent no.4 has no right in the property and what this court finds is that by means of instant mutation proceedings control is being sought in respect of the temple properties vested with the deity which is nothing but an attempt to claim the management and control by resorting to suppression of material facts and misrepresentations. There is nothing on record to establish the scheme of administration regarding the temple and its properties. There is no material brought on record by either the petitioner or the respondents including the State respondents to indicate the rules, bye laws or the customs and rituals by which the temple properties are being administered and how the Sarbarkarship is passed on from one Sarbarkar to another. It is also quite true that the last undisputed Mahant namely Sri Narayan Das expired in the year 1985 but since thereafter there has been a conflict and rival claims by various persons claiming the rights of control and Sarbarkarship to the temple properties and all claiming themselves to be the disciples of Mahant Narayan Das. This court further finds that there are a large number of properties of Thakur Ji Maharaj and the issue regarding successor of Mahant Narayan Das, the authenticity of the will as set up by Bhagwan Das dated 07.02.1982 is also under cloud and is doubtful for the reasons as already noticed above, that in the first round of litigation when Balram Das was staking a claim, the original petitioner of this petition namely Bhagwan Das was pursuing the case favouring Balram Das and only after the dismissal of the case of Balram Das, did Bhagwan Das stake his claim and that too by concealing the aforesaid facts in his case and also before this court in the writ petition.
Concealment of fact is a serious issue which amounts to playing fraud with the court. In this regard it will be relevant to notice certain decisions of the Apex Court wherein this issue has been considered, some of which are as follows:
In Ram Chandra Singh Vs. Savitri Devi and others; (2003) 8 SCC 319 the Hon'ble Supreme Court has held as under:
"15. Commission of fraud on court and suppression of material facts are the core issues involved in these matters. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together.
16. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter.
17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
19. In Derry v. Peek, [1889] 14 A.C. 337, it was held:
In an 'action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit."
20. In Kerr on Fraud and Mistake, at page 23, it is stated:
"The true and only sound principle to be derived from the cases represented by Slim v. Croucher is this: that a representation is fraudulent not only when the person making it knows it to be false, but also when, as Jessel, M.R., pointed out, he ought to have known, or must be taken to have known, that it was false. This is a sound and intelligible principle, and is, moreover, not inconsistent with Derry v. Peek. A false statement which a person ought to have known was false, and which he must therefore be taken to have known was false, cannot be said to be honestly believed in. "A consideration of the grounds of belief", said Lord Herschell, "is no doubt an important aid in ascertaining whether the belief was really entertained. A man's mere assertion that he believed the statement he made to be true is not accepted as conclusive proof that he did so."
21. In Bigelow on Fraudulent Conveyances at page 1, it is stated:
"If on the facts the average man would have intended wrong, that is enough."
It was further opined:
"This conception of fraud (and since it is not the writer's, he may speak of it without diffidence), steadily kept in view, will render the administration of the law less difficult, or rather will make its administration more effective. Further, not to enlarge upon the last matter, it will do away with much of the prevalent confusion in regard to 'moral' fraud, a confusion which, in addition to other things, often causes lawyers to take refuge behind such convenient and indeed useful but often obscure language as 'fraud upon the law'. What is fraud upon the law? Fraud can be committed only against a being capable of rights, and 'fraud upon the law' darkens counsel. What is really aimed at in most cases by this obscure contrast between moral fraud and fraud upon the law, is a contrast between fraud in the individual's intention to commit the wrong and fraud as seen in the obvious tendency of the act in question."
22. Recently this Court by an order dated 3rd September, 2003 in Ram Preeti Yadav vs. U.P. Board of High School & Intermediate Education & Ors. reported in JT 2003 (Supp. 1 ) SC 25 held:
"Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by words or letter. Although negligence is not fraud but it can be evidence on fraud. (See Derry vs. Peek [1889] 14 A.C. 337 ) In Lazarus Estate vs. Berly [1971] 2 W.L.R. 1149 the Court of Appeal stated the law thus:
"I cannot accede to this argument for a moment "no Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything". The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever."
In S.P. Chengalvaraya Naidu vs. Jagannath 1994 (1) SCC 1 this Court stated that fraud avoids all judicial acts, ecclesiastical or temporal."
23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.
24. In Arlidge & Parry on Fraud, it is stated at page 21:
"Indeed, the word sometime appears to be virtually synonymous wit "deception", as in the offence (now repealed) of obtaining credit by fraud. It is true that in this context "fraud" included certain kind of conduct which did not amount to false pretences, since the definition referred to an obtaining of credit "under false pretences, or by means of any other fraud". In Jones, for example, a man who ordered a meal without pointing out that he had no money was held to be guilty of obtaining credit by fraud but not of obtaining the meal by false pretences: his conduct, though fraudulent, did not amount to a false pretence. Similarly it has been suggested that a charge of conspiracy to defraud may be used where a "false front" has been presented to the public (e.g. a business appears to be reputable and creditworthy when in fact it is neither) but there has been nothing so concrete as a false pretence. However, the concept of deception (as defined in the Theft Act 1968 ) is broader than that of a false pretence in that (inter alia) it includes a misrepresentation as to the defendant's intentions; both Jones and the "false front" could now be treated as cases of obtaining property by deception."
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application f any equitable doctrine including res-judicata.
26. In Smt. Shrisht Dhawan vss. M/s. Shaw Brothers 1992 AIR(SC) 1555 ], it has been held that:
"Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
27. In S.P. Chengalvaraya vs. Jagannath [ 1994 (1) SCC 1 ] this Court in no uncertain terms observed:
"...The principles of "finality of litigation" cannot be passed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan dodgers and other unscrupulous persons from all walks of life find the court- process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.... A fraud is an act of deliberate deception with the design of security something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage... A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party."
28. In Indian Bank vs. Satyam Fibers (India) Pvt. Ltd. [ 1996 (5) SCC 550 ], this Court after referring to Lazarus Estates (supra) and other cases observed that 'since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court it also amounts to an abuse of the process of the Court, that the Courts have inherent power to set aside an order obtained by practising fraud upon the Court, and that where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order".
It was further held:
"The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers, which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business."
29. In Chittaranjan Das vs. Durgapore Project Limited & Ors. 99 CWN 897, it has been held:
"Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied within such a situation.
It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby.""
In A.V. Papayya Sastry and others Vs. Government of A.P. and others; (2007) 4 SCC 221 the Hon'ble Supreme Court has held as under:
"21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed; "Fraud avoids all judicial acts, ecclesiastical or temporal".
22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, Lord Denning observed:
"No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."
24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.
25. It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.
27. In S.P. Chengalvaraya Naidu (dead) by LRs. V. Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1 : JT 1994 (6) SC 331, this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court.
28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated:
"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation".
(emphasis supplied)
29. The Court proceeded to state: "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party".
30. The Court concluded: "The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants".
31. In Indian Bank v. Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550 : JT 1996 (7) SC 135, referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888, this Court stated;
"22. The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business".
(emphasis supplied)
32. In United India Insurance Co. Ltd. v. Rajendra Singh and others., (2000) 3 SCC 581 : JT 2000 (3) SC 151, by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court."
In K.D. Sharma Vs. Steel Authority of India Limited and others; (2008 12 SCC 481, the Hon'ble Apex Court has held as under:
"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 Commissioners, (1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136 in the following words:
"...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- it says facts, not law. He must not misstate the law if he can help it; 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 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".
(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 "We will not listen to your application because of what you have done". The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it.
37. In Kensington Income Tax Commissioner, Viscount Reading, C.J. observed:
"...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 applicant was not candid and did not fairly state the 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 this Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit".
(emphasis supplied)
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 `hide and seek' or to `pick and choose' 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, "the Court knows law but not facts"."
In Dalip Singh Vs. State of Uttar Pradesh and others; (2010) 2 SCC 114 Hon'ble the Supreme Court has held as under:
"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 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.Narayanswamy Reddi and other v. Governor 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 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, L.J. in R v Kensington Income Tax Commissioners (1917) 1 K.B. 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."
In Bhaskar Laxman Jadhav and others Vs. Karamveer Kakasaheb Wagh Education Society and others; (2013) 11 SCC 531 the Hon'ble Supreme Court has held as under:
"42. While dealing with the conduct of the parties, we may also notice the submission of learned counsel for respondent No.1 to the effect that the petitioners are guilty of suppression of a material fact from this Court, namely, the rejection on 2nd May 2003 of the first application for extension of time filed by the trustees and the finality attached to it. These facts have not been clearly disclosed to this Court by the petitioners. It was submitted that in view of the suppression, special leave to appeal should not be granted to the petitioners.
43. Learned counsel for the petitioners submitted that no material facts have been withheld from this Court. It was submitted that while the order dated 2nd May 2003 was undoubtedly not filed, its existence was not material in view of subsequent developments that had taken place. We cannot agree.
44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2nd May 2003 in the order dated 24th July 2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2nd May 2003 was passed or that it has attained finality.
45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows:
"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, 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 would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent."
46. More recently, in Ramjas Foundation vs. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said:
"The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."
From the aforesaid extracts the principle which is culled out is clear that any person who does not approach the court with clean hands is not entitled to claim any relief and rather such person can be thrown out at any stage of litigation.
As noticed above, that learned counsel for the petitioner could not explain regarding the concealment made by Bhagwan Das relating to the earlier litigation of Balram Das as it was very material to the litigation at hand which was triggered after the death of erstwhile Mahant Narayan Das. It is also to be noticed that even while the instant proceedings were pending before this Court and Sri Dhananjaya Das sought his substitution in place of Bhagwan Das yet no attempt was made to bring the facts on record regarding the pendency of the suit which was filed by Baba Laxmi Das both before the Civil Court as well as before the Sub Divisional Magistrate under Section 229-B of U.P.Z.A. & L.R. Act, both of which are substantive proceedings.
In the aforesaid backdrop where the issue as to who is entitled to manage the properties as Sarbarkar is yet to be considered which needless to say cannot be decided by the mutation court and has to be decided by the appropriate regular court and till date there is no verdict. The manner in which the proceedings have been taken forward by Bhagwan Das and now by Sri Dhananjay Das also does not inspire much confidence. Moreover, Sri Dhananjay Das cannot be permitted to indirectly get his claim validated from this court through this writ petition which was instituted by Bhagwan Das and his claim for the reasons aforesaid was not found genuine. Dhananjay Das has to get his claim adjudicated before a regular forum where matter is pending. Hence this writ petition to get the claim validated of Dhananjay Das cannot be accepted and is liable to fail.
Since the property in question is dedicated to the temple and its deity which is a juristic person, this court while exercising its powers of superintendence and locus parentis which confers the court with ample power to ensure that the properties of temple/deity is duly protected and not subjected to waste, hence in the aforesaid circumstances this court issues the following directions:
(i). The District Magistrate, Ambedkar Nagar shall act as the Administrator and immediately take control of the properties of Thakur Ji Maharaj temple situated in Village Jiyapur and at places Mauja Aurangabad, Huseypur, Nausanda, Khansapur, Tehsil Tanda, District Ambedkar Nagar and shall administer the properties, maintain its accounts in respect of all the offerings and income of the temple and properties after preparing a proper inventory and accounts in presence of two respectable persons of the village and three persons connected with the temple including Dhananjay Das and Laxmi Das and shall place the inventory and temple accounts before this court in the aforesaid petition along with affidavit of the District Magistrate.
(ii). Any party who has an interest in the Sarbarkarship including the present petitioner Sri Dhananjay Das may get their rights duly adjudicated from a competent court of law.
(iii). The District Magistrate concerned shall also appoint a Government Counsel to participate and oversee the proceedings which are already pending i.e. a suit before the Civil Court and one before the Sub Divisional Officer instituted by Baba Laxmi Das, and also keep the District Magistrate informed about its progress to ensure fair contest of the proceedings and that the Court concerned before whom such matters are pending shall examine that no compromise/ settlement is arrived at, which may have any detrimental effect on the rights of the deity, Thakur Ji Maharaj and that proceedings are concluded fairly in accordance with law.
(iv). None of the properties of Thakur Ji Maharaj deity shall be sold or alienated by any of the parties to the litigation without prior permission of this court.
(v). This arrangement shall continue which shall be subject to any order passed by the competent court declaring and upholding the order of Sarbarkarship and brought to the notice of this court and only thereafter the charge of the properties of Thakur Ji Maharaj temple shall be handed over to the duly recognized Sarbarkar by this court being satisfied.
(vi). The Courts wherein the matter is pending i.e. Civil Judge and the Sub Divisional Officer shall also expedite the matter pending before it to take it to its logical conclusion, after affording full opportunity of hearing, but without granting any unnecessary adjournment to the parties to the proceedings.
(vii). Appropriate entries and the endorsement of the order be made in the revenue records.
(viii). The District Magistrate, Ambedkar Nagar shall furnish its report indicating the developments, progress of the pending litigations and measures taken by him relating to the assets/liabilities and income of the temple before this court periodically.
For this limited monitoring the matter shall now be listed on 03rd April, 2023.
A copy of this order shall be communicated to the District Magistrate, Ambedkar Nagar through the Senior Registrar of this Court.
Subject to the aforesaid directions, the instant writ petition at the behest of the petitioner/Sri Dhananjay Das is dismissed. Costs are made easy.
Order Date :- 20th December, 2022.
Ram.