Himachal Pradesh High Court
Karam Chand & Ors vs Kishore Singh & Ors on 10 April, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP(M) No. 971 of 2017 .
Reserved on: 02.04.2019 Date of decision: 10.04.2019 Karam Chand & Ors.
...Applicants/appellants/defendants Versus Kishore Singh & Ors.
...Respondents/plaintiffs Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes.
For the Applicants/: Mr. Naresh Kaul, Legal-aid-Counsel.
appellants/defendants
For the Respondents/: Mr. N. K. Thakur, Sr. Advocate
plaintiffs with Mr. Divya Raj Singh,
Advocate.
Tarlok Singh Chauhan, Judge.
By medium of this application, the
applicants/appellants have sought condonation of 166 days delay in filing of the appeal. According to the applicants, the impugned judgment and decree passed on 23.12.2015 and certified copy of the same was applied on 26.12.2015 and the same was attested on 05.11.2016 and supplied on 07.11.2016. The limitation for filing the appeal expired in the month of April, 2017. The appellants/applicants approached the counsel for filing of the 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 2 appeal in the month of March, 2017 but it transpired that the complete records were not available and accordingly these were .
applied and obtained in the second week of July, 2017.
Whereafter the appeal was promptly filed on 17.07.2017.
However by that time, limitation for filing of the appeal had already expired and was barred by 166 days. It is averred that the applicants were rustic villagers and do not know the intricacies of law and not aware of the limitation, therefore, in order to do the substantial justice, the delay in filing of the appeal deserves to be condoned.
2. Upon notice, the respondents contested the application by filing reply, wherein, preliminary submissions were taken that the application was meritless besides there was concealment of facts and misrepresentation of dates, on the basis of which the condonation was sought and moreover there is no reasonable plausible explanation assigned for condonation of delay, therefore, the application should be dismissed. On merits, it was averred that the impugned judgment was passed on 23.12.2015 and both the parties filed an application for obtaining certified copies on 26.12.2015. The serial number of the application of the respondents was 11124 and the serial number of the application of the applicants/appellants was 11228. As regards the copy supplied to the respondents, the same was ::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 3 attested and bears stamp of the Copying Agency mentioning therein the date as 05.01.2016. Therefore, the respondents have .
every reason to believe that it was on this date that the certified copies of the judgment and decree of the learned first Appellate Court was delivered to the applicants/appellants, would also bear the same date. It is further averred that the applicants have interpolated/tampered with the date of attestation as is apparent to the naked eyes whereby the month of attestation instead of 05.01.2016 has been interpolated / tampered as 05.11.2016.
Even the colour of the ink wherein the figure '1' added appears to be different from one appearing in the rest of the columns filled up by the Copying Agency.
3. Here it shall apposite to refer to para-3 of the reply, which reads thus:-
"3. That in reply to contents of this para, it is submitted that the impugned judgment was passed on 23.12.2015 and both the parties filed application for obtaining the certified copies on 26.12.2015. The serial number of the application of the replying respondent is 11124 and the serial number of the application of the applicant is 11228. It is humbly submitted that the date of attestation has been mentioned as 05.01.2016 as per the stamp of the Copying Agency impressed on the copy of the replying respondent and as per the belief of the replying respondent, the same would have been mentioned in the certified copy of the applicant, which has now been filed alongwith the grounds of the appeal. It appears, and is open to the naked eye that there has been an interpolation/tampering with respect to the date of ::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 4 attestation as reflected on the copy of the applicant. It is submitted that the moment the parties to the lis applies for .
certified copies, all the copies prepared on the same day and more particularly with a short gap of the registration of the application with the Copying Agency, it is believed that all the copies so sought would have been prepared and attested on the same day and in these circumstances, it is submitted that even the copy supplied to the applicant would carry the date as 05.01.2016 i.e. a date of attestation. It is not comprehensible that how a period of 10 months was taken by the Copying Agency to prepare and attest the copy of the same judgment which has been supplied to the replying respondent and was also sought by the applicant on the same day i.e. 26.12.2015. In these circumstances, it is humbly submitted that the applicant has interpolated/tampered the month of attested as 05.11.2016 to gain the time of condonation of delay which had already occurred. It is humbly submitted that the Hon'ble Court may please to call for the record of the Copying Agency and also the explanation of the concerned official as to why and how he took ten months to attest the copy when it was prepared on 05.01.2016. Such situation warrants the probe/ explanation of the concerned officials as how he has mentioned the date of attestation as 05.11.2016. It is submitted that the applicant wanted to hoodwink the Court by interpolating/tampering the date as 05.11.2016. If the Hon'ble Court perused the dates on the certified copy furnished by the applicant, would show that there is a clear interpolation/tampering by adding a figure '1' to make it as 05.11.2016 instead of 05.01.2016. The colour of the ink of added figure '1' is different then the real writing more particularly, when the examiner of both the copies is one and the same person which fact would be evident from the signatures put by such official as Examiner. The information supplied by the learned Counsel of the Court below, the copy was supplied to the applicant on 07.01.2016."::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 5
4. It is further averred that the application itself barred .
by more than 9 months and since the appellant has tampered with the officials record, therefore, the application not only deserves to be dismissed but also exemplary costs deserves to be imposed.
5. When the application came up for consideration before this Court on 30.08.2017, the following order came to be passed:- r "As prayed for, the respondents are granted permission to carryout table amendment in the reply, wherein the date being 07.11.2016 is permitted to be corrected as 05.11.2016.
Rejoinder, if any, be filed within three weeks. In the meanwhile, the learned Additional District Judge-I, Una is directed to furnish his comments in response to para 3 of the reply filed by respondents.
The Registry is directed to transmit the copy of this order alongwith aforesaid reply to the concerned Court by FAX/e- mail within two days.
List on 04.10.2017"
6. In compliance to the aforesaid order, the learned Additional District Judge-I, Una furnished his comments. The relevant portion whereof reads thus:-
"In this connection, with respect to application No. 11224, it is submitted that as per record maintained by the Copying Agency the application in Civil Appeal titled as Karam Chand vs. Kishore Singh had been filed by Sh. Mohan Lal Sharma, Advocate, entered at Sr. No. 11224 of ::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 6 Register CD-2 now known as (Annexure B) on 26.12.2015. The copy of judgment and decree dated 23.12.2015 has .
been found prepared on 05.01.2016 and delivered on 06.01.2016. The xerox copy of the said application No. 11224 (both side) is submitted herewith, for kind perusal as annexure "A".
Another application No. 11228 in Civil Appeal No. 5/2015 titled as Karam Chand vs. Kishore Singh had been filed by Shri N. K. Bali, Advocate on 26.12.2015 and per record, it has been found that the copy of judgment and decree had been prepared on 05.01.2016 and delivered on 07.01.2016. The xerox copy of the said application No. 11228 (both side) is also submitted herewith for kind perusal as Annexure "B".
It is submitted that from the record it is found that both the copies of judgment and decree sheet had been prepared by the same Copyist on 05.01.2016 and attested by the same Examiner on 05.01.2016. As per record of applications the date of preparation of both applications is 05.01.2016. The application No. 11224 was delivered on 06.01.2016 and the application No. 11228 was delivered on 07.01.2016. The individual progress report of Copyist showing preparation of aforesaid copies is 05.01.2016, the abstract of the relevant register dated 05.01.2016 is also enclosed as Annexure "C".
7. Despite repeated opportunities, the applicants did not choose to file rejoinder as is borne out from the orders dated 30.08.2017, 15.11.2017, 06.12.2017, 20.12.2017, 07.03.2018, 04.04.2018, 25.04.2018, 19.06.2018 and it was finally on 26.06.2018 that the learned counsel for the applicants ::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 7 represented before the Court that rejoinder is being filed during the course of the day.
.
8. However, before the rejoinder could be taken up for consideration, the learned counsel representing the applicants/ appellants sought permission to withdraw from the case, as the applicant/appellant No. 2 Tarsem Lal himself was present and sought permission to engage counsel and time of two weeks' was granted to do the needful.
9. On 07.08.2018, the applicant No. 2 again appeared and prayed for one week's time to engage counsel. However, when the case came up for consideration on 14.08.2018, none appeared on behalf of the applicants / appellants and the case was accordingly adjourned to 21.08.2018. On 21.08.2018, the appellant No. 2 Tarsem Lal again appeared in person and stated that he was not in a position to engage the services of the counsel and accordingly the Secretary, H.P. Legal Services Authority was directed to provide legal aid counsel to him.
10. Shri Rajinder Dogra, Advocate, though came to be appointed as legal-aid-counsel, however, he expressed his inability to appear as he was busy before the Central Administrative Tribunal, Chandigarh. Therefore, directions were again issued for appointing another legal-aid-counsel and this ::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 8 time Shri Naresh Kaul, Advocate, was appointed as legal-aid-
counsel.
.
11. Adverting to the rejoinder, the applicants in reply to para-3 of the reply as reproduced above, has made the following averments:-
"3.That in reply to this para it is submitted that due to oversight wrong dates were mentioned and a separate application is being filed for withdrawal of the application."
12. It would be relevant to notice that alongwith the rejoinder, the applicants also filed an application for withdrawal of the instant application i.e. for condonation of delay. It shall be opposite to refer paras 2 and 3 of the application, which read thus:-
"2. That due to oversight, an averment has been made in paragraphs No. 3 and 4 of the application that the certified copy of the order was applied on 26.12.2015 and same was attested on 05.11.2016 and supplied on 07.11.2016. A further averment has been made that the limitation for filing appeal has expired in April, 2017 and counsel approached the appellant in March, 2017, but same was not having complete record and it was applied, which was obtained in second week of July, 2017.
3. That, due to oversight, the dates for attesting and supply of the copy has been wrongly mentioned as 05.11.2016 and 07.11.2016, whereas the same are 05.01.2016 and 07.01.2016. This has occurred due to oversight and inadvertence."::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 9
13. It is clearly evident from the aforesaid narration of the facts, more particularly, the comments furnished by the .
learned Additional District Judge-I, Una, District Una, that the applicants/appellants have not approached this Court with clean hand by not disclosing the true and correct facts and have rather indulged in interpolation and tampering of records produced before this Court.
14. It is more than settled that the parties approaching the Court, must do so, not only with clean hand but also with clean mind, clean heart and clean object. In the instant case, not only the applicants made false averments but have further committed perjury by interpolating the dates in the judgment.
15. Therefore, taking into consideration the totality of the circumstances, I feel, it would be expedient in the interest of justice to direct the prosecution of the applicants/appellants for perjury, as it appears to be deliberate and intentional and the conviction would reasonably be probable, such a course is definitely required to be followed in the interest of justice and is fully justified.
16. In view of the peculiar facts of this case, under Section 195(1)(b)(i) Cr.P.C., the Registrar General of this Court is authorised to file a complaint in the Court of concerned Magistrate against the applicants herein.
::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 1017. The interpolation and tampering made by the appellants were calculated to embarrass and the Court in the .
administration of justice. As observed above, this not only amount to perjury but there is also present, the element of obstruction to the Court in the performance of its duties. The fact that perjury is also a substantive crime under the Indian Penal Code does not prevent conviction for a contempt, under the Contempt of Courts Act. The essential element which makes perjury punishable as a contempt, is an element of obstruction to the Court, which was definitely present in this case. Perjury or false swearing would constitute contempt of Court, if the alleged false statement had an obstructive effect effect made with the knowledge of falsity and the question was pertinent to the issue, in a leading American decision Rugg, C. J., said "The province of the courts in cases brought before them is to ascertain the truth to indicate rights to redress wrongs and to do justice according to established principles of law. Those who are interested in perverting rights and escaping the consequences of evil conduct, have an interest to obstruct the course of justice in the courts.
Ingenious efforts have not been wanting for obstructing the courts by numerous means. An obvious one is to attempt to influence the decision by false testimony. Perjury as contempt of court has been considered by courts of other jurisdictions.
::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 11Respecting that general subject it was said in Ex parte Hudgins, (1919) 249 US 378. at pp. 382, 383: 'Because perjury is a crime .
defined by law and one committing it may be tried and punished does not necessarily establish that when committed in the presence of a court it may not, when exceptional conditions so justify, be the subject-matter of a punishment for contempt. This being true, we must ascertain what is essential ingredient in addition to the elements constituting perjury under the general law which must be found in perjury when committed in the presence of a court to bring about the exceptional conditions justifying punishment under both. Existing within the limits of an sanctioned by the Constitution, the power to punish for contempt committed in the presence of the Court is not controlled by the limitations of the Constitution as to modes of accusation and methods of trial generally safeguarding the rights of the citizen.
This, however, expresses no purpose to exempt judicial authority from constitutional limitations, since its great and only purpose is to secure judicial authority from obstruction in the performance of its duties to the end that means appropriate for the preservation and enforcement of the Constitution may be secured. An obstruction to the performance of judicial duty resulting from an act done in the presence of the court, is, then, the characteristic upon which the power to punish for contempt ::: Downloaded on - 11/04/2019 21:58:27 :::HCHP 12 must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to .
punish for contempt is exerted - a principle which, applied to the subject in hand, exacts that in order to punish perjury in the presence of the court as a contempt there must be added to the essential elements of perjury under the general law the further element of obstruction to the Court in the performance of its duty." (Vide Blankenburg v. Commonwealth, 172 N. E. 209 (211):
(73 ALR 808 (S12)) (See: Amarnath Sawan Mal vs. Joginder Singh & ors., AIR 1961 P&H 18).
18. Therefore, let issue notice to the appellants in Form-I of the Contempt of Courts Act, 1996, returnable for 07.05.2019, to show cause why they should not be prosecuted and punished under the Contempt of Courts Act. In the notice so issued, it be specifically mentioned that the appellants are required to be present in person on the next date of hearing.
19. Accordingly, the application for condonation of delay is dismissed. Pending application(s), if any, also stands disposed of.
20. In view of the dismissal of the aforesaid application for condonation of delay, the appeal also stands disposed of.
10th April, 2019. (Tarlok Singh Chauhan), (sanjeev) Judge.
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