Himachal Pradesh High Court
____________________________________________________________ vs Of on 8 November, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CMPMO No. 308 of 2016.
Reserved on: 4.11.2016 Date of decision : November 8th, 2016 ____________________________________________________________ Dinesh Kumar . ...Petitioner Versus of Jyoti Prakash and others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt
Whether approved for reporting? Yes
For the Petitioner : Mr. Hamender Singh Chandel,
Advocate.
For the Respondents : Mr. Maan Singh, Advocate, for
respondent No.1 and 4.
Tarlok Singh Chauhan, Judge .
This petition under Article 227 of the Constitution of India is directed against the order passed by the learned trial Court on 15.3.2016 whereby the applications filed by the respondents No.1 and 4 under Order 9 Rule 4 CPC have been allowed and orders dated 19.3.2011 and 21.11.2012 whereby these respondents had been proceeded ex-parte has been ordered to be set aside.
The facts in brief may be noticed thus.
2. The petitioner has filed suit for recovery against the respondents which is pending before the Learned trial Court. The respondents No.1 and 4 were duly served and did not contest the suit for 4-5 years and it is only thereafter that they filed applications for setting aside exparte order, which applications as observed above has been ordered to be allowed by the Learned trial Court.
____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes.
::: Downloaded on - 15/04/2017 21:31:00 :::HCHP 23. The grievance of the petitioner is that the application(s) .
filed by respondents No.1 and 4 could not have been allowed as the same was based on falsehood. He has invited my attention to the application firstly filed by respondent No.1 wherein it is averred that the respondent has been serving in the Indian Army for the last 3 years of and remained posted in the most sensitive areas. In addition to that he also remained on deputation with VIPs and as such did not receive any rt notice from the Court and was proceeded exparte on 19.3.2011. He further invited my attention to the summons issued to respondent No.1 which were infact duly received by his wife and at the time the respondent No.1 himself was available at home.
4 As regards, the respondent No.4, the application filed for setting aside the ex parte order discloses that the only reason given for non-appearance is that she was residing at Ludhiana and came to know about the pendency of the case when she visited her native place. Where as, the notice issued to respondent No.4 which has been appended as Annexure P-1 with the petition discloses that the petitioner had personally received the summons on 16.2.2011 and therefore the explanation offered by her, like the one offered by the respondent no.1, is totally false.
5. Ordinarily, this Court would not interfere with matters which pertain to setting aside of exparte orders as it is more than settled that when technicalities are pitted against substantive justice, then obviously substantive justice has to prevail. However, the said principle would not apply to a case where a party does not approach the Court with clean hands, clean mind and a clean heart.
::: Downloaded on - 15/04/2017 21:31:01 :::HCHP 36. It is proved on record that the defence set up by the .
appellant was absolutely false. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Hon'ble Supreme Court held that false claims and defences are serious problems with the litigation. The Hon'ble Supreme Court held of as under:-
84. False claims and defences are really serious problems with real rt estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent."
7. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the Hon'ble Supreme Court observed that a new creed of litigants have cropped up in the last 40 years who do not have any respect for truth and shamelessly resort to falsehood and unethical means for achieving their goals. The observations of the Supreme Court are 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 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 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 ::: Downloaded on - 15/04/2017 21:31:01 :::HCHP 4 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."
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8. In Satyender Singh v. Gulab Singh, 2012 (129) DRJ, 128, the Division Bench of Delhi High Court following Dalip Singh v.
rt State of U.P. (supra) observed that the Courts are flooded with litigation with false and incoherent pleas and tainted evidence led by the parties due to which the judicial system in the country is choked and such litigants are consuming Courts‟ time for a wrong cause."
The observations of Court are as under:-
"2. As rightly observed by the Supreme Court, Satya is a basic value of life which was required to be followed by everybody and is recognized since many centuries. In spite of caution, courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts„ time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court. Indeed, it is a nightmare faced by a Trier of Facts; required to stitch a garment, when confronted with a fabric where the weft, shuttling back and forth across the warp in weaving, is nothing but lies. As the threads of the weft fall, the yarn of the warp also collapses; and there is no fabric left."
9. In Sky Land International Pvt. Ltd. v. Kavita P. Lalwani, (2012) 191 DLT 594, Delhi High Court held as under:-
"26.20 Dishonest and unnecessary litigations are a huge strain on the judicial system. The Courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such ::: Downloaded on - 15/04/2017 21:31:01 :::HCHP 5 litigants are consuming courts„ time for a wrong cause. Efforts are .
made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court.
xxx xxx xxx 26.22 Unless the Courts ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled of for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the Courts‟ scarce and valuable time is consumed or rt more appropriately wasted in a large number of uncalled for cases. It becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation, ultimately they must suffer the costs. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that the dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."
10. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the respondents No.1 and 4..
It has to be remembered that Court's proceedings are sacrosanct and should not be polluted by unscrupulous litigants.
11. In A. Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam and ors.
(2012) 6 SCC 430, the Hon'ble Supreme Court held as under:-
"27. The pleadings must set forth sufficient factual details to the extent that it reduces the ability to put forward a false or exaggerated claim or defence. The pleadings must inspire confidence and credibility. If false averments, evasive denials or false denials are introduced, then the court must carefully look into it while deciding a case and insist that those who approach the court must approach it with clean hands."
12. In Kishore Samrite Vs. State Of Uttar Pradesh and ors.
(2013) 2 SCC 398, the Hon'ble Supreme Court observed as under:
::: Downloaded on - 15/04/2017 21:31:01 :::HCHP 6"32.The cases of abuse of process of court and such allied matters .
have been arising before the courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of process of court. We may recapitulate and state some of the principles. It is difficult to state of such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:
32.1. Courts have, over the centuries, frowned upon litigants who, rt with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
32.3. The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings.
Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
32.5. 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.
32.6. The Court must ensure that its process is not abused and in order to prevent abuse of process of court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
32.7. Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest ::: Downloaded on - 15/04/2017 21:31:01 :::HCHP 7 involved. The stream of justice should not be allowed to be polluted .
by unscrupulous litigants.
32.8. The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed of grievances and the Court should endure to take cases where the justice of the lis well-justifies it. [Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. rt (2010) 3 SCC 402].
33. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. In P.S.R. Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141, the Court held:
"15. The crucial significance of access jurisprudence has been best expressed by Cappelletti:
"The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic 'human-right' of a system which purports to guarantee legal rights."
16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ petitioner and dismiss the petition."
13. There is a legal duty cast upon a party to come to the Court with the true case or defence and prove it by true evidence. The Court of law ::: Downloaded on - 15/04/2017 21:31:01 :::HCHP 8 is meant for imparting justice between the parties. One who comes to the .
Court, must come with clean hands and a person whose case is based on falsehood has no right to approach the Court and can be summarily thrown out at any stage of the litigation.
14. Adverting to the impugned order, it would be noticed that the of learned Court has simply chosen to rely upon the contents of the application only because the same was supported by the affidavit of the respondents.
rt Despite the factual aspects being disputed, it did not care to verify the factual position from the records and proceeded to allow the application by observing that expression sufficient cause should be construed to advance substantial justice and the Court should not take strict and pedantic approach and that the petitioner could conveniently be compensated by imposing cost and then proceeded to award Rs.1,500/- as cost.
15. Obviously, learned trial Court has fallen in error in relying upon the contents of the averment which were clearly belied by the documents placed on record more particularly the summons that have been received back after the service of respondents No.1 and 4. Therefore, the ultimate award of costs would be no panacea in such cases, since the mischief cannot be repaired. The order passed by the learned Court below is clearly unsustainable and is therefore set aside.
16. Consequently, the petition is allowed in the aforesaid terms, leaving the parties to bear their cost. Pending application, if any, also stands disposed of.
November 8th, 2016 (Tarlok Singh Chauhan)
(Vandana) Judge
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