Harvinder Singh vs Mukti Dham Samiti on 6 January, 2022

[Cites 7, Cited by 0]

Uttarakhand High Court

Harvinder Singh vs Mukti Dham Samiti on 6 January, 2022

A peculiar but an interesting issue has arisen to be considered by this Court, while considering the Restoration Application, which has been preferred by the revisionist/defendant/tenant, to the proceedings under Section 15 of the Provincial Small Causes Courts Act, which ultimately had resulted into rendering of a judgment on 21st January, 2020, as a consequence thereto, the Small Causes Suit No. 5 of 2015, Mukti Dham Samiti Vs. Harvinder Singh, was decreed and the consequential eviction of the revisionist /tenant had been directed from the tenement/shop in dispute. As against the impugned judgment of 21st October, 2020, the Revision was instituted before this Court on 8th December, 2020.

2. Since being a regular Revision against the judgment of SCC Suit dated 21.01.2020, the Revision was admitted, and an interim order was granted on 24th December, 2020. Subsequent to the grant of interim order on 24th December, 2020, the matter was listed next on 16th March, 2021, when the Court had fixed the date as week 2 commencing 30th March, 2021, as the next date fixed, and the said order was passed in the presence of the representatives of the counsel on record, i.e. Mr Saurabh Pandey, Advocate. When the matter was listed next on 1st April, 2021, and was taken up in the revised call, the learned counsel for the respondent was present but since the revisionist's counsel was not available, hence, the Revision was dismissed for want of prosecution, and the interim order granted on 24.12.2020 was vacated.

3. Seeking its recall, the revisionist had filed a Restoration Application No.10792 of 2021 on 26.08.2021, seeking recall of the order dated 1st April, 2021, but, however, when the application itself came up for consideration for orders on 09.09.2021, once again, the application was taken up in the revised call, since none represented the revisionist, hence the application for Restoration was also dismissed for want of prosecution on 09.09.2021. Seeking its recall on 24th November, 2021, the revisionist has filed the 2nd Restoration Application, being Restoration Application No. 10793 of 2021, on which, the respondent was granted time to file their objections by an order dated 25.11.2021, and the same has been placed on record, and an objection to the Restoration Application has been filed by the respondent on 09.12.2021.

4. Heard the learned counsel for the parties on the Restoration Application, as well as on their objections.

5. Before dealing with the rival contentions, pertaining to the propriety of the Restoration Application itself, based on the judicial precedence relied by the parties, this Court feels it to be inevitable to refer to and extract the grounds taken by the applicant / revisionist for the purposes of justifying the absence on the two dates fixed, when the Revision was taken up by this Court.

6. The reason for absence, as shown in the 1st Restoration Application No. 10792 of 2021, seeking recall of the order dated 01.04.2021, the learned counsel for the revisionist in para 3 of the Restoration Application had pleaded as under:-

"That the counsel for the Revisionist could not join the virtual court proceedings on 01.04.2021 due to some technical glitch, which resulted into dismissal of the said civil revision for want of prosecution. Certified copy of the impugned Order dated 01-04-2021 passed by this Hon'ble Court is annexed herewith as Annexure No.1"

7. That the counsel for the revisionist had argued and pleaded that he could not appear in the revised call of the Revision on 01.04.2021, due to some technical glitch.

8. In the second Restoration Application, being Restoration Application No. 10793 of 2021 dated 15.11.2021, wherein, the revisionist has made a prayer for seeking recall of the order dated 9th September, 2021, dismissing the 1st Restoration Application dated 31.07.2021, in fact, in para 3 of the 2nd Restoration Application, its almost a reiteration of the reason for absence, as it has been assigned in the 1st Restoration Application, but with the slight modification in the light of the pleadings raised in para 4, to justify the absence on 9th September, 2021, that it was on account of the fact that the Counsel was not made aware of the listing of the matter, as it was not marked. The relevant paragraphs 3 and 4 of the 2nd Restoration Application is extracted hereunder:

"3. That the above-noted civil revision was listed for hearing before this Hon'ble Court on 01.04.2021. As that point of time, court hearing was going through virtual mode. The counsel for the Revisionist could not join the virtual court proceedings on 01.04.2021 due to some technical glitch, which resulted into dismissal of said civil revision for want of prosecution. Resultantly the above-noted Civil Revision was dismissed in default vide order dated 01.04.2021. The Applicant/Revisionist accordingly filed a Restoration Application, being MCC No.10792 of 2021 on 31.07.2021.

4. That however, the above-noted Restoration Application, being MCC No.10792 of 2021 was listed before this Hon'ble Court on 09.09.2021 but unfortunately on that day, the counsel for the Applicant / Revisionist could not mark the matter and was unaware about its listing on 09.09.2021. The counsel for the Applicant / Revisionist remained under the impression that the case is not being listed. The said mistake on the part of the applicant and his counsel is unintentional."

9. These Applications are vehemently opposed by the learned counsel for the respondent.

10. The learned counsel for the respondent in his objection dated 01.12.2021 had put a challenge to the pleadings of the 1st Restoration Applications itself, on the ground that the reason assigned in para 3 of the application, to justify the absence on 1st April, 2021, is per se false and a miss-statement which has been made on an affidavit, that non availability of the counsel on 1st April, 2021, was on account of the technical glitch, which as per the argument and objection is a non existing fact, which the counsel for the respondent has substantiated by placing the cause list of the said date on record, as annexure-1 to the first objection, wherein the cause list, which was issued under authority of the Hon'ble Chief Justice has specifically observed that the proceedings would be taken up on physical mode basis, which is extracted hereunder :-

DAILY CAUSE LIST COURT NUMBER 02 THURSDAY, APRIL 01, 2021, AT 10:15 A.M. HON'BLE MR JUSTICE SHARAD KUMAR SHARMA (Matters will be taken up in Physical Court Proceedings.)

11. The learned counsel for the respondent contends that once the cause list itself has specifically observed, that the proceedings of 1st April, 2021, would be taken up on the physical hearing basis, in that eventually, the very cause of absence as pleaded in para 3 of the 1st Restoration Application, that the counsel could not appear due to technical glitch, is a non existing, fanciful and an artificial and a false fact, because once it was a physical hearing, 5 which was being conducted by the High Court, then there is no occasion for the counsel or the litigant participating in the proceedings of the Court by way of a virtual mode, where a plea of absence could be taken that the absence of Counsel chanced on account of a technical glitch.

12. In the objection filed to the 2nd Restoration Application, the learned counsel for the respondent had submitted that, in fact, it is almost a reiteration of the same ground, which has been taken by the revisionist in the 1st Restoration Application, and its bona fides are not clear and false too, for the reason being that the very pleading itself is once again per se false in view of the Restoration of the physical hearing proceedings by the Court, and hence, he has prayed that the Restoration Application deserves to be rejected on the ground that the litigant, who does not approach to the Court with a clean hands and that too by putting the true and correct facts or by placing a distorted or false fact on record, no solace or latitude should be shown by the Court to such litigants, who are not fair to the Court.

13. But, while responding to the objection taken by the respondent/landlord in their objection to the Restoration Application, the revisionist has filed a replication to the objections taken under the affidavit of revisionist Harvinder Singh. In para 4 of the said application, almost a slight divergent and contrary to the earlier stand has been taken by the revisionist , it was to the effect that the counsel, Mr Bhupendra Singh, who was supposed to argue the matter, since being a senior citizen on account of his age, had remained under an impression that on 1st April, 2021, the Court proceedings would be taken up on a virtual mode, therefore, he attempted to connect the Court proceedings through virtual mode, in which, he was unsuccessful in his efforts due to which he remained absent on 1st April, 2021. In fact, the pleadings, which had been raised in para 4 of the replication pleads with the act and action to show the bonafide of the counsel, who attempted to participate in the proceedings of the 6 SCC Revision by making an attempt to connect himself through virtual mode, though the fact remained otherwise as per the cause list itself that of the said date the physical hearing was going on by the High Court. Hence, there was no occasion even for the arguing counsel, who is a senior citizen, for him even to attempt to connect the Court proceedings by virtual mode.

14. The replication, in which, the inability of appearance has been taken on account of the age of the arguing counsel and since he being a senior citizen, where the plea has been taken that he remained under an impression that the hearing is being conducted on a virtual mode, its altogether a new plea take, contrary to the earlier restoration application, the pleadings that he attempted to connect through virtual mode, but he had failed in his effort, are the pleadings, which has been placed on record by way of an affidavit sworn by the revisionist himself, where an action of the counsel and to show his bona fide efforts to participate in the proceedings of the Court has been sworn by the deponent of the affidavit on personal knowledge. The personal knowledge, for a personal act of counsel, cannot be attributed to the deponent of the affidavit until and unless, it is alleged by the deponent of the affidavit, that it was imparted to him by the counsel, that he undertook these efforts to enable him to participate in the proceedings through virtual mode (though none), but he was not successful. Hence, the plea raised in the replication, apart from the fact that it happens to be in contradiction to the principal stand taken in para 3 of the 1st Restoration application, it cannot be relied with by this Court because, it is an expression of thought given by the deponent to the affidavit on his personal knowledge, which cannot be attributed to be read with as to be an action or an attempt of counsel to support the Restoration Application.

15. The learned counsel for the respondent, in support of his objection, has submitted that the Hon'ble Apex Court have been consistently laying down, there are two different measures of 7 determining a bona fide of a litigant, who is participating in the proceedings before the Courts, making a false statement and failure to bona fidely participate in the proceedings are two different aspects, which has to be judicially visualised from two different perspectives, had it been an exclusive bona fide mistake, as pleaded in replication in para 4 about an attempt made by the counsel on 1st April, 2021, it should have been logically pleaded at the first available opportunity in the 1st Restoration Application itself, when the plea was taken of technical glitch in para 3 of the Restoration Application, but non as an afterthought in the replication, and that too under the affidavit of revisionist, based on his personal knowledge. Thus apparently, it makes the first ground taken as to be false, and an effort to deliberately mislead the Court.

16. In the absence of such pleadings, at the first thought when the 1st Restoration Application was filed, itself creates a doubt about the bonafide, when the ground of absence is being sought to be qualified by the subsequent pleadings that too, which has been raised in replication, which was submitted in response to the objection filed by the respondents.

17. Learned counsel for the respondents to support his plea of false and misleading statement had made reference to one of the judgments of the Hon'ble Apex Court as reported in (2010) 2 SCC 114, Dalip Singh Vs. State of Uttar Pradesh and others, and particularly, he had referred to the wider principles, as it had been propagated and laid down in the said judgment , and the reference has been made therein in para 1, 2 and 3 of the said judgment, which is extracted hereunder :-

"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 8 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.""

18. As to how and in what manner, a litigant has to be dealt with, who does not approach the Court with clean hands, and fair pleadings, where he is expected to speak the truth based on the affidavits or documents on record, on which, the credence has to be 9 placed by the Court, to arrive to a judicious conclusion, on an issue, may it be even a trifle issue of restoration even.

19. In fact, the basic structure of the judicial system of the Country, is based upon a trust between the Court and the Assisting counsel, and if the trust is apparently betrayed, in view of the pleading, which are explicitly contrary to the records, no wider and laudable principles of exercising an equitable jurisdiction, ensure a lis to be decided on merits could be attracted to be made applicable. A distorted or misleading ground or a pleading taken for justifying the absence on the said date i.e. 01.04.2021, when it apparently runs contrary to the records itself, particularly when the hearing was being heard in the physical mode, as apparent from the cause list issued by the High Court, the ground taken in the 1st Restoration Application, cannot be relied with by this Court and particularly, when it was attempted to be qualified by the replication submitted under the affidavit of the deponent revisionist himself, which contained a contrary stand and reasons for absence on both the dates.

20. The learned counsel for the respondent had also made reference to yet another judgment, as reported in (2021) SCC Online SC 828, Vishwabandhu Vs. Sri Krishna and another, and he has particularly made reference to, where the Hon'ble Apex Court has observed in para 22 and 24, that a litigant is disentitle to claim any relief or equity from the Court, where he does not approach before the Court by bringing the correct facts on record for the purposes of even seeking a recall of an ex parte order and in order to enable him to participate in the proceedings on its own merits. Even the recall application or the application to set aside the ex parte decree, as postulated by the said judgment , has had to be harshly dealt with, in order to curb a false pleading to be made as a foundation in support of contention, even for the purposes of seeking a recall or restoration of dismissing a lis in default. Para 22 and 24 of the said judgment reads as under :-

"22. Even after the passing of the ex-parte decree, the report filed by the process server on 04.04.2000 clearly indicated that notice was served upon Respondent No.1 which was duly acknowledged by him by putting signature on the copy of the notice. Despite such knowledge, Respondent No.1 allowed AIR 2007 SC (Supp) 1705 AIR 1992 SC 1604 (1996) 7 SCC 523 (2004) 8 SCC 774 the property to be put to auction in the month of December, 2000. It was only after the auction was so undertaken, that he preferred the application under Order IX Rule 13 of the Code. The High Court, therefore, rightly observed in its order dated 21.04.2006 that Respondent No.1 was not vigilant. Yet, the High Court proceeded to grant relief in favour of Respondent No.1.

21. ........

23. We, therefore, allow these Appeals, set aside the orders dated 21.04.2006 and 18.10.2019 passed by the High Court and dismiss the application preferred by Respondent No.1 under Order IX Rule 13 of the Code. No costs."

21. On the other hand, the learned counsel for the applicant to the Recall Application had made references to a number of judgments, and particularly, he has made reference to a judgment , as reported in 2002 (2) S.C.D., 103, International Airports Authority of India Vs. M.L. Dalmia & Co. Ltd., and he has referred to the principles, which had been laid down in para 4 of the said judgment, which is extracted hereunder :-

"4. Having perused the contents of the application for restoration supported by affidavit, we find that the appellant did try to explain the absence on 10.7.2001 but the explanation so offered did not appeal as plausible to the High Court, specially in view of the earlier conduct of the appellant which weighed heavily with the High Court resulting in denial of indulgence being shown to the appellant. Looking at the stakes involved and keeping in view the weighty consideration that so far as practicable, a litigant ought not to be denied a hearing on merits, we are inclined, in the facts and circumstances of this case, to allow the appellant one more opportunity of hearing in the appeal on merits by restoring the same on the file of the High Court, but subject to terms."

22. In fact, the equitable jurisdiction, which was exercised by the Hon'ble Apex Court, in the said case, it was while dealing with 11 the recall application for seeking recall of the matter, which was dismissed for want of prosecution, the Hon'ble Apex Court has weighed the issue from the perspective of the stakes which were involved in the said case, which was resulted into a complete denial of getting a lis adjudicated on merits and that is why, the Hon'ble Apex Court in para 4, it had specially observed, that the principles of deciding the lis, efforts has to be on merits only after hearing the parties and technicalities of absence of a counsel, as it was in that case thrice the Counsel has not appeared, yet the Hon'ble Apex Court has allowed the restoration, on the ground that since the stakes involved of the parties, were too high and hence, an equitable jurisdiction was attracted to be exercised by the Hon'ble Apex Court by recalling the order and restoring the case to its original number to be heard by the High Court.

23. In this case and the ratio laid down therein in the aforesaid judgment, I am of the view that principally the Hon'ble Apex Court in the said case, was thoughtful of the stakes of the litigant, which was involved in the said case and it was not dealing with the situation, where a litigant has not approached the Court with clean hands or by not putting the true and correct facts or by distorting a fact, which is the case in hand. Hence, those principles of the judgment referred to above, will not be applicable in the circumstances of the present case.

24. The learned counsel for the revisionist had made reference to yet another judgment of the Hon'ble Apex Court, as reported in (2008) 5 SCC 209, Nahar Singh Vs. Food Corporation of India and others, and particularly, he has made reference to the contents of para 10, 11 and 12 of the said judgment, which is extracted hereunder :-

"10. The SLP preferred by the appellant was also listed on the same day but as nobody had appeared, the said special SLP was dismissed for default.

11.Appellant filed an application for review alleging that he, as also his lawyer, was misled in view of the fact that the matter was shown to be listed on 19.2.2007 as per www.court.nic. enquiry. We had called for a report from the Registry of the Supreme Court and it appears that the contention of the appellant was not correct. It furthermore appears that the parties had been given notice with regard to the date of listing of the matter.

12. We have, however, entertained the review application and heard the appellant on merits."

25. Let us deal with the findings which had been recorded therein, and the reasoning, as to why the Hon'ble Apex Court, had to arrive at, to that conclusion would always be dependent upon the factual backdrop, as it involved consideration in the said case and the factual part of it has been dealt with by the Hon'ble Apex Court, from the perspective that as it has been observed in para 11, that the matter was listed on 9th February, 2007, in the said case and the knowledge of its listing was only imparted to the counsel and the litigant only when the inquiry was made from the website of the Court and from the report of the Registry of the Supreme Court. In that case, it was observed, that it appears in the said case that the parties had been given notice with regard to the date of listing of the matter, as would be apparent from the website information supplied to the applicant. Yet again, this is not a situation which is prevalent here, because the ordersheet of the present SCC Revision shows, that dates prior to 1st April, 2021, the representative of the revisionist and at times the revisionist's counsel himself was present and he very well had the knowledge of the next date fixed and the logical inference herein would be, that the knowledge of the listing of the matter was very well with the knowledge of the counsel representing the revisionist and since the plea of technical glitch is not established by the facts already discussed above, the ground of the first Restoration application is belied, and hence, the same would stand rejected, since based on a false and misleading statements made deliberately to mislead the Court.

26. This Court should not have taken cognizance to the other grounds, which had been raised by the learned counsel for the respondent in opposition to the Restoration application, based on the consistent participation made by the learned counsel for the revisionist, in other matters, which were listed when the physical hearing of the Court proceeded, hence no finding on the said objection are being recorded on the same.

27. I am of the view and also as settled by the Division Bench of Allahabad High Court, that when in a litigation before a Court, if two or more counsel are appearing for the same party to the proceedings and the matter is dismissed for want of prosecution, both the counsel, representing a litigant equally owe a responsibility to be present, when the proceeding is taken up and in the absence of either of the counsel, if the matter is dismissed for want of prosecution, the logic of absence of one of the counsel, may not be sufficient enough to be borrowed to justify the Restoration, due to non availability or inability of one of the counsel to appear before the Court.

28. The counsel for the revisionist had made reference to yet another judgment , as reported in AIR 1966 SC 1631, Jang Singh Vs. Brij Lal and others, particularly, he had made reference to para 6 of the said judgment, which is extracted hereunder.

"6. The facts of the case almost speak for themselves. A search was made for the application on which the order of the Court directing a deposit of Rs. 4950 was said to be passed. That application remained untraced though the District Judge adjourned the case more than once. It is, however, quite clear that the challan was prepared under the Court's direction and the duplicate challan prepared by the Court as well as the one presented to the Bank have been produced in this case and they show the lesser amount. This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person. The Execution Clerk has deposed to the procedure which is usually followed and he has pointed out that first there is a report by the Ahmed about the amount in deposit and then an order is made by the Court on the application before the challan is prepared. It is, therefore, quite clear that if there was an error the Court and its officers 14 largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligation-, under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim:

"Actus curiae neminem gravabit"."

29. The aforesaid judgment, rather postulates the wider principle, that a party to the litigation is not to suffer on account of a mistake of the Court or of the counsel. There cannot be any doubt with regard to the aforesaid principles of para 6, as it has been laid down of the said judgment of the Hon'ble Apex Court, which was also followed by me in a judgment rendered in Criminal Revision No. 252 of 2019, Commercial Toyota Vs. State of Uttarakhand and another. Sufferance made to a litigant on account of the mistake of the Court or the Counsel though socially, it may be a very reckoned principal to be adhered to in a given set of circumstances of a case, where the bona fides of the person appearing to the Court are crystallized, clear and fair and are spined with fairness. If the fairness is not reflected in the pleadings, in that eventually, this principle is not available to be attracted almost invariably in all the cases, even where a distorted or misleading stand is taken by the counsel for the litigant himself, for getting an order recalled and getting a lis decided on merits.

30. The justification for this observation made by this Court is on the premise that in fact, the applicant, i.e. deponent, when he has filed a replication and has carved out altogether a new case of the inability of the counsel, who was a senior citizen to appear due to his 15 inability to connect with the virtual hearing, in fact, it was a fact, which was even available to him at the time when the first application for restoration itself was filed by the revisionist, seeking recall of the order of 1st April, 2021. But, no such plea was ever taken, that counsel attempt to connect with virtual hearing (though none on 01.04.2021) and had failed to connect. This plea is an afterthought and misleading plea.

31. Having not pleaded so, at the first given instance, and developing the same by way of replication, yet again, gives a bona fide doubt pertaining to the grounds taken by the Counsel for seeking recall of the orders dated 1st April, 2021 and 9th September, 2021, when particularly, on either of the dates, the physical hearing of the Court was proceeding, as would be apparent from the cause title of the cause list issued by the High Court, under the authority of Hon'ble the Chief Justice, and more particularly, when the Counsel of the revisionist had participated in physical hearing in other Courts, in the matters listed on the same date.

32. On the culmination of the argument, the learned counsel for the revisionist has almost admitted, that the mistake in the pleading in para 3 of the 1st Restoration Application, had chanced on account of the fact that the Restoration itself was filed in July, 2021, and the plea of technical glitch of 1st April, 2021, was wrongly pleaded and it was he, who owed the responsibility for making such type of plea and the litigant should not suffer, due to his mistake.

33. With all due reverence at my command, I am of the view that the Court of law has to lay down a precedent for others, so that the litigants, who are appearing to the Court may not take the Court proceedings for granted. They have to be diligent, fair and honest in their version, while approaching the Court. Any attempt to mislead the Court to procure an order has to be athwarted by the Courts.

34. The contradictory plea in the present case, in the various applications which had been filed in support of the Restoration Application, since being contrary to the actual records, the reason for absence of the Counsel is concocted and is not acceptable by this Court. Hence the Restoration application is rejected and the wider principles of equity, on which, the learned counsel for the applicant has harped upon, the equity cannot be having an upper hand over an aptitude of a counsel or litigant to be fair to the Court.

35. Thus, the applications are rejected solely on the grounds, that the pleading for absence, are apparently falls and misleading and which stands established by the document on record. Hence the applications are rejected.

36. After culmination of the orders rejecting the Restoration Application, the learned counsel for the revisionist has prayed for that the order may be suspended to be made effective for two weeks and some grace may be shown by the Court, so that he may enable to have his appropriate remedies resorted to, before the superior Court.

37. I am of the view, that graces or solace could be extended by the Courts, only to those litigants or Counsel, who are fair in their pleadings while approaching the Court and approach the Court with clean hands. Once, I have already observed and a finding has been recorded that the pleadings were contrary to the records, I am not inclined to extend any equity or solace to the revisionist and that too, particularly, being conscious of the fact that I am seized with the jurisdiction under Section 25 of the Provincial Small Causes Court Act, which is regular civil proceedings and not an extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India, where equity could have been equally made applicable.

(Sharad Kumar Sharma, J.) 06.01.2022 Shiv

Unlock Advanced Research with PRISMAI

Uttarakhand High Court