Madhya Pradesh High Court
Ashok Lalwani vs State Bank Of India on 6 February, 2023
Author: Arun Kumar Sharma
Bench: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
ON THE 6 th OF FEBRUARY, 2023
CIVIL REVISION No. 735 of 2018
BETWEEN:-
ASHOK LALWANI S/O LATE DR. MANGATRAM
LALWANI, AGED ABOUT 62 YEARS, OCCUPATION:
ADVOCATE AND LANDLORD R/O BABUL 1605 CIVIL
LINES OPP. RTO JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI R. K. SANGHI - ADVOCATE )
AND
STATE BANK OF INDIA THROUGH THE MANAGER
STATE BANK OF INDIA, MARKET BRANCH,
HANUMANGANJ KATNI (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI ASHISH SHROTI - ADVOCATE )
Heard through Video Conferencing.
This revision coming on for admission this day, th e court passed the
following:
ORDER
The present Civil Revision arises out of the Order dated 13.10.2018 passed in RCA No. 8-A/2016 by the then Court of IVth Additional District Judge, Katni presided over by Shri S.K. Shrivastava. It is informed during the course of the argument that the present RCA 8-A/2016 is now pending in the Court of IIIrd Additional District & Sessions Judge, Katni.
The facts giving rise to this revision are that vide Ex-parte Order dated 25.02.2016, the Additional District Judge had stayed the execution of the Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/8/2023 1:22:16 PM 2 Decree dated 09.12.2015 passed in Civil Suit No. 49-A/2013 by the Court of 2nd Civil Judge Class-I, Katni (M.P.) subject to furnishing guarantee by the competent officer of the Non-Applicant /Appellant bank within a month of the said Order. The said Order was confirmed by the Order dated 15.05.2017. The Applicant herein preferred MP No. 1873 to the High Court wherein the Order under Order 41 Rule 5 of C.P.C. was vacated vide Order dated 09.08.2018. The Applicant herein thereafter preferred the application before the Appellate Court at Katni for dismissal of the appeal on the ground that after passing of the Order in MP No. 1873/2017, the Non-Applicant /Appellant as per the order dated 25.02.2016 had neither deposited the decretal amount nor had furnished the undertaking as ordered by the Appellate Court, moreover the undertaking was inserted in the record much after one month after the Order dated 25.02.2016. The dismissal of the appeal was sought by alleging that the Non- Applicant /Appellant had approached the Court with unclean hands. The Appellate Court vide impugned Order dated 13.10.2018 dismissed the said application, which is the subject matter of this revision.
Heard counsels for both the parties and perused the order sheets of the Appellate Court and the impugned Order dated 13.10.2018 along with copy of the undertaking present on the record. The Applicant has argued and submitted by repeating the above facts and pressed hard the insertion of undertaking in the record of the Appellate Court. The Non-Applicant has defended the petition by submitting that on passing of the final Order in MP No. 1873/2017 the Order of undertaking also stood set aside. It has also been submitted that non- compliance of condition of Order under Order 41 Rule 5 C.P.C. will at most amount to vacation of Order under Order 41 Rule 5 C.P.C. Reliance has been placed on Hindustan Zinc Ltd.vs. Industrial Tribunal and another (2001) Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/8/2023 1:22:16 PM 3 10 SCC 211.
On going through the order sheets of the Appellate Court it is nowhere mentioned in any of the order sheets that the undertaking was furnished. The Appellate Court has passed the impugned Order by considering the statement made by the Non-Applicant/Appellant which was recorded in the final Order of MP No. 1873/2017. The Appellate Court before passing the impugned Order was duty-bound to appreciate the order sheets of its own records instead of relying on the statements recorded in the Order passed in MP No. 1873/2017. Apart from the above, the said undertaking was required to be filed as per proforma no. 2 of Appendix-G of the Civil Procedure Code and within a month of passing of the Order dated 25.02.2016. The date mentioned on the alleged undertaking is 13.04.2016 which is 47 days later than the Order dated 25.02.2016. Nothing in rebuttal has been submitted by the Non-Applicant as to why the furnishing of the undertaking does not find place in the order sheets and about the date of 13.04.2016 on the undertaking. The judgment cited by non-applicant also does not help him as it is related to non-compliance of the Order under Order 41 Rule 5 of C.P.C.
On considering the above situation it is evident from the order sheets of the Appellate Court that no undertaking was furnished in the Court and the allegations appear to be true that the undertaking in issue has been inserted in the record of the Appellate Court, else it should have been mentioned in the order sheets.
The Applicant herein has placed reliance on the judgment of the Apex Court reported in Dalip Singh vs. State of Uttar Pradesh (2010) 2 SCC 114 and the judgment passed in FAO. Nos. 129-130/2005 "M/s Krishna Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/8/2023 1:22:16 PM 4 Continental Ltd. and Anr. v. Shri Balkrishan Sharma " by the Delhi High Court. Appreciating the aforesaid judgments, the Non-Applicant herein had not conducted itself with clean hands before the Appellate Court and had manipulated the records of the Court. As such the Non-Applicant is not entitled to any relief, not even the final relief.
As discussed above, the present civil revision succeeds and the Regular Civil Appeal No. 8-A/2016 now pending in the Court of IIIrd Additional District & Sessions Judge, Katni is accordingly dismissed without disturbing the part of the impugned Order on application under Section 340 of Cr.P.C. and for referring the Contempt to the High Court.
CC as per rules.
(ARUN KUMAR SHARMA) JUDGE JP Signature Not Verified Signed by: JITENDRA KUMAR PAROUHA Signing time: 2/8/2023 1:22:16 PM