Punjab-Haryana High Court
Harkishan Lal vs Ravinder Singh And Anr on 10 October, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
Civil Misc. Nos.11408-09 of 2013 in -1-
Civil Revision No.4170 of 2010
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Misc. Nos.11408-09 of 2013 in
Civil Revision No.4170 of 2010
Date of decision: 10.10.2014
Harkishan Lal
....Petitioner
Versus
Ravinder Singh and others .....Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Vikas Behl, Senior Advocate with
Ms. Balpreet Kaur Sidhu, Advocate for the applicant-petitioner.
Mr. Naveen Sharma, Advocate for the respondents.
Mr. Saurav Sharma, Advocate.
****
G.S.Sandhawalia J.
Civil Misc. Nos.11408 of 2013 Prayer made in this application for placing on record accompanying Civil Misc. Application and Annexures A/1 and A/2 and further for dispensing with filing of certified copies of Annexures A/1 and A/2 is allowed.
Annexures A/1 and A/2 are taken on record.
The Civil Misc. Application stands disposed of accordingly. Civil Misc. Nos.11409 of 2013
1. The present application has been filed by the petitioner to recall and modify the order dated 23.3.2012 and to permit the petitioner to pursue the present revision petition on merits and to set aside the order impugned in the revision petition after permitting the petitioner to deposit the court fee and pursue his appeal for decision on merits before the Additional District Judge, Jalandhar against the judgment and decree dated 10.1.2008.
2. The Civil Suit No.470 of 2007 was instituted on 20.9.1999 by defendant no.1 for specific performance of agreement dated 11.3.1999 against PRADEEP KUMAR ARORA the petitioner who was defendant no.1. The dispute pertains to House No.77, 2014.10.27 10:20 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Misc. Nos.11408-09 of 2013 in -2- Civil Revision No.4170 of 2010 measuring 10 Marlas situated at Rose Park, Jalandhar City. The suit was decreed on 10.1.2008 by the Civil Judge (Junior Division), Jalandhar by noticing that in case the loan amount obtained by defendant no.1 was more than 6 lacs from the Allahabad Bank, which had been arrayed as defendant no.2 the plaintiff will be duty bound to purchase the property with the lien and deposit the aforesaid amount and to recover subsequently from defendant no.1, if he so desires. The petitioner filed an application on 10.3.2008 for permission to file the appeal as forma pauperis as he had no source of income to affix the court fee since he had remained behind the bar for one year in a criminal case. The application was dismissed on 2.2.2010. The appeal was taken up thereafter on 6.2.2010 and on account of deficiency in court fee having not been made good, the request for extension of time was declined and the appeal was rejected. Resultantly, the present revision petition came to be filed which was dismissed on 31.1.2011 by passing the following order:-
"This petition is directed against the orders dated 02.02.2010 and 06.02.2010 passed by the Addl. District Judge, Jalandhar, dismissing the application for permission to file the appeal as forma pauperis as well as the appeal respectively.
The first Appellate Court, while dismissing the application of the petitioner to sue as an indigent person has rightly observed that the same was not filed in accordance with the provisions of Order 33 Rule 5-A CPC. No schedule of the movable or immovable property was annexed by him as per amended provisions of law.
No grounds to interfere.
Dismissed."
3. Thereafter, Civil Misc. Application No.10024-CII of 2011 was filed under Section 151 C.P.C. on 9.3.2011 for modifying the order dated 31.1.2011 which was supported by an affidavit of the present petitioner. The office PRADEEP KUMAR ARORA 2014.10.27 10:20 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Misc. Nos.11408-09 of 2013 in -3- Civil Revision No.4170 of 2010 returned the said application on the ground that the affidavit should be got attested and the affidavit was attested on 8.4.2011 by the Notary, Chandigarh and the application was refiled on the said date. It transpires that on 8.4.2011 the petitioner-applicant was in custody and could not have got attested the affidavit as is clear from the custody certificate (Annexure P/5) which has been appended by the petitioner himself while filing Civil Misc. Applications No.1681- 83 of 2012 for placing the said documents on record which were for the purpose of extension of time at a subsequent point of time. The said custody certificate shows that the petitioner was in custody from 21.3.2011 to 31.12.2011 on account of being convicted under Section 138 of the Negotiable Instruments Act, 1881 for one year. This Court being unaware of the illegality issued notice in the application on 13.5.2011 to the respondents and liberty was granted to deposit the court fee before the trial Court within 15 days and the following order was passed on 8.7.2011:-
"Pursuant to issuance of notice, counsel for both the respondents have put in appearance and raise no objection in granting time to the applicant-petitioner to pay the court fee.
Accordingly, petitioner is directed to deposit the Court fee before the trial Court within 15 days from today. On his doing so, the trial Court would decide the matter in accordance with law.
Civil Misc. application stands disposed of accordingly."
4. Thereafter, Civil Misc. Applications No.1681-83 of 2012 were filed by the petitioner as noticed earlier for further extension of time whereby custody certificate was also placed on record. Notice was issued in the said applications on 27.1.2012 for 17.2.2012. It was pointed out by the counsel for the respondent that the appellant had already sold the property involved in the decree and now it is vendee of the property which was interested in appeal. Accordingly, direction was issued that the petitioner should file affidavit PRADEEP KUMAR ARORA 2014.10.27 10:20 I attest to the accuracy and integrity confronting the aforesaid averments. The order reads as under:- of this document Punjab and Haryana High Court, Chandigarh Civil Misc. Nos.11408-09 of 2013 in -4- Civil Revision No.4170 of 2010 "Learned counsel for the respondent states that the appellant has already sold the property involved in the decree i.e. after passing of the decree and now it is vendee of the property who is interested in the appeal.
Learned counsel for the applicant-petitioner is directed to file affidavit confronting the aforesaid averments.
Adjourned to 2.3.2012."
5. On 2.3.2012 copy of the sale deed was produced which was executed by the petitioner during the pendency of the appeal and the case was adjourned to 23.3.2012 giving opportunity to the counsel for the petitioner whether the sale deed could be ignored while deciding the application for extension of time. Thereafter, application for extension of time was dismissed by passing the following order:-
"Since the petitioner has already sold the property, therefore, he has lost interest in the same. Having lost the interest in the property, he has no right to appeal.
No grounds for extension of time are made out.
Dismissed."
6. The said order is now sought to be recalled and permission is sought to pursue the present revision petition on merits and to set aside the order passed by the Addl. District Judge, Jalandhar. It further transpires that Civil Misc. No.21697-98-CII of 2014 has also been filed by counsel for the applicant, namely, Kamaljit Kaur to be impleaded as respondent no.3 on account of the fact that the petitioner Harkishan Lal had entered into an agreement to sell on 15.7.2008 to sell the property in question and received ` 13 lacs and that vide sale deed dated 7.3.2011(Annexure R/2/3) which had been executed by Gurdip Singh power of attorney of Harkishan Lal she had become owner of house in question.
PRADEEP KUMAR ARORA 2014.10.27 10:20 I attest to the accuracy and integrity
7. Counsel for the respondents has naturally objected to dilatory tactics of this document Punjab and Haryana High Court, Chandigarh Civil Misc. Nos.11408-09 of 2013 in -5- Civil Revision No.4170 of 2010 resorted to by the present petitioner by submitting that firstly the petitioner entered into an agreement dated 15.7.2008 during the pendency of appeal and thereafter sold the property on 7.3.2011 through his power of attorney and the matter is only being kept hanging to avoid the execution of the suit for specific performance which has been decreed on 10.1.2008. It is submitted that once the petitioner-applicant himself had sold the property on 7.3.2011 he has no locus standi to file the application for extension and effort is only to delay the proceedings so that the decree holder is not given possession. He also submits that in view of the concealment of facts and the wrong affidavit filed by getting it attested from the Notary by producing wrong person an attempt has been made to overreach the Court and therefore, exemplary costs should be imposed.
8. Keeping in view the above factual matrix, this Court is of the opinion that the present application is liable to be dismissed with exemplary costs on account of concealment of fact and misuse of process of Court. As noticed above, the decree was passed on 10.1.2008. The appeal was dismissed on 2.2.2010 on account of the fact that the court fee has not been paid. Thereafter the revision petition was also dismissed on 31.1.2011. By filing repeated applications duly supported by false affidavits and by concealing of fact that property had been sold on 7.3.2011, the litigation has been prolonged. A false affidavit wrongly got attested has also been filed on 8.4.2011 in support of Civil Misc. Application No.10024-CII of 2011 when the petitioner was in custody. Accordingly, it is apparent that the persons other than the petitioner are chasing the property in dispute to deny the decree holder the benefits of litigation.
9. The Apex Court in M/s Prestige Lights Ltd. Vs. State Bank of India 2007(8) SCC 449 the Apex Court held that the party which approached the writ Court by suppressing facts and misleading the Court was not to be heard on merits. Reference can be made to the observations in paras 32 to 36, which read as under:-
PRADEEP KUMAR ARORA 2014.10.27 10:20 I attest to the accuracy and integrity "32. It is thus clear that though the appellant- Company had of this document Punjab and Haryana High Court, Chandigarh Civil Misc. Nos.11408-09 of 2013 in -6- Civil Revision No.4170 of 2010 approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.
33. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words:
"(I)t 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 made a full and fair disclosure of all the material facts facts, not law. He must not misstate the law if he can help itthe 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)
34. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear 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, the Court may dismiss the action without adjudicating the matter. 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 PRADEEP KUMAR ARORA 2014.10.27 10:20 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Misc. Nos.11408-09 of 2013 in -7- Civil Revision No.4170 of 2010 functioning of the writ courts would become impossible.
35. In the case on hand, several facts had been suppressed by the appellant-Company. Collusive action has been taken with a view to deprive the respondent- Bank from realizing legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third party's interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent-Bank prejudicially affecting the interest of the Bank. It has created tenancy or third party's right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the Court and prays for discretionary and equitable relief. In our judgment, the submission of the respondent-Bank is well-founded that appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the Court. We, therefore, hold that the High Court was not in error in refusing relief to the appellant-Company.
36. For the foregoing reasons, we hold that by dismissing the petition in limine, the High Court has neither committed an error of law nor of jurisdiction. The appellant-Company is not entitled to any relief. Though the respondent-Bank is right in submitting that the appellant has suppressed material facts from this Court as also that it has not complied with interim order passed by the Court and it has, therefore, no right to claim hearing on merits, we have considered the merits of the matter also and we are of the considered view that no case has been made out for interference with the action taken by the respondent-Bank or the order passed by the High Court."
10. In Indian Council for Enviro-Legal Action Vs. Union of India and others (2011) 8 SCC 161 it has been held that where the process of Court is misused by unscrupulous litigant, the Court should not hesitate from imposing exemplary cost. Relevant observations read as under:-
"216. In consonance with the principle of equity, justice and good PRADEEP KUMAR ARORA 2014.10.27 10:20 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Misc. Nos.11408-09 of 2013 in -8- Civil Revision No.4170 of 2010 conscience judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.
217. The court's constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.
xxx xxx xxx
223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be PRADEEP KUMAR ARORA 2014.10.27 10:20 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh Civil Misc. Nos.11408-09 of 2013 in -9- Civil Revision No.4170 of 2010 removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."
11. Accordingly, this Court is of the opinion that the present Civil Misc. Application is nothing but an abuse and misuse of the process of Court and the same is dismissed by imposing cost of ` 50,000/- upon the petitioner-applicant. The Chief Judicial Magistrate, Jalandhar shall ensure recovery of the said amount from the applicant-petitioner by taking recourse to the procedure in accordance with law and submit a report to this Court as to whether the recovery has been effected. After recovery of the costs, the same shall be deposited with the District Legal Service Authority, Jalandhar.
12. With the aforesaid observations, the present Civil Misc. Application is dismissed.
10.10.2014 (G.S.SANDHAWALIA)
Pka JUDGE
PRADEEP KUMAR ARORA
2014.10.27 10:20
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh