Madhya Pradesh High Court
Dr. Krishna Kant Dwivedi vs The State Of Madhya Pradesh on 24 April, 2013
1
MCC No. 519/2013
24/4/2013:
Shri Gaurav Tiwari, learned counsel for the petitioner.
This application has been filed for restoration of W.P.
No.753/2007 which was dismissed for want of prosecution on
27.6.2007. On 27.6.2007 when the case was taken up for
hearing, none appeared for the petitioner and as none had
appeared, the petition was dismissed. The petition as indicated
herein above was dismissed on 27.6.2007 and this application
for restoration is filed after a period of more than five years 251
days. In the application for condonation of delay it is only
stated that the local counsel at Bhopal informed the petitioner
about the dismissal of the writ petition only on 3.4.2013 and
therefore, there is delay in filing the restoration application. It
is stated that earlier petitioner has engaged various other
counsel but as the said counsel did not inform the petitioner he
was not aware about the pendency of the writ petition.
It is surprising that petitioner has filed the writ petition
on 10.1.2007 and after the petition was dismissed for want of
prosecution on 27.6.2007, the petitioner was not aware about
the dismissal of the petition or any other matter pertaining to
the petitioner. It seems that petitioner had no interest in the writ
petition and after filing it, completely forgotten to prosecute the
matter. That apart, in the year 2007 petitioner had filed the writ
petition seeking a mandamus for commanding the respondent
State to initiate disciplinary action against certain Doctors of Hamidia Hospital who have been arrayed as respondents. It is stated that certain incident took place in the Hamidia Hospital in June 2005 and these Doctors were negligent and action 2 should have been taken against them. Cause of action in the matter arose in the year 2005, petition was filed in the year 2007, it was dismissed on 27.6.2007 and now after a period of more than 5 years 251 days, nothing has happened in the case. The Doctors who were responsible and who are arrayed as respondents No.4 to 8 in the writ petition may not be available in the said hospital and the delay on the part of the petitioner in taking action promptly has resulted in depriving them to defend the matter. Petitioner has been totally negligent in dealing with the matter. After filing the writ petition it is seen that petition was listed on 19.2.2007 when none appeared and as office has pointed out various defaults, 7 days time was granted. Nothing was done and therefore, the matter was listed before the Registrar to make good the default. Again on 27.6.2007 none appeared and therefore, petition was dismissed.
Apart from the above, record indicates that an application for restoration was also filed which was registered as MCC No.2289/2007. This restoration application was also dismissed on 1.10.2007 as is evident from the material available on record. If the petitioner had filed a restoration application MCC No.2289/2007 which was dismissed in view of the peremptory order passed on 1.10.2007 it seems that the contention of the petitioner that he was not aware of dismissal of the writ petition seems to be incorrect. It is a case where the petitioner has been careless and negligent in dealing with the matter. After a period of 5 years 251 days I see no reason to restore the writ petition and initiate fresh proceedings when the facts stated in the application also seems to be incorrect in as much as the 3 petitioner in the application for condonation of delay says that he received the information about the dismissal of the writ petition on 27.6.2007 only on 3.4.2013 whereas, the proceedings of MCC No.2289/2007 - Dr. Krishnakant Dwivedi Vs. State of M.P. and others goes to show that a restoration application was filed which was registered in the Court and this was also dismissed due to peremptory order passed on 1.10.2007. If the petitioner had filed the restoration application MCC No.2289/2007 then the contention of the petitioner that he was not aware of the dismissal of the writ petition upto 3.4.2013 seems to be totally incorrect and under such circumstances when wrong statements are also made on affidavit, I see no reason to restore the writ petition.
For condoning the delay of 5 years and 251 days, in this application for restoration, petitioner has stated in the application filed under Section 5 of Limitation Act that he acquired knowledge about dismissal of the writ petition only on 3.4.2013. This contention of the petitioner is wholly false and petitioner can be prosecuted for filing a false affidavit before this Court. In the original record of W.P. No.753/2007 is available photocopy of an order dated 1.10.2007 passed in MCC No.2289/2007. Therefore, the original record of this case was summoned. On going through the record it is seen that MCC No.2289/2007 was filed by Dr. Krishnakant Dwivedi on 11.9.2007. The said application was filed for restoration of W.P. No.753/2007 which was dismissed on 27.6.2007. This application for restoration is filed under the signature of counsel for the present applicant one Shri S. S. Shrivastava, Advocate 4 and the application is supported by an affidavit of the petitioner Dr. K. K. Dwivedi which is filed separately along with covering memo dated 20.11.2007. In his affidavit sworn before the Notary, Bhopal, which is filed in MCC No.2289/2007 the petitioner herein Dr. K. K. Dwivedi has stated that MCC No.2289/2007 has been filed by him praying for setting aside the order dated 27.6.2007 passed in W.P. No.753/2007 and he prays for restoration of the said writ petition. This affidavit clearly shows that the contention of the petitioner that he was not aware of dismissal of the writ petition on 27.6.2007 and came to know about it only in the year 2013 is a false and incorrect statement and it is a case where petitioner has given false affidavit in this proceeding. That apart, in the record of MCC No.2289/2007 is available wherein photocopy of another application bearing MCC No.1123/2010 and it is seen that this application was also dismissed on 29.2.2012 and record of this Case were also called . The record shows that this application was filed by one Shri S. S. Shrivastava, Advocate along with his own affidavit and in this application prayer made was for recalling of order passed in MCC No.2289/2007 dated 1.10.2007. In his affidavit filed along with I.A. No.10181/2010 an application under Section 5 of Limitation Act, Shri S. S. Shrivastava says that he is filing the restoration application as instructed by the petitioner. This application was also dismissed on 20.9.2010 and therefore, another application MCC No.337/2011 was filed for restoration of MCC No.1123/2010 and available in the record of MCC No.1123/2010 is a photocopy of order dated 13.12.2011 passed 5 in MCC No.337/2011 which goes to show that an application for restoration of MCC No.1123/2010 was also filed.
If that be so, the petitioner has clearly initiated these proceedings by suppression of various facts and a false affidavit has been given by him.
In view of the above, apart from dismissing the present restoration application, action should be taken against the petitioner for filing a false affidavit.
Accordingly, this application for restoration is dismissed. However, considering the fact that a false affidavit has been filed by the petitioner in this application for restoration, office is directed to register a separate contempt case against the petitioner and a show cause notice be issued to the petitioner enclosing a copy of this order and asking him to show cause as to why contempt proceeding and proceeding under Section 340 Cr.P.C. be not initiated against him in the matter of giving false affidavit in support of application for condonation of delay. Petitioner to appear personally before this Court and give his say in the matter on 14.5.2013. Notice be sent to the petitioner by Registered Post Acknowledgment Due and contempt proceeding be registered separately and place for orders.
Application for restoration is accordingly dismissed.
( Rajendra Menon ) Judge Mrs.mishra