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Devi Lal Sahu v. State Of U.P. Thru' Secy. Urban Planning & Ors. - WRIT - C No. 52423 of 2005 [2005] RD-AH 1784 (28 July 2005)


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Devi Lal Sahu       -------------    Petitioner              


State of U.P. & Ors.        -------------  Respondents


Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This writ petition has been filed for quashing the order dated 28th June, 2005, issued under Section 10 of the U.P. (Regularisation of Building Portions) Act, 1958 ((hereinafter referred to as the Act).

When the matter was taken up by the Court, we pointed out to the learned counsel for the petitioner that an appeal lies under Section 15 (2)  against the order passed under Section 10 of the Act. Learned counsel for the petitioner insisted that the appeal does not lie from an order issued under Section 10 of the Act. He, however, prayed that the matter may be taken up in the revised list so that he could substantiate the submission made by him. When the matter was taken up in the revised list, learned counsel for the petitioner stated that Section 15 (2) of the Act does provide for an appeal against an order passed under Section 10 of the Act, and that, in fact, the petitioner has availed of this alternative remedy and filed the appeal.

We have perused the averments made in the writ petition and find that the petitioner has not mentioned at all about filing of the appeal under Section 15 of the Act. This, therefore, is deliberate suppression of the material facts, and in our opinion, it amounts to criminal contempt.

When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.

In Nooruddin Vs. Dr. K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:

"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."-

Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-

"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Art. 226...... indeed any of their discretionary powers. (Emphasis added)"

In Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-

"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."

Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.

In  Tilokchand Motichand Vs. H.B. Munshi, AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court.

In Agriculture & Process Food Products Vs. Oswal Agro Furane, AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact and his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Hon'ble Supreme Court had placed reliance upon the judgment in King Vs. General Commissioner, (1917) 1 KB 486, wherein it has been observed as under:-

"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits......."

In Abdul Rahman Vs. Prasony Bai & Anr.,  2003 AIR SCW 14; and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., (2004) 7 SCC 166,  the Hon'ble Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused,  the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would have led any fact on the on the merit of the case.

Principle enshrined in Section 35-A of the Code of Civil Procedure should be applied in such a case as the said provisions provide for compensatory costs in respect of fake or vexatious claim or defence in addition to criminal liability in respect of such a false claim or defence. This principle can also be made applicable in case of suppression of facts. In T. Arivandandam Vs. T. V. Satyapal & Anr., AIR 1977 SC 2421 the Apex Court held that the Court should remind itself of the provisions of S. 35-A C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexation motives. In such a case the lawyer also owes a duty not to present such a case observing as under:

"We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions.------------------- A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process.-------"

Legal maxim "Juri Ex Injuria Non Oritur" means that a right cannot arise out of wrong doing, and it becomes applicable in case like this.

The facts stated above also amply depict that the manner in which the petition has been drafted exposes the petitioner to be prosecuted for criminal Contempt. It is a settled proposition of law that a false statement made in the Court or in the pleadings, intentionally to mislead the Court and obtain a favourable order, amounts to criminal contempt, as it tends to impede the administration of justice. A Constitution Bench of the Hon'ble Supreme Court in Naraindas Vs. Government of Madhya Pradesh & Ors. AIR 1974 SC 1252 has held as under:-

"Now there can be no doubt that if a wrong or misleading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of the judicial proceeding, and thus, amount to contempt of court."

In The Advocate General, State of Bihar Vs. M/s. Madhya Pradesh Khair Industries & Anr., AIR 1980 SC 946, the Apex Court held that every abuse of the process of the Court does not necessarily amount to contempt of Court, but a calculated attempt to hamper the due course of the judicial proceeding or administration of justice shall definitely amount to contempt of the Court, and in such a case, punishment to the contemnor is necessary to prevent the abuse and making a mockery of the judicial process, as it adversely affects the interest of the public in the administration of justice. The Court further held as under.

"The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice, and so, it is entrusted with the power to commit for contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression 'contempt of Court' may seem to suggest, but, to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or interfered with."

In The Secretary, Hailakandi Bar Association Vs. State of Assam & Anr., AIR 1996 SC 1925, the Apex Court held that filing inaccurate documents deliberately, with a view to mislead the Court, amounts to interference with the due course of justice by attempting to obstruct the Court from reaching a correct conclusion, and thus, amounts to contempt of Court.

Similar view has been reiterated by the Apex Court in Dhananjay Sharma Vs. State of Haryana & Ors., (1995) 3 SCC 757; and Rita Markandey Vs. Surjit Singh Arora, (1996) 6 SCC 14, observing that deliberate attempt to impede the administration of justice or interference or tending to interfere with or obstruct, or tend to obstruct the administration of justice, in any manner, amounts to criminal contempt.

In Afzal & Anr. Vs. State of Haryana & Ors., (1996) 7 SCC 397; and Mohan Singh Vs. Late Amar Singh, (1998) 6 SCC 686, the Apex Court held that a false and  a misleading statement deliberately and wilfully made by a party to the proceedings to obtain a favourable order, amounts to prejudice or interference with the due course of judicial proceedings, and it will amount to criminal contempt. The Court further held that every party is under a legal obligation to make the truthful statement before the Court, for the reason that causing obstruction in the due course of justice "undermines and obstructs the very flow of the unsoiled stream of justice, which has to be kept clear and pure, and no one can be permitted to take liberties with  it by soiling its purity".

Similar view has been reiterated in Delhi Development Authority Vs. Skipper Construction & Anr., (1995) 3 SCC 507; and Superintendent of Central Excise & Ors. Vs. Somabhai Ranchhodbhai Patel, (2001) 5 SCC 65.

The Hon'ble Apex Court in Re: Sanjiv Datta, (1995) 3 SCC 619, observed as under:-

"Some members of the profession have been adopting perceptibly casual approach to the practice of the profession, as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings, many times even illegible and without personal check and verification, the non-payment of court fees and process fees, the failure to remove office objections, the failure to take steps to serve the parties, yet al. They do not realize the seriousness of these acts and omissions. They not only amount to the contempt of the Court but do positive dis-service to the litigants and create embarrassing situation in the court leading to avoidable unpleasantness and delay in the disposal of matters. This augurs ill for the health of our judicial system" (Emphasis added).

In view of the above, we are of the view that the petition has been filed with very vague/inaccurate pleadings, and the petitioner has filed it to mislead the Court. The present petition is, therefore, liable to be dismissed.

The petition is accordingly dismissed for suppressing the material fact and we issue notice to the petitioner to show cause as to why proceedings should not be initiated against him for committing criminal contempt. The petitioner may file a reply by 16th August, 2005.

List this case peremptorily on 23rd August, 2005 and the Chief Judicial Magistrate, Lalitpur shall ensure the production of the petitioner before this Court on that date. A copy of this order be sent by Registry to the learned Chief Judicial Magistrate, Lalitpur for compliance




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