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TMI Blog1997 (12) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence." The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often that not process of the court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. (emphasis supplied) A Division Bench of the Punjab and Haryana High Court (G. S. Singhvi, J.) in the case of Pawan Kumar vs. State of Haryana and another, 1994 (5) SLR 73 observed as follows :- 9. There is an additional and a very cogent ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould refuse to exercise its discretion in favour of the applicant where the applications found to be wanting in bona fides. 12. In Asiatic Engineering Co. vs. Achhru Ram, AIR 1951 All. 746 (FB), a full Bench of Allahabad High Court stated the principles of law in these words : A person obtaining an ex parte order or rule nisi by means of a petition for exercise of the extraordinary powers under Art. 226 of the Constitution must come with clean hands, must not suppress any relevant fact from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Court should insist that persons invoking the extraordinary jurisdiction of the High Court should not attempt in any manner to misuse a valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts. In Nand Lal vs. State of Jammu & Kashmir, AIR 1960 J & K 19, it has been held : Where the petitioners under Article 226 have not stated the relevant facts correct and candidly either in their petition or in the affidavit in support of their petition, this is by itself sufficient to entail an outright dismissal of the writ petition without going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41 (Pt.) of village Poisar, hereinafter referred to as "the Poisar property". This property is not the subject matter of the suit. The deceased was also claiming to be in possession of land bearing Survey No. 148 (Pt.) of village Magathane, Borivli Village, Bombay ("suit land"). It admeasures about 35 acres. The claim of possession of the deceased was by way of adverse possession. The deceased had two wives viz. Subai Mura Robari (defendant No. 1) and Mukta Mura Rabari (Defendant No. 5). Defendant No. 1 is hereinafter referred to as Subai and Defendant No. 5 is referred to as Mukta. Deceased and Subai had three children, defendant Nos. 2 and 3 daughters and Defendant No. 4 son. Deceased and Mukta had six children, defendant nos. 6 to 11. Defendant Nos. 6, 7, 8 and 11 are daughters and defendant Nos. 9 and 10 are sons. Mura Sura Rabari is said to have not been heard of since 1978. According to Subai, the deceased was kidnapped and thereafter killed by persons unknown although she points a finger of suspicion towards various parties at various stages of the pleading. According to the plaintiffs he died intestate on 26-2-1978. Whether Mura Sura Rabari died intesta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in view of the fact that the plaintiffs have themselves stated that the whereabouts of the deceased were not known since 26-2-1978 they cannot be labeled as legal heirs and the representatives of the said deceased. The presumption of death would only arise after the expiry of a period of 7 years. This order came to be passed on 10-2-1982. Suit No. 1283 of 1980 was filed in the High Court by Subai and defendant Nos. 3 and 4 against Gundecha Builders, Defendant No. 2 who was impleaded as Defendant No. 7 in this suit, Mukta and her children. This suit was filed with regard to the "Poisar property". It was prayed that the agreement dated 29th December, 1979 purporting to sell the suit property to Gundecha Builders was null and void. A declaration was also sought to the effect that defendant Nos. 8 to 14 therein, Mukta and her children had no right, title or interest in the "Poisar property". An order in terms of the consent Terms was passed in this suit on 3rd April, 1981 by Lentin, J. In the consent terms it is admitted that the documents executed by the Plaintiffs, defendant No. 7 and defendant Nos. 8 to 14 viz. the agreement dated 31st October, 1979; the Powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the aforesaid consent terms, an agreement was entered into between the parties on 23-4-1981. In this agreement the facts as narrated above are restated in clauses (a) to (h). In clause (1) the Defendants confirm the sale in terms of the Consent Terms. In paragraph 3 it was specifically agreed that the vendors shall prosecute Suit No. 2683 of 1980 pending in the Bombay City Civil Court or any other suit which may be required to be filed or defended to perfect the title of vendors at the cost of the purchasers. This agreement also mentions about the existence of a temple in the suit property in which one Baba Jairamdas is the officiating Pujari. They were permitted to live in the said premises but the purchasers were permitted to develop the property in accordance with the Rules and Regulations. In clause (8) it was agreed that the vendors will file necessary petition in the Bombay City Civil Court or the High Court for an order sanctioning sale under this Agreement as being for the benefit of minors. The sale was to be completed within a period of one month from the Court's order sanctioning sale. In pursuance of this agreement, Misc. Petition No. 118 of 1981 was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Suit No. 31 of 1985 filed in the City Civil Court by Subai and her children against plaintiff and Mukta. In this Suit, Notice of Motion No. 39 of 1985 was taken out which was decided on 24th April, 1985. Subai had filed this suit through her Constituted Attorney Baba Jairamdas, the Officiating Pujari in the temple as earlier noticed. In this suit it was prayed that the defendants therein i.e. the Plaintiffs in this suit and Mukta be restrained by an order of mandatory injunction from entering into the 'Poisar property". Notice of Motion was taken out for the same relief. Ad-interim injunction was granted and Notice was issued to the Plaintiffs herein and Mukta. In response to the said notice the Plaintiffs appeared and brought to the notice of the Court the Consent Decree having been passed on 3rd April, 1981. On 29th March, 1985 the ad-interim injunction was ordered to be vacated. A perusal of the order dated 24th April, 1985 shows that the Constituted Attorney who was present in Court was unable to state anything. His Advocate was not present. Thus the Notice of Motion was dismissed with liberty to the plaintiff to take out fresh Notice of Motion if so advised. It is cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was with the plaintiffs. R. B. Enterprises therefore, filed Suit No. 1311 of 1989 against the plaintiffs. After negotiations, R. B. Enterprises and the plaintiffs came to an amicable settlement. A consent decree came to be passed on 12th March, 1990. Thus it becomes apparent that on 12th March, 1990 the possession of the suit property was with R. B. Enterprises and the Plaintiffs subject to the possession of Subai with regard to the hut protected by the order of the City Civil Court dated 10-2-1982 and the temple which was in possession of Baba Jairamdas by virtue of the agreement dated 23rd April, 1981. The suit filed in the City Civil Court was withdrawn as noticed earlier. The injunction granted in the suit filed by Subai through Baba Jairamdas was vacated and the Notice of Motion was dismissed as noticed earlier. It thus becomes apparent that by 16th May, 1994 it had been declared by the City Civil Court that the Defendants could not even be held to be in adverse possession of the suit property. It had also been decided in the 2 Notices of Motion mentioned earlier, subject matter of the order dated 10th February, 1982, that the plaintiffs could hardly even claim to be the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom setting aside the consent terms dated 10th November, 1995 this Court be pleased to impound the consent terms and to direct an enquiry under Section 195 of the Criminal Procedure Code and for a direction to the Prothonotary and Sr. Master to lodge a criminal prosecution against the plaintiffs for making false statements, producing false evidence and for obtaining the consent decree by fraud and for the prosecution under Section 120-B, 34 and 420 of the Indian Penal Code. 7. Two very important issues therefore arise, (i) Have the plaintiffs committed a fraud on the Defendants to entice them to enter into the consent terms dated 6-11-1995 and 10-11-1995? (ii) Have the Defendants come to Court with clean hands for their claim of setting aside the consent terms? The Affidavit in support of the Notice of Motion was filed on 21st December, 1995. Affidavit in reply has been filed on 18th November, 1997 i.e. almost 2 years after the affidavit in support. During the intervening period no additional affidavit was filed by defendant No. l to supplement any of the averments which have been made in affidavit in support of Notice of Motion. However, on 15th December, 1997 an affidavit in rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2683 of 1980 in Notice of Motion Nos. 2082 of 1980 and 4022 of 1980. No appeal was filed against this order. Rather the suit was dismissed as withdrawn. The grounds of fraud are alleged in para 4 of the affidavit in support. Ground No. 4(i) says that the defendant Nos. 1 to 4 were misrepresented by plaintiff No. 2(a) along with one Mr. Pandey. The story with regard to Mr. Pandey changes from time to time according to the circumstances. Mr. Damani has emphatically stated that defendants are illiterate persons and they were not informed about filing of the Consent Terms. Veracity of this averment can be gauged by contrasting it with the averments made in the affidavit in rejoinder and various other places. In ground (iv) it is stated that the defendants were never informed about the filing of the consent terms. They were taken to some place under force and told that they should only nod and say "Yes" otherwise Plaintiff No. 2(a) and Mr. Pandey will kill them and cut them into pieces. In ground No. (v) it is stated that Mr. Pandey took them to a place at Borivli (West). There Mr. Pandey is alleged to have taken photographs of defendant Nos. 1 to 4. It is also alleged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, recorded in the presence of Mr. Damani that the order will have to be dictated in his absence. This position is accepted by Mr. Damani. He is permitted to remain absent. 9. There is no denial of the fact that the documents which have been executed on the day the consent terms were filed were duly thumb marked or signed by the parties. All the documents have been interpreted by the Official Translator of this Court. The only allegation is that the thumb impressions have been obtained by Mr. Pandey by giving threats or by misrepresentation. I am of the view that all the averments made in the affidavit in support of the Notice of Motion are totally false. They have been made purely for setting up some grounds to challenge the consent terms. The original consent terms dated 3rd April, 1981 were not challenged when the Constituted Attorney of the Defendant No. 1 was confronted with the same in the City Civil Court in Notice of Motion No. 39 of 1985 in Suit No. 31 of 1985. These consent terms have been arrived at in the presence of this Court and Justice Lentin had passed on order on the basis of the consent terms. Affidavit was filed by Defendant No. 1 to say that the conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to "just nod at the officers". Allegedly Mr. Pandey had threatened to kidnap and kill Vikram, defendant No. 4 in the present suit. These allegations are repeated at various places in the plaint. From a further examination of the pleadings it transpires that the officer mentioned in the pleadings is none other than a Judge of this Court and the Officers of this Court who translated the various documents. Apart from these bald statements there is no evidence at all with regard to any fraud having been committed. Mr. Damani appearing for Defendant No. 1 had time and again reiterated that defendant No. 1 is a poor lady. It was reiterated that she has received no money whatsoever from the plaintiffs. It is, however, a matter of record that defendant No. 1 had deposited a sum of Rs. 2,17,200/-with the Agricultural Lands Tribunal. This can be seen from the certificate issued by the A.L.T. under Section 32M of the Bombay Tenancy and Agricultural Lands Act dated 29th June, 1996. A further sum of Rs. 6,87,706/-has also been paid on 19th December, 1995 to A.D.C. on account of tax assessment for conversion of the suit land from agriculture to non-agriculture user. It is obvious that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly shows that when the consent terms were drawn up on 3rd April, 1981, it was observed that defendant No. 4 is mentally retarded. This order was passed after hearing the counsel for the parties and after perusing the affidavit filed by defendant No. 1 herself. In this affidavit it is stated that consent terms are fair and the son is retarded as well as mentally infirm. Thus I am of the considered view that the defendants have tried their level best to avoid the adverse orders passed against them, by making false and vexatious averments. 10. The efforts of the defendants do not come to an end merely by taking out this Notice of Motion for setting aside the consent terms. After having lost in virtually all bouts of litigation, an attack has been made on the Counsel who appeared for the Defendants when the consent terms dated 10th and 16th November, 1995 were entered into. It is significant to note that defendant No. 2 who is none other than the daughter of defendant No. 1 has actually supported the version of the plaintiff. Not only this, defendant Nos. 5 to 11 have chosen not to challenge the consent terms dated 6-11-1995. The inference, therefore, is obvious that defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 21st September, 1995 proceedings under Section 32-G of the Tenancy Act were got initiated. On the basis of these proceedings certificate under Section 32-M was issued in favour of defendant No. 1 on 29th June 19%. In these proceedings the defendants did not disclose the history of litigation, as narrated above. On the basis of this an effort was again made to dispossess the defendants from the suit land. The defendants, therefore, filed an appeal in the Tenancy Courts. This appeal, when all the facts and circumstances were brought to the notice of the Appellate authority was allowed on 14th August, 1997. In order to protect their interest, the plaintiffs also had to file a suit in the City Civil Court being Suit No. 4622 of 1996. Ad-interim injunction was granted in favour of the plaintiffs on 20th August, 1996. This Notice of Motion was made absolute on 9th October, 19% and defendant Nos. 1 to 3 were restrained from dispossessing the plaintiffs. Between 20th August, 19% and 9th October, 1996 it was not possible to serve defendant Nos. 1 to 3 as the plaintiffs were not aware about the whereabouts of the said parties. Even this is sought to be controverted by Mr. Damani and has i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hibit-O be declared null and void including the agreements at Exhibits D-l and D-2. An application for ad-interim relief was taken out in this suit. This was rejected on 23rd October, 1996. Thereafter defendant No. 1 took out a Chamber Summons and again made an application for ad-Interim relief. This was rejected by Justice Kapadia on 20th December, 1996. Third ad-interim application filed by defendant No. 1 was again rejected on 14-1-1997 by Mrs. Justice K. K. Baam. Not succeeding there now defendant No. 5 filed Suit No. 144 of 1997 against defendant No. 1. Nobody else is impleaded as a party in the aforesaid suit. This suit is for setting aside an agreement dated 10th November, 1995 wherein plaintiff had agreed to give consideration to defendant No. 1 in lieu of her surrender of the flat which was supposed to be given to her by Defendant No. 1. An application came to be made in this suit on 16-1-1997 and ad-interim order was obtained from Mrs. Justice K. K. Baam. On 16-1-1997, this Court granted ad-interim relief in terms of prayer clauses (a), (b) and (c) of the Notice of Motion. On 7-2-1997, Senior Inspector, Kandivli Police Station was directed to give assistance and protectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she proceeded to adopt the arguments advanced by the Counsel for Mukta. This statement is to be found in paragraph 17 of the order of the City Civil Court dated 10th Feb. 1982. Having failed in all the proceedings Mukta has now shown her true colours by filing Suit No. 144 of 1997. She has nothing at all to do with the agreement which is executed between the plaintiffs and defendant No. 1. Yet she has sought to challenge the said agreement. This is nothing but an effort one way or another to give a go by to the consent terms dated 6/10th November, 1995. The only allegation made against Mrs. Pathak is that she was engaged only for the purpose of filing the consent terms. Thereafter Mr. Damani has submitted that the consent terms were filed on 6th November, 1995 with regard to Mukta and her family. But at that time the Vakalatnama in favour of Mrs. Pathak had not been interpreted to defendant Nos. 6 to 11. This argument is wholly fallacious as Mrs. Pathak had been retained by defendant Nos. 1 to 4. Some other advocates had represented defendant Nos. 6 to 11. Mrs. Pathak was concerned only with the consent terms dated 10th November, 1995 between Plaintiffs and defendant Nos. 1 to 4, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the affidavit in support. 13. Keeping the aforesaid state of affairs in view, this Court would be justified in taking a very serious view of the matter. However, at this stage it must be stated laudably that Mr. Samdani appearing for the plaintiffs has conducted the proceedings with utmost restraint. He has pointed out to this Court that the Advocates as well as Subai and Mukta are already facing contempt of court proceedings. I, therefore, deem it not proper at this stage to institute any further proceedings against Mr. Damani or Subai and Mukta. It is, however, put on record that the proceedings taken by Subai and Mukta are a very serious abuse of the process of the Court. False and frivolous allegations have been made against the High Court, City Civil Court and the Advocate appearing for Defendant Nos. 1 to 4 before Mr. Damani came on the scene. In order to satisfy itself the Court had, however, requested Mrs. Pathak to clarify the whole situation. She has categorically stated that on 10th October, 1995 she was approached by Baba Jairamdas on behalf of Defendant Nos. 1 to 4. They were all accompanied by a person claiming to be Mr. Pandey. This was in the evening between 4 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had also filed consent terms on behalf of Baba Jairamdas on 16th October, 1995 in S. C. Suit No. 6466 of 1995 filed by the plaintiffs against Baba Jairamdas. In these consent terms it is agreed that the said Jairamdas has been granted only permissive user of the temple. These consent terms have not been challenged till date. Apart from this, there are other circumstances which will show that the complaint against Mrs. Pathak is palpably motivated only to avoid the consequence of the consent terms e.g. affidavit in support does not make any mention of Mrs. Pathak by name. It only says some Advocate in ground No. (vi) on page 5. The complaint has been filed with Bar Council on 4th December, 1996. Suit No. 3724 of 1996 was filed by Subai against the Plaintiff and Mukta. Therein ad-interim application was made for some relief. This was refused on 23rd October, 1996 by Justice K. G. Shah. According to Mr. Damani, Mr. Justice has orally observed that if the allegations against Mrs. Pathak are proved then the same are serious. An explanation was sought from Mr. Damani as to why no complaint had been filed with the Bar Council of Maharashtra. It appears that the complaint in Maharashtra B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action taken by Mrs. Pathak can be said to be impeachable. In this very case it is further observed by Justice V R. Krishna Iyer that every legal practitioner, labels apart, is an officer of the Court and aids in the cause of justice. It is the considered view of this Court that Mrs. Pathak has acted with the full consent of her clients. The allegations made against Mrs. Pathak are out of desperation to perhaps extort some more money from the Plaintiffs. It has already been noticed above that the Defendants had executed a consolidated receipt in the sum of Rs. 20,50,000/-. There are individual receipts issued by Defendant Nos. 1, 2 and 3 in the sum of Rs. 4,80,000/- each. It is little difficult to swallow the submission of Mr. Damani that perhaps defendants merely noted before the Officers at the instance of Mr. Pandey. It must be remembered and reiterated that the consent terms and all the other documents have been challenged only by Defendant No. 1. The claim of the plaintiff has been supported by defendant No. 2 who is none other than the daughter of defendant No. 1. Even Plaintiff's advocate has not been spared. I, however, find that there is nothing unprofessional so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The law is well settled with regard to the pleadings in cases where fraud is alleged. Mr. Samdani has referred to the case of Bishnudeo Narain vs. Seogeni Rai ors., AIR 1951 SC 280 wherein it is clearly held as under : 24. We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded. 25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however strong the language in which they are couched may be and the same applies to undue influence and coercion. See Order 6, Rule 4, Civil Procedure Code. In that case similar allegation was made to the effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as threatened with death, it is necessary to know these particulars, otherwise, it is impossible to reach a proper conclusion. The aforesaid ratio of law is reiterated by the Supreme Court in the case of Varanasaya S. Vishwavidyalay and Anr. vs. Dr. Rajkishore Tripathi and Anr., AIR 1977 SC 615. In paragraph 8 of the said judgment it is held as follows : 8. Although we are not satisfied that circumstances existed which justified the use of emergency powers of the Vice-Chancellor under Section 13(7) of the Act, yet, we do not think it possible to enter upon this enquiry as no argument seems to us to have been advanced on this aspect in the High Court or in the District Courts. We, however, think that the first Appellate Court had much too lightly believed that the plaintiff-appellant had been a victim of some kind of fraud, when no such particulars of that fraud or collusion were given as would satisfy the requirements of Order VI, Rule 4, Civil Procedure Code, which lays down : In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But as an officer of the Court, concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what his client thinks are his personal interests. Thus it would appear to this Court that hardly any fault can be found with the conduct of Mrs. Pathak. Temptation though being great, this Court would refrain from making any adverse comments on the conduct of Mr. Damani as an Advocate. Firstly because substantially the same matter is pending before the Division Bench in the contempt proceedings. Secondly because it would be for the Maharashtra Bar Council to assess the conduct of Mr. Damani if and when any proceedings are initiated or taken suo motu. 16. Before parting with this order it is necessary to note that the matter has been heard continuously for a period of 6 days i.e. 15th, 16th, 17th, 18th 19th and 22nd December 1997. Earlier also the matter was heard on 8th December, 1997. This observation is made only to avoid any further comments to the effect that the defendants or their advocates have not been heard. This comment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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