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2007 DIGILAW 803 (AP)

METTU KHASIM REDDY v. METTU JAGANNADHA REDDY

2007-08-24

C.Y.SOMAYAJULU

body2007
( 1 ) THIS petition is filed to initiate prosecution against the revision petitioners in CRP no. 6515 of 2006 for making false statement and giving false information on oath to Court. ( 2 ) THE averments, in brief in the affidavit filed in support of the application are (a) the petitioner and his mother, Mettu Anjamma, filed the suit against the revision petitioners i. e. , respondents 1 and 2 and five others for partition of the plaint schedule property and sought an injunction in respect of the plaint schedule property, which was granted by the trial Court. On 22-12-2006, the respondents 1 and 2, by moving a lunch motion, filed CRP no. 6515 of 2006 in this Court alleging that they are aggrieved by the inaction on the part of the trial Court in delaying the disposal of ia No. 1382 of 2006 filed by them seeking an injunction against him. In the said CRP, they filed CMP No. 8922 of 2006 seeking an injunction against him and the other defendants alleging that though they filed the aforesaid IA No. 1382 of 2006 on 4th/5th december, 2006 expressing urgency, the trial court was going on adjourning the petition and did not issue injunction, and so they sought an ex parte interim injunction being granted in their favour by this Court and filed copies of the petition and affidavit in IA no. 1382 of 2006, said to have been filed by them in the trial Court as material papers, but kept the date of affidavit and the date of its filing blank, knowing very well that they did not file IA No. 1382 of 2006 on 4th/5th december, 2006. So, it is clear that they made false statement in the affidavit filed in support of CMP No. 8922 of 2006, because they in fact filed IA No. 1382 of 2006 in the trial Court only on 22-12-2006 i. e. , the date on which they filed CRP No. 6515 of 2006 in this Court, and obtained an ex parte injunction against him from this Court, by making false representations. (b) About 8 weeks thereafter respondents 1 and 2 filed an additional affidavit in the crp alleging that the suit was transferred to another Court, but an earlier application filed by them on 22-11 -2006 seeking an injunction against the petitioner in CRF No. 1935 of 2006 was not transferred along with the suit to the other Court they had to file another set of papers on 22-12-2006 in the transferee court and that petition was numbered as IA no. 1382 of 2006, which is not a correct statement because the averments in the affidavit filed in support of IA No. 1382 of 2006 are different from the averments made in the affidavit filed in support of the application in CFR No. 1935 of 2006, and in fact, the Court returned the CFR papers on 22-11-2006 itself with the following endorsement. "retd. (1) Howthis petition is maintainable when there is an injunction in favour of the respondents/petitioners in IA no. 1355/2000. (2) Notice may be given to the other side. Ret. 7 days. Sd/-Dt. 22-11-2006. A. D. S. " (c) So, it is clear that respondents 1 and 2 intentionally made false statement in the additional affidavit filed by them also. It is not known how respondents 1 and 2 could mention the number of the petition filed by them in the trial Court as IA No. 1382 of 2006 in the CRP while moving the lunch motion when they in fact filed that petition on the same day before the trial Court. (d) Since respondents 1 and 2 intentionally gave false affidavits complaining inaction on the part of the trial Court and against the counsel for plaintiffs and in the subsequent additional affidavit filed by them also and obtained ex parte orders by making false representations, criminal proceedings may be initiated against them. (d) Since respondents 1 and 2 intentionally gave false affidavits complaining inaction on the part of the trial Court and against the counsel for plaintiffs and in the subsequent additional affidavit filed by them also and obtained ex parte orders by making false representations, criminal proceedings may be initiated against them. ( 3 ) ON behalf of respondents 1 and 2, second respondent filed his counter affidavit alleging that taking advantage of the fact that there was no injunction against him, the petitioner tried to alienate item No. 1 of plaint a schedule to third parties in the month of november 2006 and so they filed an application under Order 39 Rules 1 and 2 cpc for an injunction restraining the petitioner from alienating the plaint schedule properties, on 22-11 -2006 as CRF No. 1935 of 2006 and filed 3 other applications on 5-12-2006 to implead the Sub-Registrar, Nallapadu, and the Special Officer, Urban Land Ceilings, guntur, under Order 1 Rule 10 CPC. Thereafter the suit was transferred to another court on 8-12-2006 along with the 3 applications filed for impleadment and those petitions were numbered as IA Nos. 1274, 1275 and 1276 of 2006. As the petition filed under Order 39 Rules 1 and 2 CPC was not numbered they enquired in the office of their counsel about the fate of that application and were informed that all the interlocutory applications were numbered and hence he was under a bona fide impression that the application for injunction filed on 22-11 -2006 was also numbered and was being posted to various dates, and when a telephone call was made to the office of their counsel in the trial Court to find out the number of the interlocutory application for injunction which is not being taken up for hearing the clerk of their counsel asked them call on the next day i. e. , on 22-12-2006 and gave the number of the application at about 11. 45 a. m. as IA no. 1382 of 2006, and so they were under a bona fide impression that CFR No. 1935 of 2006 was numbered as IA No. 1382 of 2006, and in fact papers relating to CFR No. 1935 of 2006 were handed over to them only on 7-2-2007, and so the petition is liable to be dismissed. 45 a. m. as IA no. 1382 of 2006, and so they were under a bona fide impression that CFR No. 1935 of 2006 was numbered as IA No. 1382 of 2006, and in fact papers relating to CFR No. 1935 of 2006 were handed over to them only on 7-2-2007, and so the petition is liable to be dismissed. ( 4 ) AFFIDAVIT of the counsel for respondents 1 and 2 in the trial Court is also filed in support of the case of respondents 1 and 2. In his affidavit the counsel for respondents 1 and 2 in the trial Court stated that as there was urgency in obtaining order of injunction, another set of papers were filed on 22-12-2006 before the transferee Court with an out of order application and the same was numbered as IA No. 1382 of 2006 and the papers filed in the former Court were returned on 7-2-2007 and that he was not aware of the respondent filing CRP, and that the first respondent contacted his office on 22-12-2006 to enquire about the number of the IA and on his phone call the number of the IA was given to him, and so the first respondent might have been under the impression that the number given to him was the number of the petition which was filed on 22-11 -2006 as CRF No. 1935 of 2006. ( 5 ) THE point for consideration is whether there are grounds to order prosecution against respondents 1 and 2? ( 6 ) THE contention of the learned counsel for petitioner is that since respondents 1 and 2 deliberately made false statement before the Court and obtained ex parte orders of injunction and since the documents filed along with this petition clearly show that IA No. 1382 of 2006 was filed in the trial Court only on 22-12-2006 i. e. , the date on which the CRP was filed in this Court alleging inaction on the part of the trial Court, and since the averment that the same set of papers, as in CFR no. 1935 of 2006 are filed for getting the second petition also is not correct, because the affidavit filed in support of the petition dated 22-11-2006 in CFR No. 1935 of 2006 does not contain paragraphs 6 to 9 as mentioned in the affidavit filed in IA No. 1382 of 2006, it is clear that the revision petitioners played fraud on the Court and obtained ex parte orders by making false representations and as they also made false statements in the affidavit they are liable for prosecution. ( 7 ) THE contention of the learned counsel for respondents 1 and 2 is that as there was a communication gap between respondents 1 and 2 and their counsel, and as the counsel for respondents 1 and 2 in the trial Court gave his affidavit explaining the reasons as to what had happened, it is a case of pure mistake, but not an intentional act on the part of the respondents 1 and 2 warranting initiation of prosecution against them and as the petition seeking injunction was in fact filed when the case was pending in the Court of the V Additional District Judge, Guntur, and as the suit was transferred to the vim Additional District Judge, Guntur, respondents 1 and 2 and their counsel were under the impression that all the interlocutory applications filed earlier were also transferred to the Court of the VIII Additional District judge, Guntur but they came to know subsequently that the petition seeking injunction in fact was not numbered and so they made enquiries and found that CFR no. 1935 of 2006 seeking injunction was returned, but as it could not be traced, in view of the urgency the same set of papers were filed on 22-12-2006 in the trial Court, and since respondents 1 and 2 actually were under an impression that the petition filed on 22-11 -2006 was being adjourned from time to time, they filed the CRP complaining inaction on the part of the trial Court. ( 8 ) RULE 41 (3) of the Rules of the High court of Judicature, Andhra Pradesh, at hyderabad in its Appellate Jurisdiction (appeal side rules) reads: "copies of relevant affidavit and counter affidavit in the main proceedings in lower courts as the case may be, relating to the civil revision petition, if the civil revision petition is present in the High court before disposal of the main proceedings in the lower courts. " In compliance with it respondents 1 and 2 filed the affidavit and petition in IA No. 1382 of 2006 as material papers in the CRP filed by them. But the date of the affidavit and the petition are not found therein i. e. , the date is kept blank, but the month and year are mentioned as December 2006. The vakalat of respondents 1 and 2 given to the counsel in the CRP was attested by an advocate at hyderabad on 22-12-2006. The affidavit and petition relating to IA No. 1382 of 2006 filed in the trial Court as material papers (which are xerox copies of the certified copies) in the crp, show that Mettu Yella Reddy son of subba Reddy i. e. the second respondent swore the affidavit on 22-12-2006 before an advocate at Guntur. The affidavit filed in support of CMP No. 8922 of 2006 in CRP no. 6515 of 2006 also shows that the second respondent swore to that affidavit on 22-12-2006 at Hyderabad. In view of the fact that the vakalat of the respondents 1 and 2 is attested at Hyderabad on 22-12-2006, it is clear that both the respondents 1 and 2 came to Hyderabad on 22-12-2006. Since the affidavit filed in support of the IA No. 1382 of 2006 was sworn to by the second respondent at Guntur on 22-12-2006, it has to be taken that the second respondent was at Guntur on 22-12-2006. Judicial notice can be taken that it takes more than 4 hours for a person to reach Hyderabad from Guntur even by road. Judicial notice can be taken that it takes more than 4 hours for a person to reach Hyderabad from Guntur even by road. Since lunch motion for filing the CRP was moved in High Court on 22-12-2006, even assuming that the second respondent, he after swearing to the affidavit on 22-12-2006 at Guntur, left for Hyderabad and came to hyderabad and instructed his counsel to move lunch motion, he should be imputed with knowledge that he swore to the affidavit seeking an injunction against the petitioner and others, and filed the same in the trial court on the same day i. e. , 22-12-2006. ( 9 ) THE averment in the affidavit of the counsel for respondents in the trial Court reading "as there was urgency in the matter, we filed another set of papers on 22-12-2006 before the VIII Additional district Judges Court with an out of order application and the same was numbered as I. A. No. 1382 of 2006. " cannot be true because Xerox copies of the certified copies of the CFR No. 1935 of 2006 filed as material papers show that it was returned on 22-11-2006 itself, with some objections and as the averments in the affidavit filed in support of the IA No. 1382 of 2006 and the averments in the affidavit filed in support of CFR No. 1935 of 2006 are not the same, i. e. there is difference in those two affidavits. So, the second revision petitioner must have been present at Guntur to swear to his affidavit dated 22-12-2006 filed in support of IA No. 1382 of 2006. Having affixed his signature to the affidavit in support of IA no. 1382 of 2006 on 22-12-2006 at Guntur second respondent cannot plead ignorance of the purpose for which he filed the said petition. Having filed the petition on 22-12-2006 at Guntur, his coming to this court on the same day and complaining inaction on the part of the trial Court, to say the least is a mischievous act. ( 10 ) THE apex Court in K. Karunakaran v. T. V. Eachara Warner and another observed in paragraph 15 "lie tends to become almost a style of life. Lies are resorted to by the high and the low being faced with inconvenient situations which require a Mahatma gandhi to own up Himalayan blunders and unfold unpleasant truths truthfully. ( 10 ) THE apex Court in K. Karunakaran v. T. V. Eachara Warner and another observed in paragraph 15 "lie tends to become almost a style of life. Lies are resorted to by the high and the low being faced with inconvenient situations which require a Mahatma gandhi to own up Himalayan blunders and unfold unpleasant truths truthfully. But when principles are sacrificed at the altar of individuals, selfishness of man, desire to continue in position and power, lining up with the high and mighty, lead to lies, euphemistically prevarication. But all lies made, here and there, ignored by the people or exposed on their own to nudity are not subject-matters for the court to take action. When the court takes action it is a species of falsehood clearly defined under Sec. 191, I. P. C. and punishable under Sec. 193, I. P. C. " ( 11 ) ESSRS. Soundararajan and Co. Ltd. v. A. K. Sankarapandia Nadar and another it is held that the argument that Section 193 IPC applies only to false evidence given in judicial proceedings, applies only to sub-paragraph (1)of that section and does not apply to sub-paragraph (2 ). In that case a direction to lay a complaint before the Magistrate in respect of a false affidavit containing false statements was ordered to be made. ( 12 ) IN this case second respondent swore to two affidavits on the same day i. e. , one at guntur and the second at Hyderabad and filed it in this Court for the same relief, making a complaint of inaction on the part of the trial court in respect of a petition filed by them on the same day, alleging that the petition was filed long time back and sought urgent orders. First respondent should also be imputed with knowledge of the second respondent filing an application for injunction in IA No. 1382 of 2006 on 22-12-2006 and his approaching High court and complaining inaction on the part of the trial Court because he also gave vakalat for filing CRP. Making false statement on oath before the Court is a serious matter and should be viewed seriously and so I feel that this is a fit case to order launching of prosecution against respondents 1 and 2. Making false statement on oath before the Court is a serious matter and should be viewed seriously and so I feel that this is a fit case to order launching of prosecution against respondents 1 and 2. ( 13 ) THEREFORE, the Registrar (Judicial) is directed to file a complaint before the appropriate court against respondents 1 and 2 for making false statements in the affidavit filed in CMP No. 8922 of 2006 in CRP No. 6515 of 2006. The petition is ordered accordingly. .