Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1386 (HP)

Parju Ram v. Bhag Singh

2014-10-09

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge (Oral). The appellant/applicant by medium of this application has sought condonation of 331 days in filing of the appeal. It is claimed that the applicant is an old man of 81 years of age and had a fracture of right hip, for which he was operated. He was not aware of the fact that his appeal pending before the learned District Judge was decided against him on 3.4.2013 as he was not informed of the same by his advocate. It is further alleged that since he was taking treatment for his injuries and is not residing at his native village and it is only in the month of April, 2014 that he came back to the village and contacted his counsel at Hamirpur on 21.4.2014 and he learnt that his appeal had been dismissed on 3.4.2013. It is then claimed that he could not come to Shimla for filing of the appeal as he had suffered minor heart attack and remained bed ridden and thereafter could contact his counsel and drafted the appeal on 14.5.2014, which was filed in this Court on 30.5.2014. 2. The respondent filed reply wherein it was claimed that the grounds taken by the applicant to show sufficient cause were in fact unbelievable, apart from the same being totally false. It has been specifically averred that on 6.12.2013 the respondent had filed execution proceedings against the appellant-applicant in which notice was issued for 14.2.2014 and then the applicant himself had put in appearance through his authorized counsel on 5.4.2014. Thereafter the execution proceedings were listed for filing of objections on 21.5.2014 on which date the applicant did not appear and was proceeded ex-parte. It is further claimed that on 8.3.2014 the applicant entered into a compromise with the respondent at Barsar with respect to the suit land. Copy of the compromise has been annexed as Annexure R-1 to the reply. The respondent has also denied the fact that applicant had suffered a minor heart attack and was bed ridden. It has been specifically stated that on 12.6.2014 the applicant had filed an application to set-aside the exparte order dated 21.5.2014 before the learned trial court, wherein there was no mention about the heart attack. Copy of the application has also been annexed with the reply as Annexure R-2. 3. It has been specifically stated that on 12.6.2014 the applicant had filed an application to set-aside the exparte order dated 21.5.2014 before the learned trial court, wherein there was no mention about the heart attack. Copy of the application has also been annexed with the reply as Annexure R-2. 3. The applicant has filed rejoinder, wherein he did not deny that appearance on his behalf had been put in by the counsel on 5.4.2014 before the learned Executing Court, but the explanation offered by him is as follows:- “…..That is further wrong and denied that the applicant is trying to mislead this Hon’ble Court it is also further denied that the applicant was aware about fate of his appeal, as a matter of fact, the counsel who appeared on behalf of the applicant before the executing court on 5.4.2014 was the same counsel who was representing the applicant before the ld. First appellate court, it is also humbly submitted for the completion of facts that the counsel Mr. K.K. Sharma who appeared on behalf of the applicant on 5.04.2014 was already the counsel of the applicant and he filed the POA as these documents were already signed by the applicant at the time when the applicant had engaged the services of the ld. Counsel for contesting the proceedings before Ld. First appellate court and as the respondent filed the execution proceeding before the ld. Executing court the counsel Mr. K.K. Sharma appeared as the counsel of the applicant but as a fact of matter the applicant was not aware about the proceeding pending before the executing court what so ever, it is also pertinent to mention here that on 5.04.2014 the counsel appeared for the applicant and was given time to file Reply/Objections to the execution petition and the matter was finally listed on 21.05.2014, the counsel tried to contact the present applicant but the applicant could not be contacted as he was not aware about the fate of his appeal and hence subsequently when the matter was listed on 21.05.2014 the applicant was proceeded ex-parte as the counsel did not appear before the executing court since he was having no instructions from the present applicant hence in view of these reasons it is abundantly clear that the delay as occurred in filing the present appeal is not deliberate but due to the submissions as made hereinabove.” 4. The applicant has not denied the fact of his having entered into a compromise with the respondent on 8.3.2014, but then it is claimed that compromise as effected by the parties did not make any mention of pending litigation between the parties and the compromise was effected simply in order to bring peace amongst the parties. I have heard the learned counsel for the parties and gone though the record. 5. At the out set it may be observed that applicant is guilty of suppressio veri suggestio falsi because the applicant has not stated the truth and when confronted with the truth in rejoinder to the reply has invented stories which he expects this court to believe. It is settled law that a party who seeks to avail the jurisdiction of the court must come to the court with clean hands. His conduct plays an important role in the matter of exercise of discretionary jurisdiction by a court of law. A person whose case is based on falsehood has no right to approach the court and he can be thrown out at any stage of the litigation. The applicant cannot be permitted to abuse the process of the court. Save and except age by his side, the applicant on account of the falsity of his claim has nothing to fall back upon. But even age in this case can be of no help or assistance to the applicant as this would not only be a bad precedent but would also amount to granting premium to dishonesty. It cannot be denied that grant of relief apart from law on the subject is also governed by principles of “justice, equity and good conscience” and it is the duty of the court of equity to prevent legal fraud and the Court is expected to do justice by promoting honesty and good faith as far as it lies within its power. Therefore, it is all the more incumbent for the party seeking relief and equity that he must come to the court with clean hands. 6. Normally the age of the applicant in itself could have been taken into consideration as a sufficient reason and cause for condoning the delay in filing of the appeal. But then, the applicant has sought to take undue and unnecessary advantage of his age by setting up an explanation, which is blatantly false. 6. Normally the age of the applicant in itself could have been taken into consideration as a sufficient reason and cause for condoning the delay in filing of the appeal. But then, the applicant has sought to take undue and unnecessary advantage of his age by setting up an explanation, which is blatantly false. The appellant would have this Court to believe that his counsel appeared before the Court without his instructions and had entered into a compromise without knowing the fate of the appeal preferred by him. 7. For all the reasons aforesaid, there is no cause muchless sufficient cause disclosed by the applicant, which prevented him from filing the appeal within the prescribed period of limitation. Accordingly, the application is dismissed and resultantly even the main appeal is also dismissed.