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2020 DIGILAW 1409 (ALL)

Mata Pher Yadav v. State of U. P.

2020-12-01

JASPREET SINGH

body2020
JUDGMENT : Jaspreet Singh, J. 1. Heard Sri Brijesh Kumar Yadav, learned Counsel for the petitioner as well as the learned Chief Standing Counsel for opposite party Nos. 1 and 2. 2. The learned Counsel for the petitioner has filed an application along-with an affidavit for withdrawal of the writ petition whereas the learned Additional Chief Standing Counsel has filed a short counter-affidavit which are taken on record. 3. The instant petition had been preferred with the prayer that the proceedings initiated by the petitioner under section 35 of the U.P. Revenue Code said to have been pending before the opposite party No. 2 may be decided expeditiously. 4. To put the matter in a perspective, this Court had passed an order dated 24.11.2020 which reads as under:- "Heard Shri Brijesh Kumar Yadav, learned Counsel for the petitioner and the learned Additional -Chief Standing Counsel for the respondents-State. The instant petition had been preferred with the prayer that the proceedings initiated by the petitioner under section 35 of the U.P. Revenue Code said to have been pending before the opposite party No. 2 may be decided expeditiously. The petitioner in Paragraph-11 had specifically stated that on the last, date fixed was 7.3.2020 and thereafter no date has been fixed despite the fact that the Courts have started functioning after the lock-down owing to COVID-19 Pandemic. Significantly, the contents of Paras-1 to 14 of the petition have been sworn to be true on personal knowledge of the petitioner Shri Matapher Yadav, who has filed his own affidavit, who is identified by Shri Brijesh Kumar Yadav, learned Counsel appearing for the petitioner.. It is in view of the aforesaid statement, this Court by means of the order dated 10.11.2020 had passed the following order, which reads as under:- "Heard learned Counsel for the petitioner. Notice on behalf of opposite parties have been accepted by the office of the learned Chief Standing Counsel. The petitioner has instituted the above petition seeking expedition of his pending case 0439 of 2019 and subsequently provided new number as T20190471014391 (Matapher v. Ram Harkh) (before the opposite party No. 2. Notice on behalf of opposite parties have been accepted by the office of the learned Chief Standing Counsel. The petitioner has instituted the above petition seeking expedition of his pending case 0439 of 2019 and subsequently provided new number as T20190471014391 (Matapher v. Ram Harkh) (before the opposite party No. 2. In paragraph 11 of the petition, it has been pleaded by the petitioner that after 7.3.2020 no date has been provided to the petitioner nor his case is being decided despite the fact that the Courts have started functioning after the lock-down on account of the Covid-19 pandemic. It is extremely surprising to note that no date has been fixed after 7.3.2020. "The proceedings before the opposite party No. 2 are judicial in nature and therefore it is not expected that no date would be fixed, nevertheless before passing any order, it would be expedient to ascertain the veracity of the aforesaid submission. The learned Standing Counsel shall seek instructions in respect of the aforesaid paragraph 11 of the writ petition and shall inform the Court what is the status of the proceedings and whether after 7.3.2020 any date has been fixed or not and if so for what purpose. List/put up this matter on 24.11.2019, as fresh." Today, learned Additional Chief Standing Counsel has submitted that he has received instructions in writing relating to the status of the proceedings which is quite alarming and disturbing. It has been submitted that no proceedings are pending before the opposite party No. 2 inasmuch as on 13.1.2020, the proceedings already stood dismissed in default. Thereafter, the petitioner has not filed any application for restoration/recall of the said order coupled with the fact that the alleged statements which have been annexed alongwith the petition as Annexure No. 4 which includes the statements of the petitioner himself, one Shri Devtadeen Yadav and Shiv Chandra Kashyap as well as the statements of Shri Sushil Kumar Ojha, who is said to be Halka Lekhpal at hand are all fabricated and do not find place on the record of the opposite party No. 2. In view of the instructions received and as conveyed by the learned Additional Chief Standing Counsel, the matter becomes extremely serious. In view of the instructions received and as conveyed by the learned Additional Chief Standing Counsel, the matter becomes extremely serious. Learned Additional Chief Standing Counsel is directed to file the aforesaid instructions and the relevant order-sheets including the facts clearly stating the status of the documents annexed as Annexure No. 4 with the petition and whether they form part of the record and also the proceedings stood dismissed in default on 13.1.2020 on an affidavit of a responsible officer/Tehsildar concerned within three days from today and a copy of the said affidavit will be served to Shri Brijesh Kumar Yadav, learned Counsel for the petitioner. Put up this matter on 27.11.2020 as fresh. At this stage, learned Counsel for the petitioner submits that he may be permitted to withdraw the aforesaid petition. The request is refused. Let the affidavit, as called by the Court, be filed." 5. The petitioner in Paragraph-11 had specifically stated that the last date fixed was 7.3.2020 and thereafter no date has been fixed despite the fact that the Courts have started functioning after the lockdown owing to COVID-19 Pandemic. Significantly, the contents of Paras-1 to 14 of the petition have been sworn to be true to the personal knowledge of the petitioner (Shri Matapher Yadav) who has filed his affidavit and is identified by Shri Brijesh Kumar Yadav, learned Counsel appearing for the petitioner. 6. It is in view of the aforesaid statement, this Court had passed an order dated 10.11.2020 which has been quoted by the Court in its order dated 24.11.2020 which has been reproduced hereinabove. 7. In furtherance thereof the matter was directed to be listed on 27.11.2020 but on 27.11.2020, there was non-sitting of the Court and accordingly the matter was taken up on 1.12.2020 i.e. today. The learned Additional Chief Standing Counsel has filed the short counter-affidavit of Sri Ghanshyam Bharti who is presently posted as Tehsildar, Gaurignanj. The said officer while filing his affidavit has brought on record the copy of the mutation application filed by the petitioner. The report as well as the copy of the order-sheets which indicates that the proceedings initiated by the petitioner was instituted on 28.11.20.19. On 3.1.2020, the petitioner was not present before the Court concerned and the matter was fixed for 13.1.2020. The report as well as the copy of the order-sheets which indicates that the proceedings initiated by the petitioner was instituted on 28.11.20.19. On 3.1.2020, the petitioner was not present before the Court concerned and the matter was fixed for 13.1.2020. Again on 13.1.2020, none appeared for the petitioner and as such his application for mutation was dismissed for want of evidence and prosecution. 8. It is in this backdrop that it has been submitted by learned Additional Chief Standing Counsel that the statement given by the petitioner in paragraph Nos. 9, 10 and 11 are absolutely false. It has further been submitted that the, statements in shape of depositions which have been brought on record collectively as Annexure No. 4 were never a part of the judicial record and as such it is nothing but fabrication of the documents. 9. In reply, the learned Counsel for the petitioner submits that the petitioner is an 80 years old illiterate person who depended heavily on the advice and pairvi of his local Counsel who is conducting his case in Tehsil Gauriganj, District Amethi namely Sri Shyamji Pandey. 10. It has further been submitted that the said local Counsel had kept the petitioner in dark. The petitioner was not aware that his case had been dismissed in default rather he was given the impression as well as information by his local Counsel that the matter was still pending and on 7.3.2020, the signatures of the petitioner alongwith two other persons namely Shiv Chandra Kashap and Sushil Kumar Ojha were taken on blank papers and the said local Counsel had assured that all the formalities would be completed and the statement of the petitioner alongwith the other persons namely Devtadeen Yadav and Shiv Chandra Kashyap will be transcribed on the said blank papers which shall be filed in the judicial record and the case would be decided. 11. It has further been submitted that despite the same, when the petitioner inquired about the progress of his case, he was informed by his local. Counsel that after Covid-19 pandemic, there is a huge pendency of cases and unless an appropriate order for expediting the proceedings is secured from the High Court, the mutation case is likely to remain pending for a longer period. 12. Counsel that after Covid-19 pandemic, there is a huge pendency of cases and unless an appropriate order for expediting the proceedings is secured from the High Court, the mutation case is likely to remain pending for a longer period. 12. In the aforesaid backdrop, the petitioner had approached his Counsel appearing in the High Court who called for the papers for filing the petition which were made available by Sri Shyamji Pandey, Advocate and the same has been filed before the Court and in the aforesaid circumstances, it has been submitted that the petitioner had no intention to make any false statement and he apologizes from the core of his heart and the petitioner seeks the liberty to withdraw the aforesaid petition. 13. The Court has considered the submissions as well as perused the material available on record. Irrespective of the explanation given by the petitioner, the fact remains that a clear averment has been made in the petition that after 7.3.2020, no date is being fixed nor the same is provided despite the fact that the Revenue Courts have started functioning. It is this statement which had prompted the Court to call for the instructions. The record further indicates that the aforesaid paragraphs 9 to 11 of the writ petition are sworn by the petitioner on the basis of his personal knowledge. 14. Another aspect which needs to be noted is that apart from making an incorrect/false statement that after 7.3.2020, the dates were not being fixed, however, there is no mention in the petition regarding any date fixed after 2.1.2020. The extract of the order-sheet as filed by the Tehsildar along with his affidavit indicates that the matter was listed on 2.1.2020, thereafter it was again listed on 3.1.2020 and then again on 13.1.2020 whereas as per the petitioner, his matter was listed on 7.1.2020 and thereafter it was fixed on 7.3.2020 and no date was fixed thereafter. 15. The petitioner Matapher Yadav while filing the petition has stated his age to be 52 years, including in the affidavit filed in support of the writ petition and there is a photograph affixed with the aforesaid affidavit which is identified by the Counsel appearing in the High Court. 15. The petitioner Matapher Yadav while filing the petition has stated his age to be 52 years, including in the affidavit filed in support of the writ petition and there is a photograph affixed with the aforesaid affidavit which is identified by the Counsel appearing in the High Court. The affidavit filed by the petitioner in support of his application for withdrawal of the petition mentions the age of the petitioner as 80 years, however, the photograph which has been pasted, alongwith the affidavit is different to the photograph which was affixed with the affidavit filed" alongwith the writ petition. 16. Thus, prima facie it appears that the deponent who had filed the affidavit alongwith the writ petition and claiming himself to be the petitioner is a different person than the person alleging himself to be the petitioner who has filed the affidavit alongwith the application for withdrawal. 17. Apparently, this Court finds that the pure stream of justice has been polluted by the petitioner. Misleading statements have been made in the petition and the same has been found to be false in light of the affidavit filed by the Tehsildar and there is no denial of the aforesaid facts by the petitioner. 18. Even the person swearing the affidavit as the petitioner while filing the writ petition as well as filing the affidavit in support of the application for withdrawal on behalf of the petitioner are different, though, in both the places in the array of parties, description of the petitioner, his age has been mentioned as 52 years whereas in the part of the affidavit in support of the application for withdrawal where the details of the deponent is mentioned, it has been mentioned as 80 years. 19. These are serious lapses which cannot be ignored by the Court. Though, the petitioner has given his explanation and he seeks the liberty to withdraw the aforesaid writ petition. 20. The proceedings before the Court of law are solemn in nature. It has been stated not once but number of times that any person who approaches the Court of law must come with clean hands. It is the duty of the petitioner to disclose all the facts relevant to the litigation and it is not open for the petitioner to not disclose certain facts on the ground that according to him the said facts are not relevant. It is the duty of the petitioner to disclose all the facts relevant to the litigation and it is not open for the petitioner to not disclose certain facts on the ground that according to him the said facts are not relevant. It is for the petitioner to disclose all the facts even if it is against him and it is- for the Court to ascertain the relevancy of the same. 21. At this stage, it will be worthwhile to notice the words of the Apex Court in the case of Bhaskar Laxman Jadhav and another v. Karamveer Kakasaheb Wagh Education Society and others 2013 (11) SCC 531 , and the relevant portion is reproduced as under:- "44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision-making to the Court. True, there is a mention of the order dated 2.5.2003 in the order dated 24.7.2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2.5.2003 was passed or that it has attained finality. 45. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 , stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows: (AIR p. 1560, para 9) "9. .......It is of utmost Importance that in making material statements and setting forth grounds in applications for special leave care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent. 46. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent. 46. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 : (2011) 4 SCC (Civ) 889, the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said: (SCC p. 51, para 21) "21. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions, filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others Courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty-bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case." 22. It is also relevant to notice the decision of the Apex Court in the case of S.P. Chengalvaraya Naidu v. Jagannath and others /SC/0192/1994 : 1994 (1) SCC 1 , and the relevant portion reads as under:- "Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of Jaw. Such a judgment/decree-by the first Court or by the highest Court- has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings.. 5. Such a judgment/decree-by the first Court or by the highest Court- has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings.. 5. The High Court............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 than 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, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation." 23. The Apex Court in the case of Ram Chandra Singh v. Savitri Devi and others, 2003 (8) SCC 319 , and the relevant portion reads as under:- 15. Commission of fraud on Court and suppression of material facts are the core issues involved in these matters. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. 16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter. 17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. 18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom air though the motive from which the representations proceeded may not have been bad. ***28. In Indian Bank v. Satyam Fibres (India) (P) Ltd. (1996) 5 SCC 550 ,. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom air though the motive from which the representations proceeded may not have been bad. ***28. In Indian Bank v. Satyam Fibres (India) (P) Ltd. (1996) 5 SCC 550 ,. this Court after referring to Lazarus Estates, (2003) 8 SCC 311 : JT 2003 Supp (1) SC 25, and other cases observed that since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court it also amounts to an abuse of the process of the Court, that the Courts have inherent power, to set aside an order obtained by practising fraud upon the Court, and that where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order (SCC p. 563, para 23). It was further held: (SCC pp. 562-63, para 22) .......22. The judiciary in India also possesses inherent power, specially under section 151, CPC, to recall its judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business." 24. Making a false statement on oath before the Court not only amounts to perjury but it also amounts to contempt of Court. 25. The Apex Court in the case of Savepalli Radhakrishnan University and another v. Union of India and others, 2019 (14) SCC 761 , has held as under:- "12. Without delving deep into the details of the report submitted by the Committee, it is clear that the College is guilty of practising fraud on this Court. 25. The Apex Court in the case of Savepalli Radhakrishnan University and another v. Union of India and others, 2019 (14) SCC 761 , has held as under:- "12. Without delving deep into the details of the report submitted by the Committee, it is clear that the College is guilty of practising fraud on this Court. The conduct of the College administration in indulging in manipulations and hoodwinking the authorities to project compliance with the requisite minimum standards for admission of students does not deserve to be condoned. The impunity with which the College has manufactured records to convince us that they were being unnecessarily hounded by MCI in spite of their compliance with the required standards is deprecated. The brazen attempt by the College in taking this Court for a ride by placing on record manoeuvred documents to obtain a favourable order is a clear-cut act of deceit. The justification given by the College regarding the absence of certain residents has turned out to be a concocted story. Had we not initiated an enquiry by the Committee of, Experts, the fraud played by the College on this Court would not have come to light. It is trite that every litigant has to approach the Court with clean hands. A litigant who indulges in suppression of facts and misrepresentation is not entitled for any relief. The conduct of the College in this case, to mislead this Court for the purpose of getting a favourable order is reprehensible and the College deserves to be dealt with suitably." 26. In view of the above settled position, this Court is constrained to refuse the liberty to the petitioner to withdraw -this petition, hence, the aforesaid petition shall stand dismissed with a, cost of Rs. 50,000/-. to be paid by the petitioner within 8 weeks from today to be deposited with the Senior Registrar of this Court, which upon receipt shall be reimbursed to the District Legal Aid Board. In case if the petitioner defaults in making the payment of cost, the District Magistrate shall recover the same as arrears of land revenue. 50,000/-. to be paid by the petitioner within 8 weeks from today to be deposited with the Senior Registrar of this Court, which upon receipt shall be reimbursed to the District Legal Aid Board. In case if the petitioner defaults in making the payment of cost, the District Magistrate shall recover the same as arrears of land revenue. The Senior Registrar shall also hold an inquiry in respect of the identity and discrepancy in the photograph of the person filing the affidavit with the writ petition and affidavit with the application for withdrawal and also for falsification of documents being placed on record of this case and thereafter if he finds necessary he may also get an F.I.R. lodged. 27. With the aforesaid, the petition shall stands dismissed with costs as mentioned above.