Interim Relief Application no. 1069 of 2018 In · as well as rejoinder affidavit were verified by Gopal Singh Bisht claiming them to be true to the best of his personal knowledge

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Interim Relief Application no. 1069 of 2018

In

Writ Petition (Criminal) No. 140 of 2018

Priya Sharma and another ……. Petitioners

versus

State of Uttarakhand & others ……. Respondents

Present: Mr. Pradeep Kant, Senior Advocate assisted by Ms. Sonia Chawla, Advocate for the petitioners. Mr. G.S. Sandhu, Government Advocate assisted by Mr. P.S. Bohara and Mr. J.S. Virk, A.G.A. for the State.

Hon’ble Lok Pal Singh, J.

By means of present criminal writ petition, the

petitioners seek quashing of FIR no. 0047 of 2018, dated

26.01.2018, lodged by Swatantra Kumar, Circle Officer

City, P.S. Rudrapur, against petitioner no. 1 Priya Sharma

and petitioner no. 2 Sudhir Chawla, under Section 420,

467, 468, 471 IPC, Police Station Rudrapur, District

Udham Singh Nagar.

2. Present criminal writ petition was filed on

30.01.2018 through Ms. Sonia Chawla, Advocate. Said

writ petition was listed on 31.01.2018 before the vacation

Judge (Hon’ble Mr. Justice Sharad Kumar Sharma), who

recused to hear the matter. Thereafter, the writ petition was

listed before another vacation Judge (Hon’ble Mr. Justice

U.C. Dhyani) on 06.02.2018, but no interim protection was

granted to the petitioners and the petition was directed to be

listed on 14.02.2018, as fresh matter. On 14.02.2018,

Bar & Bench (www.barandbench.com)

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when the matter was listed before Hon’ble Mr. Justice V.K.

Bist, time was granted to the respondent State to file its

counter affidavit by 19.02.2018. On 20.02.2018, time

granted to the respondent State was extended for a period

of 24 hours fixing the matter for 21.02.2018. On

21.02.2018, time was granted to the petitioners to file their

rejoinder affidavit by 22.02.2018, in response to the

counter affidavit filed by the respondent State, fixing the

matter for 26.02.2018. But again, no interim protection

was granted to the petitioners.

3. On 26.02.2018, the matter was heard at length by

this Court and writ petition was listed on 27.02.2018. On

27.02.2018, after hearing learned counsel for the parties at

length, this Court observed that there are serious illegalities

in filing the writ petition. Firstly, the writ petition has been

filed on behalf of Smt. Priya Sharma and Sudhir Chawla,

but the writ petition is signed by Gopal Singh Bisht. It is

revealed that annexures & affidavits filed in support of the

writ petition as well as rejoinder affidavit have been signed

by Gopal Singh Bisht s/o late Nathu Singh r/o Indira Nagar

II, Bindukhatta, Lalkuan, District Nainital, claiming

himself to be the Pairokar of the petitioners. Gopal Singh

Bisht has also filed his Vakalatnama in his own name,

which is available on record as paper no. 109. Most of the

paragraphs of affidavit filed in support of the writ petition

as well as rejoinder affidavit were verified by Gopal Singh

Bisht claiming them to be true to the best of his personal

knowledge. When the same was pointed out yesterday,

learned Senior Counsel for the petitioners submitted that a

Pairokar has an authority to sign the pleadings and to file


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an affidavit. Learned Senior Advocate has drawn attention

of this Court towards Order III of the Code of Civil

Procedure, 1908. The same is excerpted here-in-below for

convenience:

“ORDER III- RECOGNIZED AGENTS AND PLEADERS 1. Appearances, etc., may be in person, by

recognized agent or by pleader— Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provide that any such appearance shall, if the Court so directs, be made by the party in person.

2. Recognized agent— The recognized agent of parties by whom such appearances, applications and acts may be made or done are—

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts.

3. Service of process on recognized agent— (1) Process served on the recognized agent of a party shall be as effectual as if the same had been served on the party in person, unless the Court otherwise directs.

(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent.

4. Appointment of pleader— (1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be [120][filed in Court and shall, for the purposes of sub-rule(1), be] deemed to be in force until determined with the leave of the Court by a writing singed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

[Explanation.—For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,—

(a) an application for the review of decree or order in the suit,


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(b) an application under section 144 or under section 152 of this Code, in relation to any decree or order made in the suit,

(c) an appeal from any decree or order in the suit, and (d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.] [(3) Nothing in sub-rule (2) shall be construed— (a) as extending, as between the pleader and his

client, the duration for which the pleader is engaged, or (b) as authorising service on the pleader of any notice

or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred in in sub-rule (1)].

(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating—

(a) the names of the parties to the suit, (b) the name of the party for whom he appears, and (c) the name of the person by whom he is authorized to appear : Provided that nothing in this sub-rule shall apply to

any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.

5. Service of process on pleader— [Any process served on the pleader who has been duly appointed to act in Court for any party] or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.

6. Agent to accept service— (1) Besides the recognized agents described in rule 2 any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process.

(2) Appointment to be in writing and to be filed in Court—Such appointment may be special or general and shall be made by a instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.

[(3)The Court may, at any stage of the suit, order any party to the suit not having a recognised agent residing within the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court on his behalf, to appoint, within a specified time, an agent residing within the


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jurisdiction of the Court to accept service of the procession his behalf.]”

4. Learned Senior Counsel appearing on behalf of

the petitioners also placed reliance on Chapter IV Rule 10

of the High Court Rules, 1952, (as amended from time to

time) and submitted that in view of the provisions

contained in Chapter IV Rule 10 an affidavit may be sworn

by any person having knowledge of the facts deposed to

therein. Chapter IV Rule 10 of the High Court Rules, 1952

is reproduced here-in-below for convenience: “10. Persons who may make affidavits. –Except as otherwise provided by law or by these Rules or by order of the Court, an affidavit may be sworn by any person having knowledge of the facts deposed to therein. Two or more persons may join in an affidavit, each deposing separately to such facts as are within his knowledge.”

5. Affidavit as well as rejoinder affidavit has been

filed by Gopal Singh Bisht, claiming himself to be the

Pairokar of the petitioners, but the fact remains that Gopal

Singh Bisht has not been appointed as agent to sign and

plead on behalf of the petitioners as he is not the

recognized agent in view of Order III Rule 2.

Gopal Singh Bisht (a stranger claiming himself to be

pairokar) can not sign the pleadings and file an affidavit.

6. Gopal Singh Bisht is not a recognized agent and

pleader in view of Order III of the Code of Civil

Procedure, 1908. A recognized agent is defined under

Order III Rule 2 of the Code of Civil Procedure as a

person holding Power of Attorney, authorizing him to


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make and do such appearances, applications and acts on

behalf of such parties.

7. Section 2 of the Powers of Attorney Act, 1882

says that the donee of a power-of-attorney may, if he

thinks fit, execute or do any instrument or thing in and

with his own name and signature, and his own seal, where

sealing is required, by authority of the donor of the power;

and every instrument and thing so executed and done,

shall be as effectual in law as if it had been executed or

done by the donee of the power in the name, and with the

signature and seal, of the donor thereof. But, Gopal Singh

Bisht is not the recognized agent on behalf of petitioners

Priya Sharma and Sudhir Chawla, who has signed the

affidavits filed in support of the writ petition as well as

rejoinder affidavit and Vakalatnama.

8. Ms. Sonia Chawla, Advocate, has accepted the

Vakalatnama on behalf of Gopal Singh Bisht to act on

behalf of the petitioners Priya Sharma and Sudhir Chawla.

9. An Advocate is an extra-ordinary person having

the legal knowledge. Even it is expected from a prudent

person or a common person to act diligently, but while

accepting the Vakalatnama of Gopal Singh Bisht, without

there being any agency in his favour, Ms. Sonia Chawla,

Advocate has, in fact, committed professional misconduct

and has played fraud with the Court. Another

Vakalatnama in the name of Priya Sharma is filed as

paper no. 110, but no Vakalatnama on behalf of Sudhir


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Chawla is filed on record. Paper no. 110 has mentioned

two names, viz., Priya Sharma and Sudhir Chawla and

two signatures thereupon, which have been identified by

Gopal Singh Bisht and the same Vakalatnama has been

accepted by Ms. Sonia Chawla, Advocate. The signatures

above the names of Priya Sharma and Sudhir Chawla

apparently appears to be forged on being compared with

the signatures available on paper nos. 60 and 61 as well as

on alleged agreement of advance.

10. Thus, this Court is of the considered opinion that

present writ petition has not been filed by the competent

person as he is not the recognized agent. It appears to this

Court that the counsel appearing on behalf of the

petitioners Priya Sharma and Sudhir Chawla and Gopal

Singh Bisht, the person who signed Vakalatnama of

behalf of the petitioners, are trying to play fraud with the

Court as, in case, they could not succeed in the present

writ petition, they may file another writ petition for the

same relief, on the pretext that they have not filed any writ

petition earlier and they have not appointed Gopal Singh

Bisht as their agent to file the Vakalatnama on their

behalf.

11. Now-a-days unscrupulous persons are

committing fraud with the Government departments and

some of them are not hesitating to commit fraud with the

Court by way of filing false pleadings and affidavits. The

present writ petition is an example of such a fraud being

committed with the Court. It is settled position of law that


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the fraud vitiates the solemn act. The filing of present

writ petition in such a cleaver manner is not mere abuse of

process of law but it amounts to committing fraud on the

Court. Apart from this, the petitioners have suppressed

the material fact from this Court.

Concealment / suppression of material fact –

12. The writ petition has been filed on behalf of the

petitioners for quashing the FIR no. 0047 of 2018, but the

petitioners have suppressed a material fact from this Court

that in another FIR no. 0038 of 2018 lodged against

petitioner no. 1 Priya Sharma, under Section 420 IPC, she

preferred a criminal writ petition being WPCRL no. 131

of 2018 before this Court, for quashing said FIR. Said

writ petition was dismissed by this Court on 25.02.2018,

but this fact of lodgment of FIR against Priya Sharma and

dismissal of the writ petition filed for quashing of said

FIR, has been suppressed by the petitioners.

13. It is settled proposition of law that fraud

vitiates the solemn act. Hon’ble Apex Court in Ramjas

Foundation and another vs. Union of India reported in

(2010) 14 SCC 38, has observed thus:

“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


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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 bearing on adjudication of the issue(s) arising in the case.

22. In Dalglish v. Jarvie Mac. & G at p. 238,Lord Langdale and Rolfe B. observed: (ER p.89)

"It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward.”

23. In Castelli v. Cook, Hare at p. 94, Wigram V.C. stated the rule in the following words: (ER p. 38)

"…A plaintiff applying ex parte comes… under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when other party applies to dissolve the injunction, that anymaterial fact has been suppressed or not property brought forward, the plaintiff is told the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go."

24. In Republic of Peru v. Dreyfus Bros. & Co., L.T. at p. 803, Kay J. held as under:

"I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith in the Court when ex parte applications are made."

25. The same rule was restated by Scrutton L., J in R. v. Kensington Income Tax Commr. The facts of that case were that in April, 1916, the General Commissioners for the Purposes of the Income Tax Acts for the district of Kensington made an additional assessment upon


https://indiankanoon.org/doc/1245093/


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the applicant for the year ending April 5, 1913, in respect of profits arising from foreign possessions. On May 16, 1916, the applicant obtained a rule nisi directed to the Commissioners calling upon them to show cause why a writ of prohibition should not be awarded to prohibit them from proceeding upon the assessment upon the ground that the applicant was not a subject of the King nor resident within the United Kingdom and had not been in the United Kingdom, except for temporary purposes, nor with any view or intent of establishing her residence therein, nor for a period equal to six months in any one year. In the affidavit on which the rule was obtained the applicant stated that she was a French subject and resident in France and was not and had not been a subject of the United Kingdom nor a resident in the United Kingdom; that during the year ending April 5, 1913, she was in the United Kingdom for temporary purposes on visits for sixty-eight days; that she spent about twenty of these days in London at her brother's house, 213, King's Road, Chelsea, generally in company with other guests of her brother; that she was also in the United Kingdom during the year ending April 5, 1914, for temporary purposes on visits, and spent part of the time at 213, King's Road aforesaid; and that since the month of November, 1914, she had not been in the United Kingdom.

26. From the affidavits filed on behalf of the Commissioners and of the surveyor of taxes, who showed cause against the rule nisi, and from the affidavit of the applicant in reply in Kensington case, it appeared that in February, 1909, a leasehold house, 213, King's Road, Chelsea, had been taken in the name of the applicant's brother. The purchase-money for the lease of the house and the furniture amounted to 4000l., and this was paid by the applicant out of her own money. The accounts of household expenses were paid by the brother and subsequently adjusted between him and the applicant. The Divisional Court without dealing with the merits of the case discharged the rule on the ground that the applicant had suppressed or misrepresented the facts material to her application. The Divisional Court observed that the Court, for its own protection is entitled to say "we refuse this writ of prohibition without going into the merits of the


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case on the ground of the conduct of the applicant in bringing the case before us".

27. On appeal, Lord Cozens-Hardy M.R. and Warrington L.J. approved the view taken by the Divisional Court. Scrutton L.,J. who agreed that the appeal should be dismissed observed: (Kensingtom case, KB p. 514)

"…and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts - facts, not law. He must not misstate the law if he can help it - the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement."

28. The above noted rules have been applied by this Court in large number of cases for declining relief to a party whose conduct is blameworthy and who has not approached the Court with clean hands -Hari Narain v. Badri Das, Welcome Hotel v. State of A.P., G. Narayanaswamy Reddy v. Government of Karnataka , S.P. Chengalvaraya Naidu v. Jagannath , A.V. Papayya Sastry v. Government of A.P., Prestige Lights Limited v. SBI, Sunil Poddar v. Union Bank of India, K.D. Sharma v. SAIL , G. Jayashree v. Bhagwandas S. Patel and Dalip Singh v. State of U.P.

29. In the last mentioned judgment, the Court lamented on the increase in the number of cases in which the parties have tried to misuse the process of Court by making false and/or misleading statements or by suppressing the relevant facts or by trying to mislead the Court in passing order in their favour and observed: (Dalip Singh case, SCC pp. 116-17, paras 1-2)

"1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily



















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life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final." (emphasis supplied) 30. In our view, the appellants are not

entitled to any relief because despite strong indictment by this Court in Ramjas Foundation v. Union of India, they deliberately refrained from mentioning details of the cases instituted by them in respect of the land situated at Sadhora Khurd and rejection of their claim for exemption under clause (d) of notification dated 13.11.1959 by the High Court and this Court.”

Fraud and justice cannot dwell together –

14. The Hon’ble Apex Court in its judgment

rendered in the case of Ram Chandra Singh vs. Savitri Devi

and others reported in (2003)8 SCC 319, has observed as

under:

“17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud.




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18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully 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 although the motive from which the representations proceeded may not have been bad.

19. In Derry v. Peek, it was held: In an 'action of deceit the plaintiff must

prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.

A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit."

20. In Kerr on Fraud and Mistake at page

23, it is stated: "The true and only sound principle to be derived from the cases represented by Slim v. Croucher is this: that a representation is fraudulent not only when the person making it knows it to be false, but also when, as Jessel, M.R., pointed out, he ought to have known, or must be taken to have known, that it was false. This is a sound and intelligible principle, and is, moreover, not inconsistent with Derry v. Peek. A false statement which a person ought to have known was false, and which he must therefore be taken to have known was false, cannot be said to be honestly believed in. "A consideration of the grounds of belief", said Lord Herschell, "is no doubt an important aid in ascertaining whether the belief was really entertained. A man's mere assertion that he believed the statement he made to be true is not accepted as conclusive proof that he did so."

21. In Bigelow on Fraudulent Conveyances at page 1, it is stated:

"If on the facts the average man would have intended wrong, that is enough." It was further opined:

"This conception of fraud (and since it is not the writer's, he may speak of it without diffidence), steadily kept in view, will render the


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administration of the law less difficult, or rather will make its administration more effective. Further, not to enlarge upon the last matter, it will do away with much of the prevalent confusion in regard to 'moral' fraud, a confusion which, in addition to other things, often causes lawyers to take refuge behind such convenient and indeed useful but often obscure language as 'fraud upon the law'. What is fraud upon the law? Fraud can be committed only against a being capable of rights, and 'fraud upon the law' darkens counsel. What is really aimed at in most cases by this obscure contrast between moral fraud and fraud upon the law, is a contrast between fraud in the individual's intention to commit the wrong and fraud as seen in the obvious tendency of the act in question."

22. Recently this Court by an order dated 3-

9-2003 in Ram Preeti Yadav vs. U.P. Board of High School & Intermediate Education held: (SCC pp.316-317, paras 13 to 15)

"13. 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 former either by words or letter. Although negligence is not fraud but it can be evidence on fraud. (See Derry vs. Peek). 14. In Lazarus Estate vs. Berly the Court of

Appeal stated the law thus: (AII ER p. 345 C-D) "I cannot accede to this argument for a

moment "no Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything". The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever."

15. In S.P. Chengalvaraya Naidu vs. Jagannath this Court stated that fraud avoids all judicial acts, ecclesiastical or temporal." 23. An act of fraud on court is always viewed

seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.

24. In Arlidge & Parry on Fraud, it is stated

at page 21: "Indeed, the word sometime appears to be

virtually synonymous wit "deception", as in the


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offence (now repealed) of obtaining credit by fraud. It is true that in this context "fraud" included certain kind of conduct which did not amount to false pretences, since the definition referred to an obtaining of credit "under false pretences, or by means of any other fraud". In Jones, for example, a man who ordered a meal without pointing out that he had no money was held to be guilty of obtaining credit by fraud but not of obtaining the meal by false pretences: his conduct, though fraudulent, did not amount to a false pretence. Similarly it has been suggested that a charge of conspiracy to defraud may be used where a "false front" has been presented to the public (e.g. a business appears to be reputable and creditworthy when in fact it is neither) but there has been nothing so concrete as a false pretence. However, the concept of deception (as defined in the Theft Act 1968 ) is broader than that of a false pretence in that (inter alia) it includes a misrepresentation as to the defendant's intentions; both Jones and the "false front" could now be treated as cases of obtaining property by deception."

25. Although in a given case a deception may

not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application f any equitable doctrine including res-judicata.

26. In Shrisht Dhawan vs. Shaw Bros. it has

been held that: (SCC p. 553, para 20) "20. Fraud and collusion sitiate even the

most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."

27. In S.P. Chengalvaraya Naidu vs.

Jagannath this Court in no uncertain terms observed: (SCC p. 5, paras 5-6)

"...The principles of "finality of litigation" cannot be passed 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


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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.

A fraud is an act of deliberate deception with the design of security something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage... A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party." 28. In Indian Bank vs. Satyam Fibres (India)

Pvt. Ltd., this Court after referring to Lazarus Estates (supra) 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." 29. In Chittaranjan Das vs. Durgapore

Project Ltd. it has been held: "57. Suppression of a material document

which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice


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are not required to be complied within such a situation.

58. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby." 30. Keeping in view the aforementioned

principles, the questions raised in these appeals are required to be considered. The High Court observed that the application of intervention filed by the appellant purported to be under Order 26, Rules 13 and 14(2) and Order 20, Rule 18 was not maintainable as they do not confer any power to court for setting aside a preliminary decree on the ground that it was obtained by practising fraud. But once the principles aforementioned are to be given effect to, indisputably the court must be held to have inherent jurisdiction in relation thereto.

31. In Manohar Lal Chopra vs. Rai Bahadur

Rao Raja Seth Hiralal, the law is stated in the following terms: (AIR p. 537, para 43)

"43. The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorized to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible."

32. In Sharda vs. Dharmpal [a three-Judge

Bench, of which both of us are parties, held that directing a person to undergo a medical test by a matrimonial court is implicit stating: (SCC p. 513, paras 52-53)

"52. Even otherwise the Court may issue an appropriate direction so as to satisfy itself as to whether apart from treatment he requires adequate protection inter alia by way of legal aid so that he may not be subject to an unjust order because of his incapacity. Keeping in view of the fact that in a case of mental illness the Court has adequate power to examine the party or get him examined by a qualified doctor, we are of the opinion that in an appropriate case the


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Court may take recourse to such a procedure even at the instance of the party to the lis.

53. Furthermore, the Court must be held to have the requisite power even under Section 151 of Code of Civil Procedure to issue such direction either suo motu or otherwise which, according to him, would lead to the truth."

33. Once it is held that a judgment and

decree has been obtained by practising fraud on the court it is trite that the principles of res- judicata shall not apply. The High Court, therefore, in our opinion committed a serious error in referring to the earlier orders passed by it so as to shut the doors of justice on the face of appellant for all time to come. We, therefore, are of the opinion that the impugned judgment dated 10.12.1998 cannot be sustained.”

15. Hon’ble Apex Court in Kishore Samrite vs.

State of Uttar Pradesh and others reported in (2013) 2SCC

398, has held as under:

“31. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision.

32. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:

32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with ‘unclean hands’. Courts have held that such litigants


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are neither entitled to be heard on the merits of the case nor entitled to any relief.

32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.

32.3 The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.

32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.

32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.

32.6. The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.

32.7. Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.

32.8. The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted “visa”. Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it.

(Refer : Dalip Singh v. State of U.P., Amar Singh v. Union of India and State of Uttaranchal v. Balwant Singh Chaufal.)”

16. It is proved on record that there is a complete

misrepresentation at the hands of petitioners. Thus, they





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have committed fraud with the Court and in view of such

fraud committed by them, they are not entitled for any

relief in respect of quashing of FIR lodged against them,

as also for any interim protection during investigation.

17. Mr. Pradeep Kant, Senior Advocate assisted

by Ms. Sonia Chawla, Advocate, further submitted that

from the persusal of the impugned FIR, no prima facie

case is made out against the petitioners, therefore, the FIR

is liable to be quashed. He also contended that the

petitioners have acted in bona fide manner and they are

not aware that Jishan Ali has brought the money from

where and it was not their duty to find out from where

Jishan Ali has brought the money to pay them.

Admittedly, the petitioners are not the owners of the land

bearing khasra nos. 93 and 94 in respect of which they

entered into an agreement to sell the same property and

obtained a sum of Rs.1,50,00,000/- from Jishan Ali

through RTGS on 24.06.2016, in view of an agreement to

sell dated 25.06.2016 (unregistered) having no authority

to sell the property. Neither the petitioners are owners,

nor in possession of the property, but just to receive

money from Jishan Ali, as a consideration coming from

the National Highway Authority acquisition matter,

wherein the public servants are involved and Mr. D.P.

Singh, Special Land Acquisition Officer, Udham Singh

Nagar is languishing in jail in bribe case. Jishan Ali, who

has transferred the huge amount of 1.5 crore through

RTGS and some cash amount to the petitioners, as a

commission, is also in jail.


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18. The allegations against the petitioners in the FIR

are that being influential persons they are hand in glove

with the Special Land Acquisition Officer, Rudrapur,

District Udham Singh Nagar, and declared agricultural

land as commercial land under Section 143 of the

U.P.Z.A. & L.R. Act on back dates and, in the name of

farmers, excessive amount of compensation was paid by

the National Highway Authority to the farmers. Though

the land was agricultural land but the amount has been

paid for commercial land with the settlement of bribe and

commission by the agents like Jishan Ali and present

petitioners.

19. The submission of learned Senior Counsel that

nothing is available on record and prima facie no offence

is made out against the petitioners for the offences

punishable under Sections 420, 467, 468, 471 IPC and the

FIR is liable to the quashed. From a perusal of FIR and

the material available on record, it reveals that the FIR

constitutes a prima facie case against the petitioners. An

FIR is not an encyclopedia. Pursuant to the impugned

FIR, investigation is going on. Credible material has also

been collected by the Investigating Officer.

20. During the course of hearing, when this Court

after perusing the records and after hearing learned

counsel for the parties, arrived to the conclusion that the

writ petition has been filed in a designed way with the

signatures of Gopal Singh Bisht without authorizing him


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to file the writ petition and the role of an Advocate, who

filed the writ petition, cannot be denied that the Advocate

has not worked for ulterior motive. The petitioners are

trying to make a case that petitioner no. 1 Priya Sharma is

a victim of political vendetta, but nothing is available on

record to show that this is an act of the police on political

vendetta against the petitioners. Another agreement to

sell dated 14.01.2017, allegedly executed between Priya

Sharma and Sudhir Chawla as first party and Gurvinder

Singh as second party does not depict the signatures of

second party Gurvinder Singh s/o Sukhvinder Singh. Said

agreement to sell is available at page nos. 9 and 10 of the

rejoinder affidavit. These documents are unilateral

documents. Thus, it cannot be assumed that Gurvinder

Singh has executed unregistered agreement to sell dated

14.01.2017. From the perusal of condition no. 6

stipulated in said agreement, it would reveal that the

petitioners herein have mentioned that the declaration

shall be done at their expenses and the amount of advance

has been written on separate paper, but no any document

showing the amount paid has been filed on record. From

the perusal of material available on record it would reveal

that a huge public money has been dishonestly cheated

with the connivance of public servants, farmers and

middlemen and this National Highway 74 scam seems to

be worth crores and crores of rupees. Since the petitioners

are not coming with clean hands and they have

misrepresented before this Court, which amounts to

playing fraud with the Court, as such, are not entitled to

any interim relief.


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21. When this Court arrived to the conclusion that

a frivolous writ petition has been filed by Gopal Singh

Bisht in the name of Priya Sharma and Sudhir Chawla,

this Court requested learned Senior Counsel for the

petitioners to ensure that petitioner no. 2 Sudhir Chawla

shall remain present before this Court so that he may

verify the fact –Whether he has signed the Vakalatnama or

not; or whether he has signed the Vakalatnama or

authorized Gopal Singh Bisht to file the Vakalatnama?

Learned Counsel appearing for the petitioners have their

apprehension that if they produce Sudhir Chawla before

this Court on 28.02.2018, it is the possibility that the

police may arrest him in connection with the impugned

FIR. This Court has in open words conveyed the message

to the police and assured the counsel for the petitioners

that the police will not arrest the petitioners and petitioner

no. 2 will be send with the Advocates at his desired place

after his production before this Court. The Circle Officer

was also present in the Court. He was asked not to take

any action or to arrest petitioner no. 2 Sudhir Chawla in

the court compound or when he has been called by the

Court. The Circle Officer has assured this Court that, in

case, Sudhir Chawla shall appear before this Court, they

will not arrest him, as he has been called by the Court. On

28.02.2018, Ms. Sonia Chawla, Advocate and Mr.

Pradeep Kant, learned Senior Counsel appearing for the

petitioners have made a statement that Sonia Chawla,

Advocate, has tried to contact petitioner no. 2 Sudhir

Chawla, but he could not be contacted as his mobile was

found switched off. The counsel claims that she was


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instructed to file writ petition by the petitioners, and

inability to produce petitioner no. 2, thus creates a doubt

on the conduct of petitioners’ counsel, as without any

authority or Power of Attorney executed by them in

favour of Gopal Singh Bisht, she has accepted the

Vakalatnama of Gopal Singh Bisht to file the writ petition

in the names of petitioners. It is also settled principle of

law that who seeks equity must come with equity. But the

petitioners have not come with clean hands and they are

avoiding the Court and despite the specific direction of the

Court, petitioner no. 2 did not appear before this Court

and the petitioners are absconding. Therefore, petitioners

are not entitled to any interim relief from this Court as

regards the prayer that during the investigation of case

they may not be arrested pursuant to FIR no. 0047 of

2018.

22. Gopal Singh Bisht, and who is instrumental in

filing forged Vakalatnama, and accepting the

Vakalatnama of Gopal Singh Bisht without there being

any Power of Attorney in his favour by Ms. Sonia

Chawla, Advocate needs to be investigated by the police.

Since Gopal Singh Bisht has filed the writ petition by

signing his own affidavit and also filed rejoinder affidavit

as well as Vakalatnama in his own name without any

authority of law, therefore, I have no hesitation in coming

to the conclusion that the signatures of Priya Sharma and

Sudhir Chawla and the signature of witness Dheer Singh

Bisht, on the Vakalatnama, have not been taken by Ms.

Sonia Chawla, Advocate, in her own presence and on


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forged signatures, Vakalatnama has been filed on behalf

of Priya Sharma and Sudhir Chawla. Thus, it appears that

signatures on Vakalatnama (Paper nos. 109 and 110) as

well as agreement dated 08.04.2016 are essentially

required for comparison. Therefore, Ms. Sonia Chawla,

Advocate and Gopal Singh Bisht, who has filed the writ

petition on behalf of petitioners Priya Sharma and Sudhir

Chawla, are hereby directed to produce the original copy

of the agreement dated 08.04.2016 on 08.03.2018 before

this Court so that the same may be compared through

Forensic Science Laboratory, Dehradun. Since, despite

the Court’s order, petitioner no. 2 Sudhir Chawla failed to

appear before the Court, so non-bailable warrant be issued

against him. Chief Judicial Magistrate, Rudrapur is

directed to ensure the compliance of non-bailable warrant

issued against Sudhir Chawla s/o Sri Surendra Chawla, r/o

Alliance Colony, Rudrapur, P.S. Rudrapur, District

Udham Singh Nagar, Uttarakhand and also to ensure his

presence before this Court on 08.03.2018. In case, Sonia

Chawla, Advocate and Gopal Singh Bisht are unable to

produce the original copy of agreement dated 08.04.2016,

the Registrar General of this Court shall lodge an FIR

against Sonia Chawla, Advocate and Gopal Singh Bisht,

who has filed the writ petition and committed fraud with

the Court in the name of Priya Sharma and Sudhir Chawla

without any Power of Attorney / agency. Since Ms. Sonia

Chawla, Advocate has accepted the Vakalatnama of

Gopal Singh Bisht without an authority and filed the writ

petition on his instructions, she cannot spare herself for

her participation in committing fraud with the Court.


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Therefore, the Registrar General of this Court is directed

to lodge the FIR against the culprits so that a fair

investigation be carried out in the matter by the police. It

is further directed that the Vakalatnama (paper nos. 109

and 110) shall be kept in a sealed cover, without keeping

photocopies of the same on record, as this Court has

apprehension that the culprits may try to fabricate the

forged signature.

23. In the above facts and circumstances of the case,

I am not inclined to grant any kind of protection to the

petitioners. Interim relief application is, accordingly,

dismissed.

24. List the matter on 08.03.2018, for further orders.

(Lok Pal Singh, J.) 28.02.2018

Rajni



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Documents

Interim Relief Application no. 1069 of 2018 In · as well as rejoinder affidavit were verified by Gopal Singh Bisht claiming them to be true to the best of his personal knowledge