Bombay High Court
Sayyad Gazanfaruddin Sayyad ... vs Sayyad Kausar Sayyad Pasha Mazhar ... on 9 August, 2024
2024:BHC-AUG:18327
IN THE JUDICATURE OF HIGH COURT AT BOMBAY
BENCH AT AURANGABAD
943 CIVIL APPLICATION NO. 3482 OF 2024
IN WP/244/2024
Sayyad Gazanfaruddin Sayyad Habibuddin (as Per Writ Petition) Sayyed
Gajanfaroddin Sayyed
VERSUS
Sayyad Kausar Sayyad Pasha Mazhar Jahagirdar And Ors
...
Advocate for Applicant : Mr. Abhay G. Deshmukh (Mogarekar)
Advocate for Respondents No.2,3,4 : Mr. B. R. Rathod
Advocate for Respondent No.5 WP : Mr. S. N. Patne
Advocate for Petitioner in WP : Mr. P. B. Rakhunde
...
WITH
WRIT PETITION NO. 244 OF 2024
WITH
WRIT PETITION NO. 9167 OF 2023
WITH
CIVIL APPLICATION NO. 8172 OF 2024
IN WP/9167/2023
WITH
CIVIL APPLICATION NO. 8171 OF 2024
IN WP/244/2024
....
CORAM : ARUN R. PEDNEKER, J.
Dated : August 09, 2024
ORDER :
-
1. Heard learned Counsel for both sides.
2. In the instant case execution proceedings are filed in terms of the
compromise decree passed in Special Civil Suit No.06/2015, dated
06/03/2019. In the execution proceedings, the objections were raised by
the Judgment Debtor No.1 and 3. The objections raised were rejected by
943 CA 3482-2024
the Executing court holding that the Record shows that during the
pendency of the suit, compromise took place between the parties, and
in the compromise, there is an admission that the plaintiffs are owners
and possessors of the suit property and the plaintiffs by way of sale
deed sold the suit property to defendants No.1 to 4, and accordingly
possession was handed over to the defendants. Thereafter, defendants
No.1 to 4 by registered sale deed sold the said property to defendants
No.5 to 66, and handed over the possession as the compromise took
place between the plaintiffs No.1 to 4 and defendants. Plaintiffs had
withdrawn the suit against defendants No.5 to 66 unconditionally. In
the compromise, the defendants No.1 to 3 had agreed to pay
consideration of Rs.1,33,00,000/- to the plaintiffs and out of
consideration Rs.1,33,00,000/-, the Decree Holders have received
Rs.1,03,00,000/- lakh from the Judgment Debtors No.1 to 3, and an
amount of Rs.30,00,000/- is due from the Judgment Debtor. As such, an
execution petition is filed for the recovery of the balance amount.
3. Cheques issued towards the payment are also returned back to
the Judgment Debtor. In view of the same, the objection raised by the
Judgment Debtor was rejected by the Executing Court dated
29/03/2023. Against the dismissal of the objections of the Judgment
Debtor, writ petition is filed in this Court bearing Writ Petition
943 CA 3482-2024
No.9167/2023, and this Court by order dated 28/07/2023 issued notice
to the respondent, however no interim relief was not granted by this
Court even on subsequent dates. Thereafter, the Executing Court in the
same execution proceedings passed a consequential order dated
11/12/2023 directing as under : -
"ekSts uGnqxZ] rk- rqGtkiwj] ft- mLekukckn ;sFkhy uxj ifj"kn gn~nhrhy
tquk ?kj dz- 726 o 1025 o uohj ?kj dz- 859 lnj tkxsps nksu Hkkx
vlwu Hkkx dz-1 ;kph ykach iwoZ&if'pe 58 QqV o #anh nf{k.kksRrj 33 QqV
vlwu R;kps ,dw.k {ks=QG 177-88 pkS-eh- vkgs- Hkkx dz-2 ;kph ykach
nf{k.kksRrj 19 QqV o #anh iwoZ&if'pe 15-50 QqV vlwu R;kps {ks= 27-46
pkS-eh- vkgs- ;k nksUgh Hkkxkps ,dw.k {ks= 205-34 pkS-eh- vlwu lnj
tkxse/;s 50 pkS-eh- ps pkSnhokjh nxM ekrhps tqus cka/kdke vlwu moZjhr
155-34 pkS-eh- tkxk [kqyh tIr dj.;kr ;srs- "
4. The Executing Court directed that the Judgment Debtors House
No.859 be attached. Against which a writ Petition No.244/2024 is filed
in this Court in which the petitioners contended that they have paid
substantial amount and that the Rs.30,00,000/- balance amount would
be payable and that the Decree Holder is entitled to receive 10%
interest per annum for the outstanding amount.
943 CA 3482-2024
5. It is contended by the petitioner in Writ Petition No.244/2024 that
since they had paid substantial amount, the allotted property should not
be sold and that they would make the payment of balance amount
within certain time. To show their bona fides, they had also deposit
Rs.5 lakh as mentioned in terms of the order dated 15/01/2024. In the
present petition the respondents appeared and have pointed out that in
the earlier writ petition filed before this Court bearing Writ Petition
No.9167/2023, the order rejecting the Judgment Debtors objections is
challenged. However, in the present Writ Petition No.244/2024 there is
no mention as regards the order passed and in the Writ Petition
No.9167/2023. The Writ Petition No.9167/2023 this Court has similicitor
issued notice and the matter is pending adjudication. The order
challenged in the present Writ Petition No.244/2024 after rejection of
the objection filed by the Judgment Debtors is a challenge to
consequential order. In absence of any information being provided of
earlier Writ Petition No.9167/2023, in the present Writ Petition
No.244/2024 amounts to suppression of material fact and an order is
obtained from this Court without disclosing the earlier pending Writ
Petition No.9167/2023. The Writ Petition No.244/2024 challenges a
consequent order passed after the rejection of objection of the
petitioner. Every consequential order cannot give rise a fresh cause to
943 CA 3482-2024
file independent proceedings.
6. On the aspect of suppression of material fact, the Hon'ble
Supreme Court, in case of M/s S.J.S. Business Enterprises (P) Ltd.
vs. State of Bihar and Ors., reported in AIR 2004 Supreme
Court 2421, has held as follows : -
"As a general rule, suppression of a material fact by a
litigant disqualifies such litigant from obtaining any relief.
This rule has been evolved out of the need of the Courts to
deter a litigant from abusing the process of Court by
deceiving it. But the suppressed fact must be a material
one in the sense that had it not been suppressed it would
have had an effect on the merits of the case. It must be a
matter which was material for the consideration of the
Court, whatever view the Court may have taken."
7. In the case before the Hon'ble Supreme Court in the case of
M/s S. J. S. Business Enterprises (Supra) , the appellant had
pursued remedy an alternative forum and also filed a writ petition.
However, the suit was withdrawn, and the appellant chose to seek
943 CA 3482-2024
remedy under Article 226 of the Constitution of India. In this context,
the Court held that there was no suppression of facts, and the case had
no merits.
8. In the present case, the petitioner filed another writ petition
challenging the rejection of objection to the execution proceedings,
which is currently pending before this Court without any interim relief.
The petitioner challenged a subsequent order without disclosing the
pendency of the first petition while obtaining an interim stay. This
constitutes suppression of a material fact. If the Court had known about
the earlier petition, it might have directed the petitioner to file an
appropriate application in that petition or would have tagged the
present petition with the earlier one, without granting any interim relief.
9. In case of Arunima Baruah vs. Union of India and Ors.,
reported in 2007 (6) SCC 120, the Hon'ble Supreme Court has held
as follows : -
"Ubi jus ibi remedium is a well known concept. The court
while refusing to grant a relief to a person who comes with
a genuine grievance in an arguable case should be given a
hearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In this
case, however, the appellant had suppressed a material
fact. It is evident that the writ petition was filed only when
no order of interim injunction was passed. It was obligatory
on the part of the appellant to disclose the said fact."
943 CA 3482-2024
10. So also, the Hon'ble Supreme Court in case of M/s Prestige
Lights Ltd. vs. State Bank of India, reported in 2007 (8) SCC
447, held as follows in paragraph 34 : -
"34. It is well settled that a prerogative remedy is not a
matter of course. In exercising extraordinary power,
therefore, a Writ Court will indeed bear in mind the conduct
of the party who is invoking such jurisdiction. If the
applicant does not disclose full facts or suppresses relevant
materials or is otherwise guilty of misleading the Court, the
Court may dismiss the action without adjudicating the
matter. The rule has been evolved in larger public interest
to deter unscrupulous litigants from abusing the process of
Court by deceiving it. The very basis of the writ jurisdiction
rests in disclosure of true, complete and correct facts. If the
material facts are not candidly stated or are suppressed or
are distorted, the very functioning of the writ courts would
become impossible."
11. Considering the law laid down in the above Judgments and in view
of the suppression of material fact of the earlier writ petition being
pending in this Court without any interim relief and interim order being
obtained in the subsequent writ petition without disclosing the earlier
writ petition, both the writ petitions become liable for dismissal. In view
of the same, the writ petitions stand dismissed. Pending Civil
943 CA 3482-2024
Applications stand disposed of.
12. Amount deposited in this Court stands transmitted to the
Executing Court.
( ARUN R. PEDNEKER, J. )
vj gawade/-.
