Mapsore Advertising Agency vs Feedback Pvt. Ltd. And Ors.
2004 Latest Caselaw 314 Del

JUDGMENT

Dalveer Bhandari, J.

1.In the race of becoming No.1 newspaper in the country, all norms and expected ethical standards have been thrown to the winds. Unfortunately, fraud is the foundation of this litigation in which court's order has been obtained in a clandestine manner by suppression of material and vital facts from the court.

2.In view of the urgency the learned counsel for the parties have agreed that the matter be disposed of finally at this stage itself.

3.This appeal is directed against the order dated 19th December, 2003 passed by the learned Single Judge disposing of a writ petition filed by one Pravin Kumar Ujjain with the following observations and directions:-

1." With the consent of the parties, the matter is taken for final disposal straightway.

2.The grievance of the petitioner is that the respondent National Readership Survey Council brings out the report with regard to the readership of various publications each year. The report of 2003 is now ready and this fact is admitted by learned counsel appearing for the respondents 1 and 2. The learned counsel for the petitioner submits that the report which is released normally by the respondents 1 and 2 by September each year is done for the public at large. Because, it is on the basis of these reports that advertising agencies determine as to which magazines, journals or newspapers they should advertise so as to reach the maximum number of people. The grievance is that if the report is released in a pick and chose manner, i.e. if it is shown to some and not to other, then this might lead to discrimination. Learned counsel for respondents 1 and 2 submits that this is not the intention and this is not being done by them and they shall continue with the past practice of making it available to the general public at large. In this view of the matter, the only direction that needs to be given is that the respondents 1 and 2 are directed to release the NRS Report for 2003 within a week from today".

4.Briefly noted the facts and circumstances leading to the filing of the writ petition and the present appeal are that Pravin Kumar Ujjain claiming himself to be the Director of Feedback Communications Pvt. Ltd., an advertising company filed a writ petition against the Audit Bureau of Circulations Ltd. (in short to be referred to as `ABC') and the National Readership Survey Council (in short to be referred to as `NRSC') and others praying for a writ of mandamus/order or direction on the `ABC' and `NRSC' to release the NRS report for the year 2003, the release of which has been withheld by them since September, 2003, the normal date of release and publication of the said report. At the first date of hearing of the petition, the learned counsel appearing for `ABC' and `NRSC' held out before the learned Single Judge that NRS 2003 report was ready and they are willing to publish the same for the consumption of all concerned. Taking note of this position, the learned Single Judge passed the above order directing the `ABC' and `NRSC' to release the NRS report within one week from the date of the said order. Pursuant to the said direction, the NRS-2003 report was released on 20th December, 2003. M/s.Mapsore Advertising Agency, the appellant which was neither a party in the writ petition nor a subscriber to `NRSC' filed the present appeal assailing the impugned order of the Single Judge primarily on the ground that the `ABC' and `NRSC' obtained the impugned order in regard to the release of report of NRS 2003 by perpetrating fraud on the Court (learned Single Judge) and by suppressing the material fact about the pendency of a civil suit for permanent injunction against the release and publication of NRS 2003 in the Court of Civil Judge at Jaipur wherein the `ABC' and `NRSC' had given an undertaking not to release/publish NRS 2003. Besides, the order is also sought to be challenged on the ground that the civil writ petition for the relief claimed was not maintainable and there was no case for exercise of extraordinary jurisdiction vested in the Court under Article 226 of the Constitution of India.

5.On 22nd December, 2003, when the appeal came up for hearing and the Court was informed that the report has since been released to the subscribers, this Court passed the following order:-

"We direct that even if the report has been sent to the subscribers, respondents 2 & 3 will direct such subscribers not to publish or rely upon the report till further order of this Court."

6.Besides `ABC' and `NRSC' seeking vacation/modification of the aforesaid order, some other advertising agencies and Subscribing to NRS namely M/s.SRS Advertising and Marketing Pvt. Ltd. and M/s.Dewan Publications Pvt. Ltd. have also filed applications under Order I Rule 10 CPC and under Order XXXIX Rule 4 CPC seeking their impleadment and praying for vacation/modification of the said order dated 22nd December, 2003 passed by this Court.

7.We have heard Mr.Kapil Sibal, learned Senior Advocate representing the appellant, Mr.Sudhir Chandra and Mr.Parag Tripathi, learned Senior Advocates representing respondents 1 & 4, Mr.Harish N. Salve, learned Senior Advocate representing respondents 2 & 3, Mr.Dushyant Dave, learned Senior Advocate representing the applicant-M/s.SRS Advertising and Marketing Pvt. Ltd. in C.M.Nos.2307 & 2308/2003, Mr.Arun Kathpalia, learned counsel appearing on behalf of respondent No.5 and Mr.Shanti Bhushan, learned Senior Advocate representing the applicant M/s.Deewan Publications Pvt. Ltd in C.M.No. 100/2004 at length.

8.As the matter has been set down for final disposal, applications bearing C.M.Nos.2307/2003 & 100/2004 moved under Order I Rule 10 CPC on behalf of the advertising agencies seeking their impleadment, are hereby allowed and they are ordered to be imp leaded as respondents in this appeal and are allowed to make their submissions.

9.Mr. Kapil Sibal, learned Senior Advocate, appearing for the appellant submitted that the learned Single Judge failed to appreciate that the writ petition filed by respondent Nos. 1 to 4 herein was not maintainable as none of the parties against which the relief and direction have been sought is either a 'State" or an instrumentality of a State under Article 12 of the Constitution.

10.Mr.Sibal also submitted that the learned Single Judge has wrongly observed that NRS report for 2003 was ready for release as on that date, i.e. 19.12.2003, whereas, according to the appellant the Technical Committee of NRS has still not given its final approval for the report and the same cannot be released unless there was approval by the Technical Committee. Mr. Sibal further submitted that the learned Single Judge failed to appreciate that an unauthentic NRS report would have disastrous effect on the industry which would eventually result in the report being ignored by all concerned because of its lack of authenticity.

11.Mr. Sibal also urged that respondent Nos. 2 and 3 herein in an attempt to help respondent Nos. 1 and 4 herein (petitioners in writ petition) have not informed the learned Single Judge that they (respondent Nos. 2 and 3) have already given an undertaking before the Court of the Additional Civil Judge (Junior Division) and Judicial Magistrate (First Class), Jaipur City, Jaipur in Suit No. 462 of 2003 wherein they have undertaken not to publish NRS 2003 report. Mr. Sibal submitted that the same undertaking is still subsisting and any violation of such undertaking is disobedience and defiance of the order passed by the court of law. It is further submitted that had this fact been brought to the attention of the learned Single Judge there would have been no occasion to have passed the impugned order.

12.Mr. Sibal strenuously urged that the petitioners and the respondents in the writ petition have acted in connivance and collusion with each other whereby respondent Nos. 2 and 3 have virtually conceded the prayers in the writ petition even without filing a counter affidavit and without taking the obvious objection as to the maintainability of the writ petition. Mr. Sibal submitted that the learned Single Judge ought not to have entertained the writ petition and passed the impugned order as the entire writ petition is based on suppression of material facts and fraud.

13.Mr. Sibal also contended that respondent Nos. 2 and 3, who inspite of being aware of material facts have suppressed vital facts from the Court, including the pendency of the civil suit and the public interest litigation filed in the High Court of Rajasthan.

14.In S.P. Chengalvaraya Naidu (Dead) By LRs vs. Jagannath (Dead) By LRs & Ors ) the Court observed that "...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, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of litigation... A fraud is an act of deliberate deception with the design of securing 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".

15.In a well known case Chittaranjan Das vs. Durgapore Project Limited & Others (99 CWN 897) the Court observed that "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 are not required to be complied within such a situation. It is now well known that a fraud vitiates all solemn acts.

16.Reliance was also placed on a Division Bench judgment of this Court in Jeevan Kumar & Another vs. Union of India (2002 VII AD (Delhi) 100) wherein the Court held that those who seek equity must approach the Court with clean hands.

17.In Rajabhai Abdul Rehman Munshi vs. Vasudev Dhanjibhai Modi reported as , their Lordships of the Supreme Court observed that a party who approaches the Court knowing or having reason to believe that if the true facts were brought to its notice this Court would not grant special leave, and persuades this Court to grant leave to appeal is guilty of conduct, forfeiting all claims to the exercise of discretion in his favor, It is his duty to state facts which may reasonably have a bearing on the exercise of the discretionary powers of this Court. Any attempt to withhold material information would result in revocation of the order, obtained from this Court.

18.In Har Narain vs. Badri Das reported as , their Lordships of the Supreme Court observed that 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. The special leave granted by the Supreme Court in this case was revoked and the appeal was, without dealing with the merits of the case, dismissed.

19.In Asiatic Engineering Co. vs. Achhru Ram (Full Bench), the Court observed that no relief can be granted in a writ petition which is based on misstatement or suppression of material facts.

20.Similar principles have been enunciated in English cases. The King vs. Williams (1914) 1 KB 608 and Rex vs. Kensington Income Tax Commissioners (1917) 1 KB 486, which were considered with approval by the Supreme Court in number of judgments. Their Lordships of the Supreme Court also relied on these cases.

21.In Udai Chand vs. Shankar Lal & Ors the court revoked the special leave petition and vacated the stay order. The court while following the ratio of the aforementioned cases observed that the Supreme Court would be justified in revoking the leave to appeal if the same was obtained by making mis-statement of a material fact. Special leave already granted was revoked and consequently appeal was dismissed. This principle has been consistently followed in a number of other cases by various courts.

22.Mr.Sibbal placed reliance on M/s New India Steel Industries vs. V.D.Steel Industries and Anr. reported as . The court observed:

" After hearing counsel for the parties we allow CMP 6495 of 1980 for the revocation of special leave petition granted as per this court's order dated December 12, 1979. There are two facts which stand out. Firstly, the appellant had made a misstatement of material fact that the proclamation of sale did not contain any note that the property was being sold subject to the mortgage charge of Rs.1,65,000/-. In fact such a note does exist. Secondly, he misconducted himself inasmuch as he published a public notice captioned as "Court Notice" on April 12, 1980, as if that notice was being published under the orders of this court. For these two reasons we revoke the special leave petition granted earlier and dismiss the appeal arising out of that SLP. The stay already granted automatically stands vacated."

23.On the overall conduct of the parties Mr. Sibal placed reliance on the Supreme Court judgment in Ram Chandra Singh vs. Savitri Devi (2003 (8) Scale 505). In this case very important principle of law has been crystallised and the Apex Court observed that the fraud, as is well known, vitiates every solemn act. Fraud and justice never dwell together.

24.This court in Dr.Manmohan Singh Dhaliwal vs. Gurbax Singh Arora & Ors. reported as observed that the main function of the court is to administer justice. Judgment or order procured by playing fraud upon the court cannot be rammed down the throat of the aggrieved party. Justice and fraud are aliens to each other. Fraud pollutes the sanctity and solemnity of the judicial proceedings. This is why courts have inherent powers to recall or set aside such a judgment or the order.

25.In Indian Bank vs. Satyam Fibres (India) Pvt Ltd the Court 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 practicing 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." The Court further observed that "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 behavior. This power is necessary for the orderly administration of the Court's business."

26.Reliance has also been placed by Mr. Sibal on Babulal Parekh vs. M/s Lachminarayan Swalram and others wherein the Court held that "A violation of an undertaking given to the Court is punishable in contempt. It is well settled that proceedings in contempt are quasi-criminal in nature, and the order punishing the contemners, generally speaking, should be treated as orders in criminal cases. The undertaking therefore must be very strictly construed and the Court must record a clear finding that the undertaking has been violated.'

27.Reliance has also been placed on Noorali Babul Thanewala vs. K.M.M. Shetty and Others (1989) Supp. 2 SCR 561) wherein the Court held that "The breach of an undertaking given to the Court by or on behalf of a party to a civil proceeding is,therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction.

28.Mr. Sibal submitted that the order which the respondents herein have obtained by filing a collusive writ petition before this Court must be nullified. The Court have long arms to pass appropriate orders. In support of his contention, he has placed reliance on the judgment of the Supreme Court in Grindlays Bank Limited vs. Income Tax Officer, Calcutta and Others ). In para 7 of this judgment the Court observed that "... The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it."

29.Reliance has also been placed on another judgment of the Supreme Court Bank of Baroda vs. R.M. Patwa & another ) wherein the Court observed that no party should be allowed to take advantage of its own wrong.

30.Mr. Sibal submitted that a party which has received unjust and undeserved or unfair advantage by the order of the Court must be neutralised and he invoked the principle of restitution. In support of his contention he placed reliance on the Apex Court's judgment in Kavita Trehan (Mrs) and Another vs. Balsara Hygiene Products Ltd .

31.Mr. Sibal placed reliance on Halsbury's Laws of England, 4th Edn, page 434 which reads as under:-

"Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution.

For historical reasons, quasi-contract has traditionally been treated as part of, or together with, the law of contract. Yet independently, equity has also developed principles which are aimed at providing a remedy for unjustifiable enrichment. It may be that today these two strands are in the process of being woven into a single topic in the law, which may be termed 'restitution' "

32.In regard to law of restoration of loss or damage caused pursuant to judicial orders, the Privy Council in Alexander Rodger Charles Carnie vs. Comptoir D'Escompte De Paris (1871) LR 3 PC 465, 475) held that "..one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case."

33.In another leading case Jai Berham vs. Kedar Nath Marwari (AIR 1922 PC 269, 271), the Court held that "It is the duty of the Court under Section 144 of the Civil Procedure Code to 'place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved."

34.In another celebrated case Binayak Swain vs. Ramesh Chandra Panigrahi ,27) the Apex Court observed that "The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. The obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from."

35.Reliance has been placed on Gangadhar vs. Raghubar Dayal ( (FB) and State Govt of A.P vs. Manickchand Jeevraj & Co. wherein the Court observed that the jurisdiction to make restitution is inherent in every Court and would be exercised whenever the justice of the case demands. It will be exercised under the inherent powers.

36.In Lazarus Estate vs. Berly (1956) 1 All ER 341) the Court of Appeal stated that "no Court in this land will allow a person to keep an advantage which he has obtained by fraud."

37.Attention of the Court was also drawn to the Apex Court judgment in Ram Krishna Verma & Others vs. State of Uttar Pradesh & Others ). In this case the Court followed the aforementioned judgment of Grindlays Bank (supra) and observed that under Article 142(1) of the Constitution the Apex Court while exercising its jurisdiction would do complete justice and neutralise the unfair advantage gained by any one in dragging the litigation.

38.Mr.Kapil Sibal, learned senior counsel appearing for the appellant, placed reliance on B.C.Chaturvedi vs. Union of India & Ors. reported as . In this the court mentioned that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice, and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material, according to me. This may be illustrated by pointing out that despite there being no power provision in the Constitution parallel to Article 137 conferring power of review on the High Court, this Court held as early as 1961 in Shivdeo Singh vs. State of Punjab that the High Courts too can exercise power of review, which inheres in every court of plenary jurisdiction. I would say that power to do complete justice also inheres in every court, not to speak of a court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which the Supreme Court has under Article 142.

39.Mr. Sibal also contended that the parties who indulged in forum shopping have to be discouraged and are entitled to no relief under the extraordinary jurisdiction of the Court. He placed reliance on Agricultural & Processed Food Products vs. Oswal Agro Furane & Ors ). In this case the Court held that because of the conduct of the party the High Court ought not to have entertained the writ petition because Oswal Agro had filed an earlier writ petition in the Punjab and Haryana High Court dealing with the same issue,namely, its obligation and right to export its products under the license and in terms of the Export (Control) Order. The Apex Court observed that "It is possible that the Delhi High Court may not be aware of the pendency of the writ petition in the Punjab and Haryana High Court, regarding the export of edible rice bran oil, because there is no reference to the filing of the said case in the writ petition filed in the Delhi High Court. Oswal Agro is guilty of suppression of this very important fact and is not entitled to any relief." In the instant case the writ petitioners, respondents herein, deliberately suppressed the material fact of pendency of the civil suit and the public interest litigation in the Rajasthan High Court dealing with the same issues and obtained a collusive order from this Court and are certainly not entitled to any relief under the extraordinary jurisdiction of the Court.

40.Mr.Harish N.Salve, learned Senior Advocate representing the `ABC' and `NRSC', respondents 2 & 3 in this appeal has strenuously urged that the impugned order cannot be faultered on any count much less on the allegation that the same is a result of any fraud or suppression of facts in regard to the pendency of a civil suit before a Civil Court in Jaipur. It is not disputed that a Civil Suit for permanent injunction by M/s.Mapsore Advertising Agency, the present appellant, against a local Hindi newspaper of Rajasthan `Rashtradoot' and others was filed in the Court of Civil Judge, Jaipur sometimes on or around 11th November, 2003 seeking a restraint order against `ABC' and `NRSC' from releasing/publishing the NRS 2003 report on the premises mentioned in the said suit. It would appear that the said suit came up for hearing on 11th November, 2003 when the Court issued notice to the defendants for 19th November, 2003. When the matter came up before the Civil Court on 19th November, 2003, counsel for `ABC' and `NRSC' sought time for filing reply to the application for grant of temporary injunction and the Court granted time uptil 6th December, 2003 for filing reply to the application and written statement. It is pertinent to note that the counsel appearing for respondents 1 & 2 gave an undertaking before the Court to maintain status quo till the next date of hearing. An application under order I Rule 10 CPC was also moved on behalf of Bennett Coleman and Co. India Ltd. for their impleadment as a defendant in the said suit. On 6th December, 2003, reply to the injunction application was filed. Besides, another application of even date was filed on behalf of the defendants `ABC' and `NRSC' seeking discharge of their undertaking but it was not pressed by the counsel and rather the counsel agreed to abide by their undertaking as given earlier uptill the next date e.g. 8th December, 2003. The matter was adjourned to 8th December, 2003 when again a similar application was moved on behalf of `ABC' and `NRSC' for discharge of their undertaking and the Court passed the following order:-

"Present counsel for the parties. Counsel for the M/s.Hindustan Times Limited has filed an application under Order I Rule 10 and has supplied a copy to the counsel for the plaintiff. Counsel for the defendant Nos. 2 and 3 have again filed an application for discharge of their undertaking and have also refused to provide the copy of the said application to the counsel for the plaintiff. It has been argued on behalf of the Plaintiff that without having a copy of the application he cannot file a reply to the same and have also submitted that without giving a copy of the same the matter on this application cannot be argued. The time is 5.20 so the matter cannot be further argued and is part heard. List the matter for further argument on 11.12.2003."

41.The matter was adjourned to 11th December, 2003,17th December, 2003 and 18th December, 2003 and the following orders came to be passed by the learned Single Judge on those dates:-

"11.12.2003

Counsel for the parties present. Counsel for the parties seek further time for argument on the point whether the plaintiff should be given or not given a copy of the application for discharge filed on 8.12.2003 by the counsel for the defendant nos.2 and 3. List the application on 17.12.2003. Post of P.O. Is vacant."

"17.12.2003

Present counsel for the parties.

Counsel for the parties state that the matter for transfer of the present case is pending disposal before the learned District Judge. It would be up to judicial proprietary to await the outcome of the said proceedings. Put the case on 18.12.2003 for waiting the order."

"18.12.2003

Present counsel for the parties.

Counsel for Bennett Coleman and Company and Hindustan Times registered their objection for not filing reply by the plaintiff to the application of Order I Rule 10. The application of the Defendant Nos.2 and 3 filed on 8.12.2003 is still pending for arguments. But the Transfer Application before the District and Sessions Judge, Jaipur city, Jaipur is still pending and the parties have disclosed that the date has been fixed by the District and Sessions Judge, Jaipur City, Jaipur. List the matter on 3.1.2004 for awaiting order of District Judge."

42.Mr.Salve, learned Senior Counsel representing respondents 2 & 3 has emphatically urged that the undertaking given on behalf of `ABC' and `NRSC' on 19th November, 2003 was valid and effective until the next date of hearing, i.e. 6th December, 2003 or latest uptil 8th December, 2003 and not thereafter as a specific request was made on their behalf that the said undertaking will not hold good after the said date of hearing but still the Court did not pass any injunction or any other order and, therefore, there was neither any undertaking nor any restraint order invoked between 18th December, 2003 and 19th December, 2003, the date of passing of the impugned order and, therefore, it cannot be said that the impugned order was passed by suppressing any material fact much less by perpetrating any fraud on the Court.

43.Mr.Salve in support of his contention that the undertaking given by ``ABC'' and ``NRSC'' has come to an end on 8th December, 2003 and there was no subsisting undertaking or restraint order operating against them after the said date, has heavily relied upon a Supreme Court decision in the case of Babu Ram Gupta vs. Sudhir Bhasin and Another, . On the facts and circumstances of the said case, the Court was concerned whether the appellant had committed a breach of the undertaking given to the Court and committed a civil contempt within the meaning of Section 2(b) of the Contempt of Courts Act. The Court held that any person appearing before the Court can give an undertaking in two ways : (1) that he files an application or an affidavit clearly setting out the undertaking given by him to the Court, or (2) by a clear and express oral undertaking given by the contemner and incorporated by the Court in its order. It was further held that if any of these conditions are satisfied, then a willful breach of the undertaking would clearly amount to an offence under the Contempt of Courts Act. In the said case, a consent order had been passed on the basis of various undertakings given by the appellant-contemner but the Court found that there was no material on record which contains such undertakings. The Apex Court held that the High Court fell in error of law by construing the consent order itself and the directions contained therein as an implied undertaking given by the appellant. Referring to the decision in the case of Bhatnagar & Co. Ltd. vs. Union of India, 1957 SCR 701, the Court held that even if there was an undertaking given by the counsel on behalf of his client, the undertaking should be carefully construed to find out the extent and nature of the undertaking actually given by the person concerned. Further, it is not open to the Court to assume an implied undertaking when there is none on record.

44.Mr.Salve has then urged that de hors the impugned order, the `NRSC' and ``ABC'' were within their rights to release the NRS report 2003 to its subscribers who were entitled to know the report, else their right to know under Article 19(2) of the Constitution would have been prejudicially affected. In any case, his submission is that the NRS 2003 report having been released and published on 20th December, 2003 itself, there is nothing which can be done now and even if the appeal is allowed and the impugned order is set aside, the matter has to be adjudicated upon by Civil Court at Jaipur and the appellant cannot claim and are not entitled to any interim protection from this Court by way of restitution once the report has been published. Our attention has also been invited to two civil suits one filed by Hindustan Times Media Limited and the other by India Today on the original side of this Court where certain interim protection has been granted to the plaintiffs as also in a writ petition filed in the High Court of Assam at Guwahati.

45.Mr.Shanti Bhushan, learned senior counsel appearing for Diwan Publication, placed reliance on N.Rathinasabapathy & Ors. vs. K.S.Palaniappa Kandar & Ors. reported as . In this case the High Court of Madras granted interim injunction restraining the appellant from carrying out construction for a period of three weeks. The appellant did not construct for a period of three weeks and carried out construction only after expiry of three weeks. The High Court found the appellant guilty of contempt of court and observed that there was gross violation of the spirit and intention of the oder culminating in the commission of contempt of court by the respondents. The Supreme Court while setting aside the order of the High Court observed that we find it difficult to comprehend how the blame could be laid at the doors of the appellants. There is no doubt that the operation of the injunction was limited to three weeks. It is nobody's case that it was extended thereafter. The appellants showed respect to the order of the court by stopping the construction as soon as the injunction order was received. After the expiry of three weeks when they did not receive any order continuing the injunction, they proceeded with the construction. The contempt application was dismissed.

46.Reliance has also been made by the contesting respondent on another Supreme Court judgment in Tata Press Ltd. vs. Mahanagar Telephone Nigam Ltd. & Ors. reported as . In the case the court observed that commercial advertisement which is a form of commercial speech is protected under Article 19(1)(a) and cannot be denied.

47.Reliance has been placed on Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. vs. V.R.Rudani & Ors. reported as . The court observed:-

" The term "authority" used in Article 226, in the context must receive a liberal meaning unlike a the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the state. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied."

48.Reliance has also been placed on Reliance PetroChemicals Ltd. vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. & Ors. reported as . This case was cited for the proposition that right to know is a basic right which citizen of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of the Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take up the responsibility to inform.

49.Mr.Shanti Bhushan supporting Mr.Salve's contention further argued that the reading of the application dated 8th December, 2003 moved by ``NRSC'' and ``ABC'' should not leave any doubt that there was a clear intention on their part to terminate the earlier undertaking on that day and the application was simply moved to make the Court record straight so that the learned Court could proceed with the matter de horse the undertaking. Despite this position, the Court did not pass any injunction order and merely adjourned the matter to a future date for resolving the controversy as to whether the plaintiff and Hindustan Times and Times of India were entitled to a copy of the application or not. The posting of the case for subsequent hearings after the undertaking had lapsed by efflux of time, will not alter the position and by no stretch it can be said that any valid undertaking subsisted after 8th December, 2003.

50.In any case, it was argued that it is for the Civil Court of Jaipur to rule on this question as to whether an undertaking given on behalf of ``ABC'' and ``NRSC'' subsisted after 8th December, 2003. If any proceedings for contempt are initiated against them for any alleged violation of any such undertaking, then this Court should not record any firm finding on this question. Mr.Kapil Sibal, learned senior counsel appearing for the appellant has fairly conceded to this legal position but he has vehemently urged that this Court has to look into the proceedings pending before the Civil Court at Jaipur in order to see the conduct of the writ petitioner and ``NRSC'' and ``ABC'' before the learned Single Judge. We are in perfect agreement with the learned counsel for the parties that it would not be appropriate for this Court to return a firm finding on this question because the matter is still sub-judice before the learned Civil Judge. However, for appreciating the circumstances in which the writ petition was filed and the impugned order (consent order) came to be passed, we have per force to look into the basic facts and circumstances including the proceedings in the Civil Suit pending before the Civil Judge starting from 11th November, 2003 uptil December, 2003. It may be noted that besides the civil suit filed in the Civil Court at Jaipur, a writ petition in Public Interest Litigation was filed before the Rajasthan High Court at Jaipur Bench, however, without any success. It is apparent that the present civil writ petition is a replica of the PIL petition inasmuch as even certain consequential changes which were required to be made in the present petition in view of the number of respondents, had not been carried out. The following chart which clearly illustrates the verbatim copies of the public interest litigation:-

Writ Petition before Delhi High Court PIL Writ Petition before Rajasthan High Court Para 8 Para 5 Para 3 Para 4 Para 5 Para 3 Para 14 Para 7/Ground B Para 15 Para 11/Ground C Para 16 Ground D Para 17 Ground E Para 18 Para 4 Para 19 Para 8

Therefore, not even remotely it can be suggested that the writ petitioner was ignorant about the proceedings in Jaipur and Public Interest Litigation pending in Rajasthan High Court.

51.Admittedly, at the time of disposal of the civil writ petition, ``NRSC'' and ``ABC'' did not make a whisper about the pendency of the civil suit in Jaipur Civil Court and the undertakings given by them nor about the PIL petition filed in the Rajasthan High Court at Jaipur. We are not prepared to believe that the petitioner of the writ petition who was fighting a proxy war by means of repeated attempts, was not aware of the earlier proceedings before the Civil Court and High Court at Jaipur. The ``NRSC'' and ``ABC'' also concealed this material fact which lead to the only conclusion that the filing of the writ petition was a result of clear collusion between the petitioners and the respondents and the impugned order which is indeed a consent order came to be passed as a result of said collusion, mis-representation and suppression of material facts. According to the writ petitioner undertaking given to the Court was subsisting otherwise there was no need or occasion to have filed a writ petition before this Court because had there been no subsisting undertaking by ``ABC'' and ``NRSC'' and if they did not deem them to be under any order of restraint from releasing the NRS 2003, they would not have waited to release the report between 9th and 19th December, 2003. It appears to us that the collusive writ petition was filed and the impugned order was obtained with the sole object of having the backing of a Court order for the purpose of release of NRS 2003. We are reasonably certain that had the factual position in regard to the pendency of a civil suit at Jaipur Civil Court and the undertakings given by ``NRSC'' and ``ABC'' and about the PIL petition, had been brought to the notice of the learned Single Judge, the impugned order could not have been passed. We are, therefore, of the considered opinion that the impugned order is infact a result of fraud and mis-representation perpetrated by the parties of the writ petition on the Court.

52.Mr.Shanti Bhushan, learned senior counsel for Dewan Publications has urged with vehemence that the interim order dated 22nd December, 2003 is a nullity and without jurisdiction as having been passed by the Court in exercise of its jurisdiction inasmuch as the interim order does not only affect the rights of the `NRSC' and `ABC' to release and publish the report to its subscribers but also directs the subscribers not to rely upon and give effect to the contents of NRS 2003. He further vehemently urged that the subscribers to NRS have a fundamental right to equip themselves with the latest NRS report as it vitally affect their interest and the advertising agencies like the appellant and M/s.Feedback Communications Pvt. Ltd. who are not even the subscribers to NRS, have no locus standi to invoke the jurisdiction of this Court for not releasing the NRS 2003.

53.Mr. Bhushan has referred to the celebrated judgment of the Supreme Court in the case of A.R.Antulay vs. R.S.Nayak and Another, . He sought to strongly condemn the conduct of the appellant as fraudulent by filing a frivolous suit at Jaipur Court and then filing an appeal against the impugned order on wholly untenable premises. We are consciously refraining ourselves from commenting about the pending litigation in the Civil Court at Jaipur, Rajasthan. It is abundantly clear that this is a proxy war being fought by two giant business houses publishing two English national dailies namely Hindustan Times and Times of India and who consider themselves close competitors of each other. The advertising agencies like the appellant and M/s.Feedback Communications Pvt. Ltd. etc. are nothing but surrogated litigants, the real parents being different. It is no wonder that these two giants had tried to influence the NRS in bringing out the NRS report 2003 and one or the other succeeded in that attempt. As noticed above, the conduct of the `NRSC', `ABC' and the petitioner of the writ petition was not above board and at the same time the conduct of the present appellant in seeking the non-release of NRS report 2003 is also not very commendable either. The NRS conducts readership survey for subscribers. Once such survey report has been prepared, can the subscriber be deprived from knowing its contents is the main question which falls for consideration in this case.

54.Mr. Bhushan submitted that the subscribers of course can use its data for the advancement of their business activities and other pursuits. It is, however, for the subscribers and others to depend upon its credibility or otherwise. If some wrong data and information is contained in such a report, the aggrieved party may not place reliance on it or have his appropriate legal remedy. Now, NRS 2003 having been published on the strength of an order which we are of the considered opinion is a clear result of fraud and collusion, this Court is again left to decide the question as to what type of protection, if any, is available to the appellant and can be granted to it. Learned counsel for other parties have adopted the submissions of Mr.Harish N.Salve and Mr.Shanti Bhushan, Senior Advocates.

55.After hearing learned counsel for the parties and carefully examining the pleadings, documents and the settled legal position, the following conclusions are irresistible:-

(i)The writ petition filed before the learned Single Judge was a collusive petition and the order obtained from the Court was by suppressing material facts from the Court.

(ii)The writ petitioners have abused the process of Court and obtained an order by practicing fraud on the Court.

56.In this case we are in a great dilemma how to neutralize the undeserved and unfair advantage gained by the writ petitioners particularly when we visualize wide ramifications and the consequences of the reversal of the order passed by the learned Single Judge.

57.Unfortunately in the instant case order has not been obtained by any subscriber or a group of subscribers, who have funded the Survey NRS 2003. In our considered opinion, other than the subscribers no one had the right to approach the Court for obtaining any order pertaining to NRS 2003. In the instant case Survey NRS 2003 was under an obligation to publish survey reports after the survey was concluded. Reversal of the order of the learned Single Judge would directly affect the rights and interests of the subscribers. In the process of the neutralizing the undeserved advantage of the writ petitioner, we would not like to harm the interest and violate the rights of the subscribers of the said survey.

58.It may be pertinent to observe that immediately after the order of the learned Single Judge dated 19.12.2003 the survey report was published on 20.12.2003. Any order after publication of the said survey is virtually of no consequence and in the true sense not capable of compliance.

59.On consideration of the totality of the facts and circumstances of this case, we do not deem it appropriate to disturb the order of the learned Single Judge.

60.The order of the Division Bench dated 23rd December,2003 was also passed without hearing any of the subscribers. The subscribers who had sponsored the survey can't be prevented from getting the result of the survey published. NRS 2003 was otherwise also under a contractual obligation to publish the survey report. In our considered view, neither the writ petitioner nor the appellant herein were justified in approaching the Court and obtaining order without impleading the subscribers as party to the litigation. The order which seriously affects the interests of the subscribers of survey ought not to have been passed without giving them an opportunity of hearing. Apart from the fact that once the Survey 2003 has been published, it is not practicable to give an order to direct such subscribers not to publish or rely upon the report. Therefore, on consideration of the totality of the facts and circumstances, in the interest of justice, we deem it appropriate to vacate the interim order granted by this Court on 23rd December,2003 and we order accordingly.

61.Though in the peculiar facts and circumstances of this case we are compelled to vacate the order of 23rd December,2003 passed by the Division Bench, but we cannot help strongly condemning the conduct of the writ petitioner for abusing the process of the Court in this litigation by obtaining the order from the court by suppressing vital and material facts from the Court. For this reprehensible conduct of the writ petitioner (Pravin Kumar Ujjain), irrespective of the result of this appeal, we direct the writ petitioner to pay exemplary costs of Rs.50,000/-, to be paid to the Prime Minister's Relief Fund within two weeks from today. The receipt of the same shall be filed with the Registrar General of this Court immediately thereafter.

62.We have refrained from making observations pertaining to the undertaking given by the parties before the Jaipur Court. We hope and trust that the concerned Court in Jaipur would decide the case without being influenced by any observation made either by the learned Single Judge or by this Court.

63.It is unfortunate that members of the noble legal profession are party to obtaining orders from the Court by suppressing material facts. It calls for serious introspection. Litigation of this kind shakes the confidence of all concerns in the entire judicial process and the administration of justice. Such unfortunate instances put a big question mark on the credibility of the entire institution.

64.Before we part with this case, we also strongly condemn the writ petitioner in indulging in forum shopping. This tendency must be effectively curbed. Otherwise this tendency has the potentiality of polluting the entire administration of justice.

65.This appeal is accordingly disposed of. No orders as to costs.