Ashok Kriplani vs Dr.Jethanand Jethwani & Anr.
2013 Latest Caselaw 4261 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               DECIDED ON : 18th SEPTEMBER, 2013

+                 CRL.A.955/2012 & CRL.M.A. 14166/2012

       ASHOK KRIPLANI                               ..... Appellant
                            Through :   Appellant in person.

                    versus
       DR.JETHANAND JETHWANI & ANR. ..... Respondents

Through : Mr.M.N.Dudeja, Amicus Curiae.

CORAM:

HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

CRL.M.A. 14166/2012 (delay)

Heard. For the reasons mentioned in the application delay in filing

the appeal is condoned.

The application for condonation of delay is disposed of.

CRL.A.955/2012

1. The appellant (Ashok Kriplani, Advocate) has preferred the appeal

to challenge an order dated 04.02.2012 by which application under

Section 340/190 Cr.P.C. against the respondents was dismissed. I have

heard the appellant (in person) and Mr.M.N.Dudeja, Advocate/ amicus

curiae.

2. The appellant seeks enquiry under Section 340 Cr.P.C. as

respondent No.1 (Dr.Jethanand Jethwani) has taken a false plea that there

was a 'family settlement' among the parties and it was acted upon.

Allegations against respondent No.2 (A.K.Mishra, Advocate) are that he

filed application under Order 7 Rule 11 C.P.C. on behalf of the

respon0dent No.1 without verifying the facts. It is further alleged that he

furnished wrong information to the Court and falsely claimed that

Chamber No.102, New Lawyers' Chambers, Supreme Court, was allotted

to him. Appellant's contention is that the impugned order cannot be

sustained as no such 'family settlement' was acted upon.

3. I have examined the record. It reveals that Civil Suit No. 101/2005

was filed by Narianlal Jethwani and Ors. against Gordanlal Jethwani and

Ors. for declaration of 'family settlement' as null and void and

consequential relief. It was pleaded by the plaintiffs therein that Lekhraj

Jethwani, father of the parties (except plaintiffs No.3 & 4) had executed a

Will dated 24.01.1992 during his life time regarding movable and

immovable property owned by him. Lekhraj Jethwani left for heavenly

abode on 06.03.1992. Dr.Jethanand Jethwani (Defendant No.2 in the suit)

executor of the Will did not execute it as per the directions of the

deceased. He remained in possession of the prime family property at 78,

Shopping Center, Kota, Rajasthan and did not allow any other to enter till

2002. When defendant No.2 was forced to execute the Will, he concocted

a false and fabricated 'family settlement' and asked the parties to take the

properties as per the 'family settlement'. It was further pleaded that the

family settlement was bad in law and void ab initio as it was not

registered. Signatures of the parties were procured forcibly on it.

Application under Order 7 Rule 11 C.P.C. was filed on behalf of the

respondent No.2 for dismissal/ rejection/ return of the plaint as Court at

Delhi had no territorial jurisdiction to entertain the suit. Vide order dated

10.08.2011, learned Additional District Judge decided preliminary issues

and ordered return of original plaint to the plaintiffs for presentation

before the competent court of jurisdiction at District Kota, Rajasthan.

Counterclaim filed by defendant No.3 in the suit was also returned with

similar directions.

4. The trial court was of the opinion that there was no attempt on the

part of respondent No.1 to create false evidence with the intention to

interfere in the administration of justice or to influence the opinion of the

Court. It was further observed that appropriate Court at appropriate time

would take the decision on the stands of the parties at the time of

culmination of trial. It further observed that at no stage respondent No.2

impersonated to get allotment of Chamber No. 102, New Lawyers'

Chambers, Supreme Court. The plaintiffs' case for partition of the

property was based upon the execution of Will dated 24.01.1992 by

deceased Lekhraj Jethwani. The defendant No.2 categorically denied

execution of any Will and pleaded that there was a family settlement

dated 12.01.2003 among the parties and it was acted upon. The plaintiffs

have denied the existence of any such 'family settlement'. The trial court

at preliminary stage found that it had no territorial jurisdiction to entertain

and decide the suit and returned the plaint. The parties are yet to establish

their respective pleas by adducing evidence during trial. The defendant

No.2 cannot be restrained to set up the plea of existence of 'family

settlement' in the pleadings. A copy of family settlement has been placed

on record by the plaintiffs though signatures on it are alleged to have been

obtained forcibly. That aspect is to be decided by the Trial Court. Taking

a specific plea in the pleadings to set up one's case cannot be considered

as false plea with an intention to fabricate the documents to influence the

Court's verdict. It is a matter of trial whether the plea taken by the

defendant No.2 in the suit is correct or not. I also find no substance that

any proceeding can be initiated under Section 340 Cr.P.C. against

respondent No.2 for filing the reply without verification of facts or that he

had filed power of attorney where the address was shown as Chamber No.

102, New Lawyers' Chambers, Supreme Court. The Trial Court was

justified to observe that there are no allegations/ evidence that respondent

No.2 impersonated before any authority to claim allotment of the said

chamber.

5. Under Section 340 Cr.P.C., the Court must satisfy that it was

expedient in the interests of justice to make enquiry into the offence

complained. The Court has to come to the conclusion that for the

eradication of the evils of forgery and fabrication of false evidence and in

the interests of justice, it was expedient that a witness / party should be

prosecuted for the offence which appears to have been committed by him.

The mere fact that a particular / specific plea has been taken by the

defendant No.2 in the application under Order 7 Rule 11 C.P.C., is not by

itself sufficient to justify the prosecution for forgery under Section 193

IPC. The Court cannot enter into facts on contentious issues existing

between the parties which are subject matter of trial.

6. The appeal is unmerited and is dismissed.

(S.P.GARG) JUDGE SEPTEMBER 18, 2013/tr