Jammu & Kashmir High Court

Avtar Singh vs Bir Singh on 6 February, 2024

Author: Wasim Sadiq Nargal

Bench: Wasim Sadiq Nargal

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       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                                   CM(M) No.05/2024
                                                   CM No.33/2024
                                                   CM No.34/2024
                                                   CM No.44/2024
                                                   Cav No. 2/2024

                                                   Reserved on : 11.01.2024
                                                   Pronounced on: 06.02.2024

Avtar Singh
S/o late Shri Anchal Singh
R/o Village Ban Gharota,
Tehsil Bhalwal
District Jammu
                                                         ...Petitioner(s)
Through: Mr. Jagpaul Singh Advocate.

                                V/s
Bir Singh
S/o Lt. Shri Suram Singh
R/o Village Ban Gharota,
Tehsil Bhalwal
District Jammu.
                                                         ...Respondent(s)

Through: Mr. Sandeep Singh, Advocate.

CORAM: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE/

                                JUDGMENT

PRAYER:

1. The instant writ petition has been filed by the petitioner under

Article 227 of the Constitution of India seeking quashment of the order

dated 30.12.2023 passed by Ld. Additional District Judge, Jammu in Civil

1st Miscellaneous Appeal titled "Avtar Singh V/S Bir Singh" in terms of

which the Civil 1st Misc. Appeal of the petitioner was dismissed. Petitioner

further seeks quashment of order dated 06.11.2023 passed by the Ld. 2nd

Addl. Munsiff Jammu, in the Civil Suit titled Bir Singh v/s Avtar Singh in

terms of which the application seeking interim relief accompanying the

main suit was allowed by the 2nd Addl. Munsiff Jammu.

FACTUAL BACKGROUND OF THE CASE:

2. With a view to appreciate the controversy involved in the instant

petition, it would be appropriate to give factual background of the instant

case.

3. The respondent had preferred a civil suit for permanent prohibitory

injunction qua the land measuring 55'26' (5 ¼ marlas) falling under khasra

No.1763 situated at village Gharota, Tehsil Bhalwal, District Jammu. After

hearing the case, Ld. 2nd Addl. Munsiff granted ad-interim injunction vide

its order dated 26.02.2021, whereby the parties were directed to maintain

status quo qua the suit land. The respondent in the plaint has alleged that he

is owner in possession of the land measuring 1 kanal and 7 marlas falling

under khasra No.1763 situated at village Gharota, Tehsil Bhalwal, District

Jammu and the petitioner is interfering into the peaceful possession of the

respondent over a portion of aforesaid land.

4. The appellant during the pendency of the above-mentioned suit

moved an application under Order 39 Rule 7 of civil Procedure Code,1908

before the Trial Court for the appointment of Commissioner from the

Revenue Agency i.e Tehsildar Bhalwal, Jammu for

demarcation/identification of the suit land as well as land of the applicant.

The said application was allowed vide order dated 09.03.2021 and the Naib

Tehsildar Gharota was appointed as Commissioner. The record further

reveals that Vide order dated 6.11.2023 the Ld. 2nd Addl. Munsiff Jammu

disposed of the application seeking interim relief and temporarily restrained

the petitioner from causing interference into the suit property. The

petitioner being aggrieved of the said order preferred an appeal against it.

Thereafter learned Addl. District Judge Jammu vide order dated 30.12.2023

dismissed the said appeal.

5. The petitioner being aggrieved of the order dated 30.12.2023 and

the order dated 06.11.2013 challenges the same in the instant petition on

the following grounds:

a. That the bare perusal of the orders impugned makes it amply clear that the same have been passed by the courts below in a casual and mechanical manner, and, without proper application of mind to the peculiar facts and circumstances of the present case. On this ground alone the order impugned requires to be quashed by this Hon'ble Court.

b. That the perusal of the orders impugned transpires that both the courts have miserably failed to exercise the jurisdiction vested in it, in a fair and reasonable manner. It needs to mention here that both the courts below lost sight of the basic principles/guidelines laid down by this Hon'ble Court as well by the Hon'ble Supreme Court, for deciding an application seeking interim relief. Needless, to mention here that the relief of injunction is a discretionary relief and the discretion so conferred upon the courts below is to be exercised in a just, fair and reasonable manner. The perusal of the orders impugned makes it amply clear that discretion vested in the courts below has not been exercise in a just, fair and reasonable manner, and the same has resulted in the miscarriage of justice. On this ground also the orders impugned requires to be quashed by this Hon'ble Court.

c. That the perusal of the orders impugned transpire that the same are vacuous one as the same are not accompanied by any logic or reasoning. As discussed hither to, respondent preferred a civil suit for permanent prohibitory injunction qua the land measuring 55'/26' (5 ¼ marlas) falling under Khasra no. 1763 situated at Village Gharota, Tehsil Bhalwal, District Jammu. Petitioner himself moved an application for the appointment of commissioner for the identification and demarcation of the suit land. Trial court appointed Naib Tehsildar, Gharota, as commissioner for the identification and demarcation of the suit land. Naib Tehsildar, Gharota, in its report has categorically stated that suit land is in possession of the petitioner and before petitioner the same was in possession of the predecessor - in- interest of the petitioner right from 1971.The said report of the commissioner, has attained finality as

respondent never objected the same before the trial court. Thus, the same was accepted by the respondent, and as its natural corollary respondent is not in possession of the suit land. Needless, to mention here that no injunction can be granted without possession. In other words, prima facie, plaintiff has to satisfy the civil court that he is in possession of the suit land and defendants are interfering into the possession of the plaintiff. Therefore, the possession of the plaintiff over the suit land is a condition precedent for the grant of relief of permanent prohibitory injunction. It is trite law that a person in possession of the suit land can be disposed from the suit land only in due course of law i.e., respondent has to file a suit for possession or is required to amend his aforementioned suit and seek the relief of possession. Plaintiff cannot forcibly dispossess the defendant from the suit land.

d. That the orders impugned passed by both the courts below are against all the cannons of law. The orders impugned passed by both the courts below are prima facie perverse and shocks the conscience of this Hon'ble Court, as by passing the order impugned, trial court as well as appellant court, has in fact given leverage to the respondent to take law in his hands and forcibly dispossess the petitioner from the suit land. The order impugned passed by the trial court is a vicious one as the same is not supported by any legal backing or justification. Needless to mention here that before passing the order impugned, trial court was required to prima facie hold that respondent is in possession of the suit land, and appellant is interfering in the peaceful possession of the respondent over the suit land. The perusal of the order impugned makes it amply clear that trial court has miserably failed to record that prima facie respondent is in possession of the suit land. If respondent is not in possession of the suit land, there is no question of interference into his peaceful possession over the suit land by the appellant. Thus, trial court has miserably failed to record in the order impugned that respondent has prima facie case in his favour. It is trite law that respondent is bound to satisfy the trial court that he has a prima facie case in his favour, balance of convenience lies in his favour and irreparable loss or injury would be cause to him if the relief of injunction is declined. The bare perusal of the orders impugned transpire that all the three ingredients are missing in the order impugned. Thus, the order impugned passed by both the courts below are against the well settled principles of law governing the grant of injunction, in a suit for permanent prohibitory injunction. Therefore, the orders impugned deserves to be quashed by this Hon'ble Court.

e. That both the court below, while passing their respective orders impugned were too captious by finding faults with the written statement of the petitioner rather considering the relevant material available before it for deciding the application for interim relief. In other words, both the

court below miserably failed to consider the relevant material available before it for deciding the application the interim relief. Thus, the orders impugned passed by both the courts below, suffers from perversity, and requires to be quashed by this Hon'ble Court by exercising its supervisory jurisdiction.

f. That the orders impugned passed by both the courts below are sheer abuse of the process of the court, as the same are being used as a tool to forcibly dispossess the petitioner from the land which is subject matter of the above titled writ petition.

g. That admittedly, petitioner is in possession of the suit land, and, is enjoying his possession over the suit land since long, and therefore, is entitled to enjoy his possession over the suit land, until he is dispossessed from the suit land after following the due procedure.

h. That in the interest of justice and to meet the ends of justice, the orders impugned require to be quashed by this Hon'ble Court, b exercising its supervisory jurisdiction.

LEGAL ANALYSIS:

6. Heard Ld. Counsel for the Petitioner as well as the Ld Counsel for

the caveator, Mr. Sandeep Singh at length and perused the record. Caveat

discharged.

7. This Court is not inclined to interfere with the orders impugned,

wherein, two concurrent views have been taken. I have also gone through

the order passed by 2nd Addl. Munsiff, Jammu, wherein the court below has

conclusively established that the plaintiff therein (Bir Singh) was in

possession of the land measuring 1 Kanal and 7 Marlas under Khasra No

1763. The Defendant (Petitioner herein) holds no significant weightage to

indicate his claim/concern over the suit property. It has been also held by

the court below that the Commissioner's report was lacking supporting

evidence and the defendant's admission in the Written Statement does not

carry any binding value in the aforesaid context. The defendant while filing

the Written Statement has denied any claim over the suit land under Khasra

No 1763 which restricts his ability to ascertain the claim based on

Commissioner's Report.

8. After having admitted the possession of the private Respondent all

along, the petitioner has taken a U-Turn by changing a different stand that

too at a stage when the report of the Commissioner has come, which

although is still doubtful and after having admitted the possession of the

private respondent without any demur/grouse, therefore, the petitioner is

estopped under law to question the same by taking altogether a different

stand and thus, it can safely be concluded that the petitioner cannot take

stance according to his convenience. This clearly proves beyond any

shadow of doubt that the petitioner has not come before this court with

clean hands and has suppressed material facts, is trying to mislead this court

and to take advantage of the report of the Commissioner by blowing hot and

cold in the same breath.

9. The petitioner by no stretch of imagination can be allowed to blow

hot and cold in the same breath and to take two conflicting stands in the suit

which falls within the realm of playing fraud with the court. The law is no

more res integra that a party cannot argue/plead what has not been pleaded

in the pleadings. Thus, the petitioner cannot go beyond the pleadings and

argue altogether a different case contrary to his own pleadings which has

been taken by him in his written statement. Thus the court below has rightly

after examination of the plaint, attached record therein and the written

statement held that the petitioner has no claim over the suit property.

10. In this regard, this court is supported by the observations made by

Hon'ble Supreme Court in the case titled Arikala Narasa Reddy Vs

Venkata Ram Reddy Reddygri reported as (2014) 5SCC 312, wherein the

Court held that:

"15. This court has consistently held that the court cannot go beyond the pleadings of parties. The parties have to take proper pleadings and establish by adducing evidence that by particular irregularity/illegality, the result of the lection has been materially affected. There can be no dispute to the settled legal proposition that as a rule relief not founded on the pleadings should not be granted. Thus, a decision of the case should not be based on grounds outside the pleadings of the party. In absence of pleadings, evidence if any, produced by the parties cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case setup by them."

11. The same view was taken in Suzuki Parasrampuria Suitings Pvt.

Ltd. Vs The Official Liquidator Of Petrochemicals Ltd. (In Liquidation)

And Others Reported as (2018) 10 SCC 707 where the Hon'ble Apex Court

has observed as follows:

"12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The un-tenability of an inconsistent stand in the same case was considered in Amar Singh vs. Union of India, (2011) 7 SCC 69, observing as follows:

"50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions."

13. a similar view was taken in Joint Action Committee of Air Line Pilots' Assn. of India vs. DG of Civil Aviation, (2011) 5 SCC 435, observing:

"12. The doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and

reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity..... Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily."

12. In this case, the Scott's Law-derived Doctrine of "Approbate and

Reprobate" also applies, which indicates that no party may accept and

reject the same thing and, hence, one cannot be allowed to blow both hot

and cold at the same time. The "approbate and reprobate" doctrine

exclusively pertains to the actions of parties and is a figment of estoppel. It

is a well-established legal principle that an agreement cannot be contested

on any basis once it has been accepted by the party that has benefited from

it. A person cannot be both approbating and reprobating at the same time in

law.

13. The doctrine is fortified by the observations of the Hon'ble

Supreme Court in the case titled as "Union of India and others v. N

Murugesan Etc.", (2022) 2 SCC 25 decided on October 07, 2021. The

relevant portion of the aforesaid judgment is as under: -

"P-27.2........State of Punjab v. Dhanjit Singh Sandhu, (2014) 15 SCC 144:

22. The doctrine of "approbate and reprobate" is only a species of estoppel, it implies only to the conduct of parties. As in the case of estoppel it cannot operate against the provisions of a statute.

(Vide CIT v. V. MR. P. Firm Muar [CIT v. V. MR.

P. Firm Muar, AIR 1965 SC 1216]).

23. It is settled proposition of law that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, he cannot challenge it on any ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service [Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 19 AA no. 10/2022 SC 329].) In R.N. Gosain v. Yashpal Dhir [R.N. 13 Gosain v. Yashpal Dhir, (1992) 4 SCC 683] this

Court has observed as under: (SCC pp. 687-88, para 10) "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that „a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage‟."

25. The Supreme Court in Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd.

[Rajasthan State Industrial Development and Investment Corpn. v. Diamond and Gem Development Corpn. Ltd., (2013) 5 SCC 470 :

(2013) 3 SCC (Civ) 153] , made an observation that a party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate".

Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience.

27.3 Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470:

"I. Approbate and reprobate

15. A party cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner as to violate the principles of what is right and of good conscience. [Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593], CIT v. V. MR. P. Firm Muar [AIR 1965 SC 1216], Ramesh Chandra Sankla v. Vikram Cement [(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706: AIR 2009 SC 713], Pradeep Oil 14 Corpn. v. MCD [(2011) 5 SCC 270 : (2011) 2 SCC (Civ) 712:

AIR 2011 SC 1869], Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd. [(2011) 10 SCC 420 : (2012) 3 SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer [(2012) 12 SCC 133 : (2013) 2 SCC (Civ) 136: JT (2012) 9 SC 260]

14. In this context, I am supported by the view of the Hon'ble

Supreme Court in the case titled "Prestige Lights Ltd Vs State Bank Of

India" the relevant Para is reproduced as under:

"The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 :

86 LJ KB 257 : 116 LT 136], in the following words:

"(I)t 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 made a full and fair disclosure of all the material factsfacts, not law. He must not misstate the law if he can help itthe 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". (Emphasis supplied)

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.

35. In the case on hand, several facts had been suppressed by the appellant-Company. Collusive action has been taken with a view to deprive the respondent- Bank from realizing legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third party's interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent-Bank prejudicially affecting the interest of the Bank. It has created tenancy or third party's right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the Court and prays for discretionary and equitable relief. In our

judgment, the submission of the respondent-Bank is well- founded that appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the Court. We, therefore, hold that the High Court was not in error in refusing relief to the appellant-Company."

15. Once the petitioner has admitted the possession of the respondent

in the aforesaid khasra No. of the land in question, then he is estopped

under law to take a U-turn and by taking altogether a different stand and

thus this court does not find any fault in the orders impugned.

16. Further the judgment of Hon'ble Supreme Court Titled Anathula

Sudhakar Vs P Buchi Reddy reported as (2008) 4 SCC 594 relied upon by

Mr. Jagpaul Singh learned counsel for the petitioner, is not applicable to

the case in hand as the facts are distinguishable.

17. After having admitted the factum of the possession of the land in

question with the respondent, the petitioner cannot build a new case

altogether in a petition filed under Article 227 of the Constitution of India

by seeking quashment of two concurrent judgments passed by the learned

2nd Addl. Munsiff Jammu and Ld. Additional District Judge Jammu.

18. Resultantly, this court does not find any ground to interfere with

the same and the petition which has been preferred under Article 227 of the

Constitution of India, is not maintainable and liable to be dismissed. Even

otherwise also, the powers vested in this Court under Article 227 of the

Constitution of India have to be applied sparingly and in absence of any

perversity being pleaded or argued.

19. The Apex Court in catena of judgments has already held that the

High Court has to exercise such wide powers under Article 227 with great

care and circumspection which cannot be exercised to correct all errors of a

judgment of Court and Tribunal acting within the limits of its jurisdiction.

This correctional jurisdiction can be exercised in cases where orders have

been passed in grave dereliction of duty or in flagrant abuse of fundamental

principles of law or justice. Even the power to re-appreciate the evidence

would only be justified in rare and exceptional situations, where there is

grave injustice. Moreover, the exercise of such discretionary power would

depend upon the peculiar facts of each case with the sole objective of

ensuring that there is no miscarriage of justice. The Apex Court in the case

of Jai Singh Vs. Municipal Corporation of Delhi; (2010) 9 SCC 385 has

held as under:-

"15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized

constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and reappreciate the evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi judicial tribunals. The power to re- appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice."

20. Further, the Apex Court in M/S Garment Craft Vs. Praksh Chand

Goel; (2022) 4 SCC 181 has held as under:-

15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at ail to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed:

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

21. There is a general principle of equity that "He who comes into

equity must come with clean hands" i.e. a person who makes a claim in

equity must be free from any taint of fraud with respect to that claim. In the

instant petition the petitioner having deliberately suppressed the material

fact, clearly proves that the petitioner has not come to this court with clean

hands and as such has abused the process of court by filing the instant

petition.

22. In this regard, I am supported by the view of the Hon'ble Apex

Court in judgment titled " Udyami Evam Khadi Gramodyog Sanstha and

Anr. Vs State Of Uttar Pradesh" reported as 2008 (1) SCC 560. The

relevant Para is reproduced as under:

"15. A writ remedy is an equitable one. A person approaching a superior court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law."

23. Furthermore, Hon'ble High Court of Madhya Pradesh in case titled

Ranjeet Singh Yadav vs The State Of Madhya Pradesh AIRONLINE

2020 MP 853

"10. In K.D. Sharma v. SAIL [(2008) 12 SCC 481] the Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayashree v.

Bhagwandas S. Patel]."

46. More recently, in Ramjas Foundation v. Union of India the case law on the subject was discussed. It was held that if a litigant does not come to the court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said:

(SCC p. 51, para 21) "21. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to THE HIGH COURT OF MADHYA PRADESH Ranjeet Ranjeet Singh Yadav vs The State Of Madhya Pradesh on 10 January, 2020 Indian Kanoon -

http://indiankanoon.org/doc/94552474/ 7 Singh

Yadav Vs. The State of M.P. and another the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty-bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."

51. In Abdul Rahman v. Prasony Bai, S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Oswal Fats & Oils Ltd. v. Commr. (Admn.) this Court held that whenever the court comes to the conclusion that the process of the court is being abused, the court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the courts to deter a litigant from abusing the process of the court by deceiving it."

24. I have also gone through the order passed by the court of

Additional District Judge Jammu in Civil 1st Misc. Appeal against the order

dated 6.11.2023 passed by the learned 2nd Addl. Munsiff Jammu in which

the order passed by the court below was upheld and the appeal was

dismissed for the reasons recorded in the aforesaid order and this court

doesn't find any jurisdictional error or violation of fundamental principles

of law or justice which could be the basis for exercising the jurisdiction

under Article 227 of the Constitution Of India. It is to be noted that this

court while exercising supervisory jurisdiction doesn't act as a court of first

appeal to re-appreciate or reconsider the evidence or facts.

25. Thus, in the light of what has been discussed herein coupled with

the legal settled position, I do not find any perversity or illegality in the two

concurrent findings given by the court below and accordingly the petition

filed by the petitioner invoking the powers under Article 227 of the

Constitution of India, by assailing aforesaid two orders being devoid of any

merit deserves dismissal at the threshold.

26. Since the petitioner has abused the process of the court by filing

the instant petition by invoking the powers of this court under Article 227

of the Constitution of India while suppressing the material facts and

accordingly, this Court deems it appropriate to impose penalty by way of

costs to the tune of Rs.20,000/- upon the petitioner with a view to

deprecate such practice of suppression of material facts and not coming to

the Court with clean hands. The costs so imposed shall be deposited by the

petitioner in the Advocate's Welfare Fund within a period of four weeks

from today.