Kerala High Court

Union Of India vs Union Of India on 10 February, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                       &

             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

   WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                               WA.No.199 OF 2021

  AGAINST THE JUDGMENT IN WP(C) 20236/2020(D) OF HIGH COURT OF
                     KERALA DATED 19.11.2020


APPELLANTS/RESPONDENTS 1 TO 3:

      1       UNION OF INDIA
              REPRESENTED BY ITS SECRETARY, HOME AFFAIRS,
              GOVERNMENT OF INDIA, NEW DELHI-110 001.

      2       REGIONAL PASSPORT OFFICER
              REGIONAL PASSPORT OFFICE, KOZHIKODE-673 006.

      3       ASSISTANT DIRECTOR/PRO
              BUREAU OF IMMIGRATION, COCHIN INTERNATIONAL
              AIRPORT, NEDUMBASSERY-683 111.

              BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
              ADV.SRI. SUVIN R MENON, CGC

RESPONDENT/PETITIONER:

              HILALUDHEEN THEKKIL ABDUL RAHMAN
              AGED 31 YEARS
              S/O. ABDUL RAHMAN THEKKIL ANDUNHI,
              K.P.A. MANZIL, KIZHUR P.O.,
              CHANDRAGIRI, KASARGOD-671 317.

              R1   BY   ADV.   SRI.M.RAMESH CHANDER (SR.)
              R1   BY   ADV.   SMT.K.A.SANJEETHA
              R1   BY   ADV.   SRI.BALU TOM
              R1   BY   ADV.   SHRI. BEJOY JOSEPH P.J.


     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.199 OF 2021
                                          :: 2 ::




                                      JUDGMENT

Dated this the 10th day of February, 2021

S.MANIKUMAR, C.J.

Appellants are Union of India, represented by its Secretary Home Affairs,

Government of India, New Delhi; Regional Transport Officer, Kozhikode; and

Assistant Director/PRO, Bureau of Immigration, Cochin International Airport,

Nedumbassery, respondents 1 to 3 respectively, in the writ petition.

Challenging the judgment dated 19.11.2020 in W.P.(C)No.20236 of 2020, instant

writ appeal is filed.

2. Before the writ court, writ petitioner/respondent herein has

challenged the seizure of the passport by the Bureau of Immigration, Cochin

International Airport, Nedumbassery. Taking note of the decisions of this court

in Jayan V.M. v. Union of India and Others reported in 2018 (4) KLT 1077 and

Muhammed v. Union of India and Others reported in 2018 (4) KHC 945, and

observing that the Passport Authority has not exercised his discretion in

evaluating the gravity and depravity of the crime, writ court set aside the

order impugned therein and directed the Regional Passport Officer, Kozhikode,

respondent No.2 therein, to return the passport forthwith to the writ

petitioner/respondent.

W.A.No.199 OF 2021 :: 3 ::

3. Being aggrieved, instant writ appeal is filed, inter alia, contending that

as per Section 6(2)(f) of the Passports Act, 1967, the passport authority shall

refuse to issue a passport or travel document for visiting any foreign country if

proceedings in respect of an offence alleged to have been committed by the

applicant are pending before a criminal court in India. Invoking the power

under Section 22(a) of the Passports Act, 1967, the passport authority issued

Annexure R1(a) notification, whereby the citizens who produce orders from

the court concerned permitting them to depart from India was excluded from

the operation of Section 6(2)(f) of the Passport Act, 1967. The writ petitioner

has suppressed the pendency of the criminal case. Though the Passport

authority ought to have refused to issue passport, the passport authority was

not able to do for the reason that since the writ petitioner had applied for

passport under Tatkal Scheme on post police verification.

4. Another contention raised is that the learned Single Judge ought to

have noted that as per the latest report dated 07.10.2020, furnished by the

Kerala State Police, Crime No.53 of 2011, is pending for trial as C.C.No.1818 of

2014 on the files of JFCM-II Hosdurg. According to the appellants, the learned

Single Judge erred in holding that the passport authority has not applied its

mind over the gravity of the criminal cases pending against him. The learned W.A.No.199 OF 2021 :: 4 ::

Single Judge ought to have noted that the order of the passport authority is

appealable under Section 11 of the Passport Act, 1967. Sufficiency of the

reasons and the gravity of the offences are to be considered by the appellate

authority. Next contention is that the learned Single Judge ought to have

noted that the passport authority is empowered to impound the passport

under Section 10(3)(b) of the Passports Act, 1967, since the writ petitioner has

suppressed material information and also under Section 10(3)(e) of the

Passports Act, 1967, since the proceedings, in respect of offences alleged to

have been committed by the holder of the passport or travel document, are

pending before a criminal court in India.

5. In addition to the above, Mr. Suvin R. Menon, representing learned

Assistant Solicitor General of India appearing for the appellants, submitted that

passport was impounded on the basis of the pendency of the criminal case in

C.C.No.1818 of 2014 on the file of the Court of the learned Judicial First Class

Magistrate-II, Hosdurg. He further submitted that, return of the passport was

done, as per the directions of the writ court.

6. Mr. Balu Tom, learned counsel for the respondent, submitted that

passport was seized when the matter came up before the court of competent

jurisdiction. He further submitted that pursuant to the directions issued in the W.A.No.199 OF 2021 :: 5 ::

judgment in W.P.(C) No.20236 of 2020 dated 19.11.2020, passport issued to the

respondent was returned, with a cancellation note. Directions issued in the

impugned judgment have been acted upon on 3.12.2020, but there is total

suppression of the above act.

7. Instant writ appeal is filed on 04.01.2021. Perusal of the entire

material on record, it could be deduced that there is no whisper about the

abovesaid fact, to this Court, in the grounds raised in this appeal, and we are of

the prima facie view that by suppressing the abovesaid fact, this writ appeal has

been filed on 04.01.2021, and that the appellants have obtained an interim

order.

8. On the aspect of suppression, equitable remedy and clean hands,

under Article 226 of the Constitution, we deem it fit to consider a few decisions,

as hereunder:

(i) In Arunima Baruah v. Union of India [(2007) 6 SCC 120], the Hon'ble Supreme Court, at paragraphs 11 to 14, held as follows:

"11. The court's jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands; but to what extent such relief should be denied is the question.

W.A.No.199 OF 2021 :: 6 ::

12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.

13. In Moody v. Cox [(1917) 2 Ch. 71: (1916-17) All ER Rep 548 (CA)], it was held: (All ER pp. 555 I-556 D) It is contended that the fact that Moody has given those bribes prevents him from getting any relief in a court of equity. The first consequence of his having offered the bribes is that the vendors could have rescinded the contract. But they were not bound to do so. They had the right to say ?no, we are well satisfied with the contract; it is a very good one for us; we affirm it". The proposition put forward by counsel for the defendants is: "It does not matter that the contract has been affirmed; you still can claim no relief of any equitable character in regard to that contract because you gave a bribe in respect of it. If there is a mistake in the contract, you cannot rectify it, if you desire to rescind the contract, you cannot rescind it, for that is equitable relief." With some doubt they said: "We do not W.A.No.199 OF 2021 :: 7 ::

think you can get an injunction to have the contract performed, though the other side have affirmed it, because an injunction may be an equitable remedy." When one asks on what principle this is supposed to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think the expression "clean hands" is used more often in the textbooks than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas 318: 2 Bos & P 270], which has been referred to, shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for. In this case the bribe has no immediate relation to rectification, if rectification were asked, or to rescission in connection with a matter not in any way connected with the bribe. Therefore that point, which was argued with great strenuousness by counsel for the defendant, Hatt, appears to me to fail, and we have to consider the merits of the case.

14. In Halsbury's Laws of England, 4th Edn., Vol. 16, pp. 874-76, the law is stated in the following terms:

"1303. He who seeks equity must do equity. "In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity W.A.No.199 OF 2021 :: 8 ::

must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed.

* * * 1305. He who comes into equity must come with clean hands. "A court of equity refuses relief to a plaintiff whose conduct in regard to the subject- matter of the litigation has been improper. This was formerly expressed by the maxim "he who has committed iniquity shall not have equity", and relief was refused where a transaction was based on the plaintiff's fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.

W.A.No.199 OF 2021 :: 9 ::

The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff's demerits."

(ii) In Prestige Lights Ltd. v. State Bank of India [(2007) 8 SCC 449], at paragraphs 33, 34 and 35, the Hon'ble Supreme Court held as follows:

"33. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter. W.A.No.199 OF 2021 :: 10 ::

34. 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 facts, not law. He must not misstate the law if he can help the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement". (emphasis supplied)

35. 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."

W.A.No.199 OF 2021 :: 11 ::

(iii) In Udyami Evam Khadi Gramodyog Welfare Sanstha and another v. State of Uttar Pradesh [(2008) 1 SCC 560], at paragraphs 16 and 17, the Hon'ble Apex Court, held as follows:

"16. 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. In Advocate General, State of Bihar v. M.P. Khair Industries[(1980) 3 SCC 311], this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt.

17. For the reasons aforementioned, there is not merit in this appeal which is dismissed accordingly with costs. Counsel's fee quantified at Rs.50,000."

(iv) In Amar Singh v. Union of India & Others reported in (2011) 7 SCC 69, on the aspect of a litigant approaching the court, with unclean hands, at, paragraphs 53 to 57, and at, paragraph 59, considered several judgments. Finally, at paragraph No.60, extracted a paragraph from Dalip Singh v. State of U.P. and others, [(2010) 2 SCC 114]:

"53. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case.

54. In Dalglish v. Jarvie [2 Mac. & G. 231, 238], the Court, speaking through Lord Langdale and Rolfe B., laid down:

W.A.No.199 OF 2021 :: 12 ::

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

55. In Castelli v. Cook [1849 (7) Hare, 89, 94], Vice Chancellor Wigram, formulated the same principles as follows:

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

56. In Republic of Peru v. Dreyfus Brothers & Company [55 L.T. 802,803], Justice Kay reminded us of the same position by holding thus:

"...If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith with the Court when ex parte applications are made."

57. In one of the most celebrated cases upholding this principle, in the Court of Appeal in R. v. Kensington Income Tax Commissioner [1917 (1) K.B. 486] Lord Justice Scrutton formulated as under:

"...........and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts- facts, W.A.No.199 OF 2021 :: 13 ::

now law. He must not misstate the law if he can help it

- the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have 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."

59. The aforesaid requirement of coming to Court with clean hands has been repeatedly reiterated by this Court in a large number of cases. Some of which may be noted, they are: Hari Narain v. Badri Das - AIR 1963 SC 1558, Welcome Hotel and others v. State of A.P. and others - (1983) 4 SCC 575, G. Narayanaswamy Reddy (Dead) by LRs. and another v. Government of Karnatka and another - (1991) 3 SCC 261, S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and others (1994) 1 SCC 1, A.V. Papayya Sastry and others v. Government of A.P. and others - (2007) 4 SCC 221, Prestige Lights Limited v. SBI - (2007) 8 SCC 449, Sunil Poddar and others v. Union Bank of India - (2008) 2 SCC 326, K.D.Sharma v. SAIL and others - (2008) 12 SCC 481, G. Jayashree and others v. Bhagwandas S. Patel and others - (2009) 3 SCC 141, Dalip Singh v. State of U.P. and others - (2010) 2 SCC 114.

60. In the last noted case of Dalip Singh (supra), this Court has given this concept a new dimension which has a far reaching effect. We, therefore, repeat those principles here again:

"For many centuries Indian society cherished two basic values of life i.e. "satya"(truth) and "ahimsa (non- violence), Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre- W.A.No.199 OF 2021 :: 14 ::

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

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

(v) In Kishore Samrite v. State of U.P. & Others [(2013) 2 SCC 398], at paragraphs 32 to 36, the Hon'ble Apex Court held as follows:

"32. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable W.A.No.199 OF 2021 :: 15 ::

the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs.

33. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make "full and true disclosure of facts". (Refer: Tilokchand H.B.

W.A.No.199 OF 2021 :: 16 ::

Motichand & Ors. v. Munshi & Anr. [(1969) 1 SCC 110]; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam & Anr. [(2012) 6 SCC 430]; Chandra Shashi v. Anil Kumar Verma [(1995) SCC 1 421]; Abhyudya Sanstha v. Union of India & Ors. [(2011) 6 SCC 145]; State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. [(2011) 7 SCC 639]; Kalyaneshwari v. Union of India & Anr. [(2011) 3 SCC

287)].

34. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi- fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.

35. No litigant can play "hide and seek" with the courts or adopt "pick and choose". True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is W.A.No.199 OF 2021 :: 17 ::

impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court. {K.D. Sharma v. Steel Authority of India Ltd. & Ors. [(2008) 12 SCC 481]}.

36. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. [Buddhi Kota Subbarao (Dr.) v. K. Parasaran, (1996) 5 SCC 530)]."

9. In the light of the decisions, which we have extracted above, the

appellants, in particular, the Regional Passport Officer, 2 nd appellant, has

suppressed the material facts and obtained an interim order on 27.01.2021 in

the instant writ appeal. We are not deciding this case on merits.

10. Though Mr. Suvin R. Menon, learned counsel representing the ASGI

submitted that returning of the passport with the cancellation note could not

be placed before this court at the time of filing of this appeal, we are not in

agreement with the said submissions. Appellant are duty bound to place true

facts before this Court. Suppression is per se apparent. Conduct of the W.A.No.199 OF 2021 :: 18 ::

appellants, in particular, the Regional Passport Officer, appellant No.2, cannot

be condoned.

11. Though a submission is made by Mr. Suvin R. Menon, seeking