Union of India v. Ram Charan

was not sufficient as Rs. 400/· had already been withdrawn. In a revision petition filed in High Court, it was contended that the amount of Rs. 400/- was in deposit and at the disposal of the landlord. The High Court accepted this fact but in spite of that refused to interfere in the matter and dismissed the revision pctitioi:. 1961-- ·Rajahhai , &hman . .Y. · V asuie1J Dhanjihh&i Mody -In the pctitiM for Special Leave to appeal, the tenant quoted a Jong extract from the judgment of High Court regar- ding the depcsit of Rs. 400/- in court and submitted that the High Court was correct in coming to the conclusion that as ·there was nothing on record to show that the petitioner had withdrawn the sum of Rs. 400/- the petitioner was not in arrears of rent. Special Leave to appeal was granted. BeU that the special leave to appeal granted - by- this - rourt must be vacated because it had been procured' by -the appellant without disclosing all the material facts. A delibc- - rate attempt had been made in the petition for . special leave to appeal not c:;nly to withhold from the court the information that the amount of Rs. 400/- originally deposited in court ·was subil<Xluently withdrawn by him, but a serious attempt was also made to create an impression that the finding of the High _ Court concerning withdrawal was correct. Pv'Sark3.r and Shah JJ.-The exercise of jurisdiction under . Art. 136 of ·the Coll3tit1>1ion is .discretionary. It is excitised sparingly and in exceptional cases when a substantial question of law falls to be determined or where it appears to the a'mrt that interference by this court is ne:essary to remedy ·serious injustite. A party who approaches this court invoking the oercise of thi•-over-riding discretion must come .with clean hands. If there appears on hi> part any attempt to overreach or mislead the court by false or untrue statements or by with· holding true information which would have a bearing on the que<tion of =ise of the discretion, the court would be justi- fied in refusing to exercise the discretion or if the discretion has been exercfaed in revoking the leave to appeal granted even at the time of hearing of the appeal. Ptr Hidayatullah J. -The powers exerchab)e by thfa court under Art. 136 of the Constitution are not in the nature of a general appeal. They enable this court to interfere in case• where an irreparable injury has been caused by reason of a miscarriage of justice due to a gross . neglect of law. or proce-. dure or otherwise and there i< no other adequate remedy •. The Article is hardly meant to afford relief in a case where a party -· JMJ IWNo M..W v. v ...... DUrtjiilrlli MMy 482 SUPREME COURt REPORTS [1964] vot.. i• in default of rent because he withdrew a depo1it lying In . court but who cannot, 011 the record of the case, be shown to have withdrawn the amount. The present case is not one of a mere error in the narration of facts or of a bona fidt error of judgment. It is a case of being disingenuous with the Court by making otlt a point of law on a suppositious state of facts which facts, if told candidly, leave no room for discussion of law. The appellant, by dissembling in this court, induced it to grant special leave in a case which did not merit It and hence the leave should be recalled. · Har Narain v. Badri Da•. [1964] 2 S. C. R. 203 and 6. R. Shelly v. Phir•mhah NMuervanji Oolabawall11 &lid .Analhtr, C. A. No. 155 of 1963 decided on April 5, 1963, approved. CnrL APPillLLATlil JuRlilDIC'.l'ION : Civil Appeal No. 692 of 11162. Appeal by special leave from the judgment and decree dated January 20, 1960 of the Bombay High Court in Civil Revision Application No. 139 of 1958. J.P. Mehta, Aziz MuBhabber Ahmadi, J.B. Dadaohanji, 0. 0. Mathur and Ravinder Narain, for the appellant. VHhal B. Patel and I. N. SA.ro!J, fer the res· pondent.

#1963. May I. The Judgment of Sarkar and Shah JJ., was delivered by shah J., Hidayatullak, J. delivered a separate Judgment. SHA.H. J.-For reasons which we will presently set out, special leave to appeal ·against the judgment of the High Court of Bombay granted by this Court must be vacated because it had been procured by the appellant without disclo:1ing all the material facts. Rajabhai Munshi who will hereinafter be re· ferred to as 'the defendant' is since 1935 a tenant IJ6S ll«i•>ll<li A>iul Rehmo Munshi •• l'aswin D"'-fl"h•i M•iiJ Sh.Ji J. 3 s.c.R. SUPREME COURT REPORTS 483 of Vasudev Mody-hereinafter called 'the planitiff'- in respect of a piece of land situate i.o the town of Ahmedabad. The rent of the land as originally stipulated was Rs. 411/- per annum, and it was by mutual agreement enhanced to Rs. 851/- per annum in 1948. The plaintiff filed suit No. 2014 of 1952 against the defendant in the Court of Small Causes exercising jurisdiction under 11. 28 of the Bombay Rents and Lodging House Rates (Control) Act, 1947 (Act 57 of 194 7) for an order in ejectment against the defendant on the plea amongst others that the latter had made default in payment of rent due by Em. The defendant contended inter alia that the tent stipulated was in excess of the standard rent payable by him. The Trial Court assessed standard rent payable by the defendant at Rs. 446/- per annum and holding that the defendant had not made default in paying rent, dismissed the plaintiff's suit. Against that decree the plaintiff preferred Appeal No. 450 of 1953 to the District Court at Ahmedabad. On October 1, 1954 the defendant de!posited in the District Court Rs. 400/- to the credit of the plaintiff. The appeal instituted by the plaintiff was not prosecuted, and the amount of Rs. 400/- deposited to the credit of the plaintiff remained deposited in Court. The plaintiff commenced another action (Suit No. 3434 of 1955) against the defendant on the plea that the defendant had committed fresh defaults in Payment of rent. The defendant deposited in Court time to time between November 22, 1955 and January 16, 1957 Rs. 2,126/8/- towards rent due by him and costs of the suit. The learned Trial Judge by this order dated February 26, 1957 held that taking into account Rs. 400/- lying to the credit of the plaintiff in Ap,peal No. 450 of 1953 the defendant had deposited in Court Rs.2,526/8/-, and that amonnt was sufficient to satisfy the arrears of rent due by the defeneent and also the costs of the suit, and therefore 1969 R.fab/lol Abdul &lrmao Mwuhi ... 1'""""1 Dhanjibhai Mrxfl S/uJh /. 484 SUPREME COURT REPORTS (1964] vot. no decree in ejectment could, in view of s, 12 (3) (b) of Bombay Act 57 of 1947 be granted. In appeal the Assistant Judge, Ahmeda- bad, reversed the decree of the Trial Court. In his view the defendant had failed to deposit the full amount of rent due and costs of the suit as required bys. 12 (3) {b) and therefore a decree in ejectment In making up the must issue against the defendant, account of the rent due by the defendant, the learned Judge excluded the amount of Rs. 400/- deposited in Appe11l No. 450 of 1953 on October 1, 1954, because the defendant had withdrawn that amount before the suit was disposed of by the Trial Court. Against the decree in ejectment the defendant invoked the revisional jurisdiction M the High Court of Judica- ture at Bombay. Before the High Court, the advo- cate for the defendant contended that there was no evidence in support of the finding of the appellate Court that the amount of Rs. 400/- deposited by the defendant in Appeal No. 450 of 1953 stood with- drawn by the defendant. The High Court upheld the contention but proceeded to dismiss the petition filed by the defendant because the case did not faJI strictly within s. 12 (3) (b) of Bombay Act 57 of 194 7 and the Court had jurisdiction, having regard to the circumstances and the conduct of the tenant, to re- fuse relief to him, and that the record showed that the defendant had by his conduct disentitled himself to discretionary relief. Against the order passed by the High Court, a petition for special leave to appeal to this Court was granted. Section 12 (1) of Act 57of1947 provides: "A landlord shall not be entitled to the reco- very of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted if any, and observes and performs the tenancy, in so far as other conditions of the ' R,,,,.,. MlllUhi •• r "'"""' D/ufl!itllflli Mody SW/, 3 S.C.R. SUPREME COURT REPORTS 485 they are consistent with the provisions of this Act ;" and sub-s. (3} cl. (b) provides that : "In any other case, no decree for eviction shall be passed in any such suit, if, on the first day of hearing of the suit, or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court." It is common ground that the claim made by the plaintiff falls within the description "In any other case". The High Court assumed that even if the tenant has not paid into court the standard rent and permitted increases due on the first day of hearing of the suit, the Court may still in the exer- cise of its discretion refuse a decree to the landlord in ejectment, provided all the arrears of rent and costs of the suit are paid into Court by the tenant at any time before the suit is disposed of. The assumption so made at once raised a question of some nicety as to the true interpretation of s. 12 (3) (b). This question may however fall to be determined only if the conclusion of the High Court that the defendant had deposited the rent due and the costs of the suit before the date of the decree passed in the Trial Court be correct. The Appellate Court had recorded that the rent due and costs of the suit were not depo- sited by the defendant, and therefore the defendant could not be relieved against the consequences of his In taking account of the amounts depo- default. sited the learned .Judge excluded the amount of Rs. 400/- deposited in Appeal No. 450 of 1953 which had been withdrawn by the defendant on R•jio6oai .lbdul Rlllm1,. Jlumhi •• V dsuJeo Dlia11jibh•i Mody 486 SUPREN!l:E COURT REPORTS [1964] VOL. the defendant admits January 19, 1957. It is common ground before us, that Rs. 400/ deposited by the defendant in Appeal No. 450 of 1953 had in fact been withdrawn by him before the date of decree of the Trial Court. Counsel for it is supported by a certified extract fact, and from the file of the District Court. At the hearing before the High Court, the advocate for the defen· dant pleaded that the finding of the Extra Assistant Judge that the amount of Rs. 400/- was withdrawn before the decree of the Trial was not support· ed by evidence. We are prepared to hold that the advocate was not instructed about the withdrawal of the amount, and no attempt was made by him to mislead the Court, and no blame need altach ia this matter to the advocate in that behalf. But the defen- dant was guilty of withholding information from d1.e Clourt as well as his advocate. In the petition for special leave, which is sw11rn by the defendant a deliberate attempt has been made not merely to withhold from the Court the informa- tion that the amount of Rs. 400/- originally deposited by the defendant was withdrawn by him, but sedul- ously attempt is made to create an impression t:hat the finding of the High Court conceramg the witk- drawal was correct, and of the Extra Assistant Judge wrong, and to argue that because of the amounts de- posited by him inclusive of Rs. 400/-, the defendant was entitled to the protection of sub-ss. (1) & (3) (b) of s. 12 .. A bare perusal of paragraphs 14, 19, 21, 23 and 25 of the petition for special leave, leaves no room for doubt that this was the object of the defen- dant. It was submitted in the petition that the de- fendant's case fell strictly within the terms of s. 12(3) (b) and that the High Court was in error in holding that it had any discretion to refuse relief to the defen- dant, after the defendant complied with the terms of that sub-section in the matter of deposit. The petition w<1s sworn by the defendant. He has affirmed R1!i4blui • .Ulhd Rm.u M.,.,i; •• Y 4JUiitll D!ttntjt1iltd Mody Sn•h J. 3 S.C.R. SUPRENIE COURT REPORTS 487 that the facts in paragraphs l to 32 were true to his own knowledge and the submissions made therein were believed by him to be true, and that the petition concealed nothing nor was any part of it false or untrue. He also affirmed in his affidavit, that he had '·instructed counsel in the Courts below and that" he was "instructing counsel in this Court in respect of the special leave petition". The finding of the High Court, on a question of fact which to the knowledge of the defendant was erroneous, was made the foundation of what was asserted to be a su bstan- tial question of law of general or public importance. If the High Court was not persuaded to take the view which it did in the matter of the Rs. 400/- no further question would have survived; at least none such appears to have been argued. Counsel for the plaintiff has urged that this Court would not have granted special leave to appeal if the defendant had informed the Court that the amount of Rs. 400/- which was represented to be lying to the credit of the plaintiff was not in fact available at the date of the decree in the Trial Court, because the question as to the interpretation of s. 12(3)(b) would not on the true facts fall to be revoked determined, and special leave should be because it has been procured by deliberately mis- leading the Court on a matter of importance. There is a restricted right of appeal to this Court conferred by the Constitution upon litigants in civil cases. Where the amount or value of the sub- ject-matter in dispute in the Court of the First Ins- tance and in appeal to this Court is not less than Rs. 20,000/-, or where the judgment, decree or final indirectly some claim order involves directly or or question respecting property "Of like amount or value, and the judgment, decree or final order made by a Division Bench of the High Court does not affirm the Jugment of the court immediately below, 1963 Rajabhai Abdul Rehman Munshi v. Vasudeo D/ianjibhtJi Mody Shah J. 488 SUPREME COURT REPORTS (19114JVOL. party aggrieved is entitled as of right to appeal, An appeal may also lie in civil disputes with certificate by the High Court under Art. 133(l)(c) that the case is a fit one for appeal,. or with special leave under Art. 136 of'the Comtitution. The High Court has not granted certificate under Art. I33(l)(c) as it could not in view of the Comtilutioual prohibition iu cl. (3) of Art. 133. Exercise of 'thejurisdiction of the Court under Art.l:lfi of the Cmwtitution is discre- tionary: it is exercised sparingly and in exceptional cases, when a substantial question of law falls to be determined or where it appears to the Court that inter.ference by this Court is necessary to remedy serious injustice. A part.Y who approaches this Court invoking the exercise of this overriding discre- tion of the Court must come with clean hands. If there appears on his part any attempt to overreach or mislead the Court by false or untrue statements or by withholding true information which would have a bearing on the question of exercise of the dis- cretion, the Court would be justified in refusing to ex- ercise the discretion or if the discretion has been ex-' ercised in revoking the leave to appeal granted even In Har Narain at the time of hearing of the appeal. ), Gajendragadkar J. speaking for the v. Badri Das (1 Court observed: "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." In that case the Court revoked the leave granted be- cause the appellant had made certain inaccurate and misleading statements .in his petition for leave to ap- peal to this Court. Those statements were. in the view of the Court, misrepresentations of fact and the Court being satisfied that the appellant had delibera- tely made those misleading and untrue statements (I) [1964] 2 S. 0, R. 203. /963 ll«jcbh•i .Abdul Rehman Muns.Ai v. VaJuitlJ .Hady . -- Shah J, 3 s.c,R. SUPREME COURT REPORTS 489 In another case which was revoked the leave. brought to this Court with special leave S. R. Shetty v. Phirozeshah Nursservanji Oolabawalla (1 ), an attempt was made by the appellant in the petition for special leave to value the property in dispute at more than Rs. 20,000/- when in fact he had valued the same property in another litigation at Rs. 500/-. The Court in revoking the leave observed: "The appellant deliberately chose to inflate the valuation of the property so as to obtain the special leave. We have no doubt that if this Court had been apprised of the true valuation, which according to the appellant himself was only Rs. 500/-, this Court would not have gran- ted the special leave. We cannot, therefore, condone this deliberate attempt to mislead the Court in respect of a very material question, namely, the value of the property in dispute." Counsel for the defendant has conceded that the amount of Rs. 400/- which was deposited on October 1, 1954 had been withdrawn by the defen- dant before the date of judgment in the Trial Court. He, however, contended that the defendant had not instructed his advocate in the High Court to raise the contention about the availability of Rs. 400/- to the plaintiff, which met with the approval of the High Court and the contention was raised by the advocate on his own initiative. Counsel further sub- mitted that a party applying to this Court for special leave is entitled to restrict himself to what appears on the record and in the present case the defendant · has correctly set out the finding of the High Court and has founded an argument on that finding. Im- plicit in the submission of counsel for the defendant is the suggestion that it is open to a rnrty to mislead the High Court or the subordinate Court and there- after approach this Court after withholding material information within his knowledge which would have (IJ C. A. No, 155 of 1903 docidod °" Apra 5, 19b8, J98B R•jabhai Abiul Illh1"M Mu111hi y, Va1utit'D D/aatajibhai Mady ' Shilh J. 490 SUPREME COUR. T REPOR. TS [1964] VOL. seriously affected his right to move this Court, for the exercise of discretion in his favour. We cannot over-emphasize the fact that the jurisdiction of this Court is discretionary. This Court is not bound to grant special leave merely because it is asked for. A party who approaches the Court knowing or ha- ving reason to believe that if the true facu were brought to its notice this Court would not grant special leave, witholds that information and persuades this Court to grant leave to appeal is guilty of conduct forfeiting all claims to the exercise of discretion in It is his duty to state facts which may his favour. reasonably have a bearing on the exercise of the dis- cretionary powers of this Court. Any attempt to withhold material information would result in revo- cation of the order, obtained from this Court. We are unable to agree with counsel for the defendant that the duty of an applicant for special leave to this Court is discharged when he merely summarises the judgment of the Courts below and claims relief on the footing that the findings are correct, when to his knowledge the findings cannot be sustained and the findings have been so recorded because the Courts below have been misled on account of representations for the making of which he was either directly or In our judgment the petition indirectly responsible. filed before this Court was misleading-. Counsel for the defendant also submitted that he was prepared to argue the appeal on the footing that the High Court was in error in reversing the judgment of the District Court on the question about the withdrawal of R.s. 400/-. If, however, the defen- dant has by misleading the Court obtained an order granting special leave and has under the protection of that order remained in possession of the property in dispute for a period of three years, if would be putting a premium upon the unfair conduct of the defendant to permit him to argue the appeal on some footing other than that on which the case was argued Rajabh•i .4!iul R1h"'tm MWJShi v. Voswlev Dhottjihh11i M•dy Shoh J. lfiaayatu/lah J. 3 S.C.lt. SUPREME COUK.T REPO.RTS 491 in the High Court, and to argue which presumably no special leave would have been granted. Special leave to appeal is therefore revoked. The appellant will pay costs of the appeal to the respondent. HrnAYA'fULLAH J.-1 agree that we should recall the special leave. As this is the second case in a few days, I wish to say a few words. The appellant before us is the tenant and the respondent is the landlord. One of the of questions in the case tenant was in default of rent and was whether the It appears revenue tax specially payable by him. that litigation between the parties has been going on for years. The landlord was forced to file suits for ejectment on the ground tenant had not paid the rent. The tenant also never paid rent In the earlier rounds, the tenant except in court. has succeeded by making deposits of rent and costs at the last moment, thus, taking advantage of the Bombay Act LVII of 1947. that the It appears that one such suit of the landlord was No. 2014 of 1952. During the appeal arising from the decree in that suit, the tenant had deposited on October 1, lll54, a sum of Rs. 400/- in the appeal court and had sent a notice to the landlord about this deposit. This deposit lay in court till January 19, 1957, when it was withdrawn. The last date is important. The present suit was filed on September 8, 1955, for eviction of the tenant on the ground that he was in arrears from June 9, 1953. On January 10, 1957, the tenant deposed about the deposit and questioned the landlord about the notice, but before the: case was over, he withdrew the deposit. The learned Judge, Small Causes Court, Ahmedabad, held the point of the landlord, and holding further sub-letting against 196J Rsjabhai Abdul R1hman Munshi v. P asud10 D/lanjibfzai Mody Hidoyatullah J. 492 1 SUPREME COURT REPORTS [196<1] VOL; that the deposit of Rs. 2126/8/- made by the tenant in his court was sufficient to cover the arrears, and that taken with the deposit of Rs. 400/., the amount came to Rs. 2516/8/- dismissed the suit. This was on February 26, 195i. tenant had withdrawn In the appeal filed by the landlord, the accounts It between 9-6-l!:J53 add 26-2-1957 were recast. that it was pointed out to the appeal court the deposit of that the Rs. <100/-, The j qdgment took this fact into consi- deration and held the tenant to be in arrears and ordered his eviction. The tenant filed a revision application in the High Court and claimed that as the amount of Rs. 400/- was in deposit and at the landlord's disposal, he could not be held to be in default. His counsel made the point that there was nothing on the record to prove that the amount was withdrawn. The High Court held that this was so but held that it had a discretion in the matter and the tenent by his conduct over the years had deprived himself of any conside:ration. The application for revision was dismissed. In applying for leave against the order of the High Court, the tenant quoted a long extract from the judgment of the High Court where it spoke of this deposit, and then went on to say : "The petitioner submits that the High Court was correct in coming to the conclusion that as there was nothing on record to show that the petitioner had withdrawn the sum of Rs. 400/- in . the earlier appeal, the deposited by him petitioner was not in arrears of rent and had paid the costs at the date of the judgment.'. This allegation was supported by the usual affidavit which stated that the facts in the petition were true and that the petition concealed nothing. Strictly 1963 Rajnhhai 4.biul Rehman Munshi v. Vasuitt1 Dhdlljibhai Mo4y Hidayotulloh J, 3 S.C.R. SUPREME COURT REPORTS 49ll speaking, the facts were as they were pleaded in the petition, but there was more. There was one fact the knowledge of the tenant particularly within and it was that he had withdrawn the amount on January 19, 1957, and he was in default even before the judgment af the court of first instance was given on February 26, 1957. This fact was, however, not It was, however, proved on the record of the case. In mentioned in the judgment of the appeal court. the petition for special leave, no reference to this fact was made. Whether the High Court was right in a case of this kind to go by the record, or in view of what the appeal court below had said, might have called for an affidavit, it is not necessary to decide and I express no opinion about it. It is, however, a very different matter when we come to proceedings in this Court. The tenant was seeking special leave against the order of the High Court. At the fore- front of this petition, he had mentioned the fact that the High Court having held that there was no proof of the withdrawal of the amount by the tenant or that the petitioner was in arrears, should have exer- cised the discretion, which the High Court held was possessed by it, in his favour. The tenant hid the fact that even before the decision in the court of first instance, he was in ar- the amount of Rs . .WO/-. rears as he had withdrawn He was thus taking advantage of a fictional deposit in court which in point of fact was not in existence. Whatever may be said about the ordinary course of in which parties succeed or fail on the litigation sufficiency or otherwise of proof on the record, it appears to me that when a party approaches this Court under Art. 136, there must be full candour on his part. The powers exercisable by this Cciurt under Art. 136 of the Constitution are not in the nature of a general appeal. They enable this Court to inter- fere in cases where an irreparable injury has been caused by reason of a miscarriage. of justice due to 1965 /Ujdluii ,011• lt.ehmcn MutJShi v. V .,..., Dh•rijiW.•i Mod.J HU.7ctul/oh J. 494 SUPREME COURT REPORTS [1964] VOL. a gross neglect of law or procedure or otherwise and there is no other adequate remedy. The article is hardly meant to afford relief in a case of this type where a party is in default of rent because he with- drew a deposit . lying in court but who cannot. on the record of the case, be shown to have withdrawn the amount. If the petition had mentioned that the decision of the court had proceeded on the ground that the amount was taken out, it is difficult to imagine that this Court would have given special leave to decide a question of discretion. I have considered the matter carefully. This is not a case of a mere error in the narration of facts or of a bona fide error of judgment .which i:11 certain circumstances may be considered to be venial faults. This is ·a case of being disingenuous with the Court by making out a point of law on a suppositious state of facts, which facts, if told candidly, leave no room for the discussion of.law. Tl).e · appellant has induced it to grant this Court by dissembling in special leave in a case which did not merit it. I that this leave should be recalled agree, therefore, th.e appellant, made. to pay the costs of this appeal. SpeMl Leave rev1ikeiJ,. --'f'-