High Court
Legal Reasoning
943 CA 3482-2024 (Corrected)29/03/2023. Against the dismissal of the objections of the JudgmentDebtor, writ petition is filed in this Court bearing Writ PetitionNo.9167/2023, and this Court by order dated 28/07/2023 issued noticeto the respondent, however no interim relief was not granted by thisCourt even on subsequent dates. Thereafter, the Executing Court in thesame execution proceedings passed a consequential order dated11/12/2023 directing as under : -“ekSts uGnqxZ] rk- rqGtkiwj] ft- mLekukckn ;sFkhy uxj ifj”kn gn~nhrhytquk ?kj dz- 726 o 1025 o uohj ?kj dz- 859 lnj tkxsps nksu Hkkxvlwu Hkkx dz-1 ;kph ykach iwoZ&if’pe 58 QqV o #anh nf{k.kksRrj 33 QqVvlwu R;kps ,dw.k {ks=QG 177-88 pkS-eh- vkgs- Hkkx dz-2 ;kph ykachnf{k.kksRrj 19 QqV o #anh iwoZ&if’pe 15-50 QqV vlwu R;kps {ks= 27-46pkS-eh- vkgs- ;k nksUgh Hkkxkps ,dw.k {ks= 205-34 pkS-eh- vlwu lnjtkxse/;s 50 pkS-eh- ps pkSnhokjh nxM ekrhps tqus cka/kdke vlwu moZjhr155-34 pkS-eh- tkxk [kqyh tIr dj.;kr ;srs-”4.The Executing Court directed that the Judgment Debtors HouseNo.859 be attached. Against which a writ Petition No.244/2024 is filedin this Court in which the petitioners contended that they have paidsubstantial amount and that the Rs.30,00,000/- balance amount wouldbe payable and that the Decree Holder is entitled to receive 10%Page 3 of 8 This order is corrected in view of the order of ‘Speaking to the Minutes’ dated 23/08/2024. 943 CA 3482-2024 (Corrected)interest per annum for the outstanding amount.5.It is contended by the petitioner in Writ Petition No.244/2024 thatsince they had paid substantial amount, the allotted property should notbe sold and that they would make the payment of balance amountwithin certain time. To show their bona fides, they had also depositRs.5 lakh as mentioned in terms of the order dated 15/01/2024. In thepresent petition the respondents appeared and have pointed out that inthe earlier writ petition filed before this Court bearing Writ PetitionNo.9167/2023, the order rejecting the Judgment Debtors objections ischallenged. However, in the present Writ Petition No.244/2024 there isno mention as regards the order passed and in the Writ PetitionNo.9167/2023. The Writ Petition No.9167/2023 this Court has similicitorissued notice and the matter is pending adjudication. The orderchallenged in the present Writ Petition No.244/2024 after rejection ofthe objection filed by the Judgment Debtors is a challenge toconsequential order. In absence of any information being provided ofearlier Writ Petition No.9167/2023, in the present Writ PetitionNo.244/2024 amounts to suppression of material fact and an order isobtained from this Court without disclosing the earlier pending WritPetition No.9167/2023. The Writ Petition No.244/2024 challenges aPage 4 of 8 This order is corrected in view of the order of ‘Speaking to the Minutes’ dated 23/08/2024. 943 CA 3482-2024 (Corrected)consequent order passed after the rejection of objection of thepetitioner. Every consequential order cannot give rise a fresh cause tofile independent proceedings.6.On the aspect of suppression of material fact, the Hon’bleSupreme Court, in case of M/s S.J.S. Business Enterprises (P) Ltd.vs. State of Bihar and Ors., reported in AIR 2004 SupremeCourt 2421, has held as follows : -“As a general rule, suppression of a material fact by alitigant disqualifies such litigant from obtaining any relief.This rule has been evolved out of the need of the Courts todeter a litigant from abusing the process of Court bydeceiving it. But the suppressed fact must be a materialone in the sense that had it not been suppressed it wouldhave had an effect on the merits of the case. It must be amatter which was material for the consideration of theCourt, whatever view the Court may have taken.”7.In the case before the Hon’ble Supreme Court in the case ofM/s S. J. S. Business Enterprises (Supra) , the appellant hadPage 5 of 8 This order is corrected in view of the order of ‘Speaking to the Minutes’ dated 23/08/2024. 943 CA 3482-2024 (Corrected)pursued remedy an alternative forum and also filed a writ petition.However, the suit was withdrawn, and the appellant chose to seekremedy under Article 226 of the Constitution of India. In this context,the Court held that there was no suppression of facts, and the case hadno merits.8.In the present case, the petitioner filed another writ petitionchallenging the rejection of objection to the execution proceedings,which is currently pending before this Court without any interim relief.The petitioner challenged a subsequent order without disclosing thependency of the first petition while obtaining an interim stay. Thisconstitutes suppression of a material fact. If the Court had known aboutthe earlier petition, it might have directed the petitioner to file anappropriate application in that petition or would have tagged thepresent petition with the earlier one, without granting any interim relief.9.In case of Arunima Baruah vs. Union of India and Ors.,reported in 2007 (6) SCC 120, the Hon’ble Supreme Court has heldas follows : -“Ubi jus ibi remedium is a well known concept. The courtwhile refusing to grant a relief to a person who comes witha genuine grievance in an arguable case should be given ahearing. [See Bhagubhai Dhanabhai Khalasi (supra)] In thisPage 6 of 8 This order is corrected in view of the order of ‘Speaking to the Minutes’ dated 23/08/2024. 943 CA 3482-2024 (Corrected)case, however, the appellant had suppressed a materialfact. It is evident that the writ petition was filed only whenno order of interim injunction was passed. It was obligatoryon the part of the appellant to disclose the said fact.”10.So also, the Hon’ble Supreme Court in case of M/s PrestigeLights Ltd. vs. State Bank of India, reported in 2007 (8) SCC447, held as follows in paragraph 34 : -“34. It is well settled that a prerogative remedy is not amatter of course. In exercising extraordinary power,therefore, a Writ Court will indeed bear in mind the conductof the party who is invoking such jurisdiction. If theapplicant does not disclose full facts or suppresses relevantmaterials or is otherwise guilty of misleading the Court, theCourt may dismiss the action without adjudicating thematter. The rule has been evolved in larger public interestto deter unscrupulous litigants from abusing the process ofCourt by deceiving it. The very basis of the writ jurisdictionrests in disclosure of true, complete and correct facts. If thematerial facts are not candidly stated or are suppressed orare distorted, the very functioning of the writ courts wouldbecome impossible.”11.Considering the law laid down in the above Judgments and in viewof the suppression of material fact of the earlier writ petition beingpending in this Court without any interim relief and interim order beingPage 7 of 8 This order is corrected in view of the order of ‘Speaking to the Minutes’ dated 23/08/2024.
Arguments
IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD943 CIVIL APPLICATION NO. 3482 OF 2024 IN WP/244/2024Sayyad Gazanfaruddin Sayyad Habibuddin (as Per Writ Petition) SayyedGajanfaroddin SayyedVERSUSSayyad Kausar Sayyad Pasha Mazhar Jahagirdar And Ors...Advocate for Applicant : Mr. Abhay G. Deshmukh (Mogarekar)Advocate for Respondents No.2,3,4 : Mr. B. R. RathodAdvocate for Respondent No.5 WP : Mr. S. N. PatneAdvocate for Petitioner in WP : Mr. P. B. Rakhunde...WITHWRIT PETITION NO. 244 OF 2024 WITHWRIT PETITION NO. 9167 OF 2023 WITHCIVIL APPLICATION NO. 8172 OF 2024 IN WP/9167/2023 WITHCIVIL APPLICATION NO. 8171 OF 2024 IN WP/244/2024 ….CORAM : ARUN R. PEDNEKER, J.Dated : August 09, 2024ORDER :-1.Heard learned Counsel for both sides.2.In the instant case execution proceedings are filed in terms of thecompromise decree passed in Special Civil Suit No.06/2015, dated06/03/2019. In the execution proceedings, the objections were raised byPage 1 of 8 This order is corrected in view of the order of ‘Speaking to the Minutes’ dated 23/08/2024. 943 CA 3482-2024 (Corrected)the Judgment Debtor No.1 and 3. The objections raised were rejectedby the Executing court holding that the Record shows that during thependency of the suit, compromise took place between the parties, andin the compromise, there is an admission that the plaintiffs are ownersand possessors of the suit property and the plaintiffs by way of saledeed sold the suit property to defendants No.1 to 4, and accordinglypossession was handed over to the defendants. Thereafter, defendantsNo.1 to 4 by registered sale deed sold the said property to defendantsNo.5 to 66, and handed over the possession as the compromise tookplace between the plaintiffs No.1 to 4 and defendants. Plaintiffs hadwithdrawn the suit against defendants No.5 to 66 unconditionally. Inthe compromise, the defendants No.1 and 3 had agreed to payconsideration of Rs.1,33,00,000/- to the plaintiffs and out ofconsideration Rs.1,33,00,000/-, the Decree Holders have receivedRs.1,03,00,000/- lakh from the Judgment Debtors No.1 and 3, and anamount of Rs.30,00,000/- is due from the Judgment Debtor. As such, anexecution petition is filed for the recovery of the balance amount.3.Cheques issued towards the payment are also returned back tothe Decree Holder No.1. In view of the same, the objection raised bythe Judgment Debtor was rejected by the Executing Court datedPage 2 of 8 This order is corrected in view of the order of ‘Speaking to the Minutes’ dated 23/08/2024.
Decision
943 CA 3482-2024 (Corrected)obtained in the subsequent writ petition without disclosing the earlierwrit petition, both the writ petitions become liable for dismissal. In viewof the same, the writ petitions stand dismissed. Pending CivilApplications stand disposed of. 12.Amount deposited in this Court stands transmitted to theExecuting Court. ( ARUN R. PEDNEKER, J. )vj gawade/-.Page 8 of 8 This order is corrected in view of the order of ‘Speaking to the Minutes’ dated 23/08/2024.