High Court · 2025

Petitioner :- Smt. Aroona Dwivedi And Another Respondent :- Neeraj Gaur Counsel for Petitioner :- Shrikant Mishra Counsel for Respondent :- Durgesh Kumar Pathak,Ishwar Dutt Shukla,Jai Narayan Mishra AND Case :- MATTERS UNDER ARTICLE 227 No. - 2548 of 2024 Petitioner :- Smt. Nivedita Dwivedi And 2 Others Respondent :- Neeraj Gaur And 2 Others Counsel for Petitioner :- Shrikant Mishra Counsel for Respondent :- Durgesh Kumar Pathak,C.S.C.,Ishwar Dutt Shukla Hon'ble Pankaj Bhatia,J.

1. Heard learned Counsel for the applicants as well as Sri Durgesh Kumar Pathak, learned Counsel for the respondents.

2. Both the applications filed under Article 227 of the Constitution arises out of the same litigation, as such, they are being decided by means of this common judgement.

3. The leading application being Matter Under Article 227 No.2470 of 2024 was filed by the applicants, namely Smt. Aroona Dwivedi and Prakash Chandra Dwivedi as applicants no.1, and 2 respectively. In the said application, the affidavit was sworn by Smt. Aroona Dwivedi, mother of applicants no.2 and 3. In the said applications, the order dated 27.03.2024 has been challenged, whereby, the application preferred by the applicants seeking recall of an ex-parte order was rejected on the ground of non-compliance of Section 17 of the JSCC Act. The said application was also dismissed on the ground that it was a second application, the first application has been dismissed and the second application was not maintainable.

4. The Counsel for the applicants argues that an ex-parte decree was passed against the applicants-defendants on 23.08.2022. He argues that an application filed under Order IX Rule 13 of C.P.C. seeking recall of the ex-parte order dated 23.08.2022, however, the same came to be dismissed on the ground of non- compliance of the mandatory conditions prescribed under Section 17 of the JSCC Act. He further argues that thereafter, the applicants moved an application seeking recall of the ex- parte decree and this time, the applicants offered to furnish sureties for the decretal amount as ascertained in the ex-parte decree, however, the said application was dismissed on the ground that the second application was not maintainable. He places reliance on the judgment of the Hon'ble Supreme Court in the case of Shyam Kumar Gupta vs Shubham Jain: AIR OnLine 2023 SC 105, wherein, the Hon'ble Supreme Court had the occasion to interpret with the mandatory requirement under Section 17 and the Court held that a practical view shall be taken in such matters. He also places reliance upon an interim order passed by this Court on the basis of the submissions made by the applicants, wherein, this Court had passed a detailed order on 16.05.2024. In the said order also, this Court had recorded the submission of the Counsel for the petitioner as have been recorded hereinabove and noticing the judgment in the case of Shyam Kumar Gupta (Supra) staying the execution till the next date of listing.

5. During the pendency of Matter Under Article 227 No.2470 of 2024, another application being Matter Under Article 227 No.2548 of 2024 was preferred by three persons, namely, Smt. Nivedita Dwivedi, Amit Dwivedi and Ratnaker Dwivedi as applicants no.1, 2 and 3 respectively. In the said writ petition, an order dated 27.03.2024 was challenged, wherein, the application filed by the applicants was dismissed on the same reasoning. The applicants challenged the order dated 02.04.2024 passed on the second application filed by the applicants, which too was dismissed.

6. Before going into the facts of the case, the Counsel for the respondents argues that both the applications suffers from the defect of material concealment. He argues that the opposite party filed SCC Suit No.6 of 2011 and SCC Suit No.50 of 2017 (Original No.10 of 2011) in the Small Causes Court, District Bahraich against late Ram Kumar Dwivedi, who is the husband of the petitioner no.1 and the father of the petitioner no.2. Late Ram Kumar Dwivedi filed written statement in both the suits. He further submits that after the death of late Ram Kumar Dwivedi, the sons, namely, Prakash Chandra Dwivedi, Ratnakar Dwivedi, Lalit Dwivedi, Amit Dwivedi as well as the wife Smt. Aroona Dwivedi and the daughter Vandana Gaur were substituted as legal heirs, who filed additional written statement on 22.03.2017. In the meanwhile, Lalit Dwivedi died in the year 2019 and his wife Smt. Nivedita Dwivedi and two minor daughters Km. Anshika and Km. Riddhimma were substituted as legal heirs. He further argues that vide order dated

23.08.2022, the suits were decided as ex-parte.

7. The Counsel for the respondents further argues that the applicants have concealed the facts that on 19.10.2022, Mr. Ratnakar Dwivedi filed applications for recall under Order IX Rule 13 of C.P.C. in both the suits without filing any application under Section 17 of the Provincial Small Causes Courts Act, 1887 and both the applications were dismissed vide orders dated 17.10.2023 (Annexures No.CA-1 and CA-2 to the counter affidavit filed by opposite party no.1 on 03.07.2024). In the meanwhile, the opposite party filed execution case on 21.11.2022 in which on 16.02.2023, the petitioners put their appearance through counsel. Thereafter, the opposite party approached this Court for expeditious disposal of the execution case by filing Matters Under Article 227 No.3701 of 2023, which was disposed off vide order dated 02.11.2023 with the direction to decide the execution case within six weeks. In compliance thereof, the executing court proceeded with the execution case and on 25.11.2023 the Court Ameen went for delivery of possession to the decree holder but the applicants locked the door of the shops and the house and became ready to fight intentionally which was reported by the Court Ameen before the Civil Judge. He further argues that after one month of the dismissal of the recall application filed by Mr. Ratnakar Dwivedi, the remaining defendants including the present petitioners intentionally and deliberately filed another application under Order IX Rule 13 of C.P.C. along with an application bearing No.Ga-9 under Section 17 of the Provincial Small Cause Courts Act stating that the applicants have no knowledge about any case filed by the opposite party no.1 and they came to know first time on 03.11.2023 after getting the certified copy of the order. The application Ga-9 filed under Section 17 was rejected vide order dated 27.03.2024 and subsequently, another application Ga-25 filed on 02.04.2024 under Section 17 was also rejected on the same day i.e. 02.04.2024.

8. It is further argued by the Counsel for the respondent that the applicants have concealed the fact that they have challenged the order dated 02.04.2024 (Second Application under Section 17 dated 02.04.2024) in SCC Revision No.24 of 2024 and SCC Revision No.26 of 2024 filed under Section 25 of SCC Act on 08.04.2024 before the District Judge, Bahriach which was rejected vide order dated 30.04.2024. The applicants have also concealed the fact that subsequent to the order dated 30.04.2024, they have filed SCC Revision No.28 of 2024 and SCC Revision No.30 of 2024 challenging the order dated 27.03.2024, by which application Ga-9 was rejected, before the District Magistrate Bahraich, which was also dismissed vide orders dated 07.05.2024. The petitioners have also concealed the fact that vide orders dated 10.05.2024, the Civil Judge rejecting the applications filed under Order IX Rule 13.

9. Ultimately the application under Order IX Rule 13 was rejected. The facts with regard to the dismissal of the applications was that on two occasions and two revisions being filed by the applicants has been deliberately concealed in the present petitions. The depondent of both the applications is same.

10. From the counter affidavit and the documents contained in the counter affidavit, it is clear that the material facts were concealed and the order was obtained form this Court by concealing material facts. No rejoinder affidavit has been filed. No supplementary affidavit has been filed by the applicants indicating that there was an inadvertence in filing the applications before this Court in hurried manner as argued by the Counsel for the applicants.

11. In view of the facts recorded above, it is clear that both the applications have been filed concealing the material facts and obtaining an order by misleading this Court. In view thereof, the applications are dismissed on the ground of material concealment of facts.

12. The depondent of both the applications are same, there is no reason why the facts which were known to the deponent and why they were not disclosed. It is well settled that the person who approaches this Court for grant of discretion in exercise of powers under Article 226/227 should come with clean hands and should disclose all the material facts which is wanting in the present case, as such, the petitions are dismissed as the applicants have somehow evaded the execution of a decree passed for eviction and payments of arrears of rent have approached this Court with unclean hand, a cost of Rs.20,000/- each on the five applicants of two applications, the total cost of Rs.1,00,000/- shall be paid by the applicants to the respondents within a period of three months from today, failing which, the same shall be recovered as arrears of land revenue by the District Magistrate, Bahraich and shall be paid to the landlords. The applicants are warned not enter into similar misadventure in future failing which this Court would be constrained to pass much severe order.

13. Both the applications are dismissed. Order Date :- 18.2.2025 akverma ASHOK KUMAR VERMA High Court of Judicature at Allahabad, Lucknow Bench

Petitioner :- Smt. Aroona Dwivedi And Another Respondent :- Neeraj Gaur Counsel for Petitioner :- Shrikant Mishra Counsel for Respondent :- Durgesh Kumar Pathak,Ishwar Dutt Shukla,Jai Narayan Mishra AND Case :- MATTERS UNDER ARTICLE 227 No. - 2548 of 2024 Petitioner :- Smt. Nivedita Dwivedi And 2 Others Respondent :- Neeraj Gaur And 2 Others Counsel for Petitioner :- Shrikant Mishra Counsel for Respondent :- Durgesh Kumar Pathak,C.S.C.,Ishwar Dutt Shukla Hon'ble Pankaj Bhatia,J.

1. Heard learned Counsel for the applicants as well as Sri Durgesh Kumar Pathak, learned Counsel for the respondents.

2. Both the applications filed under Article 227 of the Constitution arises out of the same litigation, as such, they are being decided by means of this common judgement.

3. The leading application being Matter Under Article 227 No.2470 of 2024 was filed by the applicants, namely Smt. Aroona Dwivedi and Prakash Chandra Dwivedi as applicants no.1, and 2 respectively. In the said application, the affidavit was sworn by Smt. Aroona Dwivedi, mother of applicants no.2 and 3. In the said applications, the order dated 27.03.2024 has been challenged, whereby, the application preferred by the applicants seeking recall of an ex-parte order was rejected on the ground of non-compliance of Section 17 of the JSCC Act. The said application was also dismissed on the ground that it was a second application, the first application has been dismissed and the second application was not maintainable.

4. The Counsel for the applicants argues that an ex-parte decree was passed against the applicants-defendants on 23.08.2022. He argues that an application filed under Order IX Rule 13 of C.P.C. seeking recall of the ex-parte order dated 23.08.2022, however, the same came to be dismissed on the ground of non- compliance of the mandatory conditions prescribed under Section 17 of the JSCC Act. He further argues that thereafter, the applicants moved an application seeking recall of the ex- parte decree and this time, the applicants offered to furnish sureties for the decretal amount as ascertained in the ex-parte decree, however, the said application was dismissed on the ground that the second application was not maintainable. He places reliance on the judgment of the Hon'ble Supreme Court in the case of Shyam Kumar Gupta vs Shubham Jain: AIR OnLine 2023 SC 105, wherein, the Hon'ble Supreme Court had the occasion to interpret with the mandatory requirement under Section 17 and the Court held that a practical view shall be taken in such matters. He also places reliance upon an interim order passed by this Court on the basis of the submissions made by the applicants, wherein, this Court had passed a detailed order on 16.05.2024. In the said order also, this Court had recorded the submission of the Counsel for the petitioner as have been recorded hereinabove and noticing the judgment in the case of Shyam Kumar Gupta (Supra) staying the execution till the next date of listing.

5. During the pendency of Matter Under Article 227 No.2470 of 2024, another application being Matter Under Article 227 No.2548 of 2024 was preferred by three persons, namely, Smt. Nivedita Dwivedi, Amit Dwivedi and Ratnaker Dwivedi as applicants no.1, 2 and 3 respectively. In the said writ petition, an order dated 27.03.2024 was challenged, wherein, the application filed by the applicants was dismissed on the same reasoning. The applicants challenged the order dated 02.04.2024 passed on the second application filed by the applicants, which too was dismissed.

6. Before going into the facts of the case, the Counsel for the respondents argues that both the applications suffers from the defect of material concealment. He argues that the opposite party filed SCC Suit No.6 of 2011 and SCC Suit No.50 of 2017 (Original No.10 of 2011) in the Small Causes Court, District Bahraich against late Ram Kumar Dwivedi, who is the husband of the petitioner no.1 and the father of the petitioner no.2. Late Ram Kumar Dwivedi filed written statement in both the suits. He further submits that after the death of late Ram Kumar Dwivedi, the sons, namely, Prakash Chandra Dwivedi, Ratnakar Dwivedi, Lalit Dwivedi, Amit Dwivedi as well as the wife Smt. Aroona Dwivedi and the daughter Vandana Gaur were substituted as legal heirs, who filed additional written statement on 22.03.2017. In the meanwhile, Lalit Dwivedi died in the year 2019 and his wife Smt. Nivedita Dwivedi and two minor daughters Km. Anshika and Km. Riddhimma were substituted as legal heirs. He further argues that vide order dated

23.08.2022, the suits were decided as ex-parte.

7. The Counsel for the respondents further argues that the applicants have concealed the facts that on 19.10.2022, Mr. Ratnakar Dwivedi filed applications for recall under Order IX Rule 13 of C.P.C. in both the suits without filing any application under Section 17 of the Provincial Small Causes Courts Act, 1887 and both the applications were dismissed vide orders dated 17.10.2023 (Annexures No.CA-1 and CA-2 to the counter affidavit filed by opposite party no.1 on 03.07.2024). In the meanwhile, the opposite party filed execution case on 21.11.2022 in which on 16.02.2023, the petitioners put their appearance through counsel. Thereafter, the opposite party approached this Court for expeditious disposal of the execution case by filing Matters Under Article 227 No.3701 of 2023, which was disposed off vide order dated 02.11.2023 with the direction to decide the execution case within six weeks. In compliance thereof, the executing court proceeded with the execution case and on 25.11.2023 the Court Ameen went for delivery of possession to the decree holder but the applicants locked the door of the shops and the house and became ready to fight intentionally which was reported by the Court Ameen before the Civil Judge. He further argues that after one month of the dismissal of the recall application filed by Mr. Ratnakar Dwivedi, the remaining defendants including the present petitioners intentionally and deliberately filed another application under Order IX Rule 13 of C.P.C. along with an application bearing No.Ga-9 under Section 17 of the Provincial Small Cause Courts Act stating that the applicants have no knowledge about any case filed by the opposite party no.1 and they came to know first time on 03.11.2023 after getting the certified copy of the order. The application Ga-9 filed under Section 17 was rejected vide order dated 27.03.2024 and subsequently, another application Ga-25 filed on 02.04.2024 under Section 17 was also rejected on the same day i.e. 02.04.2024.

8. It is further argued by the Counsel for the respondent that the applicants have concealed the fact that they have challenged the order dated 02.04.2024 (Second Application under Section 17 dated 02.04.2024) in SCC Revision No.24 of 2024 and SCC Revision No.26 of 2024 filed under Section 25 of SCC Act on 08.04.2024 before the District Judge, Bahriach which was rejected vide order dated 30.04.2024. The applicants have also concealed the fact that subsequent to the order dated 30.04.2024, they have filed SCC Revision No.28 of 2024 and SCC Revision No.30 of 2024 challenging the order dated 27.03.2024, by which application Ga-9 was rejected, before the District Magistrate Bahraich, which was also dismissed vide orders dated 07.05.2024. The petitioners have also concealed the fact that vide orders dated 10.05.2024, the Civil Judge rejecting the applications filed under Order IX Rule 13.

9. Ultimately the application under Order IX Rule 13 was rejected. The facts with regard to the dismissal of the applications was that on two occasions and two revisions being filed by the applicants has been deliberately concealed in the present petitions. The depondent of both the applications is same.

10. From the counter affidavit and the documents contained in the counter affidavit, it is clear that the material facts were concealed and the order was obtained form this Court by concealing material facts. No rejoinder affidavit has been filed. No supplementary affidavit has been filed by the applicants indicating that there was an inadvertence in filing the applications before this Court in hurried manner as argued by the Counsel for the applicants.

11. In view of the facts recorded above, it is clear that both the applications have been filed concealing the material facts and obtaining an order by misleading this Court. In view thereof, the applications are dismissed on the ground of material concealment of facts.

12. The depondent of both the applications are same, there is no reason why the facts which were known to the deponent and why they were not disclosed. It is well settled that the person who approaches this Court for grant of discretion in exercise of powers under Article 226/227 should come with clean hands and should disclose all the material facts which is wanting in the present case, as such, the petitions are dismissed as the applicants have somehow evaded the execution of a decree passed for eviction and payments of arrears of rent have approached this Court with unclean hand, a cost of Rs.20,000/- each on the five applicants of two applications, the total cost of Rs.1,00,000/- shall be paid by the applicants to the respondents within a period of three months from today, failing which, the same shall be recovered as arrears of land revenue by the District Magistrate, Bahraich and shall be paid to the landlords. The applicants are warned not enter into similar misadventure in future failing which this Court would be constrained to pass much severe order.

13. Both the applications are dismissed. Order Date :- 18.2.2025 akverma ASHOK KUMAR VERMA High Court of Judicature at Allahabad, Lucknow Bench