Adverting to the impugned order, it would be noticed that the
learned Court has simply chosen to rely upon the contents of the application
only because the same was supported by the affidavit of the respondents.
Despite the factual aspects being disputed, it did not care to verify the factual
position from the records and proceeded to allow the application by
observing that expression sufficient cause should be construed to advance
substantial justice and the Court should not take strict and pedantic approach
and that the petitioner could conveniently be compensated by imposing cost
and then proceeded to award Rs.1,500/- as cost.
15. Obviously, learned trial Court has fallen in error in relying upon
the contents of the averment which were clearly belied by the documents
placed on record more particularly the summons that have been received
back after the service of respondents No.1 and 4. Therefore, the ultimate
award of costs would be no panacea in such cases, since the mischief
cannot be repaired. The order passed by the learned Court below is clearly
unsustainable and is therefore set aside.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 308 of 2016.
Date of decision : November 8th, 2016
Dinesh Kumar
V
Jyoti Prakash and others
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Citation:AIR 2017 HP26
This petition under Article 227 of the Constitution of India
is directed against the order passed by the learned trial Court on
15.3.2016 whereby the applications filed by the respondents No.1 and
4 under Order 9 Rule 4 CPC have been allowed and orders dated
19.3.2011 and 21.11.2012 whereby these respondents had been
proceeded ex-parte has been ordered to be set aside.
The facts in brief may be noticed thus.
2. The petitioner has filed suit for recovery against the
respondents which is pending before the Learned trial Court. The
respondents No.1 and 4 were duly served and did not contest the suit
for 4-5 years and it is only thereafter that they filed applications for
setting aside exparte order, which applications as observed above has
been ordered to be allowed by the Learned trial Court.
3. The grievance of the petitioner is that the application(s)
filed by respondents No.1 and 4 could not have been allowed as the
same was based on falsehood. He has invited my attention to the
application firstly filed by respondent No.1 wherein it is averred that the
respondent has been serving in the Indian Army for the last 3 years
and remained posted in the most sensitive areas. In addition to that he
also remained on deputation with VIPs and as such did not receive any
notice from the Court and was proceeded exparte on 19.3.2011. He
further invited my attention to the summons issued to respondent No.1
which were infact duly received by his wife and at the time the
respondent No.1 himself was available at home.
4 As regards, the respondent No.4, the application filed for
setting aside the ex parte order discloses that the only reason given for
non-appearance is that she was residing at Ludhiana and came to
know about the pendency of the case when she visited her native
place. Where as, the notice issued to respondent No.4 which has
been appended as Annexure P-1 with the petition discloses that the
petitioner had personally received the summons on 16.2.2011 and
therefore the explanation offered by her, like the one offered by the
respondent no.1, is totally false.
5. Ordinarily, this Court would not interfere with matters
which pertain to setting aside of exparte orders as it is more than
settled that when technicalities are pitted against substantive justice,
then obviously substantive justice has to prevail. However, the said
principle would not apply to a case where a party does not approach
the Court with clean hands, clean mind and a clean heart.
6. It is proved on record that the defence set up by the
appellant was absolutely false. In Maria Margarida Sequeria
Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the
Hon’ble Supreme Court held that false claims and defences are
serious problems with the litigation. The Hon’ble Supreme Court held
as under:-
84. False claims and defences are really serious problems with real
estate litigation, predominantly because of ever escalating prices of
the real estate. Litigation pertaining to valuable real estate properties
is dragged on by unscrupulous litigants in the hope that the other
party will tire out and ultimately would settle with them by paying a
huge amount. This happens because of the enormous delay in
adjudication of cases in our Courts. If pragmatic approach is adopted,
then this problem can be minimized to a large extent."
7. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the
Hon’ble Supreme Court observed that a new creed of litigants have
cropped up in the last 40 years who do not have any respect for truth
and shamelessly resort to falsehood and unethical means for achieving
their goals. The observations of the Supreme Court are as under:-
"1. For many centuries, Indian society cherished two basic values of
life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam
Buddha 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-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 over shadowed 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.
2. In 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."
8. In Satyender Singh v. Gulab Singh, 2012 (129) DRJ,
128, the Division Bench of Delhi High Court following Dalip Singh v.
State of U.P. (supra) observed that the Courts are flooded with
litigation with false and incoherent pleas and tainted evidence led by
the parties due to which the judicial system in the country is choked
and such litigants are consuming Courts‟ time for a wrong cause.”
The observations of Court are as under:-
"2. As rightly observed by the Supreme Court, Satya is a basic value
of life which was required to be followed by everybody and is
recognized since many centuries. In spite of caution, courts are
continued to be flooded with litigation with false and incoherent pleas
and tainted evidence led by the parties. The judicial system in the
country is choked and such litigants are consuming courts„ time for a
wrong cause. Efforts are made by the parties to steal a march over
their rivals by resorting to false and incoherent statements made
before the Court. Indeed, it is a nightmare faced by a Trier of Facts;
required to stitch a garment, when confronted with a fabric where the
weft, shuttling back and forth across the warp in weaving, is nothing
but lies. As the threads of the weft fall, the yarn of the warp also
collapses; and there is no fabric left."
9. In Sky Land International Pvt. Ltd. v. Kavita P. Lalwani,
(2012) 191 DLT 594, Delhi High Court held as under:-
"26.20 Dishonest and unnecessary litigations are a huge strain on
the judicial system. The Courts are continued to be flooded with
litigation with false and incoherent pleas and tainted evidence led by
the parties. The judicial system in the country is choked and such
litigants are consuming courts„ time for a wrong cause. Efforts are
made by the parties to steal a march over their rivals by resorting to
false and incoherent statements made before the Court.
26.22 Unless the Courts ensure that wrongdoers are denied profit or
undue benefit from the frivolous litigation, it would be difficult to
control frivolous and uncalled for litigations. In order to curb uncalled
for and frivolous litigation, the Courts have to ensure that there is no
incentive or motive for uncalled for litigation. It is a matter of common
experience that the Courts‟ scarce and valuable time is consumed or
more appropriately wasted in a large number of uncalled for cases. It
becomes the duty of the Courts to see that such wrong doers are
discouraged at every step and even if they succeed in prolonging the
litigation, ultimately they must suffer the costs. Despite settled legal
positions, the obvious wrong doers, use one after another tier of
judicial review mechanism as a gamble, knowing fully well that the
dice is always loaded in their favour, since even if they lose, the time
gained is the real gain. This situation must be redeemed by the
Courts."
10. The judicial system has been abused and virtually brought
to its knees by unscrupulous litigants like the respondents No.1 and 4..
It has to be remembered that Court’s proceedings are sacrosanct and
should not be polluted by unscrupulous litigants.
11. In A. Shanmugam Vs. Ariya Kshatriya Rajakula
Vamsathu Madalaya Nandhavana Paripalanai Sangam and ors.
(2012) 6 SCC 430, the Hon’ble Supreme Court held as under:-
“27. The pleadings must set forth sufficient factual details to the
extent that it reduces the ability to put forward a false or exaggerated
claim or defence. The pleadings must inspire confidence and
credibility. If false averments, evasive denials or false denials are
introduced, then the court must carefully look into it while deciding a
case and insist that those who approach the court must approach it
with clean hands.”
12. In Kishore Samrite Vs. State Of Uttar Pradesh and ors.
(2013) 2 SCC 398, the Hon’ble Supreme Court observed as under:
“32.The cases of abuse of process of court and such allied matters
have been arising before the courts consistently. This Court has had
many occasions where it dealt with the cases of this kind and it has
clearly stated the principles that would govern the obligations of a
litigant while approaching the court for redressal of any grievance
and the consequences of abuse of process of court. We may
recapitulate and state some of the principles. It is difficult to state
such principles exhaustively and with such accuracy that would
uniformly apply to a variety of cases. These are:
32.1. Courts have, over the centuries, frowned upon litigants who,
with intent to deceive and mislead the Courts, initiated proceedings
without full disclosure of facts and came to the courts with ‘unclean
hands’. Courts have held that such litigants are neither entitled to be
heard on the merits of the case nor entitled to any relief.
32.2. The people, who approach the Court for relief on an ex parte
statement, are under a contract with the court that they would state
the whole case fully and fairly to the court and where the litigant has
broken such faith, the discretion of the court cannot be exercised in
favour of such a litigant.
32.3. The obligation to approach the Court with clean hands is an
absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those
involved in litigation do not hesitate to take shelter of falsehood and
misrepresent and suppress facts in the court proceedings.
Materialism, opportunism and malicious intent have over-shadowed
the old ethos of litigative values for small gains.
32.5. 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.
32.6. The Court must ensure that its process is not abused and in
order to prevent abuse of process of court, it would be justified even
in insisting on furnishing of security and in cases of serious abuse,
the Court would be duty bound to impose heavy costs.
32.7. Wherever a public interest is invoked, the Court must examine
the petition carefully to ensure that there is genuine public interest
involved. The stream of justice should not be allowed to be polluted
by unscrupulous litigants.
32.8. The Court, especially the Supreme Court, has to maintain
strictest vigilance over the abuse of the process of court and
ordinarily meddlesome bystanders should not be granted “visa”.
Many societal pollutants create new problems of unredressed
grievances and the Court should endure to take cases where the
justice of the lis well-justifies it. [Refer : Dalip Singh v. State of U.P. &
Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7
SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors.
(2010) 3 SCC 402].
33. Access jurisprudence requires Courts to deal with the legitimate
litigation whatever be its form but decline to exercise jurisdiction, if
such litigation is an abuse of the process of the Court. In P.S.R.
Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141, the Court
held:
“15. The crucial significance of access jurisprudence has been
best expressed by Cappelletti:
“The right of effective access to justice has emerged
with the new social rights. Indeed, it is of paramount
importance among these new rights since, clearly, the
enjoyment of traditional as well as new social rights
presupposes mechanisms for their effective
protection. Such protection, moreover, is best assured
be a workable remedy within the framework of the
judicial system. Effective access to justice can thus be
seen as the most basic requirement the most basic
‘human-right’ of a system which purports to guarantee
legal rights.”
16. We are thus satisfied that the bogey of busybodies
blackmailing adversaries through frivolous invocation of
Article 136 is chimerical. Access to justice to every bona fide
seeker is a democratic dimension of remedial jurisprudence
even as public interest litigation, class action, pro bono
proceedings, are. We cannot dwell in the home of processual
obsolescence when our Constitution highlights social justice
as a goal. We hold that there is no merit in the contentions of
the writ petitioner and dismiss the petition.”
13. There is a legal duty cast upon a party to come to the Court
with the true case or defence and prove it by true evidence. The Court of law
is meant for imparting justice between the parties. One who comes to the
Court, must come with clean hands and a person whose case is based on
falsehood has no right to approach the Court and can be summarily thrown
out at any stage of the litigation.
14. Adverting to the impugned order, it would be noticed that the
learned Court has simply chosen to rely upon the contents of the application
only because the same was supported by the affidavit of the respondents.
Despite the factual aspects being disputed, it did not care to verify the factual
position from the records and proceeded to allow the application by
observing that expression sufficient cause should be construed to advance
substantial justice and the Court should not take strict and pedantic approach
and that the petitioner could conveniently be compensated by imposing cost
and then proceeded to award Rs.1,500/- as cost.
15. Obviously, learned trial Court has fallen in error in relying upon
the contents of the averment which were clearly belied by the documents
placed on record more particularly the summons that have been received
back after the service of respondents No.1 and 4. Therefore, the ultimate
award of costs would be no panacea in such cases, since the mischief
cannot be repaired. The order passed by the learned Court below is clearly
unsustainable and is therefore set aside.
16. Consequently, the petition is allowed in the aforesaid terms,
leaving the parties to bear their cost. Pending application, if any, also stands
disposed of.
November 8th, 2016 (Tarlok Singh Chauhan)
(Vandana) Judge
Print Page
learned Court has simply chosen to rely upon the contents of the application
only because the same was supported by the affidavit of the respondents.
Despite the factual aspects being disputed, it did not care to verify the factual
position from the records and proceeded to allow the application by
observing that expression sufficient cause should be construed to advance
substantial justice and the Court should not take strict and pedantic approach
and that the petitioner could conveniently be compensated by imposing cost
and then proceeded to award Rs.1,500/- as cost.
15. Obviously, learned trial Court has fallen in error in relying upon
the contents of the averment which were clearly belied by the documents
placed on record more particularly the summons that have been received
back after the service of respondents No.1 and 4. Therefore, the ultimate
award of costs would be no panacea in such cases, since the mischief
cannot be repaired. The order passed by the learned Court below is clearly
unsustainable and is therefore set aside.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 308 of 2016.
Date of decision : November 8th, 2016
Dinesh Kumar
V
Jyoti Prakash and others
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Citation:AIR 2017 HP26
This petition under Article 227 of the Constitution of India
is directed against the order passed by the learned trial Court on
15.3.2016 whereby the applications filed by the respondents No.1 and
4 under Order 9 Rule 4 CPC have been allowed and orders dated
19.3.2011 and 21.11.2012 whereby these respondents had been
proceeded ex-parte has been ordered to be set aside.
The facts in brief may be noticed thus.
2. The petitioner has filed suit for recovery against the
respondents which is pending before the Learned trial Court. The
respondents No.1 and 4 were duly served and did not contest the suit
for 4-5 years and it is only thereafter that they filed applications for
setting aside exparte order, which applications as observed above has
been ordered to be allowed by the Learned trial Court.
3. The grievance of the petitioner is that the application(s)
filed by respondents No.1 and 4 could not have been allowed as the
same was based on falsehood. He has invited my attention to the
application firstly filed by respondent No.1 wherein it is averred that the
respondent has been serving in the Indian Army for the last 3 years
and remained posted in the most sensitive areas. In addition to that he
also remained on deputation with VIPs and as such did not receive any
notice from the Court and was proceeded exparte on 19.3.2011. He
further invited my attention to the summons issued to respondent No.1
which were infact duly received by his wife and at the time the
respondent No.1 himself was available at home.
4 As regards, the respondent No.4, the application filed for
setting aside the ex parte order discloses that the only reason given for
non-appearance is that she was residing at Ludhiana and came to
know about the pendency of the case when she visited her native
place. Where as, the notice issued to respondent No.4 which has
been appended as Annexure P-1 with the petition discloses that the
petitioner had personally received the summons on 16.2.2011 and
therefore the explanation offered by her, like the one offered by the
respondent no.1, is totally false.
5. Ordinarily, this Court would not interfere with matters
which pertain to setting aside of exparte orders as it is more than
settled that when technicalities are pitted against substantive justice,
then obviously substantive justice has to prevail. However, the said
principle would not apply to a case where a party does not approach
the Court with clean hands, clean mind and a clean heart.
6. It is proved on record that the defence set up by the
appellant was absolutely false. In Maria Margarida Sequeria
Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the
Hon’ble Supreme Court held that false claims and defences are
serious problems with the litigation. The Hon’ble Supreme Court held
as under:-
84. False claims and defences are really serious problems with real
estate litigation, predominantly because of ever escalating prices of
the real estate. Litigation pertaining to valuable real estate properties
is dragged on by unscrupulous litigants in the hope that the other
party will tire out and ultimately would settle with them by paying a
huge amount. This happens because of the enormous delay in
adjudication of cases in our Courts. If pragmatic approach is adopted,
then this problem can be minimized to a large extent."
7. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the
Hon’ble Supreme Court observed that a new creed of litigants have
cropped up in the last 40 years who do not have any respect for truth
and shamelessly resort to falsehood and unethical means for achieving
their goals. The observations of the Supreme Court are as under:-
"1. For many centuries, Indian society cherished two basic values of
life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam
Buddha 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-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 over shadowed 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.
2. In 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."
8. In Satyender Singh v. Gulab Singh, 2012 (129) DRJ,
128, the Division Bench of Delhi High Court following Dalip Singh v.
State of U.P. (supra) observed that the Courts are flooded with
litigation with false and incoherent pleas and tainted evidence led by
the parties due to which the judicial system in the country is choked
and such litigants are consuming Courts‟ time for a wrong cause.”
The observations of Court are as under:-
"2. As rightly observed by the Supreme Court, Satya is a basic value
of life which was required to be followed by everybody and is
recognized since many centuries. In spite of caution, courts are
continued to be flooded with litigation with false and incoherent pleas
and tainted evidence led by the parties. The judicial system in the
country is choked and such litigants are consuming courts„ time for a
wrong cause. Efforts are made by the parties to steal a march over
their rivals by resorting to false and incoherent statements made
before the Court. Indeed, it is a nightmare faced by a Trier of Facts;
required to stitch a garment, when confronted with a fabric where the
weft, shuttling back and forth across the warp in weaving, is nothing
but lies. As the threads of the weft fall, the yarn of the warp also
collapses; and there is no fabric left."
9. In Sky Land International Pvt. Ltd. v. Kavita P. Lalwani,
(2012) 191 DLT 594, Delhi High Court held as under:-
"26.20 Dishonest and unnecessary litigations are a huge strain on
the judicial system. The Courts are continued to be flooded with
litigation with false and incoherent pleas and tainted evidence led by
the parties. The judicial system in the country is choked and such
litigants are consuming courts„ time for a wrong cause. Efforts are
made by the parties to steal a march over their rivals by resorting to
false and incoherent statements made before the Court.
26.22 Unless the Courts ensure that wrongdoers are denied profit or
undue benefit from the frivolous litigation, it would be difficult to
control frivolous and uncalled for litigations. In order to curb uncalled
for and frivolous litigation, the Courts have to ensure that there is no
incentive or motive for uncalled for litigation. It is a matter of common
experience that the Courts‟ scarce and valuable time is consumed or
more appropriately wasted in a large number of uncalled for cases. It
becomes the duty of the Courts to see that such wrong doers are
discouraged at every step and even if they succeed in prolonging the
litigation, ultimately they must suffer the costs. Despite settled legal
positions, the obvious wrong doers, use one after another tier of
judicial review mechanism as a gamble, knowing fully well that the
dice is always loaded in their favour, since even if they lose, the time
gained is the real gain. This situation must be redeemed by the
Courts."
10. The judicial system has been abused and virtually brought
to its knees by unscrupulous litigants like the respondents No.1 and 4..
It has to be remembered that Court’s proceedings are sacrosanct and
should not be polluted by unscrupulous litigants.
11. In A. Shanmugam Vs. Ariya Kshatriya Rajakula
Vamsathu Madalaya Nandhavana Paripalanai Sangam and ors.
(2012) 6 SCC 430, the Hon’ble Supreme Court held as under:-
“27. The pleadings must set forth sufficient factual details to the
extent that it reduces the ability to put forward a false or exaggerated
claim or defence. The pleadings must inspire confidence and
credibility. If false averments, evasive denials or false denials are
introduced, then the court must carefully look into it while deciding a
case and insist that those who approach the court must approach it
with clean hands.”
12. In Kishore Samrite Vs. State Of Uttar Pradesh and ors.
(2013) 2 SCC 398, the Hon’ble Supreme Court observed as under:
“32.The cases of abuse of process of court and such allied matters
have been arising before the courts consistently. This Court has had
many occasions where it dealt with the cases of this kind and it has
clearly stated the principles that would govern the obligations of a
litigant while approaching the court for redressal of any grievance
and the consequences of abuse of process of court. We may
recapitulate and state some of the principles. It is difficult to state
such principles exhaustively and with such accuracy that would
uniformly apply to a variety of cases. These are:
32.1. Courts have, over the centuries, frowned upon litigants who,
with intent to deceive and mislead the Courts, initiated proceedings
without full disclosure of facts and came to the courts with ‘unclean
hands’. Courts have held that such litigants are neither entitled to be
heard on the merits of the case nor entitled to any relief.
32.2. The people, who approach the Court for relief on an ex parte
statement, are under a contract with the court that they would state
the whole case fully and fairly to the court and where the litigant has
broken such faith, the discretion of the court cannot be exercised in
favour of such a litigant.
32.3. The obligation to approach the Court with clean hands is an
absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those
involved in litigation do not hesitate to take shelter of falsehood and
misrepresent and suppress facts in the court proceedings.
Materialism, opportunism and malicious intent have over-shadowed
the old ethos of litigative values for small gains.
32.5. 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.
32.6. The Court must ensure that its process is not abused and in
order to prevent abuse of process of court, it would be justified even
in insisting on furnishing of security and in cases of serious abuse,
the Court would be duty bound to impose heavy costs.
32.7. Wherever a public interest is invoked, the Court must examine
the petition carefully to ensure that there is genuine public interest
involved. The stream of justice should not be allowed to be polluted
by unscrupulous litigants.
32.8. The Court, especially the Supreme Court, has to maintain
strictest vigilance over the abuse of the process of court and
ordinarily meddlesome bystanders should not be granted “visa”.
Many societal pollutants create new problems of unredressed
grievances and the Court should endure to take cases where the
justice of the lis well-justifies it. [Refer : Dalip Singh v. State of U.P. &
Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7
SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors.
(2010) 3 SCC 402].
33. Access jurisprudence requires Courts to deal with the legitimate
litigation whatever be its form but decline to exercise jurisdiction, if
such litigation is an abuse of the process of the Court. In P.S.R.
Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141, the Court
held:
“15. The crucial significance of access jurisprudence has been
best expressed by Cappelletti:
“The right of effective access to justice has emerged
with the new social rights. Indeed, it is of paramount
importance among these new rights since, clearly, the
enjoyment of traditional as well as new social rights
presupposes mechanisms for their effective
protection. Such protection, moreover, is best assured
be a workable remedy within the framework of the
judicial system. Effective access to justice can thus be
seen as the most basic requirement the most basic
‘human-right’ of a system which purports to guarantee
legal rights.”
16. We are thus satisfied that the bogey of busybodies
blackmailing adversaries through frivolous invocation of
Article 136 is chimerical. Access to justice to every bona fide
seeker is a democratic dimension of remedial jurisprudence
even as public interest litigation, class action, pro bono
proceedings, are. We cannot dwell in the home of processual
obsolescence when our Constitution highlights social justice
as a goal. We hold that there is no merit in the contentions of
the writ petitioner and dismiss the petition.”
13. There is a legal duty cast upon a party to come to the Court
with the true case or defence and prove it by true evidence. The Court of law
is meant for imparting justice between the parties. One who comes to the
Court, must come with clean hands and a person whose case is based on
falsehood has no right to approach the Court and can be summarily thrown
out at any stage of the litigation.
14. Adverting to the impugned order, it would be noticed that the
learned Court has simply chosen to rely upon the contents of the application
only because the same was supported by the affidavit of the respondents.
Despite the factual aspects being disputed, it did not care to verify the factual
position from the records and proceeded to allow the application by
observing that expression sufficient cause should be construed to advance
substantial justice and the Court should not take strict and pedantic approach
and that the petitioner could conveniently be compensated by imposing cost
and then proceeded to award Rs.1,500/- as cost.
15. Obviously, learned trial Court has fallen in error in relying upon
the contents of the averment which were clearly belied by the documents
placed on record more particularly the summons that have been received
back after the service of respondents No.1 and 4. Therefore, the ultimate
award of costs would be no panacea in such cases, since the mischief
cannot be repaired. The order passed by the learned Court below is clearly
unsustainable and is therefore set aside.
16. Consequently, the petition is allowed in the aforesaid terms,
leaving the parties to bear their cost. Pending application, if any, also stands
disposed of.
November 8th, 2016 (Tarlok Singh Chauhan)
(Vandana) Judge
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