FAIZAN MUSHTAQ QAZI Vs. MST. AZHAQURESHI
LAWS(J&K)-2020-1-11
HIGH COURT OF JAMMU AND KASHMIR (FROM: SRINAGAR)
Decided on January 15,2020

Faizan Mushtaq Qazi Appellant
VERSUS
Mst. Azhaqureshi Respondents

JUDGEMENT

SANJEEV KUMAR,J. - (1.)Cav 2142/2019 Ms. Sabeena Naveed, learned counsel appears for the caveators. Caveat stands discharged.
CM No.61/2020 For the reasons assigned in the application which is duly supported by an affidavit, the requirement of submission of certified copies of complaint and order dated 18-04-2019 is hereby dispensed with.

Accordingly, the application is disposed of. CRM(M) 1/2020 1 The petitioner invokes the inherent jurisdiction of this Court vested under Section 482 of the Code of Criminal Procedure to assail the order dated 18.04.2019 passed by the Sub-Judge/Special Mobile Magistrate, Srinagar (hereinafter referred to as 'trial Court') under Section 23 of CR 01/2020 Protection of Women from Domestic Violence Act, 2005 (for short 'the Act'). The petitioner also seeks quashment of the complaint pending trial before the trial Court.

(2.)This petition has been opposed by Ms. Sabeena Naveed, learned counsel appearing for the respondents primarily on the ground that the petitioner is not entitled to invoke the inherent jurisdiction of this Court as he is guilty of suppression of material facts. She points out that against the order impugned, the petitioner before coming to this Court, had filed an appeal before the Appellate Authority and the said appeal was dismissed on merits. She submits that the petitioner has neither challenged the order of the Appellate Authority, nor has he disclosed the aforesaid fact in this petition. 3 When confronted with the aforesaid statement of learned counsel for the respondents, learned counsel for the petitioner reluctantly accepted the mistake and tendered unconditional apology. It was clearly pointed out to learned counsel for the petitioner that, for suppression of such material facts from the Court, the petitioner can be penalized by imposing exemplary cost. Learned counsel for the petitioner initially made feeble attempt to justify the omission, but ultimately conceded that there was indeed suppression of material facts from this Court. He, however, attributed this omission to the communication gap between him and his client. 4 This Court has time and again noted that there is tendency in some of the litigants to suppress the material facts from the Court, at least, on the motion hearing date, so that the Court is persuaded to pass interim directions, adverse to the interest of the respondent(s). It is high time when this Court rises to the occasion and stem this rot before it becomes an epidemic. The jurisdiction of this Court whether under Article 226/227 of CR 01/2020 the Constitution or one vested in terms of Section 482 of Cr.P.C is an equitable and discretionary jurisdiction. It is, thus, incumbent that the party approaching the Court must come with clean hands and state all the facts truthfully before the Court without any concealment or suppression. If the Court finds that there has been deliberate omission to mention the material facts to mislead the Court, the petition may be dismissed at the threshold without considering the merits of the claim. 5 In the leading case of R.V. Kensington Income Tax Commissioner (1917) 1 KB 486 (CA), it has been held that 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, not law. He must not misstate the law if he can help it.
6 At this stage, it would be pertinent to refer to the observations made by the Supreme Court in the case of K.D.Sharma vs Steel Authority of India Ltd. and others, (2008) 12 SCC 481. Paragraph 33,34,35 are relevant and reproduced hereunder:

33.The learned counsel for SAIL is also right in urging that the appellant has not approached the Court with clean hands by disclosing all facts. An impression is sought to be created as if no notice was ever given to him nor he was informed about the consideration of cases of eligible and qualified bidders in pursuance of the order passed by the High Court in Review and confirmed by this Court. The true facts, however, were just contrary to what was sought to be placed before the Court. A notice was issued by SAIL to the appellant, he received the notice, intimated in CR 01/2020 writing to SAIL that he had authorized Ramesh of Rithwick Projects to appear on his behalf. Ramesh duly appeared at the time of consideration of bids, bid of respondent No.2 was found to be lowest and was accepted and contract was given to him (under tender notice No.4). The said contract had nothing to do with tender notice No.5 and contract thereunder which had been given to the appellant herein and he had completed the work. Thus, it is clear that the appellant had not placed all the facts before the Court clearly, candidly and frankly.

34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.

35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. V. Kensington Income Tax Commissioners, in the following words: ".....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- it says facts, not 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 CR 01/2020 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)
7 To the similar effect are the observations of the Supreme Court in the case of Dalip Singh vs State of U.P. and others, (2010) 2 SCC 114, which, for facility of reference, are reproduced hereunder:

"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 justice delivery system which was in vogue in 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. 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 CR 01/2020 who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.

8 Similar issue came to be considered by this Court in the case of Baba Institute of Nursing and Paramedical Sciences vs State of J&K and others (OWP No.2508/2018), decided on 24.12.2019. Paragraph 13 of the said judgment is noteworthy and is reproduced hereunder:

"It was held in the judgments referred to above that one of the two cherished basic values by Indian society for centuries is "satya" (truth) and the same has been put under the carpet by the petitioner. Truth constituted an integral part of the justice-delivery system in the pre-Independence era, 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, the values have gone down and now a litigants can go to any extent to mislead the court. They have no respect for the truth. The principle has been evolved to meet the challenge posed by this new breed of litigants. Now it is well settled 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. Suppression of material facts from the court of law, is actually playing fraud with the court. The maxim supressio veri, expression faisi, i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted"

9 In view of the settled legal position, there is no gainsaying the fact that a party can be non-suited merely on the ground that it has not CR 01/2020 approached the Court with clean hands. The Court may refuse to determine the controversy on merits.

10 In the light of the aforesaid legal position and the suppression of material facts from the Court by the petitioner being writ large in the case, I was inclined to dismiss this petition by imposing heavy exemplary costs on the petitioner. However, keeping in view the fact that learned counsel appearing for the petitioner is a young budding advocate and has a long way to go in his career, I have decided not to impose heavy costs. He also tendered unconditional apology and sought permission to withdraw the petition. The petitioner, at the same time, cannot be allowed to go scot free. 11 This petition is, accordingly, dismissed with cost of Rs.10,000/-, to be deposited by the petitioner in the Advocates' Welfare Fund.

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