Kaushik Vadilal Shah vs Kiran Punjalal Shah and Others

Jayant Patel and S.R. Brahmbhatt, JJ.—The Appellant-original Petitioner in Special Civil Application No. 3685 of 1997 has preferred this Letters Patent Appeal challenging the order dated 03.03.1999 passed by the learned Single Judge of this Court dismissing the petition with costs on the ground of suppression of facts made by the Petitioner in the memo of the petition.

Facts in brief leading to filing of this appeal deserve to be set out as under:

The Petitioner was allotted Plots No. 901, 914, 1104 and 1105 at Dehgam Industrial Estate by the Respondent No. 3. The said plots came to be allotted on 04.01.1982. It is alleged in the memo of the petition that, as at the relevant time no facilities were provided, the Petitioner was unable to commence industry on the said plots. Despite the facility not being made available to the Petitioner, as alleged in the memo of the petition, the Respondent No. 3 raised demands of dues. The requisite notice came to be issued by Respondent No. 4 under the provisions of The Gujarat Public Premises (Eviction Of Unauthorised Occupants) Act 1972, (herein after referred to as the ''Eviction Act'' for brevity) on 23.11.1992, and as the Petitioner was threatened with losing the possession, he was constrained to file Civil Suit No. 4710 of 1994 challenging the said notice as mentioned by the Petitioner in para 5 of the memo of the petition. It is further alleged and averred by the Petitioner in the memo of the petition that when Civil Suit came up for hearing before the learned City Civil Judge, a purshis Exh.29 came to be filed on behalf of Respondents No. 3 and 4, indicating that possession would not be taken unless and until an order was made under the appropriate provisions of the Act. On such a purshis being filed, the Petitioner withdrew the suit on 28.02.1997. When the Petitioner went to inspect the plots in question on 25.04.1997, to his surprise, he found that on Plot No. 901 bricks are stacked by Respondent No. 1 which also contained other building material and Plot No. 914 had stack of brick of Respondent No. 2. Upon inquiry, the Petitioner came to know that Respondents No. 3 and 4, without following due procedure of law and in contrary to the purshis, had allotted the plot to Respondents No. 1 and 2 and hence, the petition came to be filed.

The matter came up before the learned Single Judge, who after noticing suppression of facts by the Petitioner, dismissed the same vide order dated 03.03.1999, which is impugned in this Letters Patent Appeal. For the sake of convenience the parties are referred to as they were appearing in the petition, i.e. Petitioner and Respondents respectively.

The learned advocate appearing for the Appellant/ original Petitioner contended that the notice produced on the record at page 9 in the main petition being Annexure-A contains specific averments made by the Respondent concerned to the effect that the said notice was issued in exercise of the power conferred u/s 5 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, and the Petitioner was called upon to show cause as to why the proposed order of eviction should not be made against him. The said notice in fact came to be issued in respect of Plot Nos. 901-914. When this notice had been issued, calling upon the Petitioner to vacate the premises, then, there was no question of any possession being taken over on earlier occasion and therefore, the observations made by the learned Single Judge while dismissing the petition were contrary to the material on record and therefore, the same deserves to be quashed and set aside.

The learned advocate for the Appellant further submitted that Annexure-B (page 12) is a communication from the Petitioner and the observations made by the learned Single Judge in the judgment would go to show that even factum of handing over of the possession of some of the plots was in the year 1997, i.e, admittedly after the purshis had been filed and the suit was withdrawn. In view of this, and in view of the fact that the proceedings u/s 4 of the Eviction Act had not been taken and when the Respondent GIDC could not explain as to under what circumstances the notice dated 23.11.1994 came to be issued, it did call for interference and little probing on the part of the learned Single Judge and the dismissal as such on the ground of suppression of material fact was uncalled for. The factum of taking of ex parte possession in the year 1986 itself could be said to be a relevant fact, but in the submission of the learned advocate for the Appellant, it cannot be said to be so material suppression so as to non-suit the Petitioner on such a count as the possession of the suit property or the subject matter of the petition was with the Petitioner.

Learned Counsel for the GIDC has taken this Court through the affidavit in reply filed in the petition and he emphatically submitted relying upon paragraphs 3, 3.3, 3.4 and 4 to indicate as in what manner the Petitioner had attempted to take advantage of the process of the Court, which has rightly been viewed as improper by the Court and therefore, the petition has rightly been dismissed. Learned advocate for the GIDC has submitted that the factum of possession even if taken ex parte had a material bearing and, it ought to have been disclosed by the Petitioner in the memo of the petition. The entire tenor of the petition would not suggest anywhere that the Petitioner has come out with clean hands before the Court so as to invoke jurisdiction of this Court under Article 226 of the Constitution of India.

Learned advocate for the Respondent No. 1 has submitted that the Respondent No. 1 being a bonafide purchaser, the fruits of the purchase ought to have been inured in his favour without any hindrance.

Heard learned advocate for the parties.

The GIDC, Respondents 3 and 4 have made averments extensively in the affidavit-in reply wherein it has been clearly pointed out that the plots in question came to be allotted to the Petitioner on 04.01.1982.

The Petitioner, appears to have, heavily relied upon the purshish which came to be passed up to the Court, wherein it has come on record that the GIDC would not take possession of the plots till the appropriate order u/s 5(1) of Gujarat Public Premises (Eviction) Act is passed, and the fact that some of the plots possession was handed over to some of the parties only in 1997. During the course of submissions copy of the plaint (exhibit-1) came to be passed on to the Court, wherein the following paragraphs which are set out in the plaint would go to show that the Petitioner in fact had knowledge of the fact that the possession was taken on 8/6/1986. Following paragraphs of the plaint, therefore, are required to be set out as under:

The Plaintiff submits that inspite of all these aspects and knowledge, Defendant vide their letter 2.9.94 received on 10.9.1994, Defendant has informed the Plaintiff that the agreement has been terminated of the Plaintiff. It is surprising to note that the said letter it is referred by the Defendant that the Defendant has taken the possession of the suit plot on 18.6.86 whereas till today the suit plots are in possession of the Plaintiff.

That before initiating any proceedings under the Gujarat Public Premises Act, and without giving any requisite notice, it appears that the Defendant has made reference alleged order under the GPP Act, dated 18.6.86. As a matter of fact, vide letter 10.9.93, and notice dated 27.9.92 and another letter dated 3.10.91 the Defendant had surprisingly referred to the fact that if the amount asked for in the said letters is not paid, they will take action under GPP Act. It is therefore, clear that the eviction order referred in the letter dated 2.9.94 referring to 18.6.86 cannot be relied upon as it is already non existing and is merged into the letters issued later on by the Defendant as referred herein above. It is humbly submitted that the Defendant cannot enforce the said order dated 18.6.86 which is never acted upon or served and relinquished by the Defendant by conduct. It is pertinent to note that after the letters dated 1992 Plaintiff has made various payment to the Defendant and no eviction order is enforced or passed after following due process of law against the present Plaintiff.

Learned Counsel for the Petitioner has submitted that non-disclosure of these facts would not amount to ''suppression of material facts'', at the best it can be said that though facts were relevant they were not mentioned, as it was contention of the Petitioner through out that the possession though was taken way back in 1986 it had never actually been taken. We are unable to accept this submission, as the factum of possession even ex-parte being taken by drawing panchanama way back in the year 1986, was within the knowledge of the Petitioner and when he is moving this Court under Article 226 of the Constitution of India, he was under an obligation to disclose all facts pertaining to the dispute. The Petitioner of his own accord was not justified in keeping back some facts as according to his understanding & knowledge those facts were not relevant. The aspect of relevancy in the view of Petitioner is absolutely unacceptable in law. On the contrary this aspect of taking over possession in the year 1986 cannot be said to be only a relevant aspect but it was even a material aspect which the Petitioner was under an obligation and duty to disclose in the memo of the petition. The memo of the petition would go to show that the Petitioner has no where disclosed these facts. The Petitioner cannot take advantage of purshish filed in the Court and withdrawal of the suit on that basis.

The Petitioner has made following averments in para-5 of the memo of the petition, which read as under:

That in the meanwhile as the Respondent No. 3 and 4 threatened to take the possession the plots allotted to this Petitioner, was forced to file civil suit No. 4710/1994, challenging the competence of the Respondent No. 4 to give notice at Annexure-A.

Now, notice at Annexure-A is dated 23/11/1994, whereas the suit appears to have been filed on 16/9/1994, meaning thereby the notice came to be issued during pendency of the suit as the notice is dated 23/11/1994, and date of filing of the suit appears to be 16/9/1994. This averment, therefore, could be said to be an incorrect submission in the memo of the petition made by the Petitioner on oath. The advocate for the Petitioner is not justified in submitting that the petition did not deserve to be rejected on account of suppression of facts. In fact, as could be seen from the affidavit-in-reply filed on behalf of GIDC the factum of possession taken even ex-parte, has been a very material fact which in all earnestness Petitioner ought to have disclosed in the memo of the petition. The prayers made in the petition also go to show and suggests that the Petitioner never wanted to disclose the aspect of ex-parte possession taken from him in the year 1986. The Petitioner, therefore, was not entitled to seek any relief from this Court under Article 226 of the Constitution of India.

To fortify our finding that Petitioner owes an obligation to disclose material facts in the petition, the Division Bench of this Court in case of Indian Institute of Management v. Umakant Shrivastava, reported in 2002(1) G.L.H. 330 , held that suppression of important and material facts alone would justify non interference by the High Court, which is in fact extracted by the Division Bench held in case of N.D. Patel and Company Vs. Manubhai Karsanbhai Parmar and Another,

The tenor of the petition and the prayers made therein go to show that non disclosure also is not only on account of inadvertence as sought to be made out by learned Counsel for the Petitioner at Bar, the factum of taking an ex-parte possession way back in the year 1986 is required to be viewed in light of the prayer and interim prayers made in memo of the petition.

At this stage it is appropriate to record that even apart from the aspect of suppression of facts in the memo of the petition, considering the entire case on merits, it can be well said that the Petitioner did not have any ground to succeed in the petition. The proceedings under the Eviction Act had been taken long back, the affidavit-in-reply placed on record go to show that, based there upon the Respondent GIDC had taken over possession by drawing panchnama, and the factum of ex-parte taking over possession in the year 1986, and filing of the petition in year 1997; will have its own bearing upon the entitlement of the Petitioner to maintain the petition.

That apart, the merits of the matter and the facts that possession had been taken over would go to show that learned Single Judge was justified in making observation with regard to suppression of facts. Once suppression of fact is established on the part of the Petitioner, he disentitles himself from seeking any remedy or relief from this Court under Article 226 of the Constitution of India.

The collective discussions herein above would persuade us to hold that the order passed by learned Single Judge being in consonance with law and appropriate, calls for no interference at our end in any manner.

In the result, the appeal fails and is hereby dismissed. However, there shall be no order as to costs.

In view of the order passed in appeal, civil applications would not survive and are disposed of.