Manav Utthan Seva Samiti v. Aditi Sanjay Jaiswal and Ors

Order on 26th April 2022.

¶4Subject to deposit of the said amount within stipulated period, execution proceedings initiated by the Respondent No.4 are stayed."

x) On 26th April, 2022, Single Judge passed following order:- "At the sincere request made by Mr. Subhash Jha, learned counsel appearing for the Petitioners/Applicants, the period to deposit decretal amount as specified in Order dated 1st April, 2022, is hereby extended upto 10th May, 2022, as a last chance." (Emphasis added)

¶16As per the aforesaid order dated 1st April 2022 read with order 26th April 2022, the Petitioners were required to deposit total amount of Rs.2,13,60,390/- i.e. 50% dues as on 17th March 2021 and upto 17th March 2022, additional amount of Rs.36,75,120/- i.e. Rs.3,06,260/- per month. Thus, total amount of Rs.2,50,35,520/- was required to be deposited on or before 10th May 2022 in terms of order dated 1st April 2022 read with

order dated 26th April 2022, which is only 50% of the amount as directed to be paid by the Competent Authority.

¶17To appreciate whether the request made by the Petitioners to withdraw the Writ Petition is bonafide request or to avoid payment as per above referred interim orders dated 1st April 2022 read with 26th April 2022, it is necessary to set out the contention raised in the Affidavit-In-Rejoinder dated 10th March 2023 (which has been filed for keeping on record reasons for withdrawal of the Writ Petition) particularly, in paragraph No.14, which reads as under:- "14. I say that under these circumstances it was advised that the order dated 1st April, 2022 of this Hon'ble Court could be challenged in the Hon'ble Supreme Court of India, however, a decision was later on taken after having a lot of deliberations and discussions on the pros and cons that it would be appropriate to file a suit instead of approaching the Hon'ble Supreme Court of India and accordingly, as stated hereinabove, a suit bearing Suit (Lodging) No.9650 pf 2-22 was filed in this Hon'ble Court on 24th March, 2022 seeking the aforesaid reliefs."

¶18The above statement in the Affidavit-In-Rejoinder is totally false. This Court by order dated 1st April 2022 directed payment of 50% amount as directed by the learned Competent Authority and also directed payment of monthly compensation/ licence fees and said amount comes to Rs.2,50,35,510/-. The above contention raised on the solemn affirmation in the Affidavit-In-Rejoinder specifically states that possibility of challenging said order dated 1st April 2022 in the Supreme Court was considered however, decision was taken to file suit. In fact, the said suit was already filed on 24th March 2022 and thereafter the Petitioners obtained stay in this Writ Petition by said order dated 1st April 2022 on the condition that 50% amount as directed by the Competent Authority would be paid and compensation/licence fees for further period would be deposited. In fact, the learned Single Judge by further order dated 26th April 2022 recorded that sincere request was made by Advocate Subhash Jha to extend period to deposit 50% of the amount as specified in order dated 1st April 2022 upto 10th May 2022 as a last chance. The above contention raised in the Affidavit-In-Rejoinder clearly shows that said request was made

on 26th April 2022 just to get extension of stay for protecting the possession and it was never the intention of Petitioners to comply with said statement.

¶19The Petitioners in the meanwhile on 24th March 2022 as set out hereinabove filed Suit (Lodging) No.9650 of 2022. In the Interim Application (Lodging) No.11299 of 2022 filed in said suit, a learned Single Judge on 10th May 2022 (Vacation Court) passed the following order:-

¶1"Heard.

¶2Mr. Jha, learned counsel appearing for the Applicant submits that he shall deposit an amount of Rs. 1,00,00,000/- in this Court within a period of 10 days to show his bonafide. Mr. Zha confirms that he shall not claim any equity in the flat on deposit of the aforesaid amount as his client is desirous of an amicable settlement

¶3Mr. Jha has requested the Court that he shall make appropriate submissions for consideration upon deposit of the amount on the merits of the matter. At this stage, the Court has not expressed any opinion on the merits of the matter.

¶4It is made clear that deposit of the aforesaid amount shall be without prejudice to the rights and contentions of the Respondents/Defendants. In the

meantime, possession of the subject flat shall remain protected.

¶5Stand over to 8th June, 2022 before the regular Court." (Emphasis added)

¶20Although, as observed hereinabove in this Writ Petition this Court is not concerned with the merits of Suit (Lodging) No.9650 of 2022 and Interim Applications taken out in the said suit, however, it is relevant to note the contentions raised by the Petitioners in paragraph 15 in the said Affidavit-In-Rejoinder regarding said order dated 10th May 2022 passed in Interim Application filed in said suit. The same is relevant as the same reflects the conduct of the Petitioners. "15. I say that in the above suit, this Hon'ble Court by order dated 10th May, 2022 was pleased to record statement made voluntarily by my counsel that I shall deposit a sum of Rs.1,00,00,000/- in this Hon'ble Court within a period of 10 days to show my bonafide. I say that we were not prepared even for depositing a sum of Rs.1,00,00,000/- for which statement was made by my counsel in this Hon'ble Court, however, my counsel looking into the facts and

circumstances of the case and visualising that I could be otherwise dispossessed from the suit premises, made a statement of depositing a sum of Rs.1,00,00,000/- within a period of 10 days." (Emphasis added)

¶21As the Petitioner No.1 i.e. Plaintiff in that suit could not comply with the said order dated 10th May 2022 passed in Interim Application (Lodging) No.11299 of 2022 in Suit (Lodging) No.9650 of 2022 within time and therefore, another Interim Application (Lodging) No.16172 of 2022 was filed inter alia seeking following relief:-

(a) "that this Hon'ble Court may be pleased to modify its earlier order dated 10th May, 2022, being Exhibit-'II' annexed herewith, in as much by permitting the Applicant to deposit a sum of Rs.50,00,000/- out of the sum of Rs.1,00,00,000/- directed to be deposited in this Hon'ble Court by order dated 10th May, 2022 immediately and whereas for the balance sum of Rs.50,00,000/-, the Applicant be granted extension of time for a period of three weeks more"

¶22The said Interim Application (Lodging) No.16172 of 2022 in vacation came up before this Court. It is significant to note

that only order dated 10th May 2022 passed by a learned Single Judge passed in Interim Application (Lodging) No.11299 of 2022 in Suit (Lodging) No.9652 of 2022 was pointed out to this Court. This Court passed the following order on 25th May 2022:-

¶1Heard Mr. Jha, learned counsel appearing for the Applicant i.e. Original Plaintiff and Mr. Anil Patel along with Advocate Sakina Rangwala, for the Defendant No. 1. By order dated 10th May, 2022 this Court recorded statement made by Mr. Jha that his client would deposit an amount of Rs. 1,00,00,000/- in this Court within a period of 10 days to show his bonafide.

¶2By this Interim Application, the Applicant is seeking extension of time to deposit the said amount of Rs. 1,00,00,000/- in following manner: 1) Rs. 50,00,000/- to be paid immediately. 2) Balance Rs. 50,00,000/- to be paid within a period of three weeks.

¶3The Applicant is present in this Court and after taking instructions from her, Mr. Jha states that an amount of Rs. 50,00,000/- will be paid on or before 30 th May, 2022 and balance amount of Rs. 50,00,000/- will be paid on or before 7th June, 2022, so that, the matter can be heard by the regular Court on 08th June, 2022. Statement made by Mr. Jha, on instructions of the Applicant who is present

in the Court is accepted. In view of this statement, time granted by order dated 10 th May, 2022 to deposit an amount of Rs. 1,00,00,000/- in this Court is extended as follows:

i) The amount of Rs. 50,00,000/- to be deposited on or before 30th May, 2022.

ii) Balance amount of Rs. 50,00,000/- to be deposited on or before 7th June, 2022.

¶4Mr. Jha, states that, rejoinder in IA (Lodging) No. 11299 of 2022 is ready and already served on the Respondents. The office is directed to accept the said rejoinder.

¶5Stand over to 8th June, 2022." (Emphasis added)

¶23It is the contention of Mr. Jha that co-ordinate Bench has granted orders in said proceeding being Suit (Lodging) No.9650 of 2022 and therefore, this Court should not pass any order which will have bearing on said suit.

¶24Mr. Jha, learned Advocate appearing for the Petitioners has relied on Order 23 Rule 1 of C.P.C. to contend that the Petitioners be allowed to withdraw the petition. He relied on the following decisions of the Supreme Court and the High Court:- i. Anil Dinmani Shankar Joshi & Anr. vs. Chief

Officer, Panvel Municipal Council, Panvel & Anr. (supra) ii. J. B. Patnaik vs. Bennett Coleman & Co. Ltd. & Ors.(supra) iii. Hulas Rai Baij Nath vs. Firm K. B. Bass & Co. (supra) iv. Shiv Prasad vs. Durga Prasad & Anr. (supra) v. Shaik Hussain & Sons vs. M. G. Kannaiah & Anr.(supra)

¶25He relied on the decision of the Supreme Court in the matter of Vikramjit Singh (supra) to contend that one Bench cannot comment on the functioning of the same Court much-less sit in judgment as an Appellate Court over its decision. He submitted that which could not be done directly could also not be done indirectly. To substantiate the said contention, he also relied on the decision of Mohinder Kumar (supra).

¶26In view of rival submissions, following points arise for consideration:-

(i) Whether the Petitioners are entitled to seek withdrawal of the Writ Petition?

(ii) Whether as contended by Respondents, if prayer of withdrawal is allowed then, in the facts and

circumstances of this case, very heavy cost should be imposed on the Petitioners?

¶27To substantiate the contention that if the Petitioners seek withdrawal of the Writ Petition, then the same is required to be granted and only power the Court will have is to impose cost, Mr. Jha relied on several decisions. In Shaik Hussain & Sons (supra), it has been held by the Supreme Court that where Writ Petitioner seeks to withdraw the Writ Petition, High Court should permit him to do so and not to proceed to decide upon the Writ Petition. In Hulas Rai Baij Nath (supra), Supreme Court in the context of prayer for withdrawal of suit observed that the language of Order XXIII Rule 1 sub-rule (1) of C.P.C. gives an unqualified right to a Plaintiff to withdraw from a suit.

¶28In view of the above legal position, there is substance in the contention of Mr. Jha that, if the withdrawal is sought, withdrawal should be allowed and the Court has got jurisdiction only to impose cost.

¶29In the present case, as set out hereinabove, the total amount due as on 17th March 2021 was Rs.4,27,20,780/-. The learned Single Judge by order dated 1st April 2022 directed

deposit of 50% i.e. Rs.2,13,60,390/-. The learned Single Judge also directed the Petitioners to deposit regularly leave and license charges i.e. about Rs.3,06,260/- per month. It is significant to note that learned Single Judge by order dated 1st April 2022 granted interim relief on the condition that 50% amount i.e. Rs.2,13,60,390/- + Rs.45,93,900/- = Rs.2,59,54,290/- would be deposited in the Court on or before 26th April 2022 and for reporting compliance of the said order, the matter was kept on 26th April 2022. On 26th April 2022, learned Single Judge has recorded that at the sincere request made by Mr. Subhash Jha, learned Advocate for the Petitioners, the period to deposit decretal amount as specified in order dated 1st April 2022 is extended upto 10th May 2022 as a last chance and therefore, time was granted upto 10th May 2022. As already set out hereinabove, in the meanwhile, i.e. even before order dated 1st April 2022 was passed, the Petitioner No.1 on 24th March 2022 has filed the aforesaid suit bearing Suit (Lodging) No.9650 of 2022 and in the Interim Application (Lodging) No.11299 of 2022 order was passed by the learned Single Judge on 10th May 2022 in vacation to deposit amount of

Rs.1,00,00,000/- within a period of 10 days. The Interim Application (Lodging) No.16172 of 2022 is taken out for extending the said period and this Court as Vacation Court has extended the said period as set out in the order dated 25th May 2022.

¶30In this background of the matter, it is important to assess the conduct of the Petitioners as reflected in the contentions raised in said Affidavit-In-Rejoinder dated 13th February 2023 particularly in paragraphs 14 and 15. It is stated in the said Rejoinder that it was contemplated that order dated 1st April 2022 by which 50% of amount i.e. Rs.2,13,60,390/- + Rs.45,93,900/- = Rs.2,59,54,290/- was directed to be deposited be challenged in Supreme Court. However, it was decided to file the suit and not to challenge the same. In fact, the suit was filed on 24th March 2022 and thereafter, the learned Single Judge passed order on 1st April 2022 directing deposit of 50% of the amount. It is further significant to note that as recorded in order dated 26th April 2022 that at the sincere request of Mr. Jha, learned Advocate of the Petitioners said period to deposit Rs.2,59,54,290/- was extended upto 10th May 2022 as a last

chance and the said orders were never complied with. Thus, it is clear that it was never the intention of the Petitioners to comply with said orders dated 1st April 2022 and 26th April 2022.

¶31It is further significant to note that as far as the order dated 10th May 2022 passed by the learned Single Judge in Interim Application (Lodging) No.11299 of 2022 in Suit (Lodging) No.9650 of 2022, in the said Affidavit-in-Rejoinder it has been contended that voluntarily learned Advocate of the Petitioners i.e. Mr. Subhash Jha made a statement that the Petitioner No.1 would deposit sum of Rs.1,00,00,000/- in this Court within a period of 10 days. It is further stated that the Petitioners were not prepared even for depositing the said Rs.1,00,00,000/-, for which statement was made by Mr. Jha. It is further stated that looking into facts and circumstances of the case and visualising that the Petitioners could be otherwise dispossessed from the suit premises, Mr. Jha, learned Advocate voluntarily made a statement of depositing a sum of Rs.1,00,00,000/- within a period of 10 days. Although this conduct is in the suit, as in the rejoinder filed in this Writ

Petition, the Petitioners themselves have set out the contention regarding the same, it is necessary to refer to said contention only from the point of view of assessing conduct of the Petitioners. Therefore, it is clear that the Petitioners have obtained order dated 1st April 2022 and 26th April 2022 by totally misrepresenting the Court that said 50% amount i.e. Rs.2,13,60,390/- + Rs.45,93,900/- = Rs.2,59,54,290/- would be paid on or before 10th May 2022 and on that basis, eviction orders were stayed.

¶32Therefore, this is a case where the Petitioners have taken unfair advantage of the interim order passed by this Court in the present Writ Petition. In fact, it was represented to this Court that Rs.2,59,54,290/- as per the above details would be deposited and on that basis, a learned Single Judge has granted the stay by passing above referred orders dated 1st April 2022 and 26th April 2022.

¶33It is further significant to note that as per order of Competent Authority, total dues as on 17th March 2021 are Rs.4,27,20,780/- and as recorded by the Competent Authority, the Petitioners have not paid any amount from 12th September

2016 onwards and as on 12th September 2016, arrears of license fees was Rs.96,44,700/-. Therefore, the Petitioners have continued to occupy the said premises admeasuring about 2500 sq.ft. area of 3 bedrooms, hall, kitchen + study room and one car parking in very prime locality of Mumbai i.e. at Colaba, Mumbai from 12th September 2016 onwards without paying any amount whatsoever and obtained the stay and conditions on which the said stay order was obtained are not complied with.

¶34The Supreme Court in S.P. Chengalvaraya Naidu (Dead) by LRS vs. Jagannath (Dead) by LRS & Ors.8 has held that the courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. The Supreme Court observed that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. The Supreme Court held that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

(1994) 1 SCC 1

¶35The Supreme Court in Kishore Samrite vs. State of Uttar Pradesh & Ors.9 has held 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. The Court must ensure that its process is not abused and in order to prevent abuse of the process the court 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.

¶36In the present case, the Petitioners have obtained stay of execution of eviction order as well as order directing payment of money passed by the Competent Authority as confirmed by the Additional Commissioner by misrepresenting to the learned Single Judge that 50% amount i.e. Rs.2,13,60,390/- + Rs.45,93,900/- = Rs.2,59,54,290/- would be deposited in this Court on or before 10th May 2022. The conduct of the Petitioners as well as the contention raised in paragraph 14 of the Affidavit-In-Rejoinder clearly show that the Petitioners never intended to comply with order of the learned Single Judge dated 1st April 2022 and statement made to this Court on

(2013) 2 SCC 398: (2013) 2 SCC (Cri) 655

26th April 2022 and just to obtain order of stay misleading statement was made as recorded in order dated 26th April 2022.

¶37The Petitioners are now withdrawing the Writ Petition as stay has been granted in the suit filed by the Petitioner No.1. The contention of Mr. Jha that stay was operating in this Writ Petition only for 39 days is totally irrelevant, as what is important is that by misleading this Court that Rs.2,59,54,290/- would be deposited on or before 10th May 2022, stay was obtained and it was never the intention of the Petitioners to comply with said statement as reflected in paragraph 14 of the said Affidavit-In-Rejoinder.

¶38It is significant to note that as on 23rd March 2023, total amount due as per said order of Competent Authority comes to Rs.5,74,21,260/-. In terms of order dated 1st April 2022 read with 26th April 2022 passed by the learned Single Judge in this Writ Petition, the Petitioners are required to deposit 50% amount which till date comes to Rs.2,87,10,630/-. It is admitted position that, nothing is deposited by the Petitioners in this Writ Petition and what is deposited is only Rs.1,00,00,000/- in

the said suit. The factual position on record shows that the Petitioners have not deposited any amount towards leave and licence charges and they are occupying property being flat admeasuring 2500 sq.ft. built up area situated at Colaba, Mumbai since 12th September 2016 without paying any charges and in fact as on 2016, the arrears were of Rs.96,00,000/-. Thus, the conduct of the Petitioners clearly shows total abuse of the process of law.

¶39Therefore, in the light of the decisions of the Supreme Court in the matter of Shaik Hussain & Sons (supra) and in Hulas Rai Baij Nath (supra), I am allowing withdrawal of the Writ Petition, however I am imposing cost of Rs.20,00,000/-(Rs. Twenty Lakhs only) on the Petitioners to be paid to the Respondents within a period of two weeks from uploading of this order on the website of this Court.

¶40In view of the withdrawal of the Writ Petition, the same is dismissed as withdrawn and therefore, nothing survives in the Interim Applications and the same are also dismissed. All ad-interim and interim orders, if any, passed in the Writ Petition stand vacated forthwith.

¶41At this stage, Mr. Jha, learned Advocate appearing for the Petitioners requests to stay order of imposing cost for a period of four weeks. However, in view of the conduct of the Petitioners which I have noted hereinabove, the Petitioners are not entitled for any discretionary order including stay of order imposing cost. Therefore, the said request is rejected. [MADHAV J. JAMDAR, J.]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9587 OF 2021 WITH INTERIM APPLICATION NO.2749 OF 2022 Aditi Sanjay Jaiswal & Anr. ...Petitioners Versus State of Maharashtra & Ors. ...Respondents WITH INTERIM APPLICATION NO.1797 OF 2023 IN WRIT PETITION NO.9587 OF 2021 Manav Utthan Seva Samiti ...Applicant Versus Aditi Sanjay Jaiswal & Ors. ...Respondents Mr. Subhash Jha a/w. Mr. Ghanshyam Upadhyay and Ms. Meena Mishra, for the Petitioners. Mrs. V. S. Nimbalkar, AGP, for the State-Respondent Nos.1 to 3. Mr. Anil S. Patel a/w. Ms. Sakina R., for Respondent No.4. CORAM : MADHAV J. JAMDAR, J. DATED : 23rd MARCH 2023 P.C. : 1. Heard Mr. Jha, learned Advocate appearing for the Petitioners, Mrs. Nimbalkar, learned AGP appearing for SONALI MILIND PATIL Digitally signed by SONALI MILIND PATIL Date: 2023.04.12 +0530 Respondent Nos.1 to 3 and Mr. Anil Patel, learned Advocate appearing for Respondent No.4. 2. At the outset, Mr. Jha, learned Advocate appearing for the Petitioners submitted that orders dated 17th February 2023 and 24th February 2023 passed by this Court in this Writ Petition are challenged before the Supreme Court. However, he stated that there is no stay granted to this proceeding. It is the request of Mr. Jha that present Writ Petition be adjourned as the matter is pending in the Supreme Court. However, no stay has been granted by Supreme Court and therefore, there is no impediment in proceeding further with this Writ Petition. 3. The said request seeking adjournment is also rejected for following reasons:- A) On 9th February 2023, request was made by Mr. Tushar Bansode, learned Advocate on the instructions of Advocate Jha who is Advocate-on- record to allow withdrawal of this Writ Petition. However, as this Court prima facie found that said request was made for the mala fide purpose to avoid compliance with ad-interim orders dated 1st April 2022 and 26th April 2022 passed in this Writ Petition and Petitioners have obtained unfair advantage of those ad-interim orders, this Court wanted the presence of Mr. Jha learned Advocate of the Petitioner and, therefore, the matter was kept back at 2.30 p.m. On 9th February 2023 at 2.30 p.m., it was informed to this Court by Mr. Tushar Bansode, learned Advocate holding for Advocate Jha, that it would not be possible for Mr. Jha, learned Advocate to remain present at 2.30 p.m. and, therefore, matter was kept on 10th February 2023. On 10th February 2023, Mr. Jha, learned Advocate appearing for the Petitioners requested for time and, therefore, the matter was adjourned to 17th February 2023 (First on Board). On 17th February 2023, this Court recorded brief prima facie observations. On 17th February 2023 Respondent No.4 sought time for filing Sur- Rejoinder to the Affidavit-In-Rejoinder dated 13th February 2023 filed by the Petitioners. In the said Affidavit-In-Rejoinder reasons for allowing Petitioners to withdraw the Writ Petition were set out. Therefore, Writ Petition was adjourned to 24th February 2023 (First on Board). B) On 24th February 2023, Mr. Anil Patel, learned counsel appearing for Respondent No.4 tendered Affidavit-In-Sur-Rejoinder. Mr. Jha, learned counsel appearing for the original Petitioners sought time to file reply, as Interim Application No.1797 of 2023 taken out by the original Respondent No.4 was served on him on 23rd February 2023. Therefore, one week's time was granted in the facts and circumstances of this case and the matter was kept on 3rd March 2023. In the said order dated 24th February 2023, this Court inter alia directed as follows:- "5. It is made clear that on 3rd March 2023, the matter will be heard along with the Interim Application No.1797 of 2023 and all pending Interim Applications, if any. By order dated 17th February 2023, this Court has recorded prima facie opinion that, the Petitioners have taken unfair advantage of the ad-interim orders passed by this Court and without complying with ad-interim orders are