1 caf462-08 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL APPLICATION NO. 462 OF 2008 IN FIRST APPEAL NO. 923 OF 1987 Prof. P. G. Jyotikar .. Applicant (Resp. No. 13 in Appeal) V/s. Ashok Mukundrao Ambedkar & Ors. .. Respondents (Resp. No. 1 – Appellant in Appeal & Respondent No. 2 in Appeal) ..... Mr. N. V. Walawalkar, senior advocate i/b. Mr. T. S. Ingale for the applicant. Mr. B. K. Barve for the respondent No.1(Appellant). Mr. Prakash Ambedkar for the respnodent No.2. ..... CORAM : A.S.OKA, J. DATE : SEPTEMBER 22, 2011. P.C.: Submissions of the learned counsel appearing for the parties were heard on earlier date. 2. The First Appeal arises under the provisions of the Bombay Public Trusts Act, 1950 (hereinafter referred to as “the said Act”). The Appeal relates to a Trust “The Buddist Society of India”. The merits of the First Appeal may not be material for the order which is being passed today. The exercise which is undertaken today is only in view of the stand taken by the 2 caf462-08 respondent No.1. He has taken inconsistent and contradictory stands at different stages of proceedings. The challenge in the Appeal is to the order passed by the City Civil Court, Bombay on an application under Section 72(1) of the said Act. It is unfortunate that a litigant has chosen to take such a stand in a litigation relating to a Trust like Budhist Society of India which was founded by late Dr. Babasaheb Ambedkar. One Ashok Mukundrao Ambedkar, the first respondent herein has preferred the Appeal which was admitted way back in June 1997 and hearing of the Appeal was expedited. There is a chequered history as far as proceedings which have taken place during the pendency of the Appeal is concerned. The Appeal was dismissed in default. The first respondent (appellant) made an application being Civil Application No.1458 of 2006 for restoration of the First Appeal. It will be necessary to make a reference to the order of this Court passed on 29th June, 2011 in the present application. Paragraph Nos. 2 to 5 of the said order reads thus: “2. During the course of hearing of this Application yesterday, it was noticed that the Respondent No.1, who is the Appellant has taken completely inconsistent stand in the reply filed to this Application as well as the reply filed to Civil Application No.4874 of 2007. In Civil Application No.1458 of 2006 for restoration of the First Appeal, the original Appellant – Respondent No.1 has specifically contended that the Appeal was preferred by him on behalf of the Trust in his capacity as the 3 caf462-08 Trustee. In paragraph No.3 of the said Civil Application, the Respondent No.1 has stated that the Buddhist Society of India was aggrieved by the impugned order and therefore, the present First Appeal was filed through him as he was the Trustee- Chairman of the Trust. In paragraph No.5 of the Civil Application No.1458 of 2006, the Appellant (Respondent No.1 to this application) has stated that the Appeal was filed by him being Trustee- Chairman of the Trust and in fact he has specifically relied upon a resolution passed by the said Trust, which according to the him authorized him to prefer the First Appeal on behalf of the Buddhist Society of India in order to safeguard the interests of the said Trust. In paragraph No.8 of the said Application, the Respondent No.1 has described the present Applicant as the reporting Trustee. In paragraph No.10 of the said Civil Application, the Respondent No.1 reiterated that the Appeal was filed by him as the Trustee - Chairman of the said Trust and not in his personal capacity. In the said Application, the Respondent No.1 has stated that the present Applicant was elected as the Trustee - Chairman of the said Trust on 18th March, 2001. At more that one place in the said Application, the Appellant has specifically stated that the Applicant in the present Application was the Trustee - Chairman of the Trust. The Appellant (Respondent No.1 herein) has specifically stated at various places in the said Application that the Appeal was filed by him in the year 1987 being then Chairman of Buddhist Society of India and not in his personal capacity. 3. It will be necessary to make a reference to the reply filed by the Appellant to Civil Application No. 4874 of 2007 filed by the present Applicant. In paragraph No.10 of the said reply, the Appellant had stated that there was no resolution passed by the said Trust when he preferred the Appeal. In the said reply, he had stated that the present Applicant was not elected as the president/Chairman of the Trust. In paragraph No.12 of the reply, he reiterated that when he preferred the Appeal as president, there was no resolution passed. In paragraph No.8 of the reply filed by the Respondent 4 caf462-08 No.1 to the present Civil Application, it is stated that he was adopting the reply to Civil Application No.4874 of 2007. In paragraph No.12 of the reply filed to this Application, the Appellant has denied that the present Applicant was the Trustee of the said Trust. In paragraph No.27, he has again stated that when he preferred the Appeal, there was no resolution empowering him to file the present Appeal. The Vakalatnama of the Appellant filed in the Appeal shows that he filed the Appeal in the capacity of the Chairman of the Trust. The Vakalatnama bearing rubber stamp of the Trust was brought to the notice of the Advocate for the Respondent No.1 yesterday. These are the only some instances of inconsistent and contradictory stand taken by the Appellant. In the reply to this Application and in the reply to Civil Application No. 4874 of 2007, the Respondent No.1 has taken a diagonally opposite stand to the one taken in Civil Application No.1458 of 2006. On the basis of the statements made in Civil Application No.1458 of 2006, an order of restoration of the Appeal was passed. It is obvious that one of the two sets of statements made on oath by the Appellant are false and therefore, appropriate action will have to be initiated against the Appellant. Apart from that, on the basis of such statements made in Civil Application No.1458 of 2006, this Court has passed an order of restoration of the Appeal. Going by the stand taken in the subsequent affidavits-in-reply filed by the Appellant, prima-facie, either the statements made in the present affidavits are false or the statements made in the Civil Application No. 1458 of 2006 are false. 4. Therefore, prima-facie, this is a fit case where order passed on application for restoration may be required to be recalled. 5. Issue show-cause notice to the Appellant in the First Appeal calling upon him to show-cause why appropriate action should not be initiated against him in accordance with law. The Appellant is also called upon to show-cause as to why order of restoration passed in Civil Application No.1458 of 2006 should not be recalled. The Advocate on 5 caf462-08 record for the Appellant takes notice. Reply to the show-cause notice to be filed on or before 28th July, 2011. The show-cause notice alongwith the present Application shall be fixed for hearing on 4th August, 2011 on daily board.” 3. Accordingly a show cause notice was issued by this Court to the Appellant – first respondent herein. There are two affidavits by way of reply to the show cause notice by the appellant. The first affidavit is dated 3rd August, 2011. It is a short affidavit which runs into only 2 and ½ pages. It will be necessary to reproduce what is stated by the appellant in the said affidavit. In this affidavit, in a tabular format, dates and events are set out. As far as the averments made in the application being Civil Application No.1458 of 2006 for restoration are concerned, there is no explanation in the said affidavit. There is a reference to the application dated 14th September, 2007 seeking permission to withdraw the Appeal. There is a reference to application made by the respondent No. 13 in the Appeal for transposition. The said reply contains no explanation for his conduct which is reflected from the aforesaid order quoted above. Considering the seriousness of the matter, this Court thought it fit to grant permission to the appellant – respondent No.1 to file further affidavit. Accordingly a further affidavit dated 2nd September, 2011 has been filed. In paragraph No.4 of the affidavit, there is reference 6 caf462-08 to illness due to which the said respondent could not attend to the Appeal. It is stated that Civil Application No.1458 of 2006 was allowed by this Court by order dated 26th April, 2006. It is stated that the Civil Application No.4874 of 2007 was filed by the respondent No.13 (present applicant) in the Appeal for transposing himself as appellant in his capacity of Trustee- Chairman. A reference is made to the affidavit-in-reply filed by the respondent No.1 to the said application. He has reiterated the averments made in the said affidavit. Paragraph No.10 of the additional affidavit reads thus: “10. I say that on 07/02/2008 again my Advocate Mr. K. P. Tiwari called me for filing the Affidavit, who had informed me that on the basis of the earlier Affidavit I have to file fresh Affidavit. However, the contents of the said Affidavit not read over to me but in view of the urgency my Advocate asked me to sign the said Affidavit. Therefore the contents of the said Affidavit is not known to me. However any of the contradictory statement and/or omission made in the said Affidavit be pardoned to me and permit me to tender my unconditional apology to this Hon'ble Court.” 4. The reference to the affidavit in the aforesaid paragraph is to the affidavit-in-reply dated 7th February, 2008 filed to this application. In paragraph No.14, the appellant has tendered unconditional apology. 5. The learned counsel appearing for the respondent No. 1 – appellant has made an endeavour to explain the stand taken 7 caf462-08 by the appellant from time to time. He has urged that the respondent No. 1 – appellant is a sick person and he has already tendered apology and, therefore, he may be pardoned. The learned counsel appearing for the applicant (respondent No.13 in the Appeal) submitted that in no case, the order of restoration of the Appeal be disturbed as the Appeal pertains to a Public Trust and, therefore, the same will have to be heard on merits. I have also heard the submissions of the learned counsel appearing for the second respondent. 6. It will be necessary to record the facts borne out from the record: (a) In Civil Application No.1458 of 2006, a specific assertion made by the respondent No.1 – appellant is that the Appeal was preferred by him on behalf of the said Trust in his capacity as a Trustee. The Budhist Society of India being aggrieved by the impugned order of the City Civil Court, Bombay has filed the Appeal through him as he was the Trustee-Chairman of the Trust. It is reiterated in paragraph No.5 of the application that the Appeal was filed by him being Trustee-Chairman of the Trust and he has specifically relied upon the resolution passed by the said Trust authorizing him to prefer an Appeal on behalf of the Trust. It is reiterated that Appeal was preferred by him 8 caf462-08 as Trustee-Chairman of the said Trust. It is stated by him that the present applicant was elected as a Trustee-Chairman of the said Trust on 18th March, 2001. (b) The appellant – respondent No.1 filed a reply to the Civil Application No.4874 of 2007 taken out by the present applicant. In paragraph No.10 of the said reply, the respondent No.1 stated that there was no resolution passed by the said Trust when he preferred the Appeal. He has stated that the applicant in the present Civil Application has not been elected as Chairman or President of the Trust. A reply was filed by the appellant to the present application in which there is a specific averment that he was adopting the reply filed in Civil Application No.4874 of 2007. In the said reply, the appellant denied that the applicant in the present application was a Trustee of the said Trust. (c) Perusal of the record shows that the Vakalatnama in the Appeal was signed by the respondent No.1 – appellant in the capacity as the Chairman of the Trust. Thus, purport of the averments made in the Civil Application No.1458 of 2006 is that the appellant was authorized by the Trust to prefer an Appeal as Trustee-Chairman of the said Trust and the Appeal was preferred on behalf of the Trust. In the present application 9 caf462-08 preferred by the 13th respondent to the Appeal, a prayer was made for transposing the 13th respondent in place of appellant as the appellant has applied for withdrawal of the Appeal. (d) On the basis of the averments made in the application for restoration, that the Appeal was preferred by him on the basis of the resolution of the Trust in his capacity as the Chairman – Trustee on behalf of the Trust, the appellant successfully got the Appeal restored. After the Appeal was restored, there was a change of mind and the appellant applied for withdrawal of the Appeal. After seeking withdrawal of the Appeal when the 13th respondent to Appeal made the present application, the appellant – respondent No.1 herein has chosen to take a completely contrary stand. In application for restoration he contended that the applicant in the present application was appointed as the chairman of the Trust on 18th March, 2001. At more than one place, the respondent No.1 stated that the applicant herein was a trustee of the Trust. However, in reply to Civil Application No.4874 of 2007 which was adopted as a reply to the present application, the respondent No.1 stated that the applicant was not a trustee. He came out with the case that when he preferred the Appeal, there was no resolution passed by the Trust authorizing him to file the Appeal. In paragraph No.12 of the said affidavit he specifically stated that 10 caf462-08 that when he filed Appeal as the President, there was no resolution passed by the Trust. After the change of mind, the appellant has taken a contradictory stand while contesting the present application. 6. An opportunity was granted by this Court by issuing show cause notice to explain the stand. I have already made reference to two affidavits filed by way of reply to the show cause notice. It can be safely said that there is absolutely no explanation for the inconsistent stand. I have already made a reference to paragraph No.10 of the affidavit dated 2nd September, 2011. The applicant now wants to say that on 7th February, 2008, his advocate Mr. K. P. Tiwari obtained signature on affidavit in reply to Civil Application No.4874 of 2007 without reading over the same to him. The appellant has gone to the extent of stating that he is not aware about the contents of the said affidavit. Thus, appellant made an attempt to shift the entire blame on Mr. K. P. Tiwari, advocate. It must be noted here that the first affidavit in reply dated 3rd August, 2011 to the show cause notice is filed through the same advocate Mr. K. P. Tiwari. At no stage of the proceedings, the appellant took a stand that advocate Mr. Tiwari obtained his signature on the affidavit and that he was not aware of the contents of the affidavit. In paragraph No. 10 of the reply dated 11 caf462-08 2nd September, 2011, the respondent No.1 has admitted that he has taken contradictory stand and has tendered apology. 7. Thus, the position which emerges is that after the Appeal was restored on the basis of the averments made by the respondent No.1, a completely inconsistent stand has been taken by him in the affidavits filed on record. Thus, minimum which can be said is that either the case made out in restoration application is false or the case made out in subsequent affidavit is false. 8. Therefore the only order which deserves to be passed is of recalling the order of the restoration of Appeal in as much as the case made out in the application for restoration will have to be seriously tested. 9. It will be necessary to make a reference to the decision of the Apex Court in the case of Dilip Singh V/s. State of Utter Pradesh and Others [2010, (2) SCC page 114] in paragraph Nos. 1 and 2 of the Judgment the Apex Court has observed thus: “1. For many countries Indian society cherished two basic balues of life i.e. “Satya” (truth) and “ahimsa” (non-violence). Mahavir, Gautam Budha 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- 12 caf462-08 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. 2. In the 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 will tainted hands, is not entitled to any relief, interim or final.” (underline supplied) 10. While deciding the application for restoration, it will have to be decided whether the applicant has come out with the case which is false. If the Court is satisfied that the case made out in the restoration application based on a falsehood, apart from dismissing the application, the Court can always take recourse to Section 340 (1) of the Code of Criminal Procedure, 1973. 11. Today, I am not recording any positive finding about falsity of the case, but what is recorded above is sufficient to come to the conclusion that some of the factual averments made in the application for restoration are totally inconsistent with the statements on oath made by the first respondent – 13 caf462-08 appellant in the subsequent affidavits. 12. The show cause notice was issued by this Court by order dated 29th June, 2011. Hearing of the show cause notice will have to be postponed till the application for restoration being Civil Application No.1458 of 2006 is decided a fresh. 13. Hence, the order of restoration passed on Civil Application No.1458 of 2006 is recalled and the said application is restored. 14. The restored application and show cause notice shall be fixed for hearing on 19th October, 2011. It is made clear that the applicant will not be entitled to file any further affidavit apart from the affidavit which is already on record of the application and affidavits which are filed to the show cause notice. 15. The present application will also remain pending, which will be considered at the appropriate stage. 16. At this stage, the learned counsel appearing for the respondent No.1 - appellant prays for continuation of interim relief which was granted in the Appeal. Considering the finding recorded in this order regarding the conduct of the appellant, the prayer is rejected. The learned counsel 14 caf462-08 appearing for the respondent No.13 makes the same prayer. However, there is no application made by the 13th respondent for the said prayer. Hence, the said request cannot be considered. (A.S.OKA, J.)