1 wp429 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.429 OF 2010 Mohini Resorts Pvt.Ltd. ...Petitioner vs. Devendra Devdatta Bhatia & Ors. ...Respondents Mr.Madhav Jamdar for the Petitioner Mr.S.S.Patwardhan i/b Ms Manjiri Parasnis for the respondent no.1 CORAM : A.S.OKA,J. DATE : AUGUST 25, 2011 ORAL JUDGMENT: 1 The submissions of the learned counsel for the parties were heard on the earlier date. Notice for final disposal was issued by this Court. 2 The petitioner by this petition under Article 227 of Constitution of India has challenged the order dated 1 st August 2009 passed by the learned trial Judge by which application at Exhibit-146 made by the petitioner was rejected by the trial Court. The case made out in the said Application was that the case of first respondent-plaintiff was based on false and fabricated document and therefore, the suit be dismissed. 3 The petitioner is the defendant no.6 in a suit filed by the first respondent. It will be necessary to make a reference to the facts of the case in brief. 2 wp429 4 The first respondent has claimed declaration in the suit that he is the tenant in respect of the suit premises described in the plaint. The suit premises is a shop more particularly described in paragraph 1(B) of the plaint. The first respondent has relied upon the agreement dated 19 th February 1981 executed by one Vasudeo Dinkar Vaidya. According to the case of the first respondent, the suit shop was let out to him under the said agreement. According to the case of the first respondent, he had advanced a sum of Rs.10,000/- to the said Vasudeo Vaidya. According to the case of the first respondent, he paid rent in respect of the suit premises to the said Vasudeo till February 1986. According to him, monthly rent is Rs.150/- per month. 4a The suit is being contested by the first defendant as well as the present petitioner. The petitioner has denied execution of agreement dated 19 th February 1981 allegedly executed by the said Vasudeo Dinkar Vaidya in favour of the first respondent. The petitioner pointed that Shri Dinkar Balkrishna Vaidya had filed a suit for possession of the plot of land on which the suit premises was situated against several persons including one Mr.Manoharlal Bodhraj Suri proprietor of Mahadeo Cycle Stores who was arraigned as defendant no.10. The suit was contested by the said Manoharlal. Decree for possession was passed in the said suit. Appeal was filed against the said decree in which the said Manoharlal Bodhraj Suri was one of 3 wp429 appellants. Appeal was allowed and the decree was set aside. A Petition under Article 227 of the Constitution of India was filed by the said D.B.Vaidya in this Court. The said petition (Special Civil application) was allowed and decree passed by the trial Court was restored. It was pointed out that Special Leave Petition was filed by the said Manoharlal Bodhraj Suri in which special leave was granted. 5 The first respondent stepped into witness box by filing his affidavit in lieu of examination-in- chief. He was cross examined by the petitioner. 6 An application was made by the petitioner at Exhibit-114 praying that the original agreement dated 19th February 1981 produced by the first respondent be sent to the Joint District Registrar and Collector of Stamps, Pune for enquiry about the stamp vendor who had issued the stamp on which agreement was made. A direction was sought to the Security Printing Press to verify in which year the said stamp paper was printed. Accordingly, on 14 th June 2006, learned trial Judge passed an order directing that the document to be sent to the Government Printing Press, Nasik to verify in which year the said stamp paper was printed. Accordingly, report of the General Manager, India Security Press, Nashik Road, Nashik has been placed on record in which it was stated that the stamp paper on which agreement is made was printed on 16 th February 1987 and the said stamp paper was made available to the public only after 4 th April 1987. On 5 th April 1987, 4 wp429 the petitioner produced a letter dated 23 rd January 1995 addressed by the Stamp Collector, Pune to one Kannaiyal Talera in which it was stated that one Ms Sunita Babasaheb Thopte was granted a licence on 5 th September 1989 to sell the stamps and the said licence has been subsequently suspended. The stamp paper on which the alleged agreement dated 19th February 1981 was written was purportedly sold by the said Sunita Thopate. 7 The petitioner made an application at Exhibit-146 praying for dismissal of the suit on the ground that the suit is based on a false document. Reliance was placed in the said application on the aforesaid documents as well as the orders passed in the proceedings arising out of the suit filed Mr.Dinkar Balkrishna Vaidya. It was contended that the said Manoharlal Bodhraj Suri contested the proceedings up to the year 1992 and even thereafter he has deposited rent in respect of the suit premises. The said agreement dated 19 th February 1981 records that the possession of the suit premises was with the said Manoharlal who placed the respondent no.1 in possession. The said application was opposed by the first respondent by filing a reply. It was contended that at the stage of recording of evidence, the suit cannot be dismissed summarily. The application at Exhibit-146 was rejected by the trial Court. The trial Court held that in the facts and circumstances of the case it would not be appropriate to invoke provisions of section 151 of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) without 5 wp429 deciding the suit on merits. 8 The learned counsel for the petitioner invited the attention of the Court to the documents to which reference has been made earlier. He submitted that the entire case of the first respondent is based on said agreement which is fabricated as evidenced by the aforesaid documents. He invited the attention of the Court to the statements made in the affidavit in lieu of examination-in-chief of the first respondent in which he claims that the document was signed in his presence by Shri Vaidya. Inviting attention of the Court to paragraph 3 of the affidavit in lieu of examination- in-chief, he submitted that not only that the first respondent has expressly relied upon the said agreement but he has stated that the agreement was signed by him and the said Vasudeo. He pointed out that the first respondent stated that the said Vasudeo died on 1 st April 1981. He submitted that the report of the Security press shows that the stamp paper on which purported agreement was executed was not in existence on the date on which agreement was purportedly executed. His submission is that the first respondent claims that on 19 th February 1981 the said agreement was executed and therefore, it is apparent that entire case of the first respondent is based on the falsehood. He also pointed out the other documents produced by the petitioner showing that the stamp vendor who had allegedly sold the said stamp paper was granted Vendor s licence on 5 th September 1989 long after the said Vasudeo died, and the stamp paper has been obviously purchased long 6 wp429 after the demise of said Vasudeo. He relied upon the letter dated 23 rd January 1995 issued by the Collector of stamps which is produced along with list of documents at Exhibit-116. He submitted that the said document as well as the report of the Security Press clearly shows the falsehood in the case of the petitioner and without considering the said documents, the learned trial Judge has declined to exercise the power vested in him of dismissing the suit. The learned counsel relied upon the decision of the Apex Court in case of S.P.Chengalvaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs. And others (AIR 1994 SC 853). He also placed reliance on the decision of the Apex Court in case of Dalip Singh Vs. State of Uttar Pradesh and others [(2010) 2 SCC 114]. He submitted that the Apex Court has expressly held that if the case of a litigant is based on false documents, the same can be thrown out at any stage of the litigation. He submitted that the law laid down by the Apex Court cannot be ignored and therefore, the trial Court is wrong when it declined to exercise the power of dismissing the suit. 9 The learned counsel for the respondent relied upon the affidavit dated 11 th August 2011 filed by the first respondent in which the first respondent has stated that without prejudice to his rights and contentions, he does not intend to rely upon the said agreement. He pointed out that affidavit in lieu of examination-in-chief was filed by the first respondent and thereafter, cross examination went on. Now, the suit is still at the stage of recording 7 wp429 of evidence. He submitted that the Trial court is right in not entertaining the suit by observing that the application cannot be dismissed at this stage without deciding the suit on merits especially when the trial is in progress from the year 2006. He submitted that the documents relied upon by the petitioner have not been admitted in evidence. The learned counsel for the petitioner submitted that the documents which were referred to in the application at Exhibit-146 were not denied in the reply of the first respondent and therefore, the same shall be deemed to have been admitted. He also relied upon the provisions of Rule 2A of Order XII of the said Code. 10 I have carefully considered the submissions. It will be necessary to make a reference to the decision of the Apex Court in case of S.P.Chengalvaraya Naidu Vs. Jagannath (supra). Paragraphs 7 and 8 of the said decisions read thus : 7 The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence . The principle of finality of 8 wp429 litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say 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. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. (underline supplied) The Apex Court was dealing with an Appeal arising out of a decree of civil Court. What has been held by the Apex Court that the Courts of law are meant for imparting justice between the parties and after finding that the case of a litigant is based on falsehood, such a case can be thrown out at any stage of litigation. The Apex Court further observed that withholding of vital documents relevant to the litigation is a fraud on Court. Reliance has been also placed on the decision in case of Dalip Singh (supra) which in turn makes a reference to its earlier decision in the case of A.V.Papayya Sastry Vs. Government of Andhra Pradesh 9 wp429 [(2007) 4 SCC 221]. In paragraphs 1 and 2 of the said decision, the Apex Court has observed thus : 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 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 10 wp429 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. (underline supplied) The position of law which emerges from the decisions of the Apex Court is that if at any stage of the proceedings, on the basis of the legal evidence on record, the Court is satisfied that the entire case of the plaintiff is based on complete falsehood, the Court can exercise power of dismissing the suit or proceedings. Before the Court exercises such drastic power, it has to be established conclusively that the case of the plaintiff is based on falsehood. The conclusion that the case is based on falsehood must be arrived at on the basis of legal evidence on record. 11 It will be necessary to make a reference to the facts of the case in brief. Perusal of the plaint as well as affidavit in lieu of examination-in-chief filed by the first respondent shows that the first respondent came out with a case that one Dinkar Vaidya was the owner of the larger property on which the suit premises is situated and after his demise, his son Vasudeo became the owner. The claim of tenancy made by the first respondent is based on the alleged agreement dated 19 th February 1981 executed by the said Vasudeo. Perusal of the examination-in- chief and in particular paragraph 3 clearly shows that reliance was placed by the first respondent on the agreement dated 19 th February 1981. Relevant part 11 wp429 of paragraph 3 of the affidavit in lieu of examination-in-chief reads thus : 3...I state that sometime on 19/2/1981 the said landlord entered into agreement with me in respect of the said shop premises described in para 1-B. I am a monthly tenant in respect of shop premises described in Para 1-B since that date. I say that the said agreement is produced on record by me. The said agreement was signed by me and the landlord Mr.Vasudeo Dinkar Vaidya. I identify the signatures of late Shri Vasudeo Dinkar Vaidya and mine thereon alongwith witnesses and the contents thereof are true and correct. The agreement is at Ex..., I say that thereby the said Shri Vaidya let out the said shop to me on the agreed rent of Rs.150/- per month. The month of tenancy commenced from 1 st day of March 1981 and since then till today I am in absolute and lawful possession of the said premises. I say that I had paid Rs.10,000/- to the landlord Mr.Vasudeo Dinkar Vaidya on the date of agreement to change the receipt in my name and he passed the receipt dated 1.3.81 as per agreement dated 19/2/1981... (underline supplied) 12 Thus, the specific case of the first respondent is that the tenancy was created by the said Vasudeo by the agreement dated 19 th February 1981. In the 12 wp429 examination-in-chief, he stated that the said Vasudeo died on 1 st April 1981. As stated earlier, the petitioner in their written statement has denied the existence of any such agreement. The record shows that the agreement is on stamp paper denomination of Rs.5/- bearing serial no.2461 dated 19 th February 1981 which was issued to the said Vasudeo through one Mr.Deshmukh and the name of the stamp vendor is shown as Ms Sunita Thopte, Bhosari,Pune. The case made out by the petitioner in the application at Exhibit-146 is mainly based on letter dated 23 rd January 1995 issued by the Collector of Stamps to one Kannaiyalal Talera in which it was stated that Ms Sunita Babasaheb Thopte was granted licence to sell the stamp papers on 5 th September 1989 which was suspended on 29 th August 1992. The second document on which reliance has been mainly placed is the confidential report of the Deputy Works Manager of India Security Press, Nashik Road, Nashik which shows that the said stamp paper was printed on 16 th September 1987. The other aspect which is relied upon by the petitioner is the fact that the said Vasudeo died on 1 st April 1981. Another aspect which is relied upon by the petitioner is that one Manoharlal Bodhraj Suri contested the litigation filed by the father of said Vasudeo till the year 1994 and was claiming to be in possession. It was pointed out that the said Agreement dated 19 th February 1981 records that the said Manoharlal handed over possession to the respondent no.1 with the consent of Vasudeo. 13 In the impugned Judgment and order, the learned 13 wp429 Judge observed that observation of the Apex Court in the case of S.P.Chengalvaraya Naidu (supra), does not mean that the present suit can be dismissed without going into merits of the case. The trial court observed that the facts of the present case were different and looking to the fact, it would not be appropriate to invoke section 151 of the said Code at this stage without deciding the matter on merits. 14 In the light of the law laid down by the Apex Court, the learned Judge could not have held that considering the stage of the suit, it was not at a proper stage to exercise power of dismissing the suit. To reiterate what is held by the Apex Court, once the Court is satisfied that the case is based on complete falsehood, the power under section 151 of the said Code can be exercised at any stage to throw out the litigation. Only condition precedent is that there must be a very strong legal evidence on record to show that the entire case is based on falsehood. As stated earlier, perusal of the plaint as well as affidavit in lieu of examination-in-chief of the first respondent shows that the claim for declaration of tenancy is squarely based on the said agreement dated 19 th February 1981 which was allegedly executed by the said Vasudeo in favour of the first respondent. The relevant portion of the affidavit in lieu of examination-in-chief has been already quoted above wherein the first respondent has specifically claimed that the tenancy was created by the said agreement. Perusal of the recitals in the said agreement show that the alleged 14 wp429 transaction of tenancy was entered into with the consent of Manoharlal Bodhraj Suri who vacated the possession of the suit premises and handed over the same to the first respondent. One of the grounds raised in the application at Exhibit-146 is that as the said Manoharlal Bodhraj Suri prosecuted the proceedings in respect of the suit premises in the Apex Court till the year 1994, he could not have handed over the possession. Whether the possession was handed over to the first respondent by the said Manoharlal is a matter of evidence. 15 The most vital contention raised by the petitioner is that the stamp paper on which the said agreement has been allegedly made was not in existence on the date on which the agreement is purportedly executed and the stamp vendor who has allegedly sold the said stamp paper was not even possessing the vendor s licence on the date of Agreement. If these two contentions are substantiated by the evidence, the only conclusion which can be drawn is that the claim in the suit is based on the document which is fabricated. In short, the claim is based on falsehood. 16 In the application at Exhibit-114 made by the petitioner, prayer reads as under : 4) It is therefore prayed that the Hon ble Court be pleased to send the original Agreement dated 19.2.1981 to the Joint District Registrar and Collector of Stamps, Pune, Pushpamangal Karyalaya, Pune-Satara 15 wp429 Road, Pune 411 037 for further enquiry about the Stamp Vendor and to the Nashik Printing Press asking them to verify in which year the stamp paper was printed. The defendant is prepared to pay the necessary charges. 17 An order was passed by the learned Judge on 14 th June 2006 on the said application. The said order reads thus : O BELOW EX.114 The stamp of Rs.5 denomination be sent to Government Printing Press,Nashik to verify in which year said stamp was printed. The Defendant no.6 is hereby directed to pay the necessary charges for the same. The Government Press Authority is requested to clarify in which year said stamp was printed and to submit its report within a period of 7 days from receipt the disputed stamp. Issue letter to the concerned authority accordingly, Xerox copy of Stamp paper be kept along with file. 18 At this stage, it will be necessary to advert to the relevant provisions of Order XXVI of the said Code. Rule 10-A reads thus : 10-A. Commission for scientific investigation  16 wp429 (1)Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it think is fit, directing him to inquire into such question and report thereon to the Court. (2)The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9. 19 By passing the order below application at Exhibit-114, the trial Court directed the concerned officer of the Government Security Press to conduct investigation as regards the date on which the stamp paper was printed and to submit a report. Accordingly, a letter was issued on 23 rd December 2006 by the General Manager, India Security Press, Nashik Road, Nashik to the learned Trial Judge by which a report was forwarded. The confidential report of the Deputy Works Manager records that the stamp paper used is a genuine stamp paper and the date of printing the stamp paper is 16 th February 1987. The confidential report further records that the stamp paper was made available to the public only after 4 th April 1987. In view of sub rule 2 of 17 wp429 rule 10-A of Order XXVI of the said Code, the report will be governed by Rule 10 of Order XXVI and therefore, the report becomes a part of evidence. Though the report purports to be confidential, it is submitted in accordance to an order passed under in exercise of power sub Rule 1 of Rule 10-A of Order XXVI of the said Code and therefore, no confidentiality can