CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) Date of decision: 8.7.2011 Ramesh Chander (since deceased) through LRs ......Appellant(s) Versus Jalandhar Improvement Trust etc. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. R.C. Setia, Sr. Advocate with Mr. R.S. Bajaj, Advocate for the appellant. Rakesh Kumar Garg, J. CM No.11672-CII of 2010 Application is allowed, subject to all just exceptions. Judgments dated 20.1.2004 and 15.3.2010 passed in RSA No.1822 of 2003 and RSA No.3673 of 2000 titled as “Ajinder Kaur versus Jalandhar Improvement Trust” and “Jalandhar Improvement Trust Versus Harbhajan Kaur and others”, respectively, are taken on record. C.M.No.11669-CII of 2010 to C.M.No.11671-CII of 2010 The appellant-Ramesh Chander had filed the instant appeal in the year 1995 through his counsel Sh.R.S.Kapoor, Advocate. The appeal was admitted vide order dated 21.8.1995. As per the brief facts of the case, one Nasib Chand (father of Ramesh Chander-appellant and respondent Nos.3 to 5 and husband of respondent No.2) was owner of land measuring 28 Kanals 5 marlas situated at Basti Sheikh, Jalandhar, which was acquired by the respondent- CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 2 Trust for development of scheme known as “13.37 acres scheme”. Nasib Chand died on 8.5.1987 leaving behind plaintiff-appellant-Ramesh Chander and respondent Nos. 2 to 5 as his heirs. As per the averments, the plaintiff-appellant-Ramesh Chander applied to the respondent-Trust for allotting him a plot in lieu of the acquired land in a scheme known as “55 acres development scheme” and thereafter, he requested the respondent- Trust to accept first installment of ` 10,000/- and deliver vacant possession of the plot but to no effect. Hence, the suit. Upon notice, respondent No.1-Trust put in appearance and admitted the claim of the plaintiff-appellant. Suit of the plaintiff-appellant was decreed vide judgment and decree dated 10.6.1988 but in appeal that decree was set aside and the case was remanded back to the trial Court. After remand, respondent No.1 filed fresh written statement raising various preliminary objections. However, on merits, the respondent-Trust admitted the acquisition of land of Nasib Chand and also admitted that allotment letter dated 29.1.1988 regarding plot No.456 in “55 acres scheme” was issued to the plaintiff-appellant. It may be relevant to point out that though respondents No.2 to 5 were arrayed as party in the said suit but they never contested the said suit. Suit of the plaintiff-appellant was decreed vide judgment and decree dated 7.5.1992. The operative part of the judgment reads thus: “In view of the premises written above, suit of the plaintiff is decreed. A decree for declaration that the plaintiff is allottee of plot No. 456 in 55 acre scheme and is entitled to deposit Rs.10,000/- towards the first installment and the balance price as per the allotment letter Ex.P-4 and for mandatory injunction, directing the defendant-Trust to CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 3 accept the payments from him in accordance with the allotment letter and the trust rules, is ordered to be issued in favour of the plaintiff and against the defendant, with no order as to costs. Decree sheet be drawn. File be consigned.” However, on an appeal filed on behalf of respondent No.1- Trust, the aforesaid judgment and decree was set aside vide judgment dated 18.5.1995 by the Additional District Judge, Jalandhar, and the suit of the plaintiff-appellant stood dismissed. The instant appeal was filed by the appellant challenging the aforesaid judgment and decree of the Lower Appellate Court. CM No.4841-C of 2010 was filed on 22.4.2010 on behalf of respondents No.2 & 3 before this court for bringing on record the legal heirs of deceased Ramesh Chander-appellant, who is stated to have died on 14.12.2003 leaving behind his legal heirs as mentioned in para No.2 of the said application. It was stated in the said application that the following legal representatives of Ramesh Chander-appellant(deceased) be brought on record:. i) Smt.Karam Kaur Widow of Sh. Ramesh Chander. (ii) Harish Chander son of Sh.Ramesh Chander. (iii) Raman Kumar son of Sh. Ramesh Chander all residents of Buta Mandi, Jalandhar, Tehsil and District Jalandhar. (iv) Smt. Nirmla Devi D/o Sh.Ramesh Chander, Wife of Sh.Rajesh Kumar, resident of 182-F, Rishi Nagar, Ludhiana, Tehsil and District Ludhiana. v) Smt.Rita Kumari D/o Sh.Ramesh Chander w/o Sh.Surinder Pal, resident of H.No.588 New Arya Nagar, Kartarpur, District Jalandhar. vi) Smt.Sita Devi D/o Ramesh Chander w/o CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 4 Sh.Rajinder Kumar, resident of H.No.702, Phase VII , S.A.S.Nagar, Mohali, District Mohali. The aforesaid application was supported by an affidavit of Jagdish Chander son of Nasib Chand i.e respondent No.3 in appeal. The following order was passed on the aforesaid application on 14.5.2010:- “This is an application under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure for bringing on record the legal heirs of the appellant, who is stated to have died on 14.12.2003. This application has been moved by respondents No.2 and 3, who are proforma respondents in this appeal and no relief has been claimed against them whereas the LRs of Ramesh Chander-appellant have not chosen to come forward to pursue this appeal. Faced with this situation, learned counsel for the applicant (i.e. Respondents No.2 and 3) prays for withdrawal of the aforesaid application. Ordered accordingly. This application for bringing on record the LRs of the appellant at the behest of respondents No.2 and 3, who are proforma respondents, is ordered to be dismissed as withdrawn. RSA No.1908 of 1995 Since the legal representatives of the appellant have chosen not to pursue this appeal, the same is dismissed for non-prosecution.” Since the LRs of appellant-Ramesh Chander have not chosen to come forward after his death on 14.12.2003 to pursue this appeal, the same was dismissed for non prosecution. CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 5 After the dismissal of CM No.4841-C of 2010 and the appeal vide order dated 14.5.2010, applicant- Karam Kaur filed CM No.11669-C of 2010 for setting aside the order dated 14.5.2010 dismissing the appeal for non prosecution claiming herself to be the sole legal heir in whom the right to sue survived on the basis of a Deed of Family Settlement dated 21.1.2010 executed between the LRs of Nasib Chand (including respondents No.2 to 5 in this appeal) and other legal heirs of Ramesh Chander-appellant (since deceased). The aforesaid Deed of Family Settlement has also been placed on record by the applicant. In her application i.e CM No.11670-C of 2010 for bringing her on record as LR of Ramesh Chander-appellant, the applicant under Section 5 of the Limitation Act also sought condonation of delay of 33 days in filing the restoration application and delay of 17 days in bringing on record the LRs. The aforesaid delay has been calculated taking the date of knowledge from 1.4.2010 on the basis of advice of Shri Vijay Rana, Advocate appearing on behalf of respondents No.2 & 3. The applicant also filed an application i.e CM No.13869-C of 2010 on 1.12.2010 for condoning the delay in bringing on record LRs of the appellant and for setting aside the order dismissing the appeal in default. It is also interesting to note that the said applications have been supported by an affidavit of Sh.Mohinder Pal Singh son of Sh. Gopal Dass who claims himself to be GPA of applicant-Karam Kaur. The photocopy of the GPA has also been placed on record. The said GPA has been executed by applicant-Karam Kaur only on 14.7.2010. It is also relevant to note that the power of attorney in favour of the present counsels has been thumb-marked by applicant-Karam Kaur. However, later on, the aforesaid thumb-mark of Karam Kaur has been scored of and the power of CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 6 attorney is signed by Mohinder Pal, the GPA of said LR-Karam Kaur. Sh. R.C. Setia, learned Senior Advocate has vehemently argued that in view of the local amendment made in the CPC, there is no limitation for moving an application to bring on record the LRs of a party and in view of the explanation submitted by the applicant, the delay if any, in filing the said applications, stood explained and the order dated 14.5.2010 dismissing the appeal for non-prosecution is liable to be set aside and the applicant is entitled to be brought on record of the case as LR of deceased appellant-Ramesh Chander and pursue the appeal on merits and thus, a prayer has been made to set aside the order dated 14.5.2010 dismissing the appeal for non-prosecution and hear the same on merits. I have heard the learned counsel for the applicant and have perused the case file. There is no dispute with the proposition of law as canvassed by the learned Senior Advocate and in view of the law laid down by this Court in Lal Chand vs. Raghu Nath, 2010 (1) RCR (Civil) 149, there is no limitation for filing application for bringing on record the LRs of deceased appellant in view of the amendment in the provisions of CPC by this Court. However, in my view, the applicant is not entitled to any relief from this Court because of the facts established on record of the case. In fact, a false plea has been set up by the applicant for seeking relief from this Court while making an effort to explain the delay in filing the application for bringing herself on record as sole LR of deceased appellant-Ramesh Chander, who died on 14.12.2003. The said opinion has been made by this Court on the basis of the following facts which are clearly discernible from the record. CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 7 In the affidavit filed along with CM No.11670-C of 2010, it has been stated that the applicant was an illiterate lady and she was told by her husband that his appeal was not likely to be taken up for the next 20 years after admission and their counsel would intimate the date whenever it is listed and she was not aware that LRs were to come on record after the death of her husband on 14.12.2003. The aforesaid averment has been made in the affidavit sworn by Shri Mohinder Pal, GPA of widow-Karam Kaur, who has been constituted as such only on 14.7.2010. By any stretch of imagination, this GPA of the applicant cannot have the personal knowledge of this fact as disclosed in this affidavit that applicant-Karam Kaur was told by her husband that on listing of the appeal their lawyer will inform them. Not only this, in all the applications, it is nowhere the case of the applicant that the counsel, through whom this appeal was filed on behalf of her husband, has never informed them or any other legal representative of applicant. Not only this, it is an admitted fact that originally even this appeal had been filed by appellant-Ramesh Chander through his attorney Shri Avtar Chand. It has also not come on record as to whether after the death of her husband on 14.12.2003, the applicant who had the knowledge of filing of appeal had ever inquired from Shri Avtar Chand, attorney of her husband regarding the status of the present appeal. It is well settled that the statement of GPA, who is not having any means of knowledge of the facts which were only to the knowledge of applicant can be taken into consideration. It may also be noticed at this stage that once the power of attorney in favour of the counsel was executed by the appellant, then where was the problem for the applicant herself to swear an affidavit in support of the instant applications and there was no necessity of striking off CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 8 the same. It may also be seen from the record that the deed of family settlement between the LRs of Nasib Chand including respondents No.2 to 5 and other LRs of Ramesh Chander-appellant was allegedly executed on 21.1.2010 wherein it has been settled between the parties that Karam Kaur-applicant will be the sole owner of the plot in question which is the subject matter of litigation. It is strange that vide this Deed of Famliy Settlement between all the LRs of Nasib Chand and Ramesh Chander- appellant, the only dispute was regarding the plot in question and nothing else. In spite of the fact that applicant-Karam Kaur knew about the litigation even at the time of alleged settlement and was held to be the sole owner of the plot in question, yet she made no effort to bring herself on record of the appeal by that point of time. It may be further noticed that in spite of the fact that respondents No.2 to 5 who are signatory to the aforesaid alleged Deed of Family Settlement dated 21.1.2010, yet while moving CM No. 4841-C of 2010 to bring on record the LRs of appellant, they never mentioned that on the basis of said deed of settlement, Karam Kaur-applicant was the sole owner of the plot in question. Instead the aforesaid respondents No.2 & 3 moved an application to bring on record all the legal representatives of Ramesh Chander(since deceased) thereby concealing a material fact of alleged deed of settlement from the knowledge of this Court. The averment mentioned in the application filed on behalf of the applicant to the effect that she has come to know regarding the pendency of the appeal only on 21.4.2010 from the proforma respondent, who was advised by their counsel, cannot be accepted. There was no dispute between the applicant and the proforma respondent in this appeal and they were in knowledge of family settlement and there was no difficulty for them to inform the CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 9 applicant to do the needful herself instead of moving an application on a false plea by them. From the aforesaid facts, it s crystal clear that the application moved on behalf of the applicant through her alleged GPA is mala fide and is based upon the facts which are misleading and false. The Hon'ble Supreme Court in Dalip Singh v. State of Uttar Pradesh and others, (2010) 2 Supreme Court Cases 114 has authoritatively laid down that falsity of a plea vitiates everything and no relief can be granted to a litigant on such plea. The relevant para reads thus: “A party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. A person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. Jurisdiction under Articles 32 and 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and 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 CM Nos.11669 to 11672-C of 2010 in CM No.13869-C of 2010 in RSA No.1908 of 1995(O&M) 10 considering the merits of the claim.” Hence, the prayer made in these applications is rejected and all these applications are ordered to be dismissed. July 8, 2011 (RAKESH KUMAR GARG) ps JUDGE