Rajabhai Abdul Rehman Munshi Vs.
Vasudev Dhanjlbhai Mody  INSC 126 (1 May 1963)
01/05/1963 SHAH, J.C.
CITATION: 1964 AIR 345 1964 SCR (3) 480
CITATOR INFO :
R 1969 SC1273 (3) F 1973 SC2056 (15) R 1974
SC 950 (7) R 1978 SC 765 (10)
Special LeaveRevocation -Jurisdiction of
Supreme Court False Statement made in Special Leave PetitionConstitution of
In a suit filed in 1954 the tenant deposited
in Court Rs. 400/on October 1, 1954 The deposit remained in Court upto January
19, 1957, when it was withdrawn. A fresh suit was filed in September, 1955, for
ejectment of the tenant.
On January 10,1957, the tenant deposed about
the deposit of Rs. 400 but withdrew it after nine days. The suit was dismissed
by the trial court on February 26, 1957, on the ground that the amount required
had been deposited by the tenant in Court. The lower appellate court accepted
the appeal and ordered ejectment on the ground that the amount deposited 481
was not sufficient as Rs. 400/bad already been withdrawn.
In a revision petition filed in High Court,
it was contended that the amount of Rs. 400/was in deposit and at the disposal
of the landlord. The High Court accepted this fact but in spite of that refused
to interfere in the matter and dismissed the revision petition.
In the petition for Special Leave to appeal,
the tenant quoted a long extract from the judgment of High Court regarding the
deposit of Rs. 400/in court and submitted that the High Court was correct in
coming to the conclusion that as there was nothing on record to show that the
petitioner had withdrawn the sum of Rs. 400/the petitioner was not in arrears
of rent. Special Leave to appeal was granted, Held that the, special leave to
appeal granted by this court must be vacated because it had been procured by
the appellant without disclosing all the material facts. A deliberate attempt
had been made in the petition for special leave to appeal not only to withhold
from the court the information that the amount of Rs. 400/originally deposited
in court was subsequently withdrawn by him, but a serious attempt was also made
to create an impression that the finding of the High Court concerning
withdrawal was correct.
Per Sarkar and Shah jj.-The exercise of
jurisdiction under Art. 136 of the Constitution is discretionary. It is
exercised sparingly and in exceptional cases when a substantial question of law
falls to be determined or where it appears to the ours that interference by
this court is necessary to remedy serious injustice. A party who approaches
this court invoking tile of this over-riding discretion must come with clean
hands If there appears on his part any attempt to overreach or mislead the
court by false or untrue statements or by withholding true information which
would have a bearing on the question, of exercise of the discretion, the court
would be justified in refusing to exercise the discretion or if the discretion
has been exercised in revoking the leave to appeal granted even at the time of
hearing of the appeal,, Per Hidavatullah j--The powers exercisable by this
court under Art: 136 of the Constitution are not in the nature of a general
appeal. They enable this court to interfere in cases where an irreparable
injury has been caused by reason of a miscarriage (if justice due to a gross
neglect of law or procedure or otherwise and there is no other adequate remedy.
The Article is hardly meant to afford relief in a case where a party 482 is in
default of rent because he withdrew a deposit lying in court but who cannot, on
the record of the case, be shown to have withdrawn the amount. The present case
is not one of a mere error in the narration of facts or of a bona fide error of
Judgment. It is a case of being disingenuous with the Court by making out a
point of law on a suppositions state of facts which facts, if told candidly,
leave no room for discussion of law. The appellant, by dissembling in this
court, induced it to grant special leave in a case which did not merit It and
hence the leave should be recalled.
Har Narain v. Badri Das.  2 S. C. R.
203 and S. B. Shetty v. Phirozeshah Nursservanji Colobawalla and Another C. A.
No. 155 of 1963 decided on April 5, 1963, approved.
CIVIL APPELLANT JURISDICTION : Civil -Appeal
No. 692 of 1962.
Appeal by special leave from the judgment and
decree dated January 20, 1960 of the Bombay High Court in Civil Revision
Application No. 139 of 1958.
J. P. Mehta, Aziz Mushabber Ahmadi, J. B.
Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
Vithal B. Patel and 1. N. Shroff, for the
1963. May I The judgment of Sarkar and Shah
jj. was delivered by shah J., Hidayatullah, J. delivered a separate judgment.
SHAH. J. -For reasons which we will presently
set out, special leave to appeal against the judgment of the High Court of
Bombay granted by this Court must be vacated because it had been procured by
the appellant without disclosing all the material facts.
Rajabhai Munshi who will hereinafter be
referred to as 'the defendant' is since 1935 a tenant 483 of Vasudev
Mody-hereinafter called 'the planitiff'-in respect of a piece of land situate
in the town of Ahmedabad.
The rent of the land as originally stipulated
was Rs. 411/per annum, and it was by mutual agreement enhanced to Rs. 851/per
annum in 1948. The plaintiff filed suit No. 2014 of 1952 against the defendant
in the Court of Small Causes exercising jurisdiction under s. 28 of the Bombay
Rents and Lodging House Rates (Control) Act, 1947 (Act 57 of 1947) for an order
in ejectment against the defendant on the plea amongst others that the latter
had made default in payment of rent due by him. The defendant contended inter
alia that the rent stipulated was in excess of the standard rent payable by
him. The Trial Court assessed the standard rent payable by the defendant at Rs.
446/per annum and holding that the defendant had not made default in paying
rent, dismissed the plaintiff's suit. Against that decree the
plaintiff-preferred Appeal No. 450 of 1953 to the District Court at Ahmedabad.
On October 1, 1954 the defendant deposited in the District Court Rs. 400/to the
credit of the plaintiff. The appeal instituted by the plaintiff was not
prosecuted, and the amount of Rs. 400/deposited to the credit of the plaintiff
remained deposited in Court.
The plaintiff commenced another action (Suit
No. 3434 of 1955) against the defendant on the plea that the defendant had
committed fresh defaults in Payment of rent.
The defendant deposited in Court from time to
time between November 22, 1955 and January 16, 1957 Rs. 2,126/8/towards rent
due by him and costs of the suit. The learned Trial judge by this order dated
February 26, 1957 held that taking into account Rs. 400/lying to the credit of
the plaintiff in Appeal No. 450 of 1953 the defendant had deposited in Court
Rs.2,526/8/-, and that amount was sufficient to satisfy the arrears of rent due
by the defencent and also the costs of the suit, and therefore 484 no decree in
ejectment could, in view of s. 12 (3) (b) of Bombay Act 57 of 1947 be granted.
In appeal the Extra Assistant judge,
Ahmedabad, reversed the decree of the Trial Court. In his view the defendant
had failed to deposit the full amount of rent due and costs of the suit as
required by s. 12 (3) (b) and therefore a decree in ejectment must issue
against the defendant. In making up the account of the rent due by the
defendant, the learned judge excluded the amount of Rs. 400/deposited in Appeal
No. 450 of 1953 on October 1, 1954, because the defendant had withdrawn that
amount before the suit was disposed of by the Trial Court. Against the decree
in ejectment the defendant invoked the revisional jurisdiction of the High
Court of judicature at Bombay.
Before the High Court, the advocate for the
defendant contended that there was no evidence in support of the finding of the
appellate Court that the amount of Rs. 400/deposited by the defendant in Appeal
No. 450 of 1953 stood withdrawn by the defendant. The High Court upheld the
contention but proceeded to dismiss the petition filed by the defendant because
the case did not fall strictly within s. 12 (3) (b) of Bombay Act 57 of 1947
and the Court had jurisdiction, having regard to the circumstances and the
conduct of the tenant, to refuse relief to him, and that the record showed that
the defendant had by his conduct disentitled himself to discretionary relief.
Against the order passed by the High Court, a petition for special leave to
appeal to this Court was granted.
Section 12 (1) of Act 57 of 1947 provides:
"A landlord shall not be entitled to the
recovery of possession of any premises so long as the tenant pays, or is ready
and willing to pay, the amount of the standard rent and permitted increases, if
any, and observes and performs the other conditions of the tenancy, in so far
as 485 they are consistent with the provisions of this Act ;" and sub-s.
(3) cl. (b) provides that "In any other case, no decree for eviction shall
be passed in any such suit, if, on the first day of hearing of the suit, or on
or before such other date as the Court may fix, the tenant pays or tenders in
Court the standard rent and permitted increases then due and thereafter
continues to pay or tender in Court regularly such rent and permitted increases
till the suit is finally decided and also pays costs of the suit as directed by
the Court." It is common ground that the claim made by the plaintiff falls
within the description -'In any other case".
The High Court assumed that even if the
tenant has not paid into court the standard rent and permitted increases due on
the first day of hearing of the suit, the-Court may still in the exercise of
its discretion refuse a decree to the landlord in ejectment, provided all the
arrears of rent and costs of the suit are paid into Court by the tenant at any
time before the suit is disposed of The assumption so made at once raised a
question of some nicety as to the true interpretation of s. 12 (3) (b). This
question may however fall to be determined only if the conclusion of the High
Court that the defendant had deposited the rent due and the costs of the suit
before the date of the decree passed in the Trial Court be correct. The
Appellate Court had recorded that the rent due and costs of the suit were not
deposited by the defendant, and therefore the defendant could not be relieved
against the consequences of his default. In taking account of the amounts
deposited the learned judge excluded the amount of Rs. 400/deposited in Appeal
No. 450 of 1953 which had been withdrawn by the defendant on 486 January 19,
1957. It is common ground before us, that Rs. 400/ deposited by the defendant
in Appeal No. 450 of 1953 had in fact been withdrawn by him before the date of
decree of the Trial Court. Counsel for the defendant admits that fact, and it
is supported by a certified extract from the file of the District Court. At the
hearing before the High Court, the advocate for the defendant pleaded that the
finding of the Extra Assistant judge that the amount of Rs. 400/was withdrawn before
the decree of the Trial Court was not supported by evidence. We are prepared to
hold that the advocate was not instructed about the withdrawal of the amount,
and no attempt was made by him to mislead the Court, and no blame need attach
in this matter to the advocate in that behalf But the defendant was guilty of
withholding information from the Court as well as his advocate.
In the petition for special leave, which is
sworn by the defendant a deliberate attempt has been made not merely to
withhold from the Court the information that the amount of Rs. 400/originally
deposited by the defendant was withdrawn by him, but sedulously attempt is made
to create an impression that the finding -of the High Court concerning the
withdrawal was correct, and of the Extra Assistant judge wrong, and to argue
that because of the amounts deposited by him inclusive of Rs. 400/the defendant
was entitled to the protection of sub-ss. (1) & (3) (b) of s. 12. A bare
perusal of paragraphs 14, 19, 20, 23 and 25 of the petition for special leave,
leaves no room for doubt that this was the object of the defendant. It was
submitted in the petition that the defendant's case fell strictly within the
terms of s. 12(3) (b) and that the High Court was in error in holding that it had
any discretion to refuse relief to the defendant, after the defendant complied
with the terms of that sub-section in the matter of deposit. The petition was
sworn by the defendant. He has affirmed 487 that the facts stated in paragraphs
I to 32 were true to his own knowledge an& the submissions made therein
were believed by him to be true, and that the petition concealed nothing nor
was any part of it false or untrue. He also affirmed in his affidavit, that he
had "-instructed counsel in the Courts below and that" he was
"instructing counsel in this Court in respect of the special leave
petition". The finding of the High Court, on a question of fact which to
the knowledge of the defendant was erroneous, was made the foundation of what
was asserted to be a substantial question of law of general or public
importance. If the High Court was not persuaded to take the view which it did
in the matter of the deposit of Rs. 4001no further question would have
survived; at least n3one such appears to have been argued.
Counsel for the plaintiff has urged that this
Court would not have granted special leave to appeal if the defendant had
informed the Court that the amount of Rs. 400/which was represented to be lying
to the credit of the plaintiff was not in fact available at the date of the
decree in the Trial Court, because the question as to the interpretation of s.
12(3)(b) would not on the true facts fall to be determined, and special leave
should be revoked because it has been procured by deliberately misleading the
Court on a matter of importance.
There is a restricted right of appeal to this
Court conferred by the Constitution Upon litigants in civil cases.
Where the amount or value of the
subject-matter in dispute in the Court of the First Instance and in appeal to
this Court is not less than Rs. 20,000/-, or where the judgment, decree or
final order involves directly or indirectly some claim or question respecting
property of like amount or value, and the judgment, decree or final order made
by a Division Bench of the High Court does not affirm the judgment of the court
immediately below, the 488 party aggrieved is entitled as of right to appeal.
An appeal may also lie in civil disputes with certificate by the High Court
under Art. 133(1)(c) that the case is a fit one for appeal, or with leave under
Art. 136 of the Constitutional The High Court has not granted certificate under
Art. 133(1)(c)as it could not in view of the Coustitutional prohibition in cl.
(3) of Art. 133.
Excercise of the jurisdiction of the Court
under Art.133 of the Constitution is discretionary: it is exercised sparingly
and in exceptional cases, when a substantial question of law falls to be
determined or where it appears to the Court that interference by this Court is
necessary to remedy serious injustice. A party who approaches this Court
invoking the exercise of this overriding discretion of the Court must come with
clean hands. If there appears on his part any attempt to overreach or mislead
the Court by false or untrue statements or by withholding true information
which would have a bearing on the question of exercise of the discretion, the
Court would be justified in refusing to exercise the discretion or if the
discretion has been exercised in revoking the leave to appeal granted even at
the time of hearing of the appeal. In Har Narain v. Badri Das (1),
Gajendragadkar J. speaking for the. Court observed:
"It is of utmost importance that in
making material statements and setting forth grounds in applications for
special leave, care must be taken not to make any statements which are
inaccurate, untrue or misleading." In that case the Court revoked the
leave granted because the appellant had made certain inaccurate and misleading
statements in his petition for leave to appeal to this Court. Those statements
were, in the view of the Court, misrepresentations of fact and the Court being
satisfied that the appellant had deliberately made those misleading and untrue
statements (1)  2 S. C. R. 203.
489 revoked the leave. In another case which
was brought to this Court with special leave S. R. Shetty v. Phirozeshah
Nursservanji Colabawalla (1), an attempt was made by the appellant in the
petition for special leave to value the property in dispute at more than Rs.
20,00O/'when in fact he had valued the same property in another litigation at
Rs. 500/-. The Court in revoking the leave observed:
"The appellant deliberately chose to
inflate the valuation of the property so as to obtain the special leave. We
have no doubt that if this Court had been apprised of the true valuation, which
according to the appellant himself was only Rs. 500/-, this Court would not
have granted the special leave. We cannot, therefore, condone this deliberate
attempt to mislead the Court in respect of a very material question, namely,
the value of the property in dispute." Counsel for the defendant has
conceded that the amount of Rs. 400/which was deposited on October 1, 1954 had
been withdrawn by the defendant before the date of judgment in the Trial Court.
He, however, contended that the defendant had not instructed his advocate in
the High Court to raise the contention about the availability of Rs. 400/to the
plaintiff, which met with the approval of the High Court and the contention was
raised by the advocate on his own initiative Counsel further submitted that a
party applying to this Court for special leave is entitled to restrict himself
to what appears on the record and in the present case the defendant has
correctly set out the finding of the High Court and has founded an argument on
that finding Implicit in the submission of counsel for the defendant is the
suggestion that it is open to a party to mislead the High Court or the
subordinate Court and thereafter approach this Court after withholding material
information within his knowledge which would have (1) C. A. No. 155 of 1963
decided on April 5, 1963 490 seriously affected his right to move this Court,
for the exercise of discretion in his favour. We cannot overemphasize the fact
that the jurisdiction of this Court is discretionary. This Court is not bound
to grant special leave merely because it is asked for A party who approaches
the Court knowing or having reason to believe that if the true facts were
brought to its notice this Court would not grant special leave, with holds that
information and persuades this Court to grant leave to appeal is guilty of
conduct forfeiting all claims to the exercise of discretion in his favour. It
is his duty to state facts which may reasonably have a bearing on the exercise
of the discretionary powers of this Court Any attempt to withhold material
information would result in revocation of the order, obtained from this Court.
We arc unable to agree with counsel for the defendant that the duty of an
applicant for special leave to this Court is discharged when he merely
summarises the judgment of the Courts below and claims relief on the footing
that the findings are correct, when to his knowledge the findings cannot be
sustained and the findings have been so recorded because the Courts below have
been misled on account of representations for the making of which he was either
directly or indirectly responsible. In our judgment the petition filed before
this Court was misleading.
Counsel for the defendant also submitted that
be was prepared to argue the appeal on the footing that the High Court was in
error in reversing the judgment of the District Court on the question about the
withdrawal of Rs. 4001-.
If, however, the defendant has by misleading
the Court obtained an order granting special leave and has under the protection
of that order remained in possession of the property in dispute for a period of
three years, it would be putting a premium upon the unfair conduct of the
defendant to permit him to argue the appeal on some footing other than that on
which the case was argued 491 in the High Court, and to argue which presumably
no special leave would have been granted.
Special leave to appeal is therefore revoked.
The appellant will pay costs of the appeal to the respondent.
HIDAYATULLAH J.---I agree that we should
recall the special leave. As this is the second case in a few days, I wish to
say a few words. The appellant before us is the tenant and the respondent is
the landlord. One of the of questions in the case was whether the tenant was in
default of rent and revenue tax specially payable by him. It appears that
litigation between the parties has been going on for years. The landlord was
forced to file suits for ejectment on the ground that the tenant had not paid
the rent. The tenant also never paid rent except in court. In the earlier
rounds, the tenant has succeeded by making deposits of rent and costs at the
last moment, thus, taking advantage of the Bombay Act LVII of 1947.
It appears that one such suit of the landlord
was No. 2014 of 1952. During the appeal arising from the decree in that suit,
the tenant had deposited on October 1, 1954, a sum of Rs. 400/in the appeal
court and had sent a notice to the landlord about this deposit. This deposit lay
in court till January 19, 1957, when it was withdrawn. The last date is
The present suit was filed on September 8,
1955, for eviction of the tenant on the ground that he was in arrears from June
9, 1953. On january 10, 1957, the tenant deposed about the deposit and
questioned the landlord about the notice, but before the case was over, he
withdrew the deposit. The learned judge, Small Causes Court, Ahmedabad, held
the point of sub-letting against the landlord, and holding further 492 that the
deposit of Rs. 2126/8/made by the tenant in his court was sufficient to cover
the arrears, and that taken with the deposit of Rs. 4001., the amount came to
Rs. 2516/8/dismissed the suit. This was on February 26, 1957.
In the appeal filed by the landlord, the
accounts between 9-6-1953 add 26-2-1957 were recast. It seems that it was
pointed out to the appeal court that the tenant had withdrawn the deposit of
Rs. 400/-. The judgment took this fact into consideration and held the tenant
to be in arrears and ordered his eviction. The tenant filed a revision
application in the High Court and claimed that as the amount of Rs. 400/was in
deposit and at the landlord's disposal, he could not be held to be in default.
His counsel made the point that there was nothing on the record to prove that
the amount was withdrawn. The High Court held that this was so but held that it
had a discretion in the matter and the tenent by his conduct over the years had
deprived himself of any consideration. The application for revision was
In applying for special leave against the
order of the High Court, the tenant quoted a long extract from the judgment of
the High Court where it spoke of this deposit, and then went on to say :
"The petitioner submits that the High
Court was correct in coming to the conclusion that as there was nothing on
record to show that the petitioner had withdrawn the sum of Rs. 400/deposited
by him in the earlier appeal, the petitioner was not in arrears of rent and had
paid the costs at the date of the judgment.' This allegation was supported by
the usual affidavit which stated that the facts in the petition were true and
that the petition concealed nothing. Strictly 493 speaking, the facts were as
they were pleaded in the petition, but there was more. There was one fact
particularly within the knowledge of the tenant and it was that he had
withdrawn the amount on January 19, 1957, and he was in default even before the
judgment of the court of first instance was given on February 26, 1957. This
fact was, however, not proved on the record of the case. It was, however,
mentioned in the judgment of the appeal court. In the petition for special
leave, no reference to this fact was made. Whether the High Court was right in
a case of this kind to go by the record, or in view of what the appeal court
below had said, might have called for an affidavit, it is not necessary to
decide and I express no opinion about it. It is, however, a very different
matter when we come to proceedings in this Court. The tenant was seeking
special leave against the order of the High Court. At the forefront of this
petition, he had mentioned the fact that the High Court having held that there
was no proof of the withdrawal of the amount by the tenant or that the
petitioner was in arrears. should have exercised the discretion, which the High
Court held was possessed by it, in his favour.
The tenant hid the fact that even before the
decision in the court of first instance' he was in arrears as he had withdrawn
the amount of Rs. 400/-. He was thus taking advantage of a fictional deposit in
court which in point of fact was not in existence. Whatever may be said about
the ordinary course of litigation in which parties succeed or fail on the
sufficiency or otherwise of proof on the record, it appears to me that when a
party approaches this Court under Art. 136, there must be full candour on his
part. The powers exercisable by this Court under Art. 136 of the Constitution
are not in the nature of a general appeal.
They enable this Court to interfere in cases
where an irreparable injury has been caused by reason of a miscarriage of
justice due to 494 a gross neglect of law or procedure or otherwise and there
is no other adequate remedy. The article is hardly meant to afford relief in a
case of this type Where a party is in default of rent because he withdrew a
deposit lying in court but who cannot, on the record of the case, be shown to
have withdrawn the amount. If the petition had mentioned that the decision of
the appeal court had proceeded on the ground that' the amount was taken out, it
is difficult to imagine that this Court would have given special leave to
decide a question of discretion.
I have considered the matter carefully. This
is not a case of a mere error in the narration of facts or of a bona fide error
of judgment which in certain circumstances may be considered to be venial
faults. This is a case of being disingenuous with the Court by making out a
point of law on a suppositions state of facts, which facts, if told candidly,
leave no room for the discussion of law. The appellant has by dissembling in
this Court induced it to grant special leave in a case which did not merit it.
I agree, therefore, that this leave should be recalled and the appellant, made
to pay the costs of this appeal.
Special Leave revoked.