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Kaboolchand v/s Deputy Custodian, Alwar

    Writ Appln. 16 Of 1951

    Decided On, 21 December 1951

    At, High Court of Rajasthan


    For the Appearing Parties: J.P. Jain, Vishnu Chandra, Advocates.

Judgment Text


(1.) This is an application by Shri Kabool Chand under Article 226 of the Constitution of India for a writ, direction or order to the Deputy Custodian, Alwar District, and the Superintendent of Police, Alwar, directing them not to evict the applicant from a certain house in the city of Alwar. The case put forward by the applicant in his petition was briefly this. The petitioner had been occupying house No. 10 in Ward No. 2, Mohalla Shikari Para Alwar. This was evacuee property and the applicant was the lessee of the Custodian of Evacuee Property. The applicant had been paying the rent of the house re-gularly and had paid up to January 1951 and had also deposited one month's rent in advance when the house was first given to him. The lease in question had not been determined by the Deputy Custodian and the petitioner had not received any notice to that effect. The Deputy Custodian, however, passed a warrant of ejectment and sent it to the Superintendent of Police for compliance and that officer was taking steps to turn the family of the applicant out of the house. The applicant had not been provided with any alternative accommodation. He had also not been allotted a house in Jaipur, where he had been transferre

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in connection with his service. The petitioner personally requested the Deputy Custodian to cancel his orders but he was bent upon enforcing his orders. It was with great difficulty that the petitioner had obtained a copy of the order. The date of the order was the 17th of January 1951 and the petitioner was being ejected from the house and this was an encroachment of the applicant's legal and fundamental rights.(2.) An application was also made praying for an interim order on the ground that the applicant was in imminent danger of being evicted from the house without any authority of law. Thereupon, this Court passed an interim order by which the Deputy Custodian was ordered not to enforce the order regarding the ejectment of the house in question till the disposal of the application. That interim order continues up to today.(3.) The application has been opposed on behalf of the Deputy Custodian and the reply of the Deputy Custodian reveals the true facts which are these. The applicant was allotted this house which was evacuee property. He was served with a notice in March 1950 that as the house was required for the rehabilitation of a displaced person he should vacate the house by the 15th of April 1950. This notice was served on him through the Accountant General, Jaipur, under whom he was serving. Thereafter he made an application on the 18th of April in which he said that he was on sick leave and was unable to vacate the house. He also said that he had been transferred to Jaipur and had not been able to get a house there. He further said that one Jhumman who was in need of the house in Alwar had already got a house and therefore he might be given some time so that he might get another house before he vacated this house. He was then allowed time to vacate the house. When this time expired he was again given notice under Section 9 of the Administration of Evacuee Property Ordinance to vacate the house by a date in August 1950. Then on the 2nd of September 1950 the applicant made an application to the Accountant Gene- ral, Rajasthan in which he said that he had no objection to vacate the house but that it would be very difficult to do so during the rainy season. He also said that it was not the custom among the Hindus to shift from one house to another during those days and requested that the Deputy Custodian might be moved not to eject the members of his family from the house. This request was forwarded to the Deputy Custodian who was however unable to do anything for the applicant. Eventually, on the intervention of the Government of Bajasthan the applicant was allowed to keep possession of the house up to the end of November 1950. It seems that when the applicant did not give up possession of the house even after November 1950 proceedings were taken to have the house vacated in January 1951 and it was thereafter that the present application was made.(4.) We may also mention that in his earliest application to the Custodian Alwar, which the applicant sent through the Accountant-General on the 18th of February 1950, he said that his sons were reading in schools and the whole family had to come to Jaipur in the month of April 1950 and as such he might be allowed to stay on in the house till then.(5.) A comparison of the facts narrated above from the original file which has been placed before us on behalf of the Deputy Custodian with the application and affidavit of the applicant shows that the applicant suppressed relevant and material facts from this Court when he made the application in February 1951. A perusal of the application that he marie gives one the impression that the applicant was being dealt with harshly by the Deputy Custodian and t" t one fine morning in January 1951 the order of the Custodian was received by the applicant as a bolt from the blue demanding vacation of the house on pain of his being forcibly ejected through the police. It was on such an application that the applicant obtained an interim order. He had no business to suppress all the facts which we have set out above and which go to show that he was being asked by the Deputy Custodian since January 1950 to vacate this house and had been granted time again and again on his request and eventually on the intervention of the Government of Rajasthan to vacate the house which he had agreed to vacate after the time granted to him. There is no knowing whether any interim order would have been passed in his favour if the full facts had been disclosed by the applicant in his application. As it is, he has managed to stay in the house for ten months with the help of the interim order after deceiving the Court as to the true state of affairs.(6.) It has been held in. a number of English and Indian cases that a party applying for a writ has to come to the Court with clean hands and to state the true facts fully before this Court. We may in this connection refer to the case of 'REX v. KENSINGTON I. T. COMMRS; DE POLIGNAC (PRINCESS), EX PARTE', (1917) 1 KB 486. That was a case where the Princess stated in her affidavit that she was a French subject and resident in France and was not and had not been a subject of the United Kingdom nor a resident in the United Kingdom. On examination of the facts it was found that a lease-hold house had been taken in the name of her brother as, far back as 1909 and the purchase money for the lease of the house and the furniture had been paid for by the Princess. It was also found that the household expenses were paid by the brother and subsequently adjusted between him and the Princess. It was therefore held that there was a suppression of material facts and the party was not entitled to the writ on that ground alone. We may quote the words of Viscount Reading, C. J. at p. 495, as below:"where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit."(7.) Similar view has been taken in 'ZIKAR v. THE GOVERNMENT DP MADHYA PRADESH', AIR 1951 Nag 16. That was a case where Zikar made an application for a writ on the ground that he was an Indian subject and had never migrated to Pakistan and had no domicile there and had not acquired any property in Pakistan. As the applicant was being treated as a Pakistani, it was prayed that this action was wrongful and should be the subject of a writ or order. It was found at the hearing that Zikar had made applications in Pakistan in which he had given his domicile as Pakistan and which showed, that he had lived in Pakistan for some time in various places. On these facts being brought to the knowledge of the Court it was observed at p. 21 as follows:"Where, as here, the Court has reason to be satisfied that there has been a deliberate concealment of facts so as to deceive it, the Court will decline to consider the merits and reject the application. The rule stated by Viscount Reading C. J., is very salutary."(8.) A similar view was taken by a Pull Bench of the Allahabad High Court In 'ASIATIC ENGINEERING CO. v. ACHHRURAM', AIR 1951 All 746 (FB). In that case the applicant Company attempted to conceal the fact that the Company had its office in Pakistan in order to meet a possible argument that the Company had obtained a right to or interest in or benefit from property which was being treated as evacuee or abandoned property in Pakistan. Misleading statements were made and inaccurate information was given about the residence of the share-holders and the directors of the Company. Allegations of personal interest and mala fides against the Deputy Custodian were also made without any foundation. After stating these facts the law was laid down at p. 767 as below:"A person obtaining an ex parte order or a rule nisi by means of a petition for exercise of the extraordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection, should insist that persons invoking these extraordinary powers should not attempt, in any manner, to misuse this valuable right by obtaining ex parte orders by supression, misrepresentation, or mis-statement of facts."(9.) We are of opinion that the principles laid down in these three cases are very salutary and it is necessary that parties who come to this Court and ask it to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India should place full and true facts before it and should not word the application or affidavit in such a way as to create a completely misleading picture of the facts leading to the making of the applica-tion in order to deceive the Court in passing interim orders in their favour. We have already set out the main contents of the affidavit of the applicant and the true facts as they appear from the record of the Deputy Custodian which has been placed before us. It is obvious from a comparison of these two matters that the applicant deliberately suppressed material and relevant facts from the Court, and tried to make out as if the Custodian suddenly without any rhyme or reason ordered him to vacate the house, in which he had been living since 1947 as a lessee. This was obviously done in order that an interim order may be easily available, for, if this Court knew that the applicant had been given notice after notice from January 1950 and had been taking time again and again to vacate the house for the last one year before he made the application in this Court he might not have got the interim order at all. We are therefore of opinion that the applicant in this case has dis-entitled himself from getting any writ, order, or direction in his favour and the salutary rule laid down by Viscount Reading, C. J., should be applied to this case.(10.) We therefore refuse to look into the merits of the case and dismiss the application for reasons which we have already set out. The Deputy Custodian will get his costs from the applicant. We fix Rs. 50/- as counsel's fee.

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