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HC imposes Rs 1 lakh fine on petitioner for concealing facts

Post by Syed Rukaya on Saturday, January 14, 2023

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Srinagar, Jan 13: Expressing displeasure over the conduct of petitioner and his counsel for concealing the facts, the High Court of Jammu & Kashmir and Ladakh has imposed Rs one lakh costs on petitioner for suppressing material facts to gain advantage over other side.
Justice Moksha Khajuria Kazmi said that the conduct depicted by the petitioner as also his counsel is "deplorable."
"The court records it very distastefully that the counsel appearing before this Court, despite having represented the petitioners throughout, has concealed the material particulars from the court to gain an undue advantage over the other side so as to obtain the favorable orders from the court of law,"
Holding the plea of petitioner, Fayaz Ahmad Rather, 'not maintainable", the court recorded that it is a clear case of suppression of material facts. "Petitioner has patently made a false statement on oath."
The court underscored the jurisdiction exercised by it under Article 226 of the Constitution of India is extraordinary, equitable and discretionary.
It recorded that it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all facts before the court without concealing or suppressing anything.
Not only the petitioner, Justice Kazmi noted, but his counsel Peer Shafeeq Ahmed has also "intentionally concealed" the material facts to the court and "this court passed an interim order without having any knowledge of misrepresentation of the petitioner."
"Though counsel for the petitioner is also responsible for professional misconduct but this court only warns him to be very careful in future," the court recorded.
The court was hearing a plea by Rather challenging an order passed by District Magistrate, Kulgam on November 12, 2022 directing Tehsildar Kulgam to proceed on spot and evict the petitioner from the migrant land.
The petitioner claims to have purchased a chunk of land measuring 1 Kanal 12 marlas under various survey numbers along with the shamilat land measuring seven marlas and a three storeyed residential house situated at Rani Pura, Kulgam from actual owner for an amount of Rs.16 lakh in 2007-2010, in terms of an agreement arrived in the year 1988.
The petitioner having failed to produce any legal, authentic document in support of his claim, the Deputy Commissioner, Kulgam took note that petitioner had resorted to illegal occupation once again and accordingly directed Tehsildar Kulgam on April 19, 2022 to proceed further in the matter and take appropriate action under rules and law in vogue, under an intimation to his office.
Prior to filing of the present petition, the petitioner had filed a suit before the Court of Munsiff, Kulgam wherein he had challenged the deed of Power of Attorney executed by Triloki Nath Panditta and the Agreement to Sell executed by him in favor of the private respondents.
Along with the suit, the petitioner had also filed an application for grant of temporary injunction against the private respondents restraining them from interfering with the property.
On November 9, 2011, notices were issued to the private respondents and in the meantime, parties were directed to maintain status quo with respect to the property till further orders. The application was dismissed vide order dated 04.08.2012.
The court noted that the petitioner has stated that status quo order was passed by the Court of Munsif Kulgam in favor of the petitioner.
"But he has nowhere stated that the status quo order granted by the Court of Munsiff, Kulgam on November 09, 2011 was vacated after hearing all the parties to the lis with a detailed order on August 04, 2012," the court said.
Justice Kazmi pointed out that the petitioner has also suppressed the fact that he had challenged the order of dismissal passed on August 04, 2012 by way of civil miscellaneous appeal before the Court of Principal District Judge, Kulgam, which was also dismissed on December 27, 2012.
Though the petitioner has stated that he had filed subsequent suit challenging the sale deed registered in favor of the private respondents, but he has again suppressed the fact that the application for grant of interim relief of temporary injunction was also dismissed by the Court of Munsiff, Kulgam on June 12, 2016, the court noted and added, subsequently he had challenged that dismissal by way of filing civil miscellaneous appeal which was filed before Court of District Judge, Kulgam and the same is also pending.
The bench also took note of the submission of Tehsildar Kulgam, Bilal Ahmad Ganai, who was present in the court along with the record that petitioner was given 11 number of opportunities as per record to produce any legal, authentic documents in support of his claim but he failed to produce any such document which constrained them to issue impugned order dated 12.11.2022.
The court recorded that it is borne out from the record of the official respondents and the other allied documents placed on record by the private respondents that not only the petitioner but the counsel for the petitioner, Peer Shafeeq Ahmad, undoubtedly had complete knowledge of the facts enumerated above.
"Mr. Peer Shafeeq Ahmad, advocate, is representing the cause of the petitioner since 2011. He is the counsel for the petitioner before the court of learned Munsiff, Kulgam as well as before District Judge, Kulgam, as such this is beyond any imagination
that the learned counsel and the petitioner has inadvertently not mentioned these facts before this court," the court said.
The bench recorded that the counsel for the petitioner during arguments not only admitted pendency of the suits and an appeal but also the dismissal of applications and an appeal filed by the petitioner.

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