Jasmail Kaur v. Kunda Singh And ORS

[ 1 ]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of decision:12.01.2016 Jasmail Kaur (since deceased) through legal representatives

...Petitioner(s)

Versus

Kunda Singh and others

...Respondents

CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain

Present:

Mr. Arun Jain, Sr. Advocate, with Mr. Amit Jain, Advocate, and Mr. R.K.S. Bedi, Advocate, for the petitioner. Mr. M.L.Saggar, Sr. Advocate, with Mr. Sunny Saggar, Advocate, for respondents No.1 to 4. Rakesh Kumar Jain, J.

The petitioner is the widow of Gurdev Singh who had filed a suit for declaration and joint possession. The trial Court dismissed the suit on 28.05.2004 but the first appeal was allowed on 25.10.2008 and the suit of the plaintiff was decreed for declaration that he is joint owner in possession of the land measuring 271 Kanal 17 Marlas to the extent of 1/8th share.

The respondents filed RSA No.3396 of 2010 titled as "Kunda Singh and others vs. Jasmail Kaur and others", in which the following order was passed on 13.09.2010:- "Present: Mr. M.L.Saggar, Senior Advocate, with Mr. G.S.Brar, Advocate, for the appellants.

Ld. Counsel for the appellants contends that plaintiff Gurdev Singh (Since deceased and represented by respondent No.1 to 5) himself admitted that his father Sucha Singh (defendant No.1

[ 2 ] since deceased) had purchased a plot and constructed house thereon in the year 1968 and had given the same to the plaintiff, who is residing in the said house since the year 1972 and therefore, the plaintiff has separated from the coparcenary. Notice of motion in appeal as well as in application for condonation of delay in re-filing the appeal be issued for 07.12.2010.

Records of the courts below be requisitioned. 13.9.2010 (L.N.Mittal) J."

On the next date of hearing i.e. 07.12.2010, the following order was passed:- "Present: Mr. G.S.Brar, Advocate, for the appellants. Ms. Geeta Sharma, Advocate, for Ms. Harpreet Kaur Dhillon, Advocate, for respondent no.1 to 5.

Pursuant to order of the preceding date, records of the courts below have been received.

As prayed for by counsel for the appellants, service of proforma respondent nos.6 to 8 is dispensed with. Respondent Nos.1 to 5 have put in appearance through counsel, who prays for adjournment to address arguments. Adjourned to 3.1.2011.

7.12.2010 (L.N.Mittal) J."

On 03.01.2011, the following order was passed:- "Present: Mr. J.S.Dhaliwal, Advocate, for Mr. G.P.Vashisht, Advocate, for the appellants. Ms. Geeta Sharma, Advocate, for Ms. Harpreet Kaur Dhillon, Advocate, for respondent no.1 to 5.

There is written request for adjournment on behalf of counsel for respondents being out of station, with no objection from the opposite counsel.

Adjourned to 25.02.2011.

03.01.2011 (L.N.Mittal) J."

[ 3 ] It is alleged that no stay was granted by this Court at any point of time but respondent No.3 made an application to the Tehsildar, Raikot on 04.11.2010, in which the following averments were made:- "It is submitted that one case is pending before Hon'ble High Court, Chandigarh, the case is related to mutation which we have filed against Jasmail Kaur wd/o Gurdev Singh & Ors. The Hon'ble High Court has passed an order not to register mutation. It is, therefore, requested that as per the order of Hon'ble High Court, the Patwari be directed not to register the mutation." The Halqa Patwari/respondent No.4 (since retired) made entry in the Roznamcha Wakyati for the year 2010-2011 on 04.11.

2010 in the following manner:- "76: Today Harwinder Singh son of Kunda Singh came present and produced an application duly marked by Tehsildar, Raikot and an appeal mentioning Mr. M.L.Saggar, Senior Advocate with Mr. G.S.Brar, Advocate for the appellants and stated that their case is pending in High Court which is against Jasmail Kaur Wd/o Gurdev Singh etc. and further stated that mutation be not entered as stay dated 7.12.10 has been granted.

It is alleged that respondent No.3, who was fully aware of the fact that no stay was granted by this Court in the RSA, made deliberately a false representation before the revenue authorities that the stay has been granted and as a result thereof, the Halqa Patwari refused to enter the name of the petitioners and others in the column of ownership of the jamabandi as owners to the extent of 1/8th share.

After notice, respondent No.3 has filed the reply, in which it is averred that he had made an application to the Tehsildar, Raikot along with order dated 13.09.2010 to issue necessary directions to the Halqa Patwari to

[ 4 ] make entry in the Roznamcha Wakyati and the Halqa Patwari accordingly made the entry and mentioned that the stay has been granted. It is also averred that "the deponent had got typed an application from the typist at Raikot along with the order dated 13.09.2010 vide which notice of motion was issued for 07.12.2012. The clerk in the typed application while referring to the order of notice of motion mentioned as stay". The respondent No.3 has also referred to an application made by him on 14.05.2011 to the Tehsildar, Raikot (attached as Annexure A-1 with the CM No.6306-CII of 2015) and submitted that no such false statement has been made either before the Tehsildar or the Patwari Halqa.

I have heard learned counsel for the parties and examined the available record from which I have found that the respondents have not denied to have made the application dated 04.11.2010, which was marked by the Tehsildar, Raikot to the Halqa Patwari. The Halqa Patwari has recorded in the Roznamcha Wakyati on 04.11.2010 that respondent No.3 had presented the application dated 04.11.2010 and also the appeal mentioning the names of his advocates who had appeared for him and stated that their case is pending in the High Court against the petitioners and also stated that the mutation is not to be entered as the stay has been granted on 07.12.2010. Further in the application dated 04.11.2010, the respondent No.3 has mentioned twice about the grant of stay and asked the revenue authorities not to register the mutation. The application dated 04.

11.2010 has not been denied by the respondents, rather in the reply it is submitted that the reference of stay has been made by the typist.

[ 5 ] the reference of stay is there in the application dated 04.11.2010 which has been signed in English by respondent No.3 and, thus, it is presumed that he had read the application before signing the same and has willfully and deliberately, in order to mislead the revenue authorities, stated about the order of stay in the RSA, which is conspicuous by its absence. Thus, in view of the aforesaid facts and circumstances, there is no doubt in my mind that respondent No.3 has committed the contempt of the Court by making false representation before the revenue authorities and has obtained a favourable order. Consequently, respondent No.3 is found guilty and is, thus, hereby convicted to suffer an imprisonment for 3 months and to pay a fine of `2,000/- and in the absence of payment of fine, he shall suffer imprisonment for another one month.

Before parting, I would like to add that the tendency to mislead the authorities is increasing at an alarming rate and deserves to be put under control and in that regard, a word of caution is also being given to the revenue authorities to at least ensure from the certified copy of the order passed by the Court about the factum of stay or otherwise before passing the order only on the basis of affidavits of the parties. In the end, the order of conviction and sentence of respondent No.3 is hereby suspended for a period of one month, enabling him to avail his remedy of appeal, if so advised.

January 12, 2016 (Rakesh Kumar Jain) vinod* Judge