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Judgment
Srinivasan, J.—We have beard arguments at length. Though the question to be decided in the appeal lies within a short compass, counsel on
both sides covered a very wide range in their arguments which went to the extent of touching the title to the property in which the Appellant is
admittedly a tenant occupying the ground floor. The dispute between the Appellant and the fourth Respondent relates to the first floor in the
building. While according to the Appellant, he was in occupation of the said floor as a tenant, the fourth Respondent contends that the tenancy is
confined to the ground floor and the first floor was vacant. It is also his case that he is the owner of the entire property and he occupied the first
floor on 16-6-1995. We are not concerned in this appeal with either the title or possession of the premises.
The only question to be decided by us is whether a writ of mandamus should be issued to the State and the Police to give police protection to
the Appellant, his employees and family members and to take action in accordance with law in respect of the Appellant''s complaints to the
Commissioner of Police, Madras, the second Respondent herein, dated 14-6-1995 and 17-6-1995. The grievance of the Appellant is that the
second Respondent has failed to act in accordance with the procedure prescribed in Section 154 to 156 of the Code of Criminal Procedure on
receipt of the two complaints.
The first complaint dated 14-6-1995 refers to a telephonic threat from the fourth Respondent. The relevant part of the letter reads as follows:
He telephoned the this morning and told that the premises must be vacated immediately as otherwise I will have to face dire consequences. I have
a feeling that he is trying to instigate violence to make the to vacate the premises where I have been living with my wife and children peacefully for
the past 12 years. He had also informed the that he will break open the house and throw my personal belongings out of the house.
As I smell some foul, play by him in this matter, I seek your help for the complete safety of myself, my family members and my personal staff who
are staying in this premises.
In the second letter dated 17-6-1995 the Appellant has alleged that the fourth Respondent has trespassed on to the first floor and thrown out his
articles kept there causing damage to them and also tried to shoot him with a gun. The relevant part reads thus:
I am sad to bring to your kind notice that this morning, the above said Mr. V. Ramaswamy broke open the door situated in the first floor of my
premises and removed all my personal belongings and threw them out of the premises. As soon as I came to know of the incident, I along with my
staff members of my company rushed there to find out the actual position. I was taken aback to know that all my belongings except the furnitures
were lying outside the premises. When I was wondering as to how to go about it, the above said Mr. V. Ramaswamy, along with his security staff
thronged the premises and abused us in filthy language. When I tried to pacify him, he was not only in a mood to listen to the but also threatened
me. In a fraction of a second, he took out his gun and tried to shoot me. In the meanwhile, his security staff positioned their gun aiming at my staff
members. We left the place without showing any resistance.
As the action on the part of Mr. V. Ramaswamy amounts to trespass, I would request you to kindly take suitable action against him. I also request
you to kindly protect the as well as my family members and personal staff from any possible assault by Mr. V. Ramaswamy.
On the same day, the fourth Respondent sent a letter to the second Respondent making certain allegations against the Petitioner. The second
Respondent forwarded all the three letters to the concerned Assistant Commissioner for necessary enquiry and report. The Assistant
Commissioner submitted a report dated 25-6-1995 that both parties were trying to involve the police into a civil matter which they had to settle
through the Court.
The Appellant had in the meanwhile filed the writ petition, out of which this appeal arises, on 23-6-1995 with a prayer for issue of a Mandamus
as stated earlier. When the petition came up for admission, the Government Pleader appeared and placed before Court the complaints filed by the
Appellant and the fourth Respondent and the report of the Assistant Commissioner. On a request by counsel for the writ Petitioner, the matter was
adjourned to 19-7-1995 and then to 20-7-1995. The learned Judge after hearing the counsel dismissed the petition. The relevant part of the order
is as follows:
It is the admitted case of the Petitioner, which is borne out by the letters produced along with the petition, that the Petitioner had only written to
the Commissioner of Police and it is not his case that he went to the Police Station to register a case and that the officer in charge declined to
register the complaint. The Commissioner to whom the Petitioner''s letters was addressed has not ignored the same, but has caused an enquiry to
be made and the result of that enquiry has also been placed before the Court.
The Petitioners cannot complain that police have not enquired into his complaint: If the Petitioner has any further surviving grievance, it is open
to the Petitioner to lodge a complaint in the manner provided under the Code of Criminal Procedure and if on such a complaint is lodged, there is
any failure on the part of the police to perform their duties, it is open to the Petitioner to pursue remedies provided under the law. This petition is
therefore rejected.
Aggrieved thereby, the writ Petitioner has preferred this appeal. We ordered notice of motion. The Government Pleader took notice for
Respondents 1 to 3. The fourth Respondent has entered appearance and filed a detailed counter affidavit. Along with it, he has filed number of
documents in support of his contentions. The Appellant has filed a reply affidavit and also filed some documents.
One of the documents filed by the fourth Respondent is a letter dated 2-7-1991 written by the Appellant to Meera Gopalakrishnan. In the reply
affidavit, the Appellant has admitted having written the said letter, but has stated that there was no reply thereto.
It is seen from the said letter that the Appellant got the address of the said Meera Gopalakrishnan from her uncle Dr. Ananthakrishnan. The
letter admits that the addressee is none other than the daughter of Gopalakrishnan, who was the owner of the property previously and who was the
landlord of the Appellant. In the said letter, the Appellant had claimed that he was occupying the house for six years prior thereto as a tenant under
her father and after his demise he was not able to get in touch with any of his kith and kin. He has also mentioned that the rental agreement having
expired, had to be renewed for a further period mutually agreed. He wanted to know whether the addressee had any intention of selling the
property and, if so, he was prepared to purchase the same for a negotiated price at the prevailing market rate. He was prepared to pay a part of
the consideration in foreign exchange, if desired by her.
In spite of having written such a letter as early as in July 1991 to the daughter of Gopalakrishnan, the Appellant has chosen to make the
following statements in his affidavit filed in support of the Writ Petition:
I am in lawful possession and enjoyment of the premises bearing door No. 43, Justice V. Ramaswamy Road, Kamaraj Avenue, Adyar, Madras
600 020 since July 1986 on an arrangement with Dr. B.M. Gopalakrishnan, the owner of the said premises who resided in the out-house in the
said premises. Thereafter in the year 1989 as I required additional accommodation to accommodate my staff, I requested my landlord Dr. B.M.
Gopalakishnan to put up a first floor. Since he expressed that he did not have sufficient funds to put up a first floor, he sought my help to provide
him with timber, cement, etc. required for the construction and also to provide him funds to pay to the construction employees. In such
circumstances it was agreed among ourselves that all monies advanced for the said purpose would be added to the rental advance and adjusted
against the rent payable by the or be paid on demand after one year. Mr. Gopalakrishnan at one stage offered to sell the said premises to the for a
sum of Rs. 15 lakhs which I accepted. While so, the said Dr. B.M. Gopalakrishnan who was living alone expired all on a sudden while I was away
in my native place. The incomplete work in the first floor and modification in the first floor and modification fn the ground floor were done by the by
spending about Rs. 2,50,000/-. After the death of Dr. B.M. Gopalakrishnan, his brother also disassociated himself He was very much reluctant to
disclose the legal heirs of Dr. B.M. Gopalakrishnan and my efforts to find out his legal heirs were futile. No one came forward-claiming to be the
legal heir of Dr. B.M. Gopalakrishnan till date, even after 5 years of his death.
I state that I am in possession and enjoyment of the entire ground and first floor of the aforesaid premises without any interruption whatsoever,
till now I have paid property tax to the Corporation to Madras, Water Tax and Water Charges after the death of my landlord. I state that Dr.
B.M. Gopalakrishnan has taken from the timber and cement of the value of Rs. 1,06,856/- under invoice Nos. 7170 dated 30.9.1989, 7171
dated 30-9-1989 and 7215 dated 31.1.1990. Thereafter at his instance, I paid a sum of Rs. 18,000/- to the centering maistry on 25.11.1989,
similarly a further sum of Rs. 70,000/- has been paid to the construction maistry on 12.1.1990. Thus a sum of Rs. 1,94,856/- has been taken by
the said Dr. B.M. Gopalakrishnan as further rental advance apart from the available sum of Rs. 4500/- making a total of Rs. 1,99,356/-. Apart
from that I have spent about Rs. 2,50,000/- for maintenance and improvement.
He is aiming to illegally take possession of the said premises for the-obvious reasons as it was within his knowledge that the said Dr. B.M.
Gopalakrishnan during his lifetime agreed to sell the said house to me for a sum of Rs. 15,00,000/-. The said property is worth now more than Rs.
25 lakhs. I also made an offer sometime ago to buy the same for a sum of Rs. 25 lakhs through Dr. Ananthakrishnan but he disowned any
authority. He expressed his reluctance in participating in the transaction and even refused to disclose the particulars about the legal heirs of Dr.
B.M. Gopalakrishnan.
There is no reference whatever in the affidavit filed in the writ petition to the letter dated 2-7-1991 or the knowledge of the Petitioner that Meera
Gopalakrishnan is the daughter of late Gopalakrishnan. The entire affidavit proceeds as if the Appellant was totally unaware of any of the legal heirs
of Gopalakrishnan even on the date on which the writ petition was filed. A perusal of the letter shows that none of the facts alleged in the affidavit
of the Petitioner as regards his acceptance of the offer said to have been made by Gopalakrishnan to sell the premises to him for a sum of Rs. 15
lakhs or his own spending Rs. 4,00,000/- and odd for the construction of the first floor and his offer to purchase the property for Rs. 25,00,000/-
through Dr. Ananthakrishnan. It is quite evident that the Appellant is guilty of suppressio veri and suggestio falsi.
The Appellant ought to have mentioned in his affidavit that his landlord had a daughter and he wrote to her, but there was no reply. The
Appellant suppressed the said vital fact and thereby made a false suggestion as if there was nobody to claim ownership of the premises and the
Roman Law rule ''Res nullius cedit occupanti'' would apply.
Curiously, the Appellant has stated in the reply affidavit that he completed the construction of the first floor after the death of the owner
Gopalakrishnan and occupied the same as a tenant. The. words ""as a tenant"" have been added in ink in the reply affidavit. It is rather puzzling as to
how the Appellant occupied the first floor after the death of the owner as a tenant, when according to him, he did not know anything about the
legal heirs of the owner.
It should also be seen that the Appellant in his complaint dated 14-6-1995 mentioned that he was in occupation of the premises for 12 years.
But, in the affidavit filed in support of the writ petition, he has admitted that the tenancy commenced only in July 1986.
There is a very material discrepancy between the complaint given by the Appellant on 17-6-1995 and the version set out by him in the affidavit
filed in support of the writ petition. In paragraph 5 of the affidavit he has stated as follows:
On 17.6.1995, the fourth Respondent barged into ray house and threatened the by aiming his loaded gun at me.
On 17.6.1995, the fourth Respondent barged into my house and threatened the by aiming his loaded gun at me. He directed his watch and ward
staff numbering 5 to 7 including one Mr. James, one of his orderlies, to break open the lock and throw away all my articles on the road. I could not
resist them as the watch and ward staff carried lethal weapons and had been acting very violently. They broke-open the first floor portion and
threw all my articles except the cots and other furniture.
While in this complaint sent to the second Respondent on 17-6-1995 the version is that the Appellant was not present when the fourth Respondent
broke open the door in the fist floor, removed all his belongings and threw them out of the premises and that when he came to know of the
incident, he rushed to the premises with his staff members, the version given in the affidavit is that the fourth Respondent barged into the house
when the Appellant was present, broke open the first floor door and threw away all the articles after aiming a loaded gun at the Appellant. While
there is no explanation for this material discrepancy as such, Learned Counsel for the Appellant contends that there is no attempt on the part of the
Appellant to mislead the Court inasmuch as the copy of the complaint has been filed before the Court along with the writ petition. We do not
accept this contention as the affidavit is a sworn statement and the Court is expected to place reliance more on the affidavit than on any other
writing. When the Appellant approached the Court with a particular prayer, the Court will usually take into consideration the averments in the
affidavit and grant appropriate interim reliefs before the other side appears on the scene. In our opinion, the Appellant has deliberately introduced
such a recital in paragraph 5 of the affidavit in order to secure some ad interim ex-parte relief before notice to the other side. Moreover, the
statement in the affidavit would give an impression that the Appellant is speaking from his personal knowledge of what had happened. Even if it is
assumed that there was no intention on the part of the Appellant to mislead the Court, the material discrepancy between the two versions will
disentitle the Appellant to the discretionary relief under Article 226 of the Constitution of India.
As regards the suppression of the material facts pertaining to the letter written by the Appellant to Meera Gopalakrishnan in 1991 and the
other matters set out by us earlier, the contention of Learned Counsel for the Appellant is that the affidavit is referring only to the ""legal heirs"" and
not the ""relatives or descendants"" of Gopalakrishnan. According to Learned Counsel, the statement that no one came forward claiming to be the
legal heir of Gopalakrishnan till the date of Writ Petition even after five years of his death is true on the facts of the case. There is no substance in
this contention also. The various averments made in the affidavit which have been extracted by us in extenso would undoubtedly lead to the only
conclusion that the Appellant has suppressed the relevant and material facts which will automatically give rise to a suggestion of false state of
affairs. That will also disentitle the Appellant to get any relief in this Court under Article 226 of the Constitution of India.
It is contended by Learned Counsel for the Appellant that the substance of the affidavit is true and the Court is concerned only with the factum
of the appellan''s occupation of the first floor and the forceful dispossession therefrom by the fourth Respondent. We are unable to agree. For the
purpose of deciding whether this Court should exercise its discretion under Article 226 of the Constitution of India and grant the relief prayed for
by the Appellant, it is necessary to find out whether the Appellant has come to Court with clean hands and placed all the relevant facts before the
Court. What we have, stated earlier is sufficient to show that the Appellant has not done so. It follows, therefore, that this Court can refuse to
exercise its discretion in favour of the Appellant, whatever may be the merits of his claim otherwise.
Learned Counsel for the Appellant has drawn our attention to certain rulings and submitted that in order to decline the exercise of jurisdiction
under Article 226 of the Constitution of India, the Court must be satisfied that the Petitioner has deliberately (1) suppressed the facts, (2) made a
false statement, (3) made a misleading statement or (4) made a misstatement in the sense that it contains a mistake. According to him, the sine qua
non for all the four circumstances is that they pertain to material or vital facts. It is argued that a material fact is one which is essentially relevant for
the relief prayed for in the petition.
Now we shall advert to the decisions cited. In The King v. The General Commissioners for the Purposes of the Income Tax Acts for the
District of Kensington Ex-parte Princess Edmond De Polignac (1917) 1 K.B. 486, the Court found that the Petitioners therein did not fairly state
the facts, but stated them in such a way as to mislead and deceive the Court. The Court also said that the relief should be refused if it is satisfied
that if the relief is granted, it will be abuse of process of Court. Referring to the said ruling of the King''s Bench, the Bombay High Court said in
Manibhai Hathibhai Patel Vs. C.W.E. Arbuthnot, that the circumstances in the case did not warrant the infliction of the dire consequence of
dismissal as on the facts it was found that the omission to state a fact was not deliberate. In fact, the Court allowed a petition for amendment so
that the error could be rectified.
A Full Bench of the Allahabad High Court in Asiatic Engineering Co. Vs. Achhru Ram and Others, has stated the law as follows:
We think there is a misstatement of fact on this issue in the affidavit filed in support of the application of a, vital nature. We say ''vital'' because
the case of the Respondents is that the shareholders named above who have migrated to Pakistan, are evacuees or intending evacuees and that
that fact justified their taking over their assets and also that of the Company virtually vested in them. It may be that the Company is distinct in law
from the shareholders and that the fact that its Directors reside in Pakistan is immaterial from the point of view of the commercial domicile of the
Company. But the question of their exact position in relation to the Indian Union should have been clearly stated and we find that there has been an
attempt to get over the fact that their usual place of residence is Pakistan.
(39) We have thus come to the conclusion that, there has been material suppression and- misrepresentation of facts in the petition and papers filed
along with it. Some of the statements in the petition and also in the affidavit filed on behalf of the applicant Company are of misleading nature. It has
been contended by the Learned Counsel for the Respondents that these suppressions, misrepresentations and-misleading statements are sufficient
grounds for rejecting the application without consideration of it on merits.
(49) In these circumstances it is our opinion that the applicant Company has disentitled itself to a writ of Mandamus or prohibition by its conduct in
making misleading statements and by suppression and misrepresentation of facts in the application and affidavit filed in support of it.
(51) In our opinion, the salutary principle laid down in the cases quoted above should appropriately be applied by Courts in our country when
parties seek the aid of the extraordinary powers granted to the Court under Article 226 of the Constitution. 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 suppression, misrepresentation or mis-statement of facts. Applying this principle to the
present case, we feel that, in this case, the Petitioner Company has disentitled itself to ask for a writ of prohibition by material suppressions,
misrepresentations and misleading statements which have been found by us above.
Our attention is also drawn to the judgment in Zikar v. M.P. State Government AIR 1951 Nag 16. The Court said that what acts are material
for a particular, cast, would necessarily depend on the nature of the order, direction or writ sought. The Court has to be satisfied that the
concealment is deliberate. The Court said, ""It may be as well to add that the reason for the adoption of the rule is not to arm an applicant''s
opponent with a weapon of technicality against the former but to provide an essential safeguard against abuse of the process of the Court.
Reliance is placed on the judgment of a single Judge of the Allahabad High Court in Raghbir Singh Vs. Municipal Board of Hardwar Union,
Hardwar and Another, . After stating the proposition that the omission to mention a particular fact does not necessarily disentitle the Petitioner to
get the relief unless the fact which has been omitted to be mentioned is material to the relief claimed by the applicant, the Court held on the facts of
that case that the availing of an alternative relief by filing a suit was not a material fact while seeking the issue of a writ.
Learned Counsel has made a reference to the judgment of the Supreme Court in Maganlal Chaganlal (P) Ltd. Vs. Municipal Corporation of
Greater Bombay and Others, . On the facts, the Supreme Court held that the omission to make the statement was not deliberate. Our attention has
been drawn to the judgment of the Supreme Court in Dr. Vijay Kumar Kathuria Vs. State of Haryana and Others, . The ruling is not in favour of
the Appellant. The Court has stated,
It is clear that on 1-10-1982 the Petitioners made a false representation to this Court that they were continuing their studies as post-graduate
students of Medical College Rohtak on 1-10-1982, and obtained an order of status quo as of that date to be maintained from this Court. But for
misrepresentation this Court would never have passed the said order. By reason of such conduct they have disentitled themselves from getting any
relief or assistance from this Court and the Special Leave Petitions are liable to be dismissed.
In U.P. State Sugar Corpn. Ltd. Vs. U.P. State Sugar Corpn. Karamchari Assn. and Others, the Supreme Court found that there was no false
statement made by the parties concerned and there was no occasion for directing prosecution as had been done by the High Court. The Court
held that there was only a slight error from which no inference can be drawn that a false plea was manufactured by the party to justify an action
against the same.
None of the rulings referred to above will come to the aid of the Appellant in this case. We have already set out in detail the material and vital
facts suppressed and the difference in the versions between the complaint and the affidavit which mislead the Court. We have no doubt that the
Appellant has acted deliberately in this regard and it is not due to any inadvertence. It is quite obvious that the affidavit in the writ petition has been
drafted in such a way as to enlist the sympathy of the Court and secure an ad interim ex parte order. Nor do we have any doubt that they pertain
to material and vital facts as they are essential for the grant of relief to the Appellant. The endeavour of the Appellant has been to portray before
the Court the picture of an innocent tenant in lawful occupation for several years being thrown out high-handedly and unlawfully by a stranger who
claims to have purchased the property from somebody who had no connection whatever with the deceased landlord. In fact that was the
impression created in this Court till it was dispelled by a perusal of the letter dated 2-7-1991 written by the Appellant himself to Meera
Gopalakrishnan.
Yet another contention has been urged by Learned Counsel for the Appellant. According to him, when the relief sought by the writ Petitioner
involved an offence under the Indian Penal Code, which is an offence against the State and as such the entire public is interested therein, the Court
should not adopt the rigid rule of rejecting the petition on the basis of some false statements made by the Petitioner. In other words, Learned
Counsel contends that in the present case, an offence has been alleged to have taken place and that the fourth Respondent has committed the
offence. The Appellant has given a complaint to the police. According to Learned Counsel, he is only seeking a direction from the Court to the
police authorities to investigate the offence and take further action. In those circumstances, according to Learned Counsel, even if the Appellant
has omitted to mention some relevant facts or made some false statements, the Court should not take the extreme step of dismissing the petition.
We are unable to accept this contention as an abstract proposition of law de hors the facts of the case. If a particular fact is a material fact and if it
has been deliberately suppressed by the writ Petitioner in the writ petition, this Court is entitled and bound to refuse to grant the relief to such a
Petitioner. The discretion of the Court will not be exercised in favour of such a person even if the offence complained of would involve general
public interest. On the facts of this case we are convinced that this Court should not extend its helping hand to the Appellant.
In the view we have taken, we are no considering the merits of the contentions urged on both sides. We are dismissing the appeal on a short
ground. Hence, the appeal is dismissed. There will be no order as to costs.
However, we hasten to add that the Appellant has an efficacious remedy in law by filing a private complaint before a Magistrate, if so advised.
If such a complaint is filed, the concerned Magistrate shall deal with the same in accordance with law and shall not be in any manner swayed or
prejudiced by any of the observations contained in this order or in the order of the learned single Judge or the dismissal of the writ petition or the
appeal.