Temporary Injunction under Order XXXIX Rule 1 of CPC

In our view, once the Notice of Motion is finally decided on merits in accordance with law one way or the other then the parties to the Lis can always work out their rights by taking recourse to legal remedies available to them for pursuing their grievance to higher fora either in appeal or revision, as the case may be, and may also prosecute the contempt proceedings arising out of the main case, if need arises.  

                                                                                           (Para 20)              

In our considered opinion, It is always in the larger interest of the parties to the Lis to get the main case (Lis) decided first on its merits as far as possible rather than to pursue their off-shoot proceedings on merits by keeping the main case undecided. It is more so when any decision rendered in the main case has a bearing over the pending off-shoot proceedings.                                                       (Para 21)

In our considered view, when admittedly the order dated 06.08.2013 was an ex parte one then in such circumstances, no sooner the defendants (appellants) entered appearance in the civil suit and filed their pleadings in reply to the Notice of  Motion, the Court which is seized of the main case should have made sincere endeavour to dispose of the Notice of  Motion on merits in the light of the mandate contained in Order XXXIX Rule 3A of the Code which in clear terms provides that the Court shall make an endeavor to finally dispose of the application within 30 days from the date on which the ex parte injunction was granted.                                               (Para 19)

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELALTE JURISDICTION

CIVIL APPEAL Nos. 4914-15 OF 2015

(ARISING OUT OF SLP(C) Nos.603-604/2015)

Quantum Securities Pvt. Ltd. & Others Appellant(s)

VERSUS

New Delhi Television Ltd. Respondent(s)

J U D G M E N T: Abhay Manohar Sapre, J.

1)    Leave granted

2)     These appeals are filed against the Interim Order dated 26.02.2014 passed by the High Court of Judicature at Bombay in Contempt Petition (L) No. 105 of 2013 in Notice of Motion (L) No. 1553 of 2013 in Suit (L) No. 677 of 2013 and Interim Order dated 31.10.2014 in Contempt Petition No. 29 of 2014 in Notice of Motion No. 488 of 2014 in Suit No. 284 of 2014.

3)     The facts of the case, which lie in a narrow compass, however, need mention in brief to appreciate the issue involved in these appeals.

4)     The appellants are the defendants whereas the respondent is the plaintiff.

5)     The respondent (plaintiff) has filed one suit being Civil Suit (L) No. 677 of 2013 (renumbered as Civil Suit No. 284/2014) against the appellants (defendants) in the High Court of Bombay on its original side for claiming the following reliefs:

a)     “a. that the Defendants and each of them (by themselves and by/through their servants, employees, affiliates, associates and agents) be permanently restrained/injuncted by an order of this Hon’ble Court, from in any manner writing to third parties, letters that are defamatory in nature against the Plaintiff, its management and/or its promoters;

b)      that the Defendants be directed to issue an unconditional public corrigendum, withdrawing the letters and e-mails written by it to third parties. Independent Directors and Regulatory Authorities, and apologizing for the defamatory actions on its part;

c)      that the Defendants jointly and severally be decreed to pay to the Plaintiff damages of Rs. 25 Crores, as set out at Exhibit A herein, or such other amount as this Hon’ble Court seems just and appropriate;

d)      that pending the hearing and final disposal of the Suit, the Defendants and each of them (by themselves and by/through their servants, employees, affiliates, associates and agents) be restrained, by order and injunction of this Hon’ble Court, from in any manner further issuing any defamatory letters, notices, emails, etc., in connection with and/or pertaining to and/or relating to the Plaintiff, its senior officials and promoters;

e)      interim, ad-interim and ex-parte ad-interim reliefs in terms of prayer (a) (b) and (d) above, for costs; g. for such further and other reliefs as this Hon’ble Court deems appropriate in the nature and circumstances of the case.”

6)     The respondent in the aforementioned pending civil suit filed notice of motion being Notice of Motion (L) No. 1553 of 2013 (renumbered as 488 of 2014) against the appellants herein under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure 1908 (in short “the Code”) and sought ad-interim relief in terms of prayers (a), (b) and (d) as extracted above during the pendency of the Suit.

7)     By interim order dated 06.08.2013, the Single Judge granted ex parte ad-interim relief in terms of prayer (a) to the respondent. The appellants herein on receiving the summons filed their detailed reply to the Notice of Motion on 21.08.2013 denying inter alia all the material allegations made by the respondent. The respondent, in turn, filed their rejoinder on 06.09.2013 to the reply filed by the appellants to the notice of  motion.

8)     In this way, the pleadings in Notice of Motion No. 488/2013 taken out by the respondent against the appellants are complete. However, we are at pains to find out that till date, the hearing in the Notice of Motion has not been concluded and since the last two years it is pending for its final disposal on merits.

9)     In the meantime, the respondent, felt aggrieved by certain communication alleged to have been made by or/and on behalf of the appellants, which according to the respondent were made by the appellant in violation of the ex parte interim order dated 06.08.2013, filed contempt petition under Section 12 of the Contempt of Courts Act, 1971 against the appellants being Contempt Petition No. 105/2013 (renumbered as 29/2014) in the High Court.

10)            In the contempt petition, the respondent has, inter alia averred that the appellants have deliberately and willfully violated the ex parte interim order dated 06.08.2013 passed by the Single Judge under Order XXXIX Rules 1 and 2 of the Code in the aforementioned Notice of Motion and thereby rendered themselves liable for having committed contempt of  Court's order dated 06.08.2013. It is, therefore, prayed that the appellants be accordingly punished under the Contempt of Court Act for commission of violation of order dated 06.08.2013.

11)            The Single Judge, on hearing the respondent, entertained the contempt petition and by order dated 26.02.2014, observed that on reading the averments made in the contempt petition, a prima facie case for issuance of  contempt notice is made out against the appellants and hence rule be issued against them in the contempt notice making it returnable on 26.03.2014. It was also observed that these proceedings would not come in the way of the appellants to prosecute any pending proceedings. The appellants have filed their reply affidavit to the contempt petition on 24.03.2014.

The contempt petition is pending.

12)            During the pendency of this contempt petition, the respondent herein filed one additional affidavit on 31.10.2014 in the contempt petition complaining herein that the appellants have again committed fresh contempt by willfully violating/disobeying the ex parte interim order dated 06.08.2013 and hence another notice of contempt be issued against the appellants to show cause as to why they be not punished for having committed fresh contempt of order dated 06.08.2013.

13)            The Single Judge, on perusal of the additional affidavit filed by the respondent herein on 31.10.2014, directed issuance of notice to the appellants to show cause as to why action under the provisions of the Contempt of Court Act be not initiated against them for committing violation of orders dated 06.08.2013 and 26.02.2014. The notices were made returnable on 08.12.2014. The Single Judge also issued an order restraining the appellants from issuing any defamatory letter, notice, e-mail, advertisement and publication of any nature in connection with the respondent herein. This matter is also pending.

14)            Felt aggrieved by these two interim orders, i.e., 26.02.2014 and 31.10.2014, the appellants have filed these appeals by way of special leave before this Court.

15)            We have heard Mr. P.V. Kapur, learned senior counsel for the appellants and Mr. C.A. Sundaram, learned senior counsel for the respondent at considerable length. Both the learned senior counsel very ably argued the myriad legal issues arising in the case some seemingly of public importance in support of their respective submissions. Learned senior counsel for the appellants also in his submission doubted correctness of the decision of this Court in Welset Engineers & Anr. Vs. Vikas Auto Industries & Ors., 2006 (32) PTC 190(SC), which was relied on by the learned senior counsel for the respondent against the appellants contending for dismissal of these appeals. According to learned counsel for the appellants, the said decision is per incuriam and thus requires to be reconsidered on the issue decided therein.

16)            Having heard the learned counsel for the parties and on perusal of the record of the case, we consider it appropriate and in the interest of both the parties to defer our recording of  findings on several issues arising in the case and more so legal issues on which lengthy arguments were addressed and request the learned Single Judge of the High Court, who is seized of Civil Suit No. 677/2013 renumbered as 284/2014 and of Notice of Motion No.1553/2013 renumbered as 488/2014, to first take up Notice of Motion No. 1553/2013 renumbered as 488/2014 filed by the respondent (plaintiff) under Order XXXIX Rules 1 and 2 of the Code and dispose of  the same, after affording an opportunity to both the parties, on merits strictly in accordance with law. Since pleadings in the said Notice of Motion are complete long back, there does not appear any kind of prejudice being caused to any of the parties, if direction is issued for early disposal of the notice of  motion on its merits.

17)            In our considered opinion, there is no justification on the  part of parties (without blaming any one) to keep the main Notice of Motion pending and prosecute its off-shoot proceedings in preference to the main case such as the one out of which these appeals arise.

18)            In our considered view, when admittedly the order dated 06.08.2013 was an ex parte one then in such circumstances, no sooner the defendants (appellants) entered appearance in the civil suit and filed their pleadings in reply to the Notice of  Motion, the Court which is seized of the main case should have made sincere endeavour to dispose of the Notice of  Motion on merits in the light of the mandate contained in Order XXXIX Rule 3A of the Code which in clear terms provides that the Court shall make an endeavor to finally dispose of the application within 30 days from the date on which the ex parte injunction was granted.

19)            It was not done by the Court may be due to myriad reasons despite the appellants (defendants) entering appearance as back as 21.08.2013 in the main suit and completing their pleadings on 05.09.2013. As a result, the ex parte ad-interim order dated 06.08.2013 remains in operation.

20)            In our view, once the Notice of Motion is finally decided on merits in accordance with law one way or the other then the parties to the Lis can always work out their rights by taking recourse to legal remedies available to them for pursuing their grievance to higher fora either in appeal or revision, as the case may be, and may also prosecute the contempt proceedings arising out of the main case, if need arises.

21)            In our considered opinion, It is always in the larger interest of the parties to the Lis to get the main case (Lis) decided first on its merits as far as possible rather than to pursue their off-shoot proceedings on merits by keeping the main case undecided. It is more so when any decision rendered in the main case has a bearing over the pending off-shoot proceedings.

22)            In our view, the defendant in such case has a right to point out in the Notice of Motion, that the plaintiff has neither any prima facie case in their favour nor there is any likelihood of plaintiff to suffer any irreparable loss/injury in relation to subject matter of the suit, if injunction is declined to the plaintiff and that no balance of convenience lies in the plaintiff’s favour and, therefore, the Court should not have granted ex parte injunction to the plaintiff and even if it has granted then it should now be either recalled or modified, as the case may be. It is then for the Court to decide as to whether ex parte injunction granted to the plaintiff should be confirmed or recalled or varied etc. and if so on what grounds.

23)            We are also of the considered view that when the issue on merits is seized of by the original court in civil suit/proceedings and rights of the parties are still not decided on merits then it is not proper for this Court to probe into the facts and record any finding on any of the issues arising out of collateral proceedings such as the one here else our observation may cause prejudice to the parties while prosecuting their case before the original court on merits.

24)            It is for these reasons we are of the considered opinion that it would be apposite to request the learned Single Judge to decide Notice of Motion No. 1553/2013 renumbered as 488/2014 arising out of Civil Suit No. 677/2013 renumbered as 284/2014 on merits in accordance with law preferably within three months from the date of receipt of copy of this judgment. Till it is decided, we are inclined to stay the contempt proceedings out of which these appeals arise. After the disposal of the Notice of Motion, the contempt proceedings may be decided in accordance with law including its maintainability etc.

25)            Needless to say, since we have refrained from giving finding on merits on any of the issues and hence the concerned Courts, which are seized of the civil suit/proceedings in question, would decide the matter on merits strictly in accordance with law without being influenced by our observations made herein.

26)            We also make it clear that all the issues which were argued in these appeals including the issue as to whether the remedy of the appellants lie in filing statutory appeal under Section 19 of the Contempt of Courts Act against the impugned orders etc. are kept open for being decided at the appropriate stage, if occasion arises.

27)            It is for these reasons, we do not consider it necessary to discuss in detail the submissions urged by both the learned senior counsel nor we consider it apposite to deal with several case laws cited at the bar.

28)            With these observations and the directions, the appeals stand accordingly disposed of. No costs.

29)            A copy of the order be filed before learned Single Judge in main case as also in contempt proceedings to enable the appropriate Benches to decide the cases accordingly.

…….….……............................J.

[VIKRAMAJIT SEN]

…………..................................J.

[ABHAY MANOHAR SAPRE]

New Delhi;

July 01, 2015.

No action taken on information based on notice of writ petition

A disturbing feature of this case is that even after notice of the writ petition when the State of Haryana became aware that Khub Ram lacked essential qualification and his certificates were unreliable, it took no action to undo the ill effects of fraud by taking any action against Khub Ram. As a result Khub Ram continued in service for a number of years and also earned promotions. This was at the cost of claim of other genuine selected candidates whose cases could have been considered if action had been taken at appropriate time.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2734 OF 2012

Khub Ram …..Appellant

Versus

Dalbir Singh & Ors. …..Respondents

W I T H

CIVIL APPEAL NO. 4097 OF 2015

[Arising out of S.L.P.(C)No.15871 of 2012]

Mahavir Prasad …..Appellant

Versus

Dalbir Singh & Ors. …..Respondents

J U D G M E N T: SHIVA KIRTI SINGH, J.

1.    The Civil Appeal and the Special Leave Petition have been heard together because claim of the parties is in respect of same post of Chief Inspector in the Haryana Roadways to which the appellant - Khub Ram was initially appointed in the year 1990 pursuant to his selection in response to advertisement dated 07.05.1989. First respondent – Dalbir Singh challenged the selection and appointment of appellant Khub Ram by filing C.W.P. No.12711 of 1992 in the High Court. That writ petition was allowed on 01.10.2010 by a learned Single Judge. Not only the appointment of Khub Ram and one more person was quashed but a direction was also issued to appoint writ petitioner – Dalbir Singh from a retrospective date with all consequential benefits. Appellant’s appeal before the Division Bench was dismissed by the impugned order. The petitioner of S.L.P. – Mahavir Prasad has sought permission to file the Special Leave Petition against judgment of learned Single Judge as well as of Division Bench on the ground that he is one amongst the selected candidates and has a better claim for appointment than respondent – Dalbir Singh and hence order should be passed for appointing him in place of Khub Ram. This judgment shall govern both the matters which involve common issues of facts and law.

2.    Permission to file Special Leave Petition (C) No.15871 of 2012 is granted. Delay condoned. Leave granted.

3.    For the sake of convenience the facts have been noticed mainly from the records of Civil Appeal No.2734 of 2012 except where indicated otherwise. For deciding the two issues arising in these cases it is not necessary to go deeper into the facts except to notice that as per terms of advertisement dated 07.05.1989, besides a Degree of Graduation and Hindi upto Matriculation level and age qualification of 17-35 years, it was essential for the candidate to have two years’ experience in Government/Semi-government or Public Undertakings and Roadways Fleet. The appellant’s selection was questioned in the writ petition mainly on the ground that he did not possess the requisite experience and the two certificates submitted by him were from private transporters. There were strong arguments advanced against the selection of appellant and some others on the allegation that political influence had been exercised in their favour and it was specifically pleaded that the appellant was selected in the second round of selection as he belonged to village of the then Chief Minister. The learned Single Judge noticed that appellant’s experience certificates showed that he had worked with a private Bus Service from June 1986 to June 1988 as a Field Staff (Checker) for two years and also with another private roadways as Assistant Manager between 01.09.1984 to 10.03.1987. The courts below noticed that both the certificates contradicted each other because between June 1986 to 10.03.1987 the appellant as per his certificates had worked in two different capacities with two different private bus service. The court also found that the two years’ experience as per terms of the advertisement could not be satisfied by showing experience of working with private transporters as they were not covered by the expression ‘Government/Semi-government or Public Undertakings and Roadways Fleet’.

4.    On behalf of Mahavir Prasad it has been pleaded that the Select List contained names of 14 persons which included Khub Ram and Ram Niwas Rathi whose appointments were quashed by the learned Single Judge as well as name of appellant – Mahavir Prasad but not that of first respondent – Dalbir Singh. On account of his place in the Select List Mahavir Prasad represented for appointment and ultimately filed a writ petition for that purpose bearing C.W.P. No.17600 of 1991 but no relief was given to him by the final order dated 04.08.1992 which for some reason was challenged by the State of Haryana before the Division Bench but not by Mahavir Prasad. But when he learnt that respondent – Dalbir Singh has succeeded in getting a judgment against Khub Ram and a direction for his own appointment, Mahavir Prasad chose to challenge those judgments in favour of Dalbir Singh by preferring the Special Leave Petition directly in this Court and the same was tagged for hearing along with the Civil Appeal.

5.    On behalf of appellant - Khub Ram, Mr. P.N. Misra, Sr. Advocate raised a strong objection that writ petition should not have been allowed in 2010 in view of delay in impleading the appellant as late as in 2004 when he had already earned a promotion on 01.03.1996 and a second promotion as Traffic Manager on 05.05.2000. It was also highlighted that because of interim order of this Court he has continued in service and has been promoted as General Manager in December 2014. He pointed out that objection was taken to the impleadment application dated 16.02.2004 on grounds of delay as well as promotion already earned by the appellant. In support of the aforesaid plea reliance was placed on judgment of this Court in the case of Jiten Kumar Sahoo v. Mahanadi Coalfields Ltd. (2011) 11 SCC 520 and in the case of Buddhi Nath Chaudhary v. Abahi Kumar (2001) 3 SCC 328.

6.    Learned senior counsel Mr. Misra also submitted that experience in private roadways fleet would meet the requirement of advertisement if the word ‘and’ appearing before the ‘Roadways Fleet’ is understood and treated as ‘or’. According to him, now when the appellant - Khub Ram has worked for long years, he cannot be denied continuance in service for lack of minimum experience at the stage of recruitment. He further pointed that the appellant noticed the error in experience certificate dated 05.06.1989 relating to experience of two years in Shyam Bus Service from June 1986 to June 1988 and therefore he obtained a corrected certificate on the next day, i.e., 06.06.1989 showing such experience to be from June 1987 to June 1988. According to the appellant, the corrected experience certificate dated 06.06.1989 is on record as Annexure P-2.

7.    In reply, Mr. Vikas Singh, Sr. Advocate for first respondent has pointed out that issue of delay in impleading the appellant as a respondent in the writ petition was not argued before the learned  Single Judge or before the Division Bench. He pointed out that in respect of two years of working experience in paragraph 2 of the writ petition it was claimed that the experience required was of working in a Government or semi-government department and such claim was admitted by the State, second respondent in para 2 of its reply. It was also shown that the learned Single Judge as well as the Division Bench have returned concurrent findings that the appellant – Khub Ram did not meet the experience qualification and not only his certificates were from private bus operators but also the same were untrustworthy because of apparent conflict and overlapping of a particular period in both the certificates.

8.    Anticipating the arguments on behalf of appellant – Mahavir Prasad in the light of pleadings in the appeal filed by him, Mr. Vikas Singh, learned senior counsel for first respondent highlighted that no other claimant for the post joined the litigation when first respondent preferred the connected writ petition in the year 1992 and even till 2010 when the writ petition was allowed, no other candidate came forward with a rival claim and in such circumstances writ court  committed no error in directing for appointment of first respondent as a consequence of setting aside the appointment of appellant – Khub Ram and another person.

9.    Before adverting to the claims of first respondent and similar claim of appellant – Mahavir Prasad for appointment to the post held by the appellant – Khub Ram, it would be appropriate to first examine the merit of appeal preferred by appellant – Khub Ram. We have carefully looked into the averments made in the writ petition, the reply filed by State and other respondents as well as the judgment of the learned Single Judge as well as the Division Bench. We find no good  reason to take a different view in respect of the finding that the appellant lacked the essential qualification of experience because his experience certificates were only from private bus operators. It is also found that even the alleged corrected certificate said to be dated 06.06.1989 contained in Annexure P-2 is an unreliable document inasmuch as the date 06.06.1989 is clearly a subsequent correction without any authorization by way of counter signature and so is the case with the words and letters ‘June 1987’ which have been altered subsequently by converting ‘1986’ to ‘1987’. Even after such unauthorized corrections the total experience as per last line of the certificate remains two years. Had the concerned Bus Service issued a fresh corrected certificate then the experience from June 1987 to June 1988 could not have been certified to be experience for two years. The list of dates also has been subsequently corrected to show the date of experience certificate, Annexure P-2 as 06.06.1989 in place of 05.06.1989. This appears to have been done at the instance of the appellant to justify his stand and apparently a bogus claim that he had obtained a correct certificate on the very next date when he found mistakes in the certificates dated 05.06.1989. Had this been the case, there was no occasion for submission of the certificate dated 05.06.1989 with his application which issue has been discussed in detail by the learned Single Judge.

10.        Had the appellant not committed such acts for obtaining selection and appointment, we could have considered the issue of delay as well as judgments supporting such a claim. However, Mr. Patwalia has rightly submitted that delay in impleading the appellant could not weigh with this Court when a case of fraudulent entry into service has been found by the learned Single Judge as well as Division Bench and an attempt has been made by the appellant even to mislead this Court by producing Annexure P-2 and claiming it to be copy of the corrected certificate freshly issued on 06.06.1989. Such conduct of the appellant in our considered view disentitles the appellant – Khub Ram to get any relief under Article 136 of the Constitution of India. Mr. Patwalia has rightly placed reliance to support the aforesaid submissions, on a judgment of this Court in the case of Meghmala v. G. Narasimha Reddy (2010) 8 SCC 383. The law relating to effect of fraud upon a competent authority to get an appointment/office as well as effect of fraud upon court has been discussed in detail in paragraphs 28 to 36 of the said judgment with which we are in respectful agreement. As a result, we hold that the appellant – Khub Ram is not entitled to hold the office which he obtained by submitting questionable certificates of experience and more so when he lacked the essential qualification of working experience in a Government/Semi-government/Public Sector Undertaking. Hence his appeal is dismissed.

11.        The next question is whether in the facts and circumstances of the case the direction of the High Court to appoint first respondent from a retrospective date along with consequential benefits deserves to be upheld or not, particularly when a strong challenge has been made to such direction through a Special Leave Petition of Mahavir Prasad. On this issue Mr. Patwalia, learned senior advocate appearing for Mahavir Prasad has shown from the pleadings that while Mahavir Prasad was at serial no.9 of the Select List containing 14 names prepared for appointment to 5 advertised posts, first respondent Dalbir Singh did not find any place in such Select List. This fact  escaped the attention of learned Single Judge as well as Division Bench possibly because there was no rival claimant to point out such shortcoming in the case of writ petitioner – Dalbir Singh.

12.        Mr. Patwalia has shown from the supplementary affidavit filed in the Special Leave Petition to support the application for condonation of delay, that as far back as on 25.08.1993 the High Court had passed an order in the writ petition directing the writ petitioner to implead the selected candidates (emphasis added) who are likely to be affected by the result of the present writ petition. The writ petitioner was given liberty to file an application for early hearing after impleading the affected party. The writ petitioner filed the impleadment application only for adding Khub Ram and one another person and did not implead all the selected candidates. As a result appellant – Mahavir Prasad was denied the opportunity of contesting the claim of the writ petitioner by placing the relevant correct facts particularly the fact that Dalbir Singh was not a selected candidate.

13.        A number of judgments including State of Mysore v. K.N. Chandrasekhara AIR 1965 SC 532 and R.S. Mittal v. Union of India 1995 Supp. (2) SCC 230 were relied upon by Mr. Patwalia in support of his submission that if challenge to an appointment succeeds, the court will direct for appointment against consequent vacancy only as per the merit list prepared for the purpose of such appointment. The list has to be given due weightage unless the court has proceeded to quash the Select List itself. Since the proposition is well founded in law and there is no caveat on this issue, there is no need to discuss the case law on the subject in any detail.

14.        Learned counsel for the State of Rajasthan has submitted that Khub Ram was ineligible for want of a requisite experience and hence by working on the post as claimed by him for subsequent two years he cannot get the required eligibility. He placed reliance upon a judgment of this Court in the case of Central Bank of India v. Madhulika Guruprasad Dahir (2008) 13 SCC 170. That judgment was rendered in a case where the caste certificate which was the basis for claiming and getting appointment was found to be false. The court, in the facts of the case held the action of the applicant concerned to be fraudulent and on that basis, after discussing the relevant case law in detail in paragraphs 15, 16 and 17, declined to endorse the lenient view taken by the High Court and instead, upheld the order of termination of service of the concerned employee with a sound reasoning - “the selection of the employee was conceived in deceit and, therefore, could not be saved by equitable considerations”.  According to learned counsel for the State Dalbir Singh did not find place in the list of selected candidates and hence it would not be proper to uphold the direction for his appointment and if Mahavir’s claim finds favour then the authority concerned may be directed to consider the claim of all selected candidates including that of Mahavir Prasad but only against original post, if available. The appointment  should not be ordered from any retrospective date or with any consequential benefits.

15.        There is no dispute that first respondent – Dalbir Singh was only an applicant and was not among the selected 14 candidates. In that view of the matter, the High Court was misled to issue a direction for his appointment and that too from an earlier date when Khub Ram  was appointed, and with consequential benefits. Such directions could not have been issued without considering the claims of other persons in the Select List. For that reason, the directions issued in favour of first respondent are set aside. To that extent, appeal of Mahavir Prasad has to be allowed. However, the other prayer made on behalf of Mahavir Prasad that authorities be directed to offer him appointment or consider his claim, in our considered view cannot be allowed on account of the fact that writ petition of Mahavir Prasad filed in 1991 was decided against him by order dated 04.08.1992 passed in C.W.P.No.17600 of 1991. Rightly or wrongly the High Court  held that he could not claim any right of appointment on account of a place in the Select List. That judgment attained finality. Mahavir  Prasad chose not to appeal against that order nor he challenged the appointment of any of the persons selected and appointed. His claim  thus suffers from res judicata as well as acquiescence and estoppel. In that view of the matter and also for the reason that a long period of more than 25 years has passed since the preparation of the Select List, in our view it would be inappropriate to grant any relief which may require the authorities to examine the claim of persons in the Select List for appointment to the original post which may not even be available after lapse of so many years. We have been told that Mahavir is presently about 50 years of age and has not crossed the age of superannuation and is still working on another post with Haryana Roadways. That in our opinion, will not change the relevant factors indicated above. Hence we are not persuaded to grant any further relief to Mahavir Prasad and his appeal is allowed only in part  as a result whereof the direction to appoint first respondent – Dalbir  Singh is set aside.

16.        A disturbing feature of this case is that even after notice of the writ petition when the State of Haryana became aware that Khub Ram lacked essential qualification and his certificates were unreliable, it took no action to undo the ill effects of fraud by taking any action against Khub Ram. As a result Khub Ram continued in service for a number of years and also earned promotions. This was at the cost of claim of other genuine selected candidates whose cases could have been considered if action had been taken at appropriate time. In such a situation, although we have granted no relief to Mahavir Prasad by ordering for his appointment, we direct the State of Haryana to compensate Mahavir Prasad by paying him an amount of Rs.3,00,000/- (Rupees Three Lacs) within two months. A further amount of Rs.1,00,000/- (Rupees one lac) should also be deposited by the State of Haryana with the Supreme Court Mediation Centre within the same time. The State of Haryana would be at liberty to fix responsibility as to who was at fault for not taking action in the matter after the deceitful acts came to its knowledge through filing of  the writ petition in 1992, and if possible, to recover the aforesaid  amount of Rs.4,00,000/- (Rupees Four Lacs) from the concerned persons, in accordance with law, if they are still in office.

17.        As discussed above, Civil Appeal No.2734 of 2012 is dismissed  and the other Civil Appeal arising out of S.L.P.(C)No.15871 of 2012 is allowed only to the extent indicated above. There shall be no further order as to costs.

......………………...……………………………….J.

[FAKKIR MOHAMED IBRAHIM KALIFULLA]

……………………………………………………….J.

[SHIVA KIRTI SINGH]

New Delhi.

April 29, 2015

Abuse from an spouse “as being born from a prostitute is a cruelty.”

If a spouse abuses the other as being born from a prostitute, this cannot be termed as “wear and tear” of family life. Summoning the police on false or flimsy grounds cannot also be similarly viewed. Making it impossible for any close relatives to visit or reside in the matrimonial home would also indubitably result in cruelty to the other spouse.                                              (Para 7)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 5511-5512 OF 2014

VINOD KUMAR SUBBIAH .…..APPELLANTS

Versus

SARASWATHI PALANIAPPAN …..RESPONDENTS

J U D G M E N T: VIKRAMAJIT SEN,J.

1.      These Appeals assail the Judgment of the learned Single Judge of theHigh Court of Judicature at Madras, Bench at Madurai, delivered on  13.3.2013, setting aside the Judgment dated 25.8.2011 of the Trial Court. The Impugned Judgment dismissed the divorce petition filed by the Appellant.

2.      The Appellant and the Respondent were married on 28.6.2004 and moved to the U.S. on 9.7.2004. They visited Chennai in October 2005 and June 2006. During the latter visit, the Respondent was three months pregnant and left for her parental home in Madurai on 10.6.2006 where she gave birth to a male child on 5.12.2006. The Appellant subsequently filed for divorce under Section 13(1)(ia) of the Hindu Marriage Act on 30.4.2007.

3.      The case put forward by the Appellant is that the Respondent was verbally abusive; she would insult his family; she would threaten to lodge false police complaints; and she would threaten to commit suicide placing the blame on the Appellant and his family. After she left for her parental home in June 2006, the Appellant attempted to bring her back to her matrimonial home but she refused. The Appellant claims that he has been put through intolerable mental agony and can no longer continue to be married to the Respondent.

4.      The Respondent denied these allegations and claimed that she and the Appellant lived happily in the U.S., and she only went to her parental home in June 2006 for her child to be born there. She has pleaded that she returned to Chennai with her child from March to April 2007, that the divorce petition was completely unexpected and was the result of a misunderstanding between her family and that of the Appellant. She subsequently filed a petition seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, praying that the Appellant be directed to take her back to her conjugal home, which she pleaded is in the U.S. She alleged that her husband is living a wayward life, that her father-in-law misbehaved with her, and that her parents-in-law were negligent with her infant child and asked her to leave the house when she questioned them about this. She also filed a maintenance petition seeking Rs. 2 lakhs per month as maintenance.

5.      The Trial Court heard all three petitions together and examined the evidence submitted by the parties at length. The Appellant has deposed that when his sister came to the U.S., she initially stayed with him and the Respondent. However, the Respondent did not like having her in the house, so she locked the Respondent and his sister out of the house, was abusive towards them and told them that they belonged to a “prostitute family”. Eventually the Appellant’s sister was constrained to stay at a Lodge. The Respondent claimed that the dispute was because her sister-in-law tried to make her join her diamond business, which she did not want to do. The Trial Court found no truth in the argument of the Respondent, in light of the fact that she has no background or knowledge of the diamond business. Furthermore, the Appellant has deposed that when his brother came to the U.S. to study, he also initially stayed at the Appellant’s house. However, it is in evidence that the Respondent called the Appellant at work alleging that his brother was knocking on her door, thus implying that he was behaving in an untoward manner. She abused the Appellant and his family in the presence of his brother and threatened to file a police complaint. The Appellant has deposed that he was forced to make his brother stay elsewhere. In a subsequent event, the Appellant informed the Respondent that his parents would be coming to the U.S. The Respondent was verbally and physically abusive, and called the police alleging domestic violence. The Appellant was given a warning by the Police. The Respondent claimed that the incident took place because the Appellant was having an affair with a woman named Solai. She claimed that he took her to Solai’s house that evening and then wanted to go back at night, which is why she called the police. The Trial Court has justifiably highlighted that summoning the police was serious because the Appellant was in a foreign country and didn’t know the laws and procedure. Further, the allegation that he was having an affair was not accepted, as it was unbelievable that the Respondent had previously not told anyone about Solai and further that it never came up du ring the attempted compromise between the families of the two parties. The Respondent claimed that after having the child, she came to live with the Appellant, which the Appellant denied. The Respondent also alleged that while she was living with the Appellant’s family, his parents took the child who was only three months old away for six hours. By the time they brought him back, he was unconscious due to starvation. When the Respondent questioned them about this, they asked her to leave the house with the child, even though it was late in the night. The Trial Court found this allegation entirely unbelievable. Her allegation that the father of the Appellant started misbehaving with her and went to the extent of pulling her hands was also found to be false. The Trial Court also took into consideration the voice mails and emails from the Respondent to the Appellant, which were not treated as the main evidence but as evidence intended to substantiate the oral evidence. It was held that the evidence and the submissions of the Respondent indicate that she was unwilling to live in the Appellant’s house in Chennai, and that she wanted him to leave his family in India and live in the U.S. with her. It is pertinent to note that the Appellant had lost his job in the U.S. and was unemployed and consequently had to set up residence in Chennai. In light of these circumstances, it was found that the Respondent is not entitled to conjugal rights. An order of dissolution of marriage was passed and maintenance was fixed at Rs. 25,000 per month.

6.      The High Court, however, held that the Appellant’s allegations in his divorce petition were no more than “the ordinary wear and tear” that takes place in a marriage. It observed that the Appellant did not give details of the events of abuse by the Respondent towards his family or the cruelty that was meted out to him in the U.S. in his main petition or his subsequent counter affidavits. It was only after filing the petition that the Appellant had produced copies of the abusive voicemails and emails he received from the Respondent. The High Court noted that the Trial Court did not need to strictly adhere to hard and fast rules while entertaining evidence, but nevertheless held that the Trial Court had acted in haste in allowing the Appellant’s allegations. The High Court found that the Trial Court, instead of considering whether the Appellant had established cruelty by adducing evidence, took certain answers from the Respondent’s Chief examination and cross-examination out of context and held that a case of cruelty was made out. The High Court stated that in a matrimonial relationship, parties must be prepared to subject themselves to the normal wear and tear of life, and that the situation at hand was no more than that. The divorce petition was thus dismissed and the petition for restitution of conjugal rights was allowed.

7.      We have carefully considered the matter, and find that we are unable to uphold the conclusions of the High Court. The Appellant had duly pleaded instances of mental cruelty which he proved in evidence and documents. An examination of the divorce petition makes it abundantly clear that various allegations of cruelty were made out and a number of incidents were mentioned therein. Further evidence was submitted during the course of the Trial to substantiate these allegations, which is in keeping with Order VI Rule 2 of the CPC. Furthermore, we find that the Trial Court examined the evidence at great length and came to the reasoned conclusion that the actions of the Respondent amounted to cruelty. If a spouse abuses the other as being born from a prostitute, this cannot be termed as “wear and tear” of family life. Summoning the police on false or flimsy grounds cannot also be similarly viewed. Making it impossible for any close relatives to visit or reside in the matrimonial home would also indubitably result in cruelty to the other spouse. After a cursory discussion of the evidence which the Trial Court had discussed threadbare, the High Court was not justified to set aside the conclusions arrived at by the Trial Court without giving substantiated reasons.

8.      We thus allow these Appeals and set aside the Impugned Order, but desist from imposing costs. The Trial Court’s decision granting dissolution of the marriage between the parties is hereby restored.

9.      We allow the Respondent’s Application for disbursement of the amount

deposited by the Appellant towards her legal expenses in pursuance of the Order dated 4.7.2013.

.................................................J.

[VIKRAMAJIT SEN]

…….............................................J.

[ABHAY MANOHAR SAPRE]

New Delhi;

April 24, 2015.