# Smt. Kamala Devi & Anr v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1514
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-25
- **Case number:** Civil Misc. Writ Petition No. 55965 of 2014
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamala-devi-anr-v-state-of-u-p-ors-43059
- **Pages:** 11

## Headnote

Constitution of India, Art.-226-Petitioners
seeking protection from harassment by
local
police-in
matrimonial
life-false
statements
regarding
registration
of
marriage with fake documents of marriage
certificate-held-not
entitled
for
any
protection-petitioner not approach before
writ court with clean hand and clean
hearted but committed fraud to Court alsopetition dismissed with cost of Rs. One lac
with direction to lodge FIR against thempetition dismissed.
Held: Para-20 & 22

## Text

1514
 INDIAN LAW REPORTS ALLAHABAD SERIES
regularization and finally the Executive
Engineer vide order dated 25.05.2011, has
rejected the claim of the workman for
regularization on the ground that demand
of regularization could not be accepted as
the same is in violation of Article 14 and
16 of the Constitution of India. Once the
claim for regularization of workman on
the post of tube well operator has been
denied by the petitioner and the same has
attained finality, therefore, the benefit of
regular salary on the said post cannot be
accepted, and the same would be in
violation of the principle laid down in the
decision of the Apex Court in Case of
Secretary, State of Karnataka Vs. Uma
Devi ( Supra). Therefore, at this stage,
this Court has only to look into the matter
as to whether the award dated 20.08.2007
had been complied by the department and
further the present impugned order passed
under Section 6-H (1) can be sustained or
not? It is admitted situation that the award
has attained finality up to Hon'ble Apex
Court and it has also been brought on
record that in pursuance to the award
dated 20.08.2007 the workman has joined
the department. Therefore, while deciding
the application under Section 6-H (1), the
respondent No. 1 travelled beyond the
mandate of the award passed by the
Labour Court and the arrears could only
be fixed as per the award and in the garb
of award no regular salary could be
released,
otherwise
indirectly
his
regularization on the said post would take
place, which was not under the purview of
Section 6-H (1) proceeding and the same
had been denied by the petitioner.
17. Therefore, I am of the
considered opinion that the impugned
order cannot be sustained and the
respondent no.1 is entitled to be paid in
pursuance to the award dated 20.08.2007,
and status of the respondent no.1 would
remain as daily wager specially in the
background that for regularization of his
claim, the petitioner had already rejected
the claim way back on 25.05.2011 and the
same has not been assailed by the
workman, therefore, it had attained
finality.
18. Therefore, in view of above, the
order impugned is set aside. However, in
the interest of justice, this Court, while
granting interim order, had observed that
till the next date of listing, 50% of the
amount, if already deposited, shall be
released in favour of the respondentworkman and remaining 50% shall be
kept in Fixed Deposit. If 50% of the
amount has already been released in
favour of the workman, the same would
be adjusted against the admitted amount
and the remaining 50%, which was
directed to be kept in fixed deposit, may
be returned back to the petitioner.
19. In the result, the writ petition is
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2014
BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
Civil Misc. Writ Petition No. 55965 of 2014
Smt. Kamala Devi & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri I.K. Mishra
Counsel for the Respondents:
C.S.C.
3 All]. Smt. Kamala Devi & Anr. Vs. State of U.P. & Ors.
1515
Constitution of India, Art.-226-Petitioners
seeking protection from harassment by
local
police-in
matrimonial
life-false
statements
regarding
registration
of
marriage with fake documents of marriage
certificate-held-not
entitled
for
any
protection-petitioner not approach before
writ court with clean hand and clean
hearted but committed fraud to Court alsopetition dismissed with cost of Rs. One lac
with direction to lodge FIR against thempetition dismissed.
Held: Para-20 & 22
20. In the present set of facts the
petitioners have not approached this
Court with clean hands, clean mind and
clean heart. They have made false
averments in the writ petition. They have
filed fake papers along with the writ
petition and have also produced before
this Court the fake Marriage Certificate.
Such matters should be dealt without
any leniency.
22. The action shall also be taken under
the criminal law. it shall be open for the
respondent no. 5 to lodge F.I.R. and if
any F.I.R. is lodged then respondent no.2
and 4 shall take all steps for quick and
qualitative investigation in the matter in
accordance with law.
Case Law discussed:
JT 2000 (3) SC 151; 2004(6) SCC 325;
2003(8) SCC 319; AIR 1994 SC 853; 2012(8)
SCC 748; JT 2005(11) SC 439; (1889) 14 AC
337; [(1994) 1 SCC 1]; JT 2005 (6) SC 391; JT
2009 (9) 365; JT 2009 (5) SC 278; JT 2008 (8)
SC 57.
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)
1.
Heard Sri I.K. Mishra, learned
counsel for the petitioners and Sri Siddharth
Singh Shreenet, learned Standing Counsel
for the State Respondent.
2. In compliance to the order dated
16th October, 2014, a counter affidavit of
Sri Praveen Kumar Yadav, Registrar,
Hindu Marriage/ Sub-Registrar-IInd, Sadar
Bareilly has been filed today before this
Court. The original of the alleged Hindu
Marriage Certificate of the petitioners dated
10th July, 2014 which was kept under sealed
cover by the Registrar General under orders
of this Court, dated 16th October, 2014 has
been placed before this Court. The sealed
cover was opened in presence of learned
counsel for the parties and the Sub Registrar,
Hindu Marriage. The alleged original
marriage certificate dated 10th July, 2014
which was produced by the petitioner no.2
before this Court on 16th October, 2014 and
a copy of which has been filed as Anenxure
No.2 to the writ petition, has been shown
today to the Sub-Registrar Hindu Marriage.
This alleged certificate is printed in multi
colour on glazed paper. Registrar Hindu
Marriage states that this marriage certificate
showing it to be issued by Registrar Hindu
Marriage-IInd, District Bareilly, dated 10th
July, 2014 is absolutely fake. He states that
the method of issuing marriage certificate
and its proforma has already been explained
in the counter affidavit. The aforesaid
Hindu Marriage certificate was produced by
the petitioner no. 2 on 16th October, 2014
before this Court which was kept in sealed
cover by Registrar General of this Court as
aforementioned. It has now now been
handed over by this Court to the aforesaid
Registrar, Sri Praveen Kumar Yadav in
presence of learned counsel for the parties.
He shall keep it safely to take appropriate
action in accordance with law including
lodging of F.I.R. against the petitioners and
the persons who managed or prepared such
forged
certificate
in
the
name
of
Government Officers.
3. This writ petition has been filed
praying for writ, order or direction in the
nature of mandamus commanding the
1516
 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent authorities not to harass /
disturb the petitioners in their peaceful
life as husband and wife. After going
through the counter affidavit of the
Registrar,
Hindu
Marriages,
learned
counsel for the petitioners states that the
petitioners want to withdraw the writ
petition. He states that the petitioners do
not want to file any rejoinder affidavit.
4. Prayer is rejected for reason that
fake papers have been filed alongwith the
writ petition and false averments have
been made.
5. The petitioners have played fraud
on the Court. A trend is being seen in this
jurisdiction of security to married coupled
that number of writ petitions are being
filed annexing fake birth certificate, fake
voter
ID
card
and
fake
marriage
certificate.
6. Under the circumstances, after it
came to light that the writ petition has
been filed making false averments and
annexing fake papers, prayer of learned
counsel for the petitioner to withdraw the
writ petition cannot be allowed.
7. Sri Siddharth Singh Shreenet,
learned Standing Counsel submits that
this writ petition has been filed by the
petitioners making false averment. They
have annexed fake papers along with the
writ petition. A forgery has been
committed by the petitioners. He submits
that the respondent no. 1, 2, 4 and 5 be
directed to take an action in the matter so
that the person who are engaged in
preparing fake marriage certificates may
be punished in accordance with law and
the
practice
of
filing
fake
papers
alongwith the writ petition may also be
checked. He submits that infact the
jurisdiction of this Court has been abused
by the petitioners. They deserve for heavy
cost to be imposed by this Court.
8. I have heared learned counsel for
the parties.
9. In paragraph no. 6 and 7 of the
writ petition, the petitioners have stated as
under :-
6. That the petitioners solemnized
their marriage on 9.7.2014 at Arya Samaj
Mandir Savitri Nagar Kargauna, Bareilly
was
received
in
this
office
and
accordingly the said application has been
registered on 10.7.2014 at volume no. 11
pages 331 at serial no. 653 of the
concerned register maintained in this
office. A photo copy of the marriage
certificate registered dated 10.7.2014 is
being filed herewith and marked as
Annexure No. 2 to this writ petition.
7. That the petitioners marriage has
been registered and certified that on
application under the Uttar Pradesh
Hindu Marriage Rules 1973 in the office
of Registrar Hindu Marriage IInd Sadar
District Bareilly Uttar Pradesh India.
10. The respondent no. 5 has stated
in paragraph no. 6, 7, 8 and 9 of the
counter affidavit as under : -
6. That, after receiving the said letter
it was inquired from the marriage register
for the current year and it was found that
there was no any such alleged certificate
dated 10.7.2014 issued by the deponent in
favour of Smt. Kamla Devi and Brijraj
Singh. It is further submitted on 10.7.2014
there was only one certificate issued in
the name of Dr. Hitendra Kumar Singh
and
Smt.
Sushma
Devi,
which
is
registered at Volume No. 51, pages 703 to
3 All]. Smt. Kamala Devi & Anr. Vs. State of U.P. & Ors.
1517
726 at serial No. 396. For kind perusal of
this Hon'ble Court photo stat copy of
relevant extract of marriage register
showing the registration at Volume No.
51, pages 703 to 726 at Serial no. 396
and
photo
stat
copy
of
marriage
certificate dated 10.7.2014, issued by the
deponent to one Dr. Hitendra Kumar
Singh and Smt. Sushma Devi is being filed
herewith and marked as Annexure No. 1
collectively to the affidavit.
7. That it is further relevant to
mention here that alleged certificate
shows volume No. 11, page 333 at serail
no. 653, which is not existing. In this
regard it is submitted for the current year
i.e. 2014 volume No. 53 is running and
volume No. 11 is much before issued in
earlier year 2007. It is further submitted
that on 13.11.2014 the office of deponent
issued a marriage certificate in favour of
Mr. Pranav Palav and Smt. Sonam
Tandan at Volume No. 53, pages 674-699
at serial no. 483. For kind perusal of this
Hon'ble Court a photo stat copy of last
certificate issued from the office of
deponent till 13th November, 2014 is
being filed herewith and marked as
Annexure no. 2 to this affidavit.
8. That, it is further submitted that in
view
of
the
aforesaid
facts
and
circumstances it is clear that the
aforesaid certificate dated 10.7.2014 is a
forged and fabricated one.
9. That, it is further most respectfully
submitted that the certificates issued by
the
office
of
Registrar-IInd,
Hindu
Marriage, Bareilly is totally computerized
and system generated which is evident
from the certificate annexed herewith in
preceding paragraphs of this affidavit.
11. The facts stated in the counter
affidavit are not denied or even proposed
to be denied by the petitioners by filing
rejoinder affidavit. This Court has no
doubts in mind that false averments have
been made in the writ petition and fake
Hindu Marriage Certificate, dated 10th
July, 2014 has been filed as Anenxure No.
2 to the writ petition. The alleged original
of the said marriage certificate was also
produced by the petitioner before this
Court as aforementioned. Petitioners
deserve no sympathy because of willful
and conscious conduct of making false
averments as well as producing fake
marriage certificate.
12. A writ petition which is based on
falsehood must be dismissed at the
threshold. It is settled law that a person
who approaches the Court under Article
226 of the Constitution of India must
approach with clean hands, clean mind
and clean heart.
13. In the case of United India
Insurance Company Ltd. V. B.Rajendra
Singh and others, JT 2000(3)SC.151,
considering the fact of fraud, Hon'ble
Supreme Court held in paragraph 3 as
under :
"Fraud and justice never dwell
together".
(Frans
et
jus
nunquam
cohabitant) is a pristine maxim which has
never lost its temper overall these
centuries. Lord Denning observed in a
language without equivocation that "no
judegment of a Court, no order of a
Minister can be allowed to stand if it has
been obtained by fraud, for fraud unravels
everything"(Lazarus
Estate
Ltd.
V.
Beasley 1956(1)QB 702).
14. In the case of Vice Chairman,
Kendriya
Vidyalaya
Sangathan
and
Another Vs. Girdhari Lal Yadav, 2004 (6)
SCC
325,
Hon'ble
Supreme
Court
1518
 INDIAN LAW REPORTS ALLAHABAD SERIES
considered the applicability of principles
of natural justice in cases involving fraud
and held in paragraphs 12 and 13 as under
:
"12. Furthermore, the respondent
herein has been found guilty of an act of
fraud. In opinion, no further opportunity
of hearing is necessary to be afforded to
him. It is not necessary to dwell into the
matter any further as recently in the case
of Ram chandra Singh v. Savitri devi this
Court has noticed : (SCC p. 327 paras 1519)
"15. Commission of fraud on court
and suppression of material facts are the
core issues involved in these matters.
Fraud as is well-known vitiates every
solemn act. Fraud and justice never
dwells together.
16. Fraud is a conduct either by letter
or words, which induces the other person,
or
authority
to
take
a
definite
determinative stand as a response to the
conduct of former either by word or letter.
17. It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may
also give reason to claim relief against
fraud.
18.A fraudulent misrepresentation is
called deceit and consists in leading a
man
into
damage
by
willfully
or
recklessly causing him to believe and act
on falsehood. It is a fraud in law if a party
makes representations which he knows to
be false, and injury ensues therefrom
although the motive from which the
representations proceeded may not have
been bad."
19. In an action of deceit the plaintiff
must prove actual fraud. Fraud is proved
when
it
is
shown
that
a
false
representation has been made knowingly,
or without belief in its truth, or recklessly,
without caring whether it be true or false.
A false statement, made through
carelessness
and
without
reasonable
ground for believing it to be true, may be
evidence of fraud but does not necessarily
amount to fraud. Such a statement, if
made in the honest belief that it is true, is
not fraudulent and does not render the
person make it liable to an action of
deceit.
13.
In
view
of
our
findings
aforementioned that the respondent was
guilty of an act of fraud, in our opinion,
the Central Administrative tribunal as also
the High court committed a manifest error
in setting aside the order of the appointing
authority as also the Appellate Authority."
15.
In the case of Ram Chandra
Singh Vs. Savitri Devi and others,
2003(8) SCC 319, Hon'ble Supreme Court
held in paragraphs 15, 16, 17, 18, 25 and
37 as under :
"15. Commission of fraud on court
and suppression of material facts are the
core issues involved in these matters.
Fraud as is well-known vitiates every
solemn act. Fraud and justice never
dwells together.
16. Fraud is a conduct either by letter
or words, which induces the other person,
or
authority
to
take
a
definite
determinative stand as a response to the
conduct of former either by word or letter.
17. It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may
also give reason to claim relief against
fraud.
18.A fraudulent misrepresentation is
called deceit and consists in leading a
man
into
damage
by
willfully
or
recklessly causing him to believe and act
on falsehood. It is a fraud in law if a party
makes representations which he knows to
3 All]. Smt. Kamala Devi & Anr. Vs. State of U.P. & Ors.
1519
be false, and injury ensues therefrom
although the motive from which the
representations proceeded may not have
been bad.
25. Although in a given case a
deception may not amount to fraud, fraud
is anathema to all equitable principles and
any affair tainted with fraud cannot be
perpetuated or saved by the application of
any equitable doctrine including resjudicata.
37. It will bear repetition to state that
any order obtained by practicing fraud on
court is also non-est in the eyes of law."
16.

In
the
case
of
S.P.
ChengalVaraya Naidu (dead) by L.Rs Vs.
Jagannath (dead) by L.Rs and others, AIR
1994 SC 853, the Hon'ble Supreme Court
held in para 7 as under :
"7. The High Court, in our view, fell
into patent error. The short question
before the High Court was whether in the
facts and circumstances of this case,
Jagannath obtained the preliminary decree
by playing fraud on the court. The High
Court, however, went haywire and made
observations which are wholly perverse.
We do not agree with the High Court that
"there is no legal duty cast upon the
plaintiff to come to court with a true case
and prove it by true evidence". The
principle of "finality of litigation" cannot
be pressed to the extent of such an
absurdity that it becomes an engine of
fraud in the hands of dishonest litigants.
The courts of law are meant for imparting
justice between the parties. One who
comes to the court, must come with clean
hands. We are constrained to say that
more often than not, process of the court
is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other
unscrupulous persons from all walks of
life find the court-process a convenient
lever
to
retain
the
illegal-gains
indefinitely. We have no hesitation to say
that a person, who's case is based on
falsehood, has no right to approach the
court. He can be summarily thrown out at
any stage of the litigation."
17. In the case of Jainendra Singh
Vs. State of U.P., 2012 (8) SCC 748,
Hon'ble Supreme Court considered the
fact of appointment obtained by fraud and
held in para 29.1 to 29.10 as under :
"29.1 Fraudulently obtained orders of
appointment could be legitimately treated
as voidable at the option of the employer
or could be recalled by the employer and
in such cases merely because the
respondent employee has continued in
service for a number of years, on the basis
of
such
fraudulently
obtained
employment, cannot get any equity in his
favour or any estoppel against the
employer.
29.2 Verification of the character and
antecedents is one of the important
criteria to test whether the selected
candidate is suitable to the post under the
State and on account of his antecedents
the appointing authority if find not
desirable to appoint a person to a
disciplined force can it be said to be
unwarranted.
29.3
When
appointment
was
procured by a person on the basis of
forged documents, it would amount to
misrepresentation and fraud on the
employer and, therefore, it would create
no equity in his favour or any estoppel
against the employer while resorting to
termination without holding any inquiry.
29.4 A candidate having suppressed
material information and/or giving false
information cannot claim right to continue
1520
 INDIAN LAW REPORTS ALLAHABAD SERIES
in service and the employer, having
regard to the nature of employment as
well as other aspects, has the discretion to
terminate his services. 3
29.5
Purpose
of
calling
for
information regarding involvement in any
criminal case or detention or conviction is
for the purpose of verification of the
character/antecedents at the time of
recruitment and suppression of such
material information will have clear
bearing on the character and antecedents
of the candidate in relation to his
continuity in service.
29.6 The person who suppressed the
material information and/or gives false
information cannot claim any right for
appointment or continuity in service.
29.7 The standard expected of a
person intended to serve in uniformed
service is quite distinct from other
services and, therefore, any deliberate
statement or omission regarding a vital
information can be seriously viewed and
the ultimate decision of the appointing
authority cannot be faulted.
29.8 An employee on probation can
be discharged from service or may be
refused employment on the ground of
suppression of material information or
making false statement relating to his
involvement
in
the
criminal
case,
conviction or detention, even if ultimately
he was acquitted of the said case,
inasmuch as such a situation would make
a person undesirable or unsuitable for the
post.
29.9 An employee in the uniformed
service pre-supposes a higher level of
integrity as such a person is expected to
uphold the law and on the contrary such a
service born in deceit and subterfuge
cannot be tolerated.
29.10The authorities entrusted with
the
responsibility
of
appointing
Constables, are under duty to verify the
antecedents of a candidate to find out
whether he is suitable for the post of a
Constable and so long as the candidate
has not been acquitted in the criminal
case, he cannot be held to be suitable for
appointment to the post of Constable."
(Emphasis supplied by me)
18. In the case of Ram Chandra
Singh Vs. Savitri Devi and others, JT
2005 (11) SC 439, Hon'ble Supreme
Court has elaborately considered the
meaning of the word fraud and its effects
and held in para 15 to 34 as under :
"15. Commission of fraud on court
and suppression of material facts are the
core issues involved in these matters.
Fraud as is well-known vitiates every
solemn act. Fraud and justice never
dwells together.
16. Fraud is a conduct either by letter
or words, which induces the other person,
or
authority
to
take
a
definite
determinative stand as a response to the
conduct of former either by word or letter.
17.
It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may also
give reason to claim relief against fraud.
18. A fraudulent misrepresentation is
called deceit and consists in leading a
man
into
damage
by
willfully
or
recklessly causing him to believe and act
on falsehood. It is a fraud in law if a party
makes representations which he knows to
be false, and injury ensues therefrom
although the motive from which the
representations proceeded may not have
been bad.
19. In Derry v. Peek, (1889) 14 AC
337, if was held:
In an 'action of deceit the plaintiff
must prove actual fraud. Fraud is proved
3 All]. Smt. Kamala Devi & Anr. Vs. State of U.P. & Ors.
1521
when
it
is
shown
that
a
false
representation has been made knowingly,
or without belief in its truth, or recklessly,
without caring whether it be true or false.
A false statement, made through
carelessness
and
without
reasonable
ground for believing it to be true, may be
evidence of fraud but does not necessarily
amount to fraud. Such a statement, if
made in the honest belief that it is true, is
not fraudulent and does not render the
person make it liable to an action of
deceit.
20. In Kerr on Fraud and Mistake at
page 23, it is stated:
"The true and only sound principle to
be derived from the cases represented by
Slim
v.
Croucher
is
this
that
a
representation is fraudulent not only when
the person making it knows it to be false,
but also when, as Jessel, M.R., pointed
out, he ought to have known, or must be
taken to have known, that it was false.
This is a sound and intelligible principle,
and is, moreover, not inconsistent with
Derry v. Peek, A false statement which a
person ought to have known was false,
and which he must therefore be taken to
have known was false, cannot be said to
be honestly believed in. "A consideration
of the grounds of belief", said Lord
Herschell, "is no doubt an important aid in
ascertaining whether the belief was really
entertained. A man's mere assertion that
he believed the statement he made to be
true is not accepted as conclusive proof
that he did so."
21.
In
Bigelow
on
Fraudulent
Conveyances at page 1, it is stated :
"If on the facts the average man
would have intended wrong, that is
enough."
22. It was further opined:
"This conception of fraud (and since
it is not the writer's, he may speak of it
without diffidence), steadily kept in view,
will render the administration of the law
less difficult, or rather will make its
administration more effective. Further,
not to enlarge upon the last matter, it will
do away with much of he prevalent
confusion in regard to 'moral' fraud, a
confusion which, in addition to other
things, often causes lawyers to take refuge
behind such convenient and indeed useful
but often obscure language as 'fraud upon
the law'. What is fraud upon the law?
Fraud can be committed only against a
being capable of rights, and 'fraud, upon
the law' darkens counsel. What is really
aimed at in most cases by this obscure
contrast between moral fraud and fraud
upon the law, is a contrast between fraud
in the individual's intention to commit the
wrong and fraud as seen in the obvious
tendency of the act in question."
23. Recently this Court by an order
dated 3^rd September, 2003 in Ram Preeti
Yadav v. U.P. Board of High School &
Intermediate Education and Ors. reported
in JT 2003 (Supp. 1) SC 25 held:
"Fraud is a conduct either by letter or
words, which induces the other person, or
authority to take a definite determinative
stand as a response to the conduct of
former either by words or letter. Although
negligence is not fraud but it can be
evidence on fraud. (See Derry v. Peek
(1889) 14 AC 337).In Lazarus Estate v.
Berly [(1956) 1 All ER 341] the Court of
Appeal stated the law thus:
"I cannot accede to this argument for
a moment "no Court in this land will
allow a person to keep an advantage
which he has obtained by fraud. No
judgment of a Court, no order of a
Minister, can be allowed to stand if it has
been obtained by fraud. Fraud unravels
everything". The Court is careful not to
find fraud unless it is distinctly pleaded
1522
 INDIAN LAW REPORTS ALLAHABAD SERIES
and proved; but once it is proved it
vitiates judgments, contracts and all
transactions whatsoever."
In S.P. Chengalyaraya Naidu v.
Jagannath [(1994) 1 SCC 1] this Court
stated that fraud avoids all judicial acts,
ecclesiastical or temporal."
24. An act of fraud on court is always
viewed
seriously.
A
collusion
or
conspiracy with a view to deprive the
rights of the others in relation to a
property would, render the transaction
void ab initio. Fraud and deception are
synonymous. 25. In Arlidge & Parry on
Fraud, it is stated at page 21:
"Indeed, the word sometimes appears
to
be
virtually
synonymous
with
"deception", as
in the offence (now
repealed.) of obtaining credit by fraud. It
is true that in this context "fraud" included
certain kinds of conduct which did not
amount to false pretences, since the
definition referred to an obtaining of
credit "under false pretences, or by means
of any other fraud". In Jones, for example,
a man who ordered a meal without
pointing out that he had no money was
held to be guilty of obtaining credit by
fraud but not of obtaining the meal by
false pretences: his conduct, though
fraudulent, did not amount to a false
pretence. Similarly it has been suggested
that a charge of conspiracy to defraud
may be used where a "false front" has
been presented to the public (e.g. a
business appears to be reputable and
creditworthy when in fact it is neither) but
there has been nothing so concrete as a
false pretence. However, the concept of
deception (as defined in the Theft Act
1968) is broader than that of a false
pretence in that (inter alia) it includes a
misrepresentation as to the defendant's
intentions; both Jones and the "false
front" could now be treated as cases of
obtaining property by deception."
26. Although in a given case a
deception may not amount to fraud, fraud
is anathema to all equitable principles and
any affair tainted with fraud cannot be
perpetuated or saved by the application of
any equitable doctrine including resjudicata.
27. In Smt. Shrisht Dhawan v. Shaw
Brothers , it has been held that:
"Fraud and collusion vitiate even the
most solemn proceedings in any civilized
system of jurisprudence. It is a concept
descriptive of human conduct,"
28. In S.P. Chengalvaraya Naidu v.
Jagannath [(1994) 1 SCC 1] this Court in
no uncertain terms observed:
"...The principle of "finality of
litigation" cannot be passed to the extent
of such an absurdity that it becomes an
engine of fraud in the hands of dishonest
litigants. The Courts of law are meant for
imparting justice between the parties. One
who comes to the Court, must come with
clean hands. We are constrained to say
that more often than not process of the
Court is being abused. Property-grabbers,
tax-evaders, bank-loan dodgers and other
unscrupulous persons from all walks of
life find the court-process a convenient
lever
to
retain
the
illegal
gains
indefinitely. We have no hesitation to say
that a person whose case is based on
falsehood, has no right to approach the
Court. He can be summarily thrown out at
any stage of the litigation... A fraud is an
act of deliberate deception with the design
of securing something by taking unfair
advantage of another. It is a deception in
order to gain by another's loss. It is a
cheating intended to get an advantage... A
litigant, who approaches the Court, is
bound to produce all the documents
executed by him, which are relevant to the
3 All]. Smt. Kamala Devi & Anr. Vs. State of U.P. & Ors.
1523
litigation.
If
he
withholds
a
vital
document in order to gain advantage on
the other side then he would be guilty of
playing fraud on the Court as well as on
the opposite party."
29. In Indian Bank v. Satyam Fibres
(India) Pvt. Ltd. , this Court after referring
to Lazarus Estates (supra) and other cases
observed that 'since fraud affects the
solemnity, regularity and orderliness of
the proceedings of the Court it also
amounts to an abuse of the process of the
Court, that the Courts have inherent
power to set aside an order obtained, by
practising fraud upon the Court, and that
where the Court is misled by a party or
the Court itself commits a mistake which
prejudices a party, the Court has the
inherent power to recall its order".
30. It was further held:
"The judiciary in India also possesses
inherent power, specially under Section
151 CPC, to recall its judgment or order if
it is obtained by fraud" on Court, In the
case of fraud on a party to the suit or
proceedings, the Court may direct the
affected party to file a separate suit for
setting aside the decree obtained by fraud.
Inherent powers are powers, which are
resident in all Courts, especially of
superior jurisdiction. These powers spring
not from legislation but from the nature
and the constitution of the tribunals or
Courts themselves so as to enable them to
maintain their dignity, secure obedience
to its process and rules, protect its officers
from indignity and wrong and to punish
unseemly
behavior.
This
power
is
necessary for the orderly administration
of the Court's business."
31. In Chittaranjan Das v. Durgapore
Project Limited and Ors. , It has been
held:
"Suppression of a material document
which affects the condition of service of
the petitioner, would amount to fraud in
such matters. Even the principles of
natural justice are not required to be
complied within such a situation.
It is now well known that a fraud
vitiates all solemn acts. Thus, even if the
date of birth of the petitioner had been
recorded in the service returns on the
basis of the certificate produced by the
petitioner, the same is not sacrosanct nor
the respondent company would be bound
thereby."
32.
Keeping
in
view
the
aforementioned principles, the questions
raised in these appeals are required to be
considered. The High Court observed that
the application of intervention filed by the
appellant purported to be under Order
XXVI, Rules 13 and 14(2) and Order XX,
Rule 18 was not maintainable as they do
not confer any power to court for setting
aside a preliminary decree on the ground
that it was obtained by practising fraud.
But once the principles aforementioned
are to be given effect to, indisputably the
court must be held to have inherent
jurisdiction in relation thereto.
33. In Manohar Lal Chopra v. Raj
Bahadur Rao Raja Seth Hiralal , the law is
stated in the following terms:
"The Code of Civil Procedure is
undoubtedly not exhaustive: it does not
lay down rules for guidance in respect of
all situations nor does it seek to provide
rules for decision of all conceivable cases
which may arise. The civil courts are
authorized" to pass such orders as may be
necessary for the ends of justice, or to
prevent abuse of the process of court, but
where an express provision is made to
meet a particular situation the Code must
1524
 INDIAN LAW REPORTS ALLAHABAD SERIES
be observed, and departure therefrom is
not permissible."
34.In Sharda v. Dharmpal , a threeJudge Bench, of which both of us are
parties, held that directing a person to
undergo a medical test by a matrimonial
court is implicit stating:"
(Emphasis supplied by me)
19. Similar principles with regard to
fraud have been laid down by Hon'ble
Supreme Court in the case of JT 2005(6)
SC 391, para 7 to 15, JT 2007(4) SC 186,
para 19 to 39, JT 2009(9) SC 365, para 22
and 23, JT 2008 (3) SC 452, para 12.3 to
15, JT 2009(5) SC 278, para 13 to 18 and
28 and JT 2008(8) SC 57.
20. In the present set of facts the
petitioners have not approached this Court
with clean hands, clean mind and clean
heart. They have made false averments in
the writ petition. They have filed fake
papers along with the writ petition and
have also produced before this Court the
fake Marriage Certificate. Such matters
should be dealt without any leniency.
21. The respondent no. 1, 2, 4 and 5
are directed to take appropriate action in
accordance
with
law
against
the
petitioners and others who prepared fake
marriage certificate.
22. The action shall also be taken
under the criminal law. it shall be open
for the respondent no. 5 to lodge F.I.R.
and if any F.I.R. is lodged then
respondent no.2 and 4 shall take all steps
for quick and qualitative investigation in
the matter in accordance with law.
23. Under the circumstances, this
writ petition is dismissed with cost of
Rs.1,00,000/- on the petitioner no. 2
which shall be deposited by the petitioner
no. 2 within a month with High Court
Legal Cell Authority, Allahabad.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2014
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Writ Petition No. 56499 of 2011
Rajesh Kumar
...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare
Counsel for the Respondents:
A.S.G.I., S.C., Sri Satish Kishore Kakkar
Constitution of India,Art.-226-Termination
of
probationer
temporary
employeewithout held disciplinary proceeding-in
utter violation of principle of Natural
Justice-not sustainable quashed.
Held: Para-28
Considering the facts of the case, in the
light of the legal principles, discussed
herein above, I am of the view that the
impugned
order
of
termination
is
nothing but punitive and stigmatic,
therefore, cannot be sustained.
Case Law discussed:
AIR 1958 SC 36; (1999) 3 SCC 60; 1987 (1)
SCC 146; (1984) 3 SCC 384; 2010 SC 3493;
[(1980) 2 SCC 593]; 1998 (2) SCC 192; ADJ
2013 8 617; 2002 (1) SCC 743.
(Delivered by Hon'ble Suneet Kumar, J.)
1. The respondent State Bank of
India issued an advertisement in August,
2009 inviting applications for the post of
Assistant Clerk, the petitioner being
eligible applied for the post; appeared in