Chandigarh, October 22,2021: The Punjab and Haryana High Court has directed the District Magistrate, Karnal, to ensure that the possession of the property in question is restored to the auction purchaser and opined that the petitioners candidly having not stated the truth or having suppressed the facts, are not entitled for hearing on merits.
The Division Bench of Justice G.S.Sandhawalia and Justice Sant Parkash observed that the petitioner was taking chances before different Courts and doing forum shopping subject to his convenience. He had approached this Court initially and having not succeeded in the first round of litigation, approached the Tribunal and then the present litigation was initiated. Therefore, in view of the conduct of the petitioner, he did not deserve any hearing on merits.
The present Writ Petition, under Article 226/227 of the Constitution of India, was filed for seeking directions against the respondents not to take physical possession of the shop in question forcibly and illegally from the petitioner. Challenge was also raised to the Order passed by the first respondent, DRT, whereby the prayer for interim relief had been denied in a miscellaneous application.
On an earlier date, the Coordinate Bench had held that the petitioner had approached this Court and the possession had been delivered to the auction purchaser and the writ petition had been rendered infructuous.
The petitioner then approached the DRT on December 29,2020 wherein an impression was given that he was still in physical possession and accordingly, it was ordered that no cause of action, as such, has accrued in favour of the applicant. The SA was accordingly dismissed as premature. Another application was filed later, in which the Tribunal further passed an order that prayer of any kind of interim relief was not allowed. Challenging the same, the petitioner had come to this Court.
This Court had also protected the petitioner and the respondents were restrained to take physical possession of the shop keeping in view that no evaluation report had been taken as contemplated under Rule 8 (5) of the Security Interest (Enforcement) Rules, 2002.
Later, a writ petition was filed by the auction purchaser for restoration of the property by specifically alleging that possession was with him since October 27,2020. The petitioner along with other had broken the locks of the shop and entered in the same. The matter had been reported to the police on the same day and even photographs as such were placed on record. Notice was issued to the petitioner’s counsel for the petitioner to file reply which had not been done.
The Division Bench noted that keeping in view the fact that since there had been concealment of the facts, question of hearing the petitioner on merits did not arise. It is the settled principle that in extraordinary jurisdiction, the writ Court has to keep in mind the conduct of the parties to invoke its extraordinary writ jurisdiction. The petitioners candidly having not stated the truth or having suppressed the facts as noticed above, are not entitled for hearing on merits, said the Bench.
The Division Bench also clarified that the benefit of interim relief as such was taken by not disclosing the correct facts to this Court that on an earlier occasion the writ petition had been dismissed as infructuous on account of the fact that possession had already been delivered to auction purchaser. This fact was suppressed from this Court which had passed the interim order in his favour. After taking the interim order, the petitioner as such had also interfered in the possession of the auction purchaser forcing him to file the petition for restoration of the possession.
The judgment of the Apex Court in the case of M/s Prestige Lights Ltd. Vs. State Bank of India was also referredd to wherein it has been held that if there was suppression of material facts or twisted facts had been placed before the Court, the writ Court may refuse to entertain the petition and dismiss it without entering into the merits of the matter.
Thus, observing that the present case was also one such case where parties whose hands were soiled, could not ask for hearing on merits, the Court allowed the restoration application filed by the auction purchaser-third respondent and ordered that possession be restored to him in view of the fact that he got the sale deed in his favour by paying Rs.18,80,000 and question of petitioner retaining the possession did not arise.