Thursday, 10 May 2018

Whether court should hear application U/S 340 of CRPC prior to writ petition?

Learned counsel for respondent has also relied upon the
order dated 15th December, 2017, passed by this Court [Coram : A.S.
Gadkari, J.], in Criminal Application No.728 of 2017; wherein also
this Court has recorded the submission of learned counsel for
respondent that his application preferred under Section 340 C.P.C, be
heard first in point of time and accordingly adjourned the matter to
2
nd February, 2018.
6] Learned counsel for respondent has then relied upon the
judgments of Hon'ble Apex Court, in the cases of i] Dalip Singh -vsState
of Uttar Pradesh [(2010} 2 SCC 114], ii] Rameshwari Devi-vs
Nirmala Devi [(2011) 8 SCC 249, and iii] Kishore Samrite -vs- State
of Uttar Pradesh[(2013) 2 SCC 398], holding that, “It is very well
settled that a person whose case is based on falsehood has no right to
approach the Court and he is not entitled to be heard on merits and he
can be thrown out at any stage of the litigation.

7] In my considered opinion, having regard to the above said
legal position spelt out by learned counsel for respondent, it would be
just and proper to hear C.A. No.2939 of 2017 filed by respondent
under Section 340 C.P.C. before deciding the Writ Petition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.2939 OF 2017
IN
WRIT PETITION NO.14039 OF 2017
Harish V. Milani … Applicant
IN THE MATTER OF WRIT PETITION BETWEEN
Union of India … Petitioner.
V/s.
Mr. Haresh V. Milani and anr … Respondents

CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

ORDER PRONOUNCED ON : 26th APRIL, 2018.




1] Heard learned counsel for the petitioner and respondent,
on a very short point, as to whether the Civil Application No.2939 of
2017, filed by respondent under Section 340 of the Code of Civil
Procedure, has to be decided and enquired into first before the Writ
Petition filed by petitioner under Article 227 of the Constitution of

India, which is challenging the order of amendment in the plaint,
allowed by the trial Court.
2] According to learned counsel for respondent, as some false
and misleading statements are made by the petitioner, to their own
knowledge, in the Writ Petition, therefore, respondent has moved this
Civil Application for taking action against the petitioner under
Section 340 C.P.C. It is submitted that the writ petition can be
decided as per law, only on the basis of result of the enquiry under
Section 340 C.P.C. and therefore, this Application should be decided
first.
3] Learned counsel for the petitioner, has however, denied
that any false averments are made in the writ petition and submitted
that the writ petition needs to be heard first as the proceeding before
the trial Court are unnecessarily stalled. It is submitted that filing of
such Civil Application is an attempt on the part of respondent to
continue to be in unlawful possession of the suit land, as respondent
knows that the hearing of the application filed under Section 340
C.P.C. which is though baseless and false, is going to consume time of
this Court.
4] Learned counsel for respondent has, in support of his
submission relied upon the judgment of Allahabad High Court, in the
case of Syed Nazim Husain -vs- The Additional Principal Judge Family

Court and anr in Writ Petition No.(M/S) of 2002, wherein also
similar point was raised as to whether the application under Section
340 C.P.C., has to be decided first before adjudicating the proceeding
in which the said application was filed. By it's order, Allahabad High
Court has directed the trial Court to dispose of the application moved
by petitioner under Section 340 C.P.C., before proceeding further in
accordance with law.
5] Learned counsel for respondent has also relied upon the
order dated 15th December, 2017, passed by this Court [Coram : A.S.
Gadkari, J.], in Criminal Application No.728 of 2017; wherein also
this Court has recorded the submission of learned counsel for
respondent that his application preferred under Section 340 C.P.C, be
heard first in point of time and accordingly adjourned the matter to
2
nd February, 2018.
6] Learned counsel for respondent has then relied upon the
judgments of Hon'ble Apex Court, in the cases of i] Dalip Singh -vsState
of Uttar Pradesh [(2010} 2 SCC 114], ii] Rameshwari Devi-vs
Nirmala Devi [(2011) 8 SCC 249, and iii] Kishore Samrite -vs- State
of Uttar Pradesh[(2013) 2 SCC 398], holding that, “It is very well
settled that a person whose case is based on falsehood has no right to
approach the Court and he is not entitled to be heard on merits and he
can be thrown out at any stage of the litigation.

7] In my considered opinion, having regard to the above said
legal position spelt out by learned counsel for respondent, it would be
just and proper to hear C.A. No.2939 of 2017 filed by respondent
under Section 340 C.P.C. before deciding the Writ Petition.
8] Accordingly stand over to hearing on Civil Application
No.2939 of 2017 to 20.06.2018.
9] Ad-interim relief granted earlier to continue till then.
[DR.SHALINI PHANSALKAR-JOSHI, J.]

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