respondents 4 to 10 never entered appearance in these proceedings. It was not as if they chose to appear and filed a counter wherein they remained silent as to the commission of the alleged fraud by them. Non-traverse would constitute an implied admission under Order 8 Rule 5 CPC which reads to the effect that every allegation of fact in the plaint if not denied specifically or by necessary implication in the pleading of the defendant shall be taken to be admitted. But even so, the proviso thereto empowers the Court, in its discretion, to require any fact so admitted to be proved otherwise than by such admission. As law requires fraud to be specifically pleaded and proved, the failure of respondents 4 to 10 in this case to contest the matter does not attract the doctrine of non-traverse and it is for the review petitioners/appellants to establish the commission of fraud independently. Having failed to even raise sufficient pleadings in this regard, much less establishing the same by independent proof, a feeble attempt is now sought to be made to raise this aspect as a ground for review! We therefore find no merit in the grounds urged to substantiate the contention that there is an error apparent on the face of the record. Before parting with the case, we are constrained to note the unhealthy and distressing trend, which is on the rise, of disparaging Judges by launching personal attacks against them. Interaction between the Bench and the Bar, as in the present case, is normally aimed at encouraging and inspiring the learned counsel to make good deficiencies in knowledge and learning. That was the reason why the Honble The Chief Justice pointedly put questions to the appearing advocate as to sufficiency of pleadings in the writ affidavit about the commission of the alleged fraud. It is indeed appalling that the learned counsel has chosen to launch a personal tirade against the Honble The Chief Justice in this regard by addressing a complaint against him and has stooped to the level of making it a part of the record, obviously with the intention of pressurizing us! Significantly, statutory protection is afforded to Judges for any act, thing or word committed, done or spoken when, or in the course of, acting or purporting to act in the discharge of official or judicial duties or functions and no civil or criminal proceeding can be instituted in connection therewith . Unmindful of this legal embargo, the present petition seeks to make the alleged utterances of the Honble The Chief Justice during the hearing of the appeal a ground for seeking review! As no civil proceeding can be instituted in connection therewith, such alleged utterances set out at length in the grounds of review cannot be permitted to remain on record and shall accordingly stand expunged. This review petition is therefore a clear abuse of the process of this Court and warrants dismissal with exemplary costs. The review petition is therefore dismissed with costs of Rs.5,000/- (Rupees Five Thousand only) payable to the High Court Legal Services Committee within two weeks from date. Registry is directed to list the matter after three weeks for reporting compliance.
THE HONBLE THE CHIEF JUSTICE SHRI KALYAN JYOTI SENGUPTA AND THE HONBLE SHRI JUSTICE SANJAY KUMAR
REVIEW W.A.M.P.NO.3901 OF 2014
25-03-2015
Smt. Vijaya Williams and others Petitioners
Municipal Corporation of Hyderabad and others Respondents
Counsel for petitioners: Sri Mamidi Venu Madhav
Counsel for respondent No.1: Sri C. Damodar Reddy
Counsel for respondent No.2: Government Pleader for
Municipal Administration
and Urban Development for
the State of Telangana
Counsel for 3 to 10 respondents : --
<GIST:
>HEAD NOTE:
? CASES REFERRED:
1. 1996 (2) ALD 1220
2. (1994) 1 Supreme Court Cases 1
3. (2002) 9 Supreme Court Cases 764
4. (2011) 12 Supreme Court Cases 18
5. (2008) 15 Supreme Court Cases 673
6. (2005) 10 Supreme Court Cases 465
PRESENT
THE HONBLE THE CHIEF JUSTICE
SHRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SHRI JUSTICE SANJAY KUMAR
REVIEW W.A.M.P.NO.3901 OF 2014
IN
W.A.NO.1158 OF 2014
DATED 25th MARCH, 2015
THE HONBLE THE CHIEF JUSTICE
SHRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SHRI JUSTICE SANJAY KUMAR
REVIEW W.A.M.P.NO.3901 OF 2014
IN
W.A.NO.1158 OF 2014
O R D E R
(Per Honble Shri Justice Sanjay Kumar)
By order dated 11.09.2014, this Division Bench, speaking
through the Honble The Chief Justice, confirmed the order dated
10.03.2013 passed in W.P.No.19324 of 2006 by a learned Single
Judge and dismissed W.A.No.1158 of 2014 filed by the unsuccessful
writ petitioners. W.A.M.P.No.3901 of 2014 is filed by them seeking
review of the order dated 11.09.2014.
Perusal of our order under review reflects that the writ appeal
was dismissed affirming the finding of the learned Single Judge that
the appellants/writ petitioners, having failed in the civil suits filed
by them, did not choose to pursue appellate remedies but
erroneously filed a writ petition in 2006 seeking to challenge a
Government Order of the year 1977 and a consequential final layout
of 1978. This Bench also rejected the contention of the appellants
as regards fraud being committed in the context of the Government
Order, as no pleadings were set out in the writ affidavit to
substantiate the same. Further, this Bench declined to interfere
with the discretion exercised by the learned Single Judge in refusing
to entertain a challenge to a Government Order twenty nine years
after its issuance.
The present review petition is purportedly filed on the
following grounds:
(1) The arguments and judgments cited by Sri Potti
Venkata Ramana Rao, learned counsel who
appeared before us, were not mentioned.
(2) The argument of the appellants as regards
commission of fraud vis--vis the Government
Order under challenge was not dealt with.
(3) The contention that respondents 4 to 10 in the writ
appeal/writ petition did not contest the matter and
that they are deemed to have admitted the fraud
was not considered.
It is however deplorable that the grounds of review also set
out at great length the oral exchange alleged to have taken place
between the Honble The Chief Justice and the learned counsel on
09.09.2014 and 10.09.2014. The learned counsel went to the
extent of stating in his grounds that a complaint had been
addressed to the Honble President of India by Sri Potti Venkata
Ramana Rao, Advocate, and that the same should be read as part of
the grounds of review! A copy of the said complaint is also annexed
to the review petition and perusal thereof reflects that it is a
concerted vilification campaign against the Honble The Chief
Justice. Perusal of the letter addressed by Sri Potti Venkata
Ramana Rao, Advocate, to Sri Mamidi Venu Madhav, Advocate,
which is also placed on record, evidences that Sri Mamidi Venu
Madhav was physically present on 09.09.2014 and 10.09.2014
when the writ appeal was heard by this Bench and Sri Potti Venkata
Ramana Rao advanced arguments. The intention of Sri Mamidi
Venu Madhav, learned counsel who argued the present review
petition and who was also the counsel on record in the writ appeal,
is apparent. An unabashed attempt is being made to pressurize this
Bench by launching a diatribe against us.
It is the case of the review petitioners that there is an error
apparent on the face of the record in so far as our order dated
11.09.2014 in W.A.No.1158 of 2014 is concerned, warranting review
thereof under Order 47 Rule 1 CPC read with Rule 24 of the Writ
Proceedings Rules, 1977.
Learned counsel relied on SCHOLARS AND TEACHERS
ACTION COMMITTEE (STAC) V/s. ANDHRA UNIVERSITY in
support of his contention that the delay on the part of the
appellants/review petitioners in filing the writ petition challenging a
Government Order after 29 years was not fatal. However, perusal of
the judgment reflects that a Division Bench of this Court merely
opined therein that the question of delay is not a rule of law but one
of practice, that each case must depend upon its own facts and that
there is no upper or lower limit for delay and that no period of
limitation is prescribed for filing a writ petition. In the present case,
the learned Single Judge exercised his discretion judiciously while
holding that the delay of 29 years, in the given facts and
circumstances, was fatal. No grounds were made out before us
either during the hearing of the appeal or during the hearing of this
review petition to hold that the exercise of such discretion by the
learned Single Judge warrants interference. This judgment is
therefore of no avail to the review petitioners/appellants.
Trite to state, unfounded arguments and irrelevant citations
need not be dealt with at length by the Court, unnecessarily
burdening the judgment. In the present case, though
S.P. CHENGALVARAYA NAIDU (DEAD) BY LRS. V/s. JAGANNATH
(DEAD) BY LRS. and COMMISSIONER OF CUSTOMS V/s. CANDID
ENTERPRISES , relating to fraud, were cited at the time of hearing
of the appeal, we did not find sufficient pleadings in the writ
affidavit as to the commission of the alleged fraud. At the time of
hearing of the appeal and again during the hearing of this review
petition, the learned counsel appearing for the review
petitioners/appellants were specifically asked to point out the
relevant pleading as regards the alleged fraud. Except for a passing
mention in paragraph 4 of the writ affidavit that respondents 4 to 10
played fraud, no specific details of the alleged fraud and as to how it
was committed were set out.
It is a settled legal position that fraud must be specifically
pleaded and proved (SARADAMANI KANDAPPAN V/s. S.
RAJALAKSHMI , RANGANAYAKAMMA V/s. K.S. PRAKASH (DEAD)
BY LRS. and CHIEF ENGINEER, M.S.E.B. V/s. SURESH
RAGHUNATH BHOKAREA ). It was owing to the complete lack of
supporting pleadings that the contention urged by the learned
counsel as to the alleged fraud was not considered and
consequently, the judgments cited by him were also not referred to
at length. Failing to realize the shortcoming in the pleadings and
arguments, the learned counsel has now chosen to make his own
failure a ground for seeking review of our order!
As regards the so called admission of the allegation of fraud
emanating from the failure of respondents 4 to 10 in the writ
petition/writ appeal to contest the matter, Sri Mamidi Venu
Madhav, learned counsel, was asked as to whether he was aware of
the doctrine of non-traverse and as to how it should be applied. The
learned counsel fairly conceded that he was not aware of the
doctrine and its application.
In the present case, it may be noted that respondents 4 to 10
never entered appearance in these proceedings. It was not as if they
chose to appear and filed a counter wherein they remained silent as
to the commission of the alleged fraud by them. Non-traverse would
constitute an implied admission under Order 8 Rule 5 CPC which
reads to the effect that every allegation of fact in the plaint if not
denied specifically or by necessary implication in the pleading of the
defendant shall be taken to be admitted. But even so, the proviso
thereto empowers the Court, in its discretion, to require any fact so
admitted to be proved otherwise than by such admission. As law
requires fraud to be specifically pleaded and proved, the failure of
respondents 4 to 10 in this case to contest the matter does not
attract the doctrine of non-traverse and it is for the review
petitioners/appellants to establish the commission of fraud
independently. Having failed to even raise sufficient pleadings in
this regard, much less establishing the same by independent proof,
a feeble attempt is now sought to be made to raise this aspect as a
ground for review!
We therefore find no merit in the grounds urged to
substantiate the contention that there is an error apparent on the
face of the record.
Before parting with the case, we are constrained to note the
unhealthy and distressing trend, which is on the rise, of disparaging
Judges by launching personal attacks against them. Interaction
between the Bench and the Bar, as in the present case, is normally
aimed at encouraging and inspiring the learned counsel to make
good deficiencies in knowledge and learning. That was the reason
why the Honble The Chief Justice pointedly put questions to the
appearing advocate as to sufficiency of pleadings in the writ affidavit
about the commission of the alleged fraud. It is indeed appalling
that the learned counsel has chosen to launch a personal tirade
against the Honble The Chief Justice in this regard by addressing a
complaint against him and has stooped to the level of making it a
part of the record, obviously with the intention of pressurizing us!
Significantly, statutory protection is afforded to Judges for
any act, thing or word committed, done or spoken when, or in the
course of, acting or purporting to act in the discharge of official or
judicial duties or functions and no civil or criminal proceeding can
be instituted in connection therewith . Unmindful of this legal
embargo, the present petition seeks to make the alleged utterances
of the Honble The Chief Justice during the hearing of the appeal a
ground for seeking review! As no civil proceeding can be instituted
in connection therewith, such alleged utterances set out at length in
the grounds of review cannot be permitted to remain on record and
shall accordingly stand expunged.
This review petition is therefore a clear abuse of the process of
this Court and warrants dismissal with exemplary costs. The review
petition is therefore dismissed with costs of Rs.5,000/- (Rupees Five
Thousand only) payable to the High Court Legal Services Committee
within two weeks from date. Registry is directed to list the matter
after three weeks for reporting compliance.
_________________________________
KALYAN JYOTI SENGUPTA, CJ
____________________________
SANJAY KUMAR, J
25th MARCH, 2015
REVIEW W.A.M.P.NO.3901 OF 2014
25-03-2015
Smt. Vijaya Williams and others Petitioners
Municipal Corporation of Hyderabad and others Respondents
Counsel for petitioners: Sri Mamidi Venu Madhav
Counsel for respondent No.1: Sri C. Damodar Reddy
Counsel for respondent No.2: Government Pleader for
Municipal Administration
and Urban Development for
the State of Telangana
Counsel for 3 to 10 respondents : --
<GIST:
>HEAD NOTE:
? CASES REFERRED:
1. 1996 (2) ALD 1220
2. (1994) 1 Supreme Court Cases 1
3. (2002) 9 Supreme Court Cases 764
4. (2011) 12 Supreme Court Cases 18
5. (2008) 15 Supreme Court Cases 673
6. (2005) 10 Supreme Court Cases 465
PRESENT
THE HONBLE THE CHIEF JUSTICE
SHRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SHRI JUSTICE SANJAY KUMAR
REVIEW W.A.M.P.NO.3901 OF 2014
IN
W.A.NO.1158 OF 2014
DATED 25th MARCH, 2015
THE HONBLE THE CHIEF JUSTICE
SHRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SHRI JUSTICE SANJAY KUMAR
REVIEW W.A.M.P.NO.3901 OF 2014
IN
W.A.NO.1158 OF 2014
O R D E R
(Per Honble Shri Justice Sanjay Kumar)
By order dated 11.09.2014, this Division Bench, speaking
through the Honble The Chief Justice, confirmed the order dated
10.03.2013 passed in W.P.No.19324 of 2006 by a learned Single
Judge and dismissed W.A.No.1158 of 2014 filed by the unsuccessful
writ petitioners. W.A.M.P.No.3901 of 2014 is filed by them seeking
review of the order dated 11.09.2014.
Perusal of our order under review reflects that the writ appeal
was dismissed affirming the finding of the learned Single Judge that
the appellants/writ petitioners, having failed in the civil suits filed
by them, did not choose to pursue appellate remedies but
erroneously filed a writ petition in 2006 seeking to challenge a
Government Order of the year 1977 and a consequential final layout
of 1978. This Bench also rejected the contention of the appellants
as regards fraud being committed in the context of the Government
Order, as no pleadings were set out in the writ affidavit to
substantiate the same. Further, this Bench declined to interfere
with the discretion exercised by the learned Single Judge in refusing
to entertain a challenge to a Government Order twenty nine years
after its issuance.
The present review petition is purportedly filed on the
following grounds:
(1) The arguments and judgments cited by Sri Potti
Venkata Ramana Rao, learned counsel who
appeared before us, were not mentioned.
(2) The argument of the appellants as regards
commission of fraud vis--vis the Government
Order under challenge was not dealt with.
(3) The contention that respondents 4 to 10 in the writ
appeal/writ petition did not contest the matter and
that they are deemed to have admitted the fraud
was not considered.
It is however deplorable that the grounds of review also set
out at great length the oral exchange alleged to have taken place
between the Honble The Chief Justice and the learned counsel on
09.09.2014 and 10.09.2014. The learned counsel went to the
extent of stating in his grounds that a complaint had been
addressed to the Honble President of India by Sri Potti Venkata
Ramana Rao, Advocate, and that the same should be read as part of
the grounds of review! A copy of the said complaint is also annexed
to the review petition and perusal thereof reflects that it is a
concerted vilification campaign against the Honble The Chief
Justice. Perusal of the letter addressed by Sri Potti Venkata
Ramana Rao, Advocate, to Sri Mamidi Venu Madhav, Advocate,
which is also placed on record, evidences that Sri Mamidi Venu
Madhav was physically present on 09.09.2014 and 10.09.2014
when the writ appeal was heard by this Bench and Sri Potti Venkata
Ramana Rao advanced arguments. The intention of Sri Mamidi
Venu Madhav, learned counsel who argued the present review
petition and who was also the counsel on record in the writ appeal,
is apparent. An unabashed attempt is being made to pressurize this
Bench by launching a diatribe against us.
It is the case of the review petitioners that there is an error
apparent on the face of the record in so far as our order dated
11.09.2014 in W.A.No.1158 of 2014 is concerned, warranting review
thereof under Order 47 Rule 1 CPC read with Rule 24 of the Writ
Proceedings Rules, 1977.
Learned counsel relied on SCHOLARS AND TEACHERS
ACTION COMMITTEE (STAC) V/s. ANDHRA UNIVERSITY in
support of his contention that the delay on the part of the
appellants/review petitioners in filing the writ petition challenging a
Government Order after 29 years was not fatal. However, perusal of
the judgment reflects that a Division Bench of this Court merely
opined therein that the question of delay is not a rule of law but one
of practice, that each case must depend upon its own facts and that
there is no upper or lower limit for delay and that no period of
limitation is prescribed for filing a writ petition. In the present case,
the learned Single Judge exercised his discretion judiciously while
holding that the delay of 29 years, in the given facts and
circumstances, was fatal. No grounds were made out before us
either during the hearing of the appeal or during the hearing of this
review petition to hold that the exercise of such discretion by the
learned Single Judge warrants interference. This judgment is
therefore of no avail to the review petitioners/appellants.
Trite to state, unfounded arguments and irrelevant citations
need not be dealt with at length by the Court, unnecessarily
burdening the judgment. In the present case, though
S.P. CHENGALVARAYA NAIDU (DEAD) BY LRS. V/s. JAGANNATH
(DEAD) BY LRS. and COMMISSIONER OF CUSTOMS V/s. CANDID
ENTERPRISES , relating to fraud, were cited at the time of hearing
of the appeal, we did not find sufficient pleadings in the writ
affidavit as to the commission of the alleged fraud. At the time of
hearing of the appeal and again during the hearing of this review
petition, the learned counsel appearing for the review
petitioners/appellants were specifically asked to point out the
relevant pleading as regards the alleged fraud. Except for a passing
mention in paragraph 4 of the writ affidavit that respondents 4 to 10
played fraud, no specific details of the alleged fraud and as to how it
was committed were set out.
It is a settled legal position that fraud must be specifically
pleaded and proved (SARADAMANI KANDAPPAN V/s. S.
RAJALAKSHMI , RANGANAYAKAMMA V/s. K.S. PRAKASH (DEAD)
BY LRS. and CHIEF ENGINEER, M.S.E.B. V/s. SURESH
RAGHUNATH BHOKAREA ). It was owing to the complete lack of
supporting pleadings that the contention urged by the learned
counsel as to the alleged fraud was not considered and
consequently, the judgments cited by him were also not referred to
at length. Failing to realize the shortcoming in the pleadings and
arguments, the learned counsel has now chosen to make his own
failure a ground for seeking review of our order!
As regards the so called admission of the allegation of fraud
emanating from the failure of respondents 4 to 10 in the writ
petition/writ appeal to contest the matter, Sri Mamidi Venu
Madhav, learned counsel, was asked as to whether he was aware of
the doctrine of non-traverse and as to how it should be applied. The
learned counsel fairly conceded that he was not aware of the
doctrine and its application.
In the present case, it may be noted that respondents 4 to 10
never entered appearance in these proceedings. It was not as if they
chose to appear and filed a counter wherein they remained silent as
to the commission of the alleged fraud by them. Non-traverse would
constitute an implied admission under Order 8 Rule 5 CPC which
reads to the effect that every allegation of fact in the plaint if not
denied specifically or by necessary implication in the pleading of the
defendant shall be taken to be admitted. But even so, the proviso
thereto empowers the Court, in its discretion, to require any fact so
admitted to be proved otherwise than by such admission. As law
requires fraud to be specifically pleaded and proved, the failure of
respondents 4 to 10 in this case to contest the matter does not
attract the doctrine of non-traverse and it is for the review
petitioners/appellants to establish the commission of fraud
independently. Having failed to even raise sufficient pleadings in
this regard, much less establishing the same by independent proof,
a feeble attempt is now sought to be made to raise this aspect as a
ground for review!
We therefore find no merit in the grounds urged to
substantiate the contention that there is an error apparent on the
face of the record.
Before parting with the case, we are constrained to note the
unhealthy and distressing trend, which is on the rise, of disparaging
Judges by launching personal attacks against them. Interaction
between the Bench and the Bar, as in the present case, is normally
aimed at encouraging and inspiring the learned counsel to make
good deficiencies in knowledge and learning. That was the reason
why the Honble The Chief Justice pointedly put questions to the
appearing advocate as to sufficiency of pleadings in the writ affidavit
about the commission of the alleged fraud. It is indeed appalling
that the learned counsel has chosen to launch a personal tirade
against the Honble The Chief Justice in this regard by addressing a
complaint against him and has stooped to the level of making it a
part of the record, obviously with the intention of pressurizing us!
Significantly, statutory protection is afforded to Judges for
any act, thing or word committed, done or spoken when, or in the
course of, acting or purporting to act in the discharge of official or
judicial duties or functions and no civil or criminal proceeding can
be instituted in connection therewith . Unmindful of this legal
embargo, the present petition seeks to make the alleged utterances
of the Honble The Chief Justice during the hearing of the appeal a
ground for seeking review! As no civil proceeding can be instituted
in connection therewith, such alleged utterances set out at length in
the grounds of review cannot be permitted to remain on record and
shall accordingly stand expunged.
This review petition is therefore a clear abuse of the process of
this Court and warrants dismissal with exemplary costs. The review
petition is therefore dismissed with costs of Rs.5,000/- (Rupees Five
Thousand only) payable to the High Court Legal Services Committee
within two weeks from date. Registry is directed to list the matter
after three weeks for reporting compliance.
_________________________________
KALYAN JYOTI SENGUPTA, CJ
____________________________
SANJAY KUMAR, J
25th MARCH, 2015
Comments
Post a Comment