SMT. BIMLA DEVI Vs SMT. SUDESH RANI & ORS. -Judgment by Delhi High Court
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th January, 2024
+ CS(OS) 328/2018
SMT. BIMLA DEVI ….. Plaintiff
Through: Counsel for plaintiff.
versus
SMT. SUDESH RANI & ORS. ….. Defendants
Through: Mr. Manish Kumar, Advocate for D-3.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
CRL.M.A. 8018/2023 (filed by the defendant No. 3 under Section 340 of Code of Criminal Procedure for lodging a complaint/holding an enquiry against the plaintiff under Sections 193, 196, 199 and 200 of the Indian Penal Code along with issuing notice for Contempt of Court under Section 2(c) of Contempt of Courts Act, 1971 for filing false pleading and documents in the court)
1. An application has been filed on behalf of defendant No.3 Shri Bhupender Singh under Section 340 Cr.P.C. for holding an enquiry against the plaintiff under Section 193/196/199 and 200 of IPC and also for initiating Contempt under Section 2(c) of Contempt of Courts Act, 1971 for having filed false pleadings and documents in the Court.
2. It is submitted in the application that the plaintiff had filed a suit bearing CS (OS) No. 1188/2015 for Partition and Injunction in the year 2015 against the defendant, who is the applicant in the present application. In the suit, the plaintiff sought partition in respect of the subject property which was owned by Late Sh. Sabha Chand, the father of the defendant. She disclosed that Late Shri Sabha Chand was earlier married to Smt. Hoshiyari Devi (mother of defendant No.3) who expired in the year 1989 leaving behind defendant No.3 as the only issue. She, however, did not mention the date of death of Smt. Hoshiyari Devi. She asserted that she got married to Late Shri Sabha Chand on 09.01.1989 as per the Hindu Rites and Rituals.
3. The defendant No.3 on coming to know about filing of the suit, made a complaint at Police Station Safdarjung which was registered vide DD No.27B dated 19.09.2017. The plaintiff got scared of registration of complaint and immediately withdrew her first suit on 01.12.2017 with liberty to file a suit afresh on the same cause of action.
4. Thereafter, in the year 2018 the plaintiff Smt. Bimla Devi again filed the present suit bearing CS (OS) 328/2018 seeking partition and Permanent Injunction. She mentioned that Smt. Hoshiyari Devi was the first wife of Late Shri Sabha Chand and defendant No.3 was their only son. She however, claimed that after the death of Smt. Hoshiyari Devi, Shri Sabha Chand solemnized the second marriage with the plaintiff in the year 1990 without specifying the date.
5. It is asserted that in the first suit the plaintiff had given her date of marriage as 09.01.1989, but in the second suit, she did not specify any date, but only stated that she had got married to Shri Sabha Chand in the year 1990. The applicant has further submitted that Smt. Hoshiyari Devi had died on 11.10.1989 which implies that at the time of the marriage of the plaintiff with his father, Smt. Hoshiyari Devi was alive. As the marriage of plaintiff with the late father was during the life time of the first wife, she cannot claim herself to be a legally wedded wife of Late Shri Sabha Chand.
6. The defendant No.3 has submitted that the plaintiff having become conscious of the proved facts, intentionally chose not to mention the date of demise of Smt. Hoshiyari Devi, the first wife of Late Shri Sabha Chand. Also, she had claimed in the suit filed in 2015 that they had got married on 09.01.1989, but in the present suit she has stated that she got married in the year 1990. The Defendant/ applicant has asserted that the plaintiff had intentionally and deliberately made false statements in the two suits. It is submitted that for the perjury committed by the plaintiff, proceedings may be started under Section 340 Cr.P.C. as well as under Contempt of Courts Act.
7. In supports of his assertions the defendant has placed reliance on the following cases :
(i) Afzal vs. State of Haryana (1996) 7 SCC 397;
(ii) Bineet Kumar Singh (2001) 5 SCC 501;
(iii) State of A.P. vs. Mandalupu Ramaiah, 2003 (6) Andhra Law Digest 190; and
(iv) Sanjeev Kumar Mittal vs. The State, Test Case 19/2004 decided on 18.11.2010.
8. Submissions heard.
9. From the submissions made on behalf of defendant No.3 and the copy of the two plaints annexed with the application it is evident that the plaintiff Smt. Bimla Devi, claimed partition in respect of the subject property that was owned by Late Shri Sabha Chand by disclosing that she was the second wife of Late Shri Sabha Chand. The defendant No.3 being the natural son of Shri Sabha Chand, had also been impleaded as defendant No.3. All the essential facts had been mentioned by her in the suit. It is no doubt true that her entitlement to claim partition would have also entailed an enquiry into her locus to file the suit as her marriage was allegedly performed during the lifetime of the first wife. However, it is pertinent to note that the defendants had not filed their Written Statement and before that, Smt. Bimla Devi had withdrawn her suit at the initial stage, on 19.07.2023. She may have not disclosed the facts completely and clearly, but it cannot be said that she obtained any undue advantage by selective mentioning of the facts in her plaint.
10. At the outset, it is pertinent to refer to Section 340 Cr.P.C. 1973 which reads as under:
�Section 340: Procedure in cases mentioned in section 195.
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,—
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) �.
(e) �
(2)�..
(3)�.
(4) ��
11. This Section enables the Court to uphold the dignity of the Court by ensuring that there is no pollution of facts so as to be able to determine the controversy inter se the parties on correctly disclosed material facts. It is a discretionary jurisdiction which the court may invoke in case the suppression is of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case.
12. In Arunima Baruah v. Union of India and Others (2007) 6 SCC 120, the Apex Court explained that �Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction.�
13. In State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575 it was held by this Court that prosecution for perjury be sanctioned by the courts only in those cases where perjury appears to be deliberate and it would be expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement.
14. In Yashovardhan Birla v. Kamdhenu Enterprises Ltd., 2023 SCC OnLine Del 7311 it was observed that for initiating proceedings under Section 340 of the CrPC, it should be expedient in the interest of justice to punish the delinquent.
15. To succinctly state, the propositions that emerge from the afore discussed judgements, are:
(i) suppression must be of a fact material for the purpose of determination of the lis;
(ii) the statements should have been made deliberately and consciously;
(iii) merely because there is some inaccuracy in the statement, would not warrant any action;
(iv) a person invoking the discretionary jurisdiction of the court, must approach it with clean hands; and
(v) whether it is expedient in the interest of justice to punish the delinquent.
16. In the present case, the plaintiff Bimla Devi had disclosed all the facts though not very clearly. Neither did she hide that she was the second wife nor that her husband was earlier married to one Hoshiyar Devi. Clearly, not only the facts were disclosed but also none of the parties were misled. No undue advantage had accrued upon her as she withdrew her suit at early stage without the case proceeding for trial. Considering the objective of proceedings under Section 340 Cr.P.C, it is not to be used as a tool for settling scores or personal vendetta or for taking revenge from the other party, but is intended to be used to forward the interest of justice. The circumstances of the present case do not warrant any action on the application under Section 340 Cr.P.C or under the Contempt of Courts Act; the application is hereby dismissed.
(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 4, 2024/va
CS(OS) 328/2018 Page 6 of 6