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NMSL No.3457/2015

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
WITH

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SUIT (L) NO.1241 OF 2015

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NOTICE OF MOTION (L) NO.3457 OF 2015

Mr. Prasad Arvind Sant

.. Applicant

In the matter between

Maneesh Bawa & Ors.

.. Plaintiffs.

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Vs.
Prasad Arvind Sant & Ors.

.. Defendants.

Mr. Aspi Chinoy, Senior Counsel with Dr. Birendra Saraf, Mr.

Vishal Kanade, Mr. Aditya

Mehta, Mr. Rohan Dakshini, Ms.

Nikita Mishra i/b M/s. Federal & Rashmikant for the Plaintiffs.
Mr. Nilesh Ojha i/b Kuldeep Pawar for the Applicant.

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Ms. Preeti Brahmania i/b Nitin Pagare for Defendant No.8.

CORAM

A.K. MENON, J.

RESERVED ON

: 16TH DECEMBER, 2015

PRONOUNCED ON : 22ND JANUARY, 2016

P.C. :
1.

On 26th November 2015, this Court passed an ad-

interim Order in the Plaintiff's Notice of Motion (L) No.3272

of 2015 in the above suit. The defendant 1 and 8 were
restrained from acting in furtherance of a consent decree
obtained in Suit No.2031

of 2015 filed in the Bombay City

Civil Court at Bombay. This is an application taken out by

defendant no.1. It runs into

515 pages inclusive of its

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annexures. The prayers in brief as contained in Notice of

Motion are;
to record

a finding that

the plaintiffs

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(a)

conspired and connived with one another, made

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false statements on oath and their Advocates,

inspite of being aware of the true facts assisted

the plaintiffs in preparing pleadings with false

averments and on the basis of such pleadings
obtained the ad-interim order.

(b) that the Registrar be directed to draw up a

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complaint in respect of the offences and file the

same before the competent Court;
(c) that suo motu
plaintiffs

action be taken against the

and their Advocates for criminal

contempt of court.

(d) to recall and set aside the order dated 26th

November, 2015

as the same is product

of

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fraud and to impose heavy cost on the plaintiffs

and (e) that the Central Bureau of Investigation
be

directed

to

investigate

certain

offences

allegedly committed by the plaintiffs.

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(f) for directions to the Commissioner of Police

to file an enquiry report on action taken under
FIR filed by the Mulund police station as to the
identity of the owners of the suit property

(g) to

deprive

appeared

the Senior

Advocate

who

on behalf of the plaintiffs on 26 th

November 2015 of the designation as such.

2.

The Notice of Motion is signed by the Advocate for

the Applicant (Original defendant no.1) Mr. Kuldip T. Pawar.

The Notice of Motion

is supported by an affidavit

dated
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7.12.2015 filed by the 1st defendant. It is countersigned by

Mr. Kuldip T. Pawar Advocate for the Applicant. The Affidavit

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commences at page 10 and runs upto page 118. In

paragraph 19 at page 113 prayers identical to the prayers

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in the Notice of Motion have been repeated. The affidavits

quotes extensively from various pronouncements of the
Supreme Court and other Courts.
3.

Mr. Ojha who appears for the defendant no.1 submitted

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that the Plaintiffs made false statements on oath and relying

upon such statements they had obtained an ad-interim order.
According to

Mr.Ojha

in paragraph 54 of the Plaint,

the

plaintiffs have averred that they learnt of a certain power of

attorney dated 24th November 2011 granted to defendant

no.1 only on 15th September 2015, thereby pleaded urgency
and misled the Court into passing an ad-interim order. It is

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be convenient and appropriate to reproduce paragraph 54 of

the plaint which reads as follows:

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54.

The Plaintiffs became

said Suits and proceedings

aware of the
in the Bombay

City Civil Court Suit Nos.1553 of 2015 and 2031

of 2015, the alleged Power of Attorney
dated 24th November, 2011
Terms

the Consent

dated 20th July, 2015

passed

in

Bombay City Civil Court Suit No.1553 of 2015,

the Agreement for Sale dated

9th December,

2011 and the Letter of Possession

July, 2015

for the first time

dated 21st

on or about

24th September, 2015. The Plaintiffs were

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neither aware not were they made aware and

nor did they have any prior knowledge of the
There has been no delay
Plaintiffs

who

have

of

promptly

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the

on the part

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said Bombay City Civil Court proceedings.

thereafter taken appropriate steps in the

matter including the filing of the present

Suit.
this

The Plaintiffs have

Hon'ble

Court

at

approached

the

earliest

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opportunity in the circumstances.

4.

The sections in bold font are so reproduced by the

defendant no.1 in the above Notice of Motion in an attempt

to identify the specific portions of the paragraph which

according to the defendant no.1 are false. The contention of

defendant no.1 is that the plaintiffs' averments especially
the portions in bold font are false and that this becomes

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evident from the fact that in certain other suits filed by the
plaintiffs

in this Court, a chamber summons was taken out

in 2012 by defendant no.1 in which defendant no.1

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upon
and

the Power of Attorney

as

more

particularly

relied

dated 24th November, 2011

dealt

with

in

the following

paragrpahs. This Power of Attorney is the same document

that is now referred to in paragraph 54. According to the
defendant no.1, the plaintiffs have thus deliberately made a
false statement to this court to the effect that they gained
knowledge of this document only in September 2015.
5.

Today Mr. Ojha inter alia seeks recall and setting

aside or vacating the order dated 26 th November, 2015 in

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Notice of Motion (L)No.3272 of 2015 in the above suit

bearing (L)No.1241 of 2015 as being a product of fraud and
Court in

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in accordance with the law laid down by the Hon'ble Supreme

(2010) 2 SCC 114. He also seeks other reliefs

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directed against the Plaintiffs and all their Advocates and

Counsel. In the affidavit in support of the notice of motion
the defendant no.1 has prayed for initiation of

criminal

prosecution against the plaintiffs and their Advocates and

Counsel for filing false and misleading affidavits as also

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allegedly concealing the material facts from this Court in an

attempt to bring a time barred claim within limitation.
6.

In support of his contention, that the ad-interim

order was obtained on the basis of false statements,

defendant no.1 has relied upon the fact that in an earlier suit
filed in this Court being Suit nos1611 of 1979, 1612 of 1979,

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917of 1981, 919 of 1981 and 920 of 1981 defendant had

taken out five

Chamber Summons and in the affidavit in

support of which, the power of attorney was relied upon.

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According to the first defendant who had signed in support of

the constituted attorney of the applicant it was found by the
then advocates for the plaintiffs that the five Chamber
Summons taken out in the aforesaid five suits that the
Chamber Summons were incomplete inasmuch as certain
pages were missing therefore vide letter dated 21 st March,
2012 copy of which is at Exhibit A to the affidavit in support
of the present Notice of Motion, the plaintiffs Advocates, M/s
Shah & Sanghavi called upon the first defendant to provide a
complete copy of the Chamber Summons. Vide second letter
dated 24th March, 2012 the said Advocates also wrote to the
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defendant no.1 seeking inspection

of documents which

included the power of attorney dated 24 th November, 2011

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stated to have been executed by one Randhir Bhala in favour

of the first defendant and two other documents.

We are

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presently concerned with the power of attorney dated 24 th

November, 2011 since the allegations in the present motion
is that the plaintiffs had knowledge of the power of attorney
as on that date when the Chamber Summons was served and
therefore the averment in paragraph 54 that plaintiff became
on or

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aware of the suits and the power of attorney for the first time
about 24 th September, 2015 was incorrect.

He

therefore submitted that the plaintiffs have made false

statement on oath about the knowledge of the Notice of

Motion therefore submitted that the ad-interim order stands

vitiated on that account.
I may briefly set out that at the time of hearing of

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7.

the ad-interim application in Notice of Motion (L) No.3272 of

2015 it was pointed out to the defendants counsel that

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power of attorney dated 24 th November, 2011 on which the

defendant no.1 had relied at the time of disposal of the suit
filed in the City Civil Court being Suit No.2031 of 2015
wherein consent terms came to be filed was limited only for a
period of six months and was therefore not valid as on date
of the signing of the consent terms. To this, Me. Ojha had on
instructions of the first defendant stated that there was
another power of attorney which was a registered power of
attorney executed for consideration as a result of which the
first defendant had acquired an interest in the suit property
on the subject matter of the land. This document was to be
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offered for inspection within a period of one week from the

date of the order however, it appears that inspection not
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been given. During the course of arguments today,

enquired of Mr. Ojha for the defendants whether inspection

he submitted that

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had been given to which he replied in the negative. However,

inspection not being given was not

material since the present application is for vacating the adinterim order on the basis of the aforesaid incorrect

8.

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statement.
Mr. Ojha tendered

a list of authorities. The list

categorises the judgments describing them as those dealing

with

suppression of material fact

part, filing of false

affidavit, limitation etc. Of these, Mr. Ojha relied upon with

three decisions firstly in the case of Khatri Hotels V/s.
Union of India Pvt. Ltd. and another 2011 (9) SCC 126

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wherein he submitted that the period of limitation for a suit

for declaration and permanent injunction for restraining
interference with possession of immovable property would lie

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when this right to sue first accrued. He relied upon the

meaning of the expression 'first accrues' and paragraph 30 of
the judgment and submitted that while enacting Article 58 of
1963 Act, the legislature had made a departure from the
language of Article 120 of the 1908 Act and the word 'first'
has been used between the words 'sue' and 'accrued'.

It

would mean that when the suit is based on a multiple

causes of action, the period of limitation would begin to run
from the date when the right to sue first accrues. To put it
differently

the

Hon'ble

Supreme

Court

held

that

the

successive violations of the right will not give rise to a fresh

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cause of action and the suit will be liable to be dismissed if it

is beyond the period of limitation from the day when the

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right to sue first accrued. According to Mr. Ojha the right to

sue first accrued when the plaintiff had knowledge of the

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power of attorney. He attributed to the knowledge of power

of attorney to the plaintiff and as of the date when the

Chamber Summons was taken out and the letter written by
the plaintiffs advocates seeking inspection of the Chamber
Summons.

On 15th December, 2015 when this application

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was first argued, I had enquired of Mr.Ojha whether any reply

was sent to the letter seeking inspection of the documents,
on instructions, Mr. Ojha submitted that no reply was sent
and inspection was not offered.

Strangely what the affidavit

in support states is that after receiving the request for

inspection,a copy was emailed to the plaintiff. There is
however nothing to support this statement. On the contrary

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on the 15th of December 2015 when this matter was argued

it was submitted across the bar that no inspection was not
given. According to Mr. Ojha, the right to sue first accrued

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upon knowledge of the Chamber Summons in March 2012

when the plaintiffs Advocates sought inspection. The present
suit according to the learned counsel is filed beyond the
period of three years from March 2012 and therefore hit by
Article 58 which prescribes a limitation of 3 years and
limitation begin to run when the right to sue accrued.
Therefore the suit as filed is beyond the period of limitation.
9.

Mr. Ojha then relied upon the decision of the

Calcutta High Court in Shri Radha Gobinda Jew and

others AIR 1974 Calcutta 283 and submitted that under
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Article 58 for filing suit for declaration time was began to run
from the date on which direct and effective invasion on their

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alleged title to the properties took place and no fresh cause

of action arose by the sale of one of the properties though it

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was of a more aggravated form of invasion. The observations

in the said judgment in support of his case that the present
suit is barred by the law of limitation.

Presently the

application is for vacating the ad-interim order and for action

against Advocates and Counsel. The issue of limitation is yet

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to be decided. If the Court comes to a conclusion that the

suit is barred by the law of limitation then it is a different
matter altogether. However, if not there would be no reason
to vacate the injunction on that ground.

This aspect of

limitation still a live issue and pending the decision nothing

more is required to be said on this aspect. Prima facie, it my
view it is not possible to hold at this stage that the suit is

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barred by the law of limitation.

10.

The next issue urged by

Mr. Ojha is

that the

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judicial process has been violated and the order has obtained
by playing of fraud on the Court. He relied upon the decision
of the Hon'ble Supreme Court in Union of India V/s.
Ramesh Gandhi (2012) 1 SCC 476 and submitted that a
judgment obtained by playing fraud on a superior Court
without full disclosure of all necessary facts and therefore
said judgment is a nullity and tantamount to playing fraud on
the Court. He submitted that the facts of the present case
justifies application of the said judgment. Mr. Ojha submitted
that the facts in the present case it will just and proper and
that

the injunction be vacated.

To my mind, the fact

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situation is quite different unlike the facts in Ramesh Gandhi

11.

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(Supra).
Mr. Ojha then launched a blistering attack on all

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Advocates who were involved in the drafting and filing of the

plaint in the present suit and all those Counsel who appeared
for the plaintiffs. According to him all advocates including
counsel involved in the drafting of the plaint and those who
appeared in Court, including the Senior Counsel Ms. Iyer, at

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the hearing of the ad-interim application are misleading the

Court and therefore there is conspiracy

amongst the said

lawyers. In the affidavit in support it is submitted by the

counsel that the Chamber Summons was filed before 21 st

March, 2012 and therefore the time limit to file suit

thereafter expired on 21st March, 2015. According to Mr.Ojha
the plaintiffs conspired and connived with their lawyers to

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bring the suit within the limitation and they dishonestly

concealed material facts and made false statements on oath
to mislead the court. He referred to the decision of the Full

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Bench of the Allahabad High Court AIR 1927 Allahabad 45

and submitted that if a legal practitioner signs a document it
is presumed that he affixes his signature with knowledge of
the contents and a Vakil who signs cannot plead that he did
not know the contents and is responsible in every way
according to the counsel for every word set out therein and
that it is no defence to state that somebody else wrote it. In
the circumstances he submitted that the Advocates who
drafted the plaint and settled the plaint and the Advocates
who represented the Plaintiffs in the City Civil Court as well
as this Court are liable to be proceeded against for erring and
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convicted as in the case of Uttar Pradesh Resident

others

V/s.

New

House Building Society and

Okhla

Industrial

Development

rt

Employees Cooperative

Authority and another (2010) 3 SCC (Cri) 586, for

He relied upon the observations in the

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Contempt of Court.

judgment in case of (E.S. Reddy) T.V. Choudhary, A

Member of the Indian Administrative Service (Under
Suspension) V/s. Chief Secretary of Andhra Pradesh

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(1987) 3 SCC 258.

12.

In the course of arguments Mr. Ojha submitted a

list of authorities in support of the submissions that the order

obtained by suppressing material facts is a nullity and or

liable to be set-aside. He also relied upon the following

Judgments reported in 2012 (1) SCC 426.
(2)

Union of India Vs. Ramesh Gandhi (2012) 1 SCC

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476.

(3)

Meghmala Vs. G. Narasimha Reddy (2010) 8 SCC

383.

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(4)

Khatri Hotels (P) Ltd. Vs. Union of India (2011) 9

SCC 126.

(5)

Decision of Calcutta High Court in Shri Radha

Gobinda Jew and others Vs. Smt. Kewala Devi Jaiswal

and others.
13.

Mr.Ojha then referred the decision of Supreme Court in

Meghamala (Supra) and referred to paragraph 36 thereof and

submitted that it is evident that once the fraud is proved, all
advantages gained by the fraud can be taken away. Every
Court has inherent power to recall its own order, obtained by
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fraud and submitted that this is a fit case to press into

service, the ratio of this Judgment.

Although several other

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Judgments sought to be incorporated in the list of authorities

submitted. The Counsel did not placed reliance on any of the
expected

an Advocate is

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other decisions. Mr. Ojha submitted that

to act fairly and place all the truth even if it is

against his client and he should not withhold the authority or

documents which tells against his client.

As regards the

duties and responsibilities of Senior Counsel it is has been

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observed that by virtue of their pre-eminence Senior Counsel

carry greater responsibilities and that the responsibilities of
the senior counsel settling pleadings is more onerous than
otherwise and the blame for improper pleadings would laid at

his door. On this basis action for Contempt is required to be

taken against the Senior counsel appeared in the matter on
26th November 2016 when ad-interim relief was granted, for

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not having pointed out to the Court the correct position and
for preparing pleadings contained

false averments and

using it to be genuine. Mr. Ojha vehemently submitted that

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the plaintiffs and their Advocates are liable to be sent to

police custody in view of mandatory provisions of section 340
(1) (d) of the Cr. P.C. On behalf of the defendant no.8 the
learned Advocate sought to support the defendant no.1's
application but restricted herself to the request for vacating
the ad-interim Order.
14.

These were serious allegations indeed. In view of

the allegations made in the affidavit there was a change of

Advocates and new Advocates entered appearance. The
counsel appearing earlier also did not appear. Mr. Aspi Chinoy
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Senior Advocate appeared on behalf of the plaintiffs in

support of the order passed on 26th November, 2015. The

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Plaintiffs proceeded on the basis of denials and without filing

an affidavit in reply. On instructions he opposed the motion

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on the basis of denials. He submitted that the entire case of

the defendant no.1 was misconceived inasmuch as the

Motion taken out for vacating the injunction had no merit
inasmuch as the entire case of the defendant was based on
the averments contained in paragraph 54 of the plaint. Mr.

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Chinoy made reference to paragraph 54 which has already

been reproduced above and he submitted that the cause of
action as pleaded in the plaint is inter alia not based on the
power of attorney. The plaintiffs had come to Court with the

case that the plaintiffs were neither aware nor were they
made aware and nor did they have any prior knowledge of
the Bombay City Civil Court proceedings this is paragraph 54

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to read as a whole and therefore the cause of action for filing

the present suit is not the alleged power of attorney dated
24th November, 2011 and therefore the contents of the plaint

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are self evident. There is no question of any false statement

of fraud being played.

Moreover, an ad-interim order was

passed after hearing the counsel for defendant nos.1 and 8 it

is not as if exparte order was passed. Thus Mr. Chinoy
submitted that there is no falsehood in the plaintiffs
statements to Court.
15.

On behalf of the defendant no.1 in rejoinder, Mr.

Ojha submitted that on the basis of the order a false

complaint had been made by the plaintiff with the Mulund
Police Station on 10th December, 2015 against the first
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defendant and he had been summoned to the police station.

Thus according to Mr.Ojha the police complaint is an instance

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of misuse of the ad-interim order sought to be set aside.

Mr. I.M.Chagla Senior Advocate who also appeared on behalf

defendant

no.1

had

issued

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of the plaintiffs submitted that Mr. Ojha who appeared for the
statements

to

the

Press

attributing fraudulent conduct to the Plaintiffs and their

Advocates and counsel. Upon this being pointed out Mr. Ojha
sought to distance himself from the press report in the Dainik
carried

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Shashik newspaper dated 10th December 2015 which also

photograph

of

Mr.

Ojha

attributing

to

him

statements narrating the allegations made in the Notice of

16.

Motion.

At 5.00 p.m. on 15th December, 2015 Advocate Mr.

V. G. Deshmukh mentioned the matter stating that he was

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instructed by Mr. Kuldip Pawar Advocate for the defendant

no.1 to submit a Purshis and a judgment. A copy of letter
addressed to the present Advocates of record was also

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annexed in the purshis. The purshis was signed by Mr. Ojha

who appeared as counsel for the applicant instructed by Mr.
Kuldip Pawar. The purshis sought to rely upon the decision of
the Hon'ble Supreme Court in AIR 2004 SC 1801 to the effect
that omission of even a single material fact leads to an
incomplete cause of action and the statement of plaint
becomes bad and that distinction has to be made between
material facts and particulars.

He submitted that this

judgment may also be considered as one in support of the

first defendant's case.
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17.

Mr.Chinoy instructed by the present Advocates

was present on notice and objected to the statement in the

tried to create an

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purshis to the effect that Mr. Chinoy

impression that the Plaintiffs did not get a copy of the Power
That Mr.Chinoy failed to

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of Attorney dated 24/11/2011.

perform his duty as an officer of the Court to fairly submit

that their client got the knowledge of claim by Bhala
(Applicant) in the year 2012 . Mr.Chinoy objected to the
same being taken on record.

Mr. Deshmukh then submitted

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that Mr.Ojha would appear the following day in view of the

objection raised by Mr. Chinoy. The matter was directed to be
listed on 16/12/2015.

On 16/12/2015 when the matter was called out,

18.

Mr.Ojha stated that since Mr. Chinoy had taken exception to

paragraph 2 of the first purshis sought to be tendered on

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15/12/2015, he was filing a fresh purshis which includes

contents of the purshis dated 15/12/2015. Mr.Ojha presented
a second Purshis, this time 21 pages long and annexing

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thereto a copy of Chamber Summons No.429 of 2012 in Suit

No.920 of 1981, the Affidavit in support thereof and various
exhibits annexed to the Chamber Summons at page 105 of
the Chamber Summons. Page 124 of the Compilation was the
copy of the general Power of Attorney dated 24/11/2011.
The Purshis also contained as Annexures, copies of the
following Judgments; (1) judgments of the Madhya Pradesh
High Court in R.P.No.116 of 2015, in the case of Central Ware
House and Another Versus Union of India and (2) Judgment of
the Madras High Court in the case of BRS Manikumar Versus
Krushna Reddy reported in 1999, Criminal Law Journal 2010 .
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19.

When Mr. Ojha sought to tender the two purshis, I

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informed Mr. Ojha that the Purshis need not be filed since

the matter was mentioned on 15/12/2015 only for the

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purpose of taking on record a copy of the Judgment in the

case of Sopan Sukhdeo Sable and others Vs. Assistant

Charity Commissioner and others, reported in AIR 2004, SCC
1801 and for no other purpose. However since the second
purshis contained further serious allegations against Mr.

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Chinoy, he protested and urged the court to take the purshis

on record and submitted that the contents amounts to gross
contempt of court. Mr. Chinoy strenuously urged that the
Court should consider the same and submitted that the
unjustifiable allegations

Purshis contains

intended

to

intimidate the Officers of this Court and pressurize them and

embarrass them with a view to disqualify them from

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appearing in the matter. Mr. Chinoy submitted that the

Purshis may be looked into.

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20.

Although the High Court Original Side Rules

do

not provide for any procedure requiring a Purshis to be filed,

Mr. Ojha insisted that the Purshis very clearly brings out the
plaintiffs misdeeds and that of their counsel. I enquired of Mr.
Ojha whether he was serious about presenting the purshis
and pressing the allegations

against the Advocates and

Counsel. Completely unfazed, Mr. Ojha promptly reiterated

the allegations in the purshis and

submitted that he has

made the allegations with full responsibility. He stated that

the contents of the purshis are made responsibly and are
correct.

Thereupon he proceeded to

read out several

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portions of the purshis.

The relevant portions of the Purshis read as

rt

21.
follows;

C
ou

2) The affidavit in Chamber Summons No.429 of

2012 in Suit No.92 of 1981, is dated 6th March

2012. The said Chamber Summons was filed by

Applicant during the lifetime of Defendant No.3

Shri Randhir Singh Bhala. However after death of

Defendant No.3 Shri Randhir Singh Bhala the

ig
h

Applicant did not perused the case. In that

Chamber Summons copy of Power of Attorney
dated 24/11/2011 was at page no.105 to 121.
However, the Counsel for Plaintiff sent letter for

providing the said copy as it was missing in the

copy

of

Chamber

Summons

served

to

the

Plaintiffs and they also asked for inspection of the

ba
y

Original Documents.

22.

In paragraph 3 of the Purshis, contrary what was

om

conceded by Mr.Ojha on 15th December 2015, it is contended

that inspection of original documents was given to M/s. Shah
and Sanghavi, the then Advocates of the Plaintiffs.

Mr.

Chinoy denied it and submitted that the Plaintiffs did not get
the inspection at the material time. Nothing was produced
by defendant no.1 to establish that inspection was in fact
granted at the material time. Mr.Ojha submitted,

without

prejudice to the contention that the inspection was granted,

the main issue was whether the Plaintiffs had knowledge of
the Power of Attorney dated 24/11/2011 before 24th
September, 2015 and this was not answered. According to
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Mr. Ojha, Mr. Chinoy has misguided the Court and said that
the Plaintiffs did not get the copy of the Power of Attorney at

rt

the material time. According to Ojha, contents of paragraph

4 of the Purshis and the material on record are shows that

C
ou

cause of action arose in the year 2008 since in the Chamber

Summons taken out reference made to the Power of Attorney
and it was evident that at least on 21/03/2012 (the date on

which the first letter was addressed by M/s Shah & Sanghavi
@ page 119 of the Motion) the Plaintiffs were aware of the

ig
h

Power of Attorney and, therefore, the period of limitation

would end around 21/03/2015. However while drafting the
plaint, the Plaintiffs had falsely stated that they got
knowledge for the first time on or about 24/09/2015.

According to Mr. Ojha, in such circumstances and being

designated as Senior Counsel it was the duty of Mr. Chinoy to
plead fairly and he should have assisted the Court and

ba
y

helped the Court in arriving at a proper conclusion and this

would have resulted in saving valuable time of the Court but
Mr. Chinoy misled the Court by advancing submissions that

om

his client did not receive a copy of the Power of Attorney

dated 24/11/2011 in the year 2012.
23.

In response Mr. Chinoy submitted that there is

absolutely no truth in the allegations and that false

statements were made. Mr. Chinoy narrated the sequence of
events.

After being served with the aforesaid Chamber

Summons, M/s. Shah and Sanghavi, Advocates and Solicitors

had vide letter dated 21/03/2012 addressed to the defendant
no.1 informed him that the Chamber Summons served was
incomplete, did not contain the relevant pages and called
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upon him to provide a complete copy. Vide a second letter

dated 24/3/2012 the said Advocates sought inspection of the

rt

following documents ;

a) Power of Attorney dated 24/11/2011 from

C
ou

Randhir Singh Bhala in favour of said Mr.

Sant.

b) Power of Attorney dated 26/09/2000 from

Mr. Abhay Singh and others in favour of

Randhir Singh Bhala, Mutation Entry

c)

ig
h

No.4960, dated 29/09/1999.

A Deed of Adoption dated 17/07/1968.

Mr. Chinoy submitted that no reply was received to those

letters and inspection was not given of the said documents at

any stage. This was countered by the Mr.Ojha who insisted
that inspection was indeed given.

When called upon to

ba
y

produce any evidence of such inspection having been given

or even a copy of a letter whereby inspection was offered,
Mr. Ojha was unable to do so. Thus the Court is justified to

om

proceed on the basis that the letter dated 21/03/2012 has

not been replied at any stage.
24.

After orders were reserved, the matter was

mentioned on 18/12/2015 after notice to the Advocate of

Defendant

No.1.

No

one

appeared

on

behalf

of

the

defendants. Mr. Chinoy pointed out that to avoid any

confusion regarding the issue of inspection M/s Federal &
Rashmikant the present Advocates for the plaintiffs had
contacted M/s Shah and Sanghavi, the earlier Advocates for
the Plaintiffs, who confirmed that no inspection was granted
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to them pursuant to the request made after the Chamber

Summons was served and since no inspection was granted

rt

and the copies of the power of attorney were not annexed to

the copies of the Chambers Summons served upon M/s Shah

C
ou

and Sanghavi, the said firm had applied for a Certified Copies
of the Chamber Summons along with all annexures.
Chamber

Summons

was

apparently

disposed

of

The
on

27/09/2013 along with the Suit and certified copies were

applied for on 29/09/2013 and

received on or about

ig
h

24/12/2013 along with the annexures and therefore the

certified copies of along with the power of attorney was
received in the year 2013. I have since enquired from the
Registry

which

has

reported

and

confirmed

that

the

application for certified copy of the Chamber Summons

No.764 of 2013 was made on 3 rd October, 2013 and it was
ready on 24th December, 2013 and was delivered on 24 th

ba
y

December, 2013.
25.

Mr. Ojha

then contended that the submissions

om

made by Mr. Chinoy were incorrect. He submitted that the

Plaintiffs had made a false statement that in para 54 of the
plaint that alleged Power of Attorney dated 24/11/2011 was
known for the first time on 24/09/2015 and that therefore the
suit was within time. Mr. Ojha then proceeded to read out
paragraph 3, 4 and 5 of the Purshis contents of which are as
follows;
3)

The Applicant informed that he called

Defendant No.3 Shri. Randhir Singh Bhala and

asked them to remain present to show them the
documents relied by him. As the Applicant was
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the Attorney, so he was not having all the

documents.

Thereafter,

inspection

of

the

Sanghavi,

the

then

Counsel

for

rt

Original documents was given to M/s. Shah and

Plaintiffs.

C
ou

However, Counsel for Plaintiffs Mr. Chinoy denied

it and submitted that plaintiff did not got the
inspection.

Even for the sake of arguments and without

prejudice to the rights of the applicant, if the

ig
h

contention of Mr. Chinoy is accepted then also

the main issue is still unanswered by Mr. Chinoy
that whether plaintiff got the knowledge of Power
of Attorney dated 24/11/2011 and claim by the

Applicant and Defendant No.3 Shri. Randhir

Singh Bhala first time in the Year 2012 as
pleaded by Applicant or in the year 2015 as

ba
y

pleaded
Counsel

by

Plaintiffs.

On

the

contrary

for

Plaintiffs

Mr.

Chinoy

trying

the
to

misguide the Hon'ble Court on the issue that

Plaintiffs did not get the copy of the said Power

om

of Attorney.
4)

Now if arguments advanced by Mr. Chinoy

is concerned, and if we see the materials

available on record then even the pleadings of
the Suit and documents relied by plaintiffs itself
show that the real cause of action accrued
against the defendant no.3 i.e. Mr. Randhir Singh
Bhala was in the year 2008 when Advocate Vilas
Sawant first issued legal notice to Plaintiffs and
thereafter defendant no. i.e. Mr. Randhir Singh
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Bhala himself filed Chamber Summons through

Applicant in different Suits filed by Plaintiffs

rt

claiming that the defendant no. i.e. Mr. Randhir

Singh Bhala is the real owner and the plaintiffs
the

imposters

and

fake

persons.

The

C
ou

are

pleadings of Chamber Summons ex-facie proves

that the plaintiffs got the knowledge of claim by
defendant no.3 i.e. Mr.Randhir Singh Bhala and
his Constituted Attorney i.e. Defendant No.1/
Applicant on or before 21st March 2012. And the

ig
h

Limitation ends on around 21st March 2015. But

while drafting the Suit it is maliciously drafted
and pleaded that the plaintiffs got knowledge for
the first time on or about 24 th September 2015.

Under these circumstances as being Designated

Senior Counsel it was bounded duty of Shri
Chinoy that he should have pleaded fairly and

ba
y

should have assisted/help the Court in arriving at

a proper conclusion. This would have resulted in
saving the valuable time of Hon'ble Court. But he
adopted the recourse of misleading to the

om

Hon'ble Court and tried to misguide the Hon'ble

Court by advancing submission that his client did
not got the copy of Power of Attorney dated
24/11/2011 in the year 2012.

The submission

made by Shri. Chinoy is against the question in

issue that has been pleaded by plaintiffs in para
54 of the suit that they got the knowledge for the
first time on or about 24th September 2015, as
against the submission of applicant that the
plaintiffs got knowledge in the year 2012.

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Hon'ble Supreme Court in Sopan Sukhdeo Sable

and others

v. Assistant Charity Commissioner

rt

and others AIR 2004 Supreme Court 1801 laid

down the ratio in para 12 that there should be a

C
ou

meaningful and not formal reading of the plaint

and if on a meaningful and not formal reading of
the plaint if plaint is found to be manifestly

vexatious and merit less in the seance of not

disclosing a clear right to sue., it should exercise
the power under Order VII Rule 11 of the Code. If

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h

clever drafting has created the illusion of a cause

of action, it has to be nipped in the bud at the
first hearing by examining the party searchingly

under Order X of the Code.

5)

Though the plaintiffs tried to project in

para 54 that the Plaintiffs became aware of, the

ba
y

alleged Power of Attorney dated 24th November

2011, for the first time on or about 24 th
September 2015 and further said that, there has
been no Delay on the part of the Plaintiffs who

om

have promptly thereafter taken appropriate steps

in the matter including the filling of the present
Suit. The Plaintiffs alleging to have approached
this Hon'ble Court at the earliest opportunity in
fact it was only illusion created as they got
knowledge since 2008 and in clear term when
defendant no. i.e. Mr.Randhir Singh Bhala himself
filed Chamber Summons in different Suits filed by
the

plaintiffs.

But

Shri

Chinoy

instead

of

admitting the truth tried to argue the case by

giving lame excuse that plaintiffs did not get the
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copy of the Power of Attorney and this is clearly

an attempt to mislead the Court.

rt

It is necessary to quote the words of Hon'ble

as under;

C
ou

Supreme Court in AIR 1985 SC 28 where it is held

(Para 23) .........Add to this that he (Advocate)

made

blatantly

false

statement

in

the

proceedings of disciplinary enquiry that the

respondent

had

appeared

before

him

and

admitted his signature. This is not only a false

ig
h

statement but it is false to his knowledge. If this

is not professional misconduct, it would be time

26.

to wind up this jurisdiction.

Mr. Ojha then read out various portions of the Purshis

continuing reference to the various Judgments of the Apex

ba
y

Court including those at page 9, paragraph no.9, 11 and 15

and submitted that the contents of the previous Purshis
dated 15/12/2015 are proper and justified and it is upto the

om

Court to take a decision What is right and not who is right.

27.

All this no doubt makes for distressing reading given

the rich traditions of this august institution and the enormous

contribution made by the members of the bar both on the
Appellate and Original sides. After the arguments concluded
the matter was then adjourned for Orders. The contents are
discomforting and a vitriolic attack on fellow members of the
bar and as it turns out, in my view completely unjustified.

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28.

Mr. Chinoy submitted that the contents of the Purshis

are completely unwarranted. Making reference to paragraph

rt

8 he pointed out that specific allegations were made to the

effect that Mr. Chinoy had failed to discharge his duties in a

C
ou

proper manner. Paragraph 10 of the Purshis seeks to justify

filing of the Purshis and reads as follows;

10) Hence when learned Counsel Mr. Chinoy

was appearing for the Plaintiffs, then it was his

responsibility to come with the full facts and

tell the truth before the Court and not to

ig
h

defend his client even if he is wrong. But Mr.

Chinoy, instead of being apologetic for his
client's malafide conduct, tried to approve that
conduct by taking recourse to twisting of facts

and law. This is not expected from a senior

counsel and therefore, I made submission in

ba
y

writing in my Purshis filed on 15/12/2015.

29.

Mr. Chinoy protested that this is yet another

attempt to browbeat Counsel appearing on behalf of the

om

Plaintiffs in order to make unfair gains and submitted that

this is nothing short of interference with the administration of
justice. A strategy had been adopted to divert attention from
the main issue by threatening Advocates that Criminal
Prosecution would be launched against them, embarrassing
them and thereby

forcing them to avoid representing the

Plaintiffs. It is an attempt to prevent Advocates from

appearing in the matter. This is established by the fact that
initially this modus-operandi was adopted against M/s. Shah
and Sanghavi.

Thereafter when the ad-interim order was

passed by this Court, allegations have been made against all

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the Advocates and Counsel who appeared in the matter as

also the Advocates who filed the Suit. No affidavit of reply
date of hearing.

Although a statement was made and is

in the order of 26th

November, 2015

C
ou

recorded

rt

had been filed to the plaintiffs Notice of Motion as of the last

that

inspection of the second alleged Power of Attorney referred

to and relied upon by the Defendants would be given within
one week, it was not so provided, no inspection has been
given nor a copy been provided. Mr.Chinoy submitted with

ig
h

conviction that the conduct of Mr. Ojha amounts to criminal

contempt of court and appropriate action be taken against
Mr. Ojha. In response Mr.Ojha persisted that Mr. Chinoy is
guilty of misleading the Court and not being fair to the Court

30.

and submitted that the reliefs in the motion may be granted.

I have heard Mr. Ojha and Mr Chinoy at length. I

ba
y

have also since called for and verify the records of Suit
no.920, 917 and 919 and Chamber Summons 429 of 2012
and other Chamber Summons.

om

seeks

amendment

to

join

The Chamber Summons

certain

persons

and

for

condonation of delay for three years and a copy of Power of

Attorney which is dated 24th November, 2011 is annexed to
the affidavit in support of the Chamber Summons.

The

power of attorney is seen to be certified as a true copy of

original by Mr. P. D. Jaiswal, Advocate and Notary Public on or
about 1st February, 2012.

The power of attorney is very

document which has led to the present imbroglio so to speak

31.

Similarly in Chamber Summons No.428, 427, 431

copies of the same power of attorney appear to be annexed.

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Thus, there is no doubt that the copy of power of attorney

was filed along with the aforesaid Chamber Summons. The
contents.

rt

question was whether the plaintiffs herein were aware of its

In the circumstances, the plaintiffs were made

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ou

aware of the fact that deponent was claiming under a power

of attorney, however, it is the plaintiffs case that the
contents were not

known then.

At the relevant time

subsequently and as admitted by Mr. Chinoy the earlier

Advocate of the plaintiffs M/s. Shah & Sanghavi have

ig
h

obtained certified copy of the power of attorney. This will be

a matter of record since the plaintiffs would have applied for
issuance of a certified copy however, what is the material for
our purposes is to see whether the contents of paragraph 54

contains false statements of suppression of fact.

In this

behalf, upon reading the paragraph as a whole, I have no

doubt in my mind that reference to the power of attorney in

ba
y

the said paragraph is to be read along with the fact that the
plaintiffs pleading is to the fact that they learnt about the
suit filed in the City Civil Court for the first time as also the

om

power of attorney. The material fact is the power of attorney

executed is valid for a period of six months. The defendant
no.1 is to have used a same power of attorney for the
purposes of filing the Suit No.2031 of 2015 in the City Civil
Court. The plaintiffs herein would not have expected that the
power of attorney which is initially valid for a period of six
months and at the outset upto May 2012 would be utilized in
2015 for the purposes of filing the Suit in the City Civil Court.
The question of limitation does not at all arise in the present
case because the averment in the plaint reveals that the
cause of action is the filing of the City Civil Court proceedings
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and obtaining the consent order thereon. Prima facie the suit
is clearly within time.

There appears no need for the

rt

plaintiffs to engage in any subterfuge while filing the suit.

The cause of action is not to be counted from the date of

C
ou

service of the aforesaid Chamber Summons in 2012. In the

circumstances, I am of the view that the defendant no.1 has
failed to make out any case of fraud or suppression of the
facts specifically with respect to the averments in paragraph

32.

ig
h

54 of the plaint.

The startling manner adopted is accentuated by the

companion prayers seeking prosecution, deprivation of

seniority, directions to the police establishment etc. Viewed

carefully the other prayers are all dependent on the whether

or not the plaintiffs have obtained an order from this court
based on falsehood, suppression or deceit. If the answer to

ba
y

that question is in the affirmative, the prayers become

relevant. If not they are irrelevant. The record shows that the
present

Advocates have

but acted on instructions of the

om

plaintiffs. The words used in the paragraph 54 of the plaint

are to the effect that the Plaintiffs became aware of the suit
and proceedings in the Bombay City Civil Court

Suit

Nos.1553 of 2015 and 2031 of 2015, the Power of Attorney

dated 24/11/2011 the Consent Terms dated 20th July, 2015
in the City Civil Court suit no.1553 of 2015, agreement for
sale dated 9th December, 2011 and letter of possession
dated 21st July, 2015 for the first time on or about
24/09/2015. The paragraph reiterates that the Plaintiffs were
neither aware

nor

made aware nor did they have prior

knowledge of the Bombay City Civil Court proceedings till

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about 24th September, 2015. The emphasis in the said

paragraph is on the lack of knowledge of the City Civil Court

rt

proceedings. These proceedings were obviously filed in the

year 2015 and there was no question of coming to know of

C
ou

the pendency of these proceedings in the March 2012. The

Applicants have chosen to selectively assail the pleadings on

the basis of that the Plaintiffs were aware of the Power of
Attorney as early as March 2012 and therefore a false
statement has been made in paragraph 54 to the effect that
the Power of Attorney dated 24th

ig
h

they became aware

November, 2011 for the first time in September 2015.

33.

It is by now well settled that pleadings must be

read as a whole in order to ascertain their true import. It is

the substance and not merely the form that must be looked
into for construing pleadings. The intention of the party is

ba
y

required to be gathered from the tenor of the pleading as a

whole and not in a disjunctive manner. The cause of action
in the present suit is not the knowledge of the existence of

om

the Power of Attorney but the suits filed in the City Civil Court
and the consent terms filed therein and consent decree
obtained thereon.

Reference to the Power of Attorney is

incidental. Having considered the 1st defendant's contention

that the aforesaid statement apropos the knowledge of the
power of attorney was intended to mislead the Court, I do
not find myself in agreement with the 1st defendant's
contention that a fraud has been played upon the Court. The
application for ad-interim relief was made by the plaintiffs to
protect themselves from the collusive decree obtained in the
City Civil Court Suit and the apprehension of further orders
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being passed in the second suit in the City Civil Court. The
power of attorney was not treated as the cause of action for

rt

filing the present suit. The plaintiffs contention was to the

effect that when Chamber Summons was served upon the

C
ou

Plaintiffs and their previous Advocates M/s Shah and

Sanghavi, the Power of Attorney was not included. Had it
been included the controversy may not have arisen. Later

certified copies of the Power of Attorney was obtained in the

year 2013, however what is material is that the said Power of

ig
h

Attorney was only valid for six months. Thus the Power of
Attorney dated 24/11/2011 expired by efflux of time in May
2012. The astonishing part is the revelation that even on the
basis of this invalid power of attorney proceedings were filed

in the City Civil Court and orders obtained.

I am of the view that the allegations in the present

ba
y

34.

Notice of Motion (L) No.3457 of 2015 are bereft of any merit

and reliance on the selective portions of paragraph 54 of the

om

plaint is being made only to divert attention and the effect

of the ad-interim order and to in an attempt to seek recall of
the ad-interim by obfuscating issues. Mr. Ojha's conduct and
those of his instructing Advocate Mr. Kuldip Pawar and the
first defendant who is also an Advocate is clearly intended to
interfere with and prejudice the due course of judicial
proceedings by making reckless allegations against all the
Advocates and Counsel who appeared for the Plaintiffs. This
conduct appear to have commenced with the allegations
made against M/s Shah and Sanghavi. It continues after the
present Suit was filed and the ad-interim order was passed.
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The allegations of fraud were leveled against all the

Advocates, who were involved in drafting, settling and filing

rt

of the Suit and all Counsels and Advocates who appeared at

the hearing of the ad-interim application. Not satisfied with

fraud now against Mr. Chinoy.
35.

C
ou

the aforesaid Mr. Ojha continued to repeat the allegations of

In my view such conduct is in terrorem, was

clearly to prejudice the course of judicial proceedings as

ig
h

contemplated in Section 2 of the Contempt of Courts Act. So

also it is evident

the allegations against the Advocates

appearing for the Plaintiffs at every stage tends to interfere

with and obstruct the administration of justice inasmuch as

the attempt on behalf of the Applicant is to prevent the

Advocates representing the Plaintiffs.

The allegations are

intended to prevent the Advocates from discharging their

ba
y

duties as Officers of this Court and perform their duties

towards their Clients. Reliance placed by Mr. Ojha on the
contents of para 54 to the extent

that the plaintiff

om

proclaimed knowledge of the power of attorney in September

2015 is but a ploy to avoid consequences of the ad-interim
order, to seek to pressurize the plaintiff to buckle under
pressure sought to be brought upon their Advocates. This is
the only reason that the Applicant has chosen to highlight
segments in paragraph 54 in the plaint is to assail the
plaintiff's conduct. In my view paragraph 54 is to be read as
a whole.

Knowledge that is material for the purpose of

present Suit and the cause of action is the knowledge of the

City Civil Court Suits and the Decree passed therein.
Considering the fact that when the Plaint was drafted it was
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by a different set of Advocates, the incorporation of the

reference to the Power of Attorney can be attributed to

rt

instructions given by the plaintiffs and may have been

inadvertent but is irrelevant to the cause of action to sue the

C
ou

defendants. In any event it certainly did not lead this court

to pass the ad-interim order. I may recall here that at the

time of passing the ad-interim order dated 26/11/2015 when
Mr. Ojha was asked how an invalid power of attorney was
used in the City Civil Court, he submitted that in addition to

ig
h

the Power of Attorney dated 24/11/2011 which was valid for a

period of six months, there is a second Power of Attorney
which is granted to the defendant no.1 for consideration and
therefore created an interest in the property in favour of

defendant no.1 and stated that the second Power of Attorney

will be produced. It was not so produced nor was inspection

ba
y

granted.
36.

In paragraph 15 of the order dated 26/11/2015,

this Court has recorded a query calling upon the defendant's

om

counsel to produce the second Power of Attorney to which Mr.

Ojha submitted that the Power of Attorney is not presently
available, but he undertook to produce the same.
defendant no.1

The

offered to give inspection of the original

second Power of Attorney, said to have been executed for

consideration within one week from 26/11/2015. During the
course of hearing on the 16th December 2015, I enquired of
Mr. Ojha whether this power of attorney was offered for
inspection

to which he replied in the negative, since

the

same was not presently available and that there is some

problem with offering the inspection and in any event the
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ad-interim order was being challenged in Appeal. Thus, as

far as the second Power of Attorney is concerned, the

rt

Defendants have not complied with the offer to produce the

vituperation is adopted.
37.

C
ou

same for perusal of the court. Instead the current strategy of

I am far from being convinced that paragraph 54

was intended to mislead the Court nor was this Court misled
in any manner due to reference to the Power of Attorney. In

ig
h

fact, it seems that the allegations now made are merely by

way of after thought. Paragraph 54 was very much part of
the plaint and the knowledge of the Applicant and his
Advocate when the matter was argued on 26/11/2015 at the
Reference to the Power of Attorney was

ad-interim stage.

specifically made in ad-interim order. Specific reference to

the Power of Attorney of 24th November, 2011 can be seen

ba
y

in paragraph 11 and 12 of the order. It is for this reason that

specific query was put to Mr.Ojha as to whether the second
Power of Attorney which is stated to be valid beyond six

om

months can be produced to which Mr. Ojha answered in the

affirmative.
38.

As far as interference with the administration of

justice by Courts is concerned it is well settled that conduct

which is calculated to and which has

the tendency to

produce an atmosphere of prejudice in the midst of which

proceedings must go on amounts to Contempt

of Court,

even though it is not likely to change the Contempt of the

Court. In the present case the conduct of the Applicant and
his Advocates is doubtless, an attempt to

and in my view
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has

successfully created a prejudicial atmosphere which

caused

the

plaintiff's

previous

Advocates

M/s.

Dhruve

rt

Liladhar & Co and the Counsel instructed by them to recuse

themselves. I have noted that is also necessary to mention
state as follows;
12)That

am

not

C
ou

that paragraph 12 of the Purshis, Mr. Ojha has the temerity to

having

any

personal

grievances against Mr. Aspi Chinoy or any other

advocates who are made accused, but as being
members of this noble profession of advocacy

ig
h

and being a vigilant citizen, my conscience

says that anyone who tries to pollute the pure
fountain of this Temple of Justice, he should be
dealt with stern hands which will be deterrent

to others also.

39.

The allegations made against the Advocates and

ba
y

Senior Counsel of this Court are irresponsible to say the

least.

The strategy adopted by the Applicant is to make

frivolous allegations against the Advocates and incapacitate

om

the Plaintiffs in a manner such that word gets around that

the present Applicant will not hesitate to adopt proceedings
against the Advocates who appear against him. The result of
this would be to deprive

the Plaintiffs of proper legal

representation, thereby frustrate the Plaintiffs attempt to

obtain proper representation.
amounts

to

creation

of

This in my view clearly

prejudicial

atmosphere

as

contemplated in Section 2-C (ii) of the Contempt of Courts

Act and which will interfere with the judicial proceedings.
Above all it amounts to manipulation of the justice delivery
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system which this Court is bound to uphold at all costs. Such

conduct is bound to and will obstruct and interfere with

Applying the test to the instant case we find that

C
ou

40.

rt

administration of justice.

the Applicant is presently suffering an injunction which is

prevents him from proceedings with the execution of a
decree

obtained

in

the

apparently a collusive one.

City

Civil

Court

proceedings

In an attempt to dislodge the

ig
h

injunction the Applicant has adopted dubious methods of

attacking the Advocates who appeared for the

Plaintiffs.

This is also highlighted by the fact that after the injunction

order was passed the Plaintiffs have filed a complaint before

the Police Authorities against the Defendant No.1 for the

offences under Section 420, 463, 465, 467, 468, 481 read
with 120-B of the Indian Penal Code and Defendant No.1 has

ba
y

been called in for inquiry. This is evident from copy of notice

issued by the Police authorities on 10/12/2015 to the first
Defendant and a copy of which is tendered by Applicant's

om

Counsel.

Mr. Ojha states that on the basis of the order

obtained by fraud the Plaintiffs are misusing it and filing

Police complaints.

Not only has the applicant's advocates

made reckless allegations in the application but the fact that

the present motion has been filed in the High Court has been
given publicity and the applicant/ Defendant no.1's counsel
has made a statement to the press stating that a motion has
been filed seeking action, prosecution of the Advocates
concerned.

This press report is published on 13/12/2015

even before the application was moved on the 15 th of

December. Obviously as part of a game plan which followed
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the grant of ad-interim relief. Such conduct in my view clearly

amounts to interference with the administration of justice
creating

an

atmosphere

of

prejudice.

If

such

rt

and

misbehaviour is allowed to continue, it would result in the

C
ou

Plaintiffs being deprived of legal representation and of their

choice in an effective manner,

apart from interfering with

the dispensation of justice.

These are practices are

reminiscent of the darker side of legal practice and not to be

41.

ig
h

treated with kid gloves.

In view of the provisions of Section 14 of the

Contempt of Courts Act, 1971 then it appears to the Court

that the person is guilty of contempt in its presence may

cause the person to be taken in custody and shall face action

and contempt. In the present case I am of the view that any
Advocate enrolled at the bar is duty bound to act in a

ba
y

manner which is befitting nobility of the profession and as a

responsible Officer of the Court. The conduct of the
Applicant's Advocate in the present case exemplifies his

om

attempt to brow beat

the opponent.

Advocates are

expected to maintain professional standards and ethics. It is

not expected of Advocates that they can make baseless
allegations. In the case of R.K.Anand Vs. Delhi High Court
reported in 2009 (8) SCC and which is relied upon by the
Applicant, the Hon'ble Supreme Court observed that in the
matters of contempt it is necessary that the charge of
Criminal Complaint must be properly fastened and that
opportunity must be given to defend itself. That there was
wide gap between professional misconduct and Criminal
Conduct. In the present case I am satisfied that the facts do
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not reveal any

misconduct on the part of the Plaintiffs

Advocates or Counsel let alone criminal conduct. On the

rt

other hand the Defendant no.1 who is an Advocate and his

Advocate on record are equally responsible and answerable.

C
ou

The Affidavit in support of the Notice of Motion is signed by

the defendant no.1 and also mentions a enrolment number
with the Bar Council and is signed by his Advocate on record.
The Motion likewise is signed by the Advocate on record.
Obstruction to justice

includes within its fold

ig
h

42.

contempt. Although one is entitled to criticize ones opponent

or even the case made out by the other side, the manner in
which such criticism is undertaken is material.

If it is

derogatory of the process of administration of justice and or

creates any prejudicial atmosphere, then certainly one is
entitled to consider it to be contempt of Court.

Generally

ba
y

speaking, contempt of Courts is said to be considered any

conduct

that

threatens

to

bring

the

authority

of

administration of law into disrespect or whether any purpose

om

to action during the conduct of a litigation and the unfailing

criterion is whether or not there is interference that or a
pendency to interfere that administration of justice.
43.

It is also important to note that litigants and their

Advocates and Counsel do not have right to impede the

process of administration of justice. In my view the present
case Mr. Ojha has repeatedly and consciously administered
threats of prosecution to the Advocates for the Plaintiffs, both
in writing and as well as orally during the course of
submissions and very vociferously at that. His submissions
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are based on the motion and the affidavit in support which

are signed by the defendant no.1 and his Advocate on

rt

record. The attempt seems to be to ensure that any

Advocate who intends to take up the Plaintiffs case is liable

C
ou

to face the wrath of Mr. Ojha and his machinations and the
risk of the alleged acts of fraud being attributed to him/her
and/or having misled the Court or played fraud upon the
Court. It is

not understood on what basis this can be

sustained in the case of every succeeding Counsel, after

ig
h

counsel. In the first instance allegations were made against

M/s Shah and Sanghavi, Advocates and Solicitors who were
appearing in the earlier Suits. The present suit was filed by
M/s Dhruve Liladhar and Company.

Allegations have been

made against entire team of lawyers and Counsel attributing

to them perpetration of fraud upon the Court.

Upon such

allegations being made in the present Notice of Motion any

ba
y

self respecting person would naturally choose to disassociate

himself/herself from the matter. As a professional and being
an Advocate, one is expected to discharge his duties to the

om

Clients and the Courts in a fair and unbiased manner without

identifying with the clients or the client's cause.

There is

nothing to indicate that the previous Advocates had any

special interest in the case. On the other hand the facts are
so gross that any Judicial Officer before whom the facts were
laid would not have any hesitation in concluding that the
machinations of the Defendant No.1 & 8 appear to be
unjustifiable.

44.

When we examine the facts the following become

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obvious. The statement in paragraph 54 which is the source

of the allegations made by first Defendants and through their

rt

Counsels by Purshis seems to rest upon the fact that the first
Defendant or that the Plaintiffs had knowledge of the Power

C
ou

of Attorney dated 28/11/2011 and as early as far back 2008

and if not at least in March 2012. Yet in paragraph 54 a

statement is made on oath that they came to learn of it for
the first time in September 2015. The statement has been
made and on oath this has been signed and verified by the
The statement is binding upon the Plaintiffs. It is

ig
h

Plaintiffs.

not the Plaintiffs case that they have informed the Counsel
who drafted the plaint or the Counsel who appeared to the
contrary. The plaint in paragraph 54 sets out in terms said

that the Plaintiffs first came to know of the City Civil Court
proceedings and the Power of Attorney in September 2015.
That statement continues on the record of this Court having

ba
y

been made on oath and will be tested in due course at the

trial of the Suit if not earlier. In the meantime even assuming
that the averment in the plaint is incorrect, since the

om

averment continues to be part of the pleadings and cannot

be wished away. Counsel who appear in the matter would
necessarily have to base their case on the very same
pleadings.

Every Counsel who has appeared or who may

appear hereafter would therefore be faced with the same set

of pleadings on the basis of which he or she would make
submissions. The strategy adopted by the Applicant being to
embarrass will continue to be employed against every
Counsel attributing to them an attempt to mislead the Court.
45.

The present case that the Plaintiffs are stood by

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threat averments in the plaint as reported earlier. It is the

plaintiff's case that the defendant no.1

acted upon the

rt

Power of Attorney which had expired efflux of time and

obtained a consent Decree only in September 2015.

C
ou

second suit was there after filed in an attempt to claim

possession and record handing over of possession and

legitimize, the transaction which prima facie appears to have
been fraudulently set up.

If one continues to make same

allegations above every Advocate who appears for them, the

ig
h

Plaintiffs will soon be faced with a situation that no Counsel

of their choice, who would be willing to appear for them and
plead their case only, because similar allegations may be
made against such Counsel. This strategy adopted by the

Applicant is in my view is certainly not within the permissible

limits of advocacy.

It interferes with choice that litigants

have to engage Advocate of their choice and interferes with

ba
y

discharge of Advocate's duty and would deter them from

doing their duty. I am also fortified in taking this view which
has been considered by the Honourable Supreme Court in

om

Partapsingh v. Gurbaksh Singh. AIR 1962 S.C. 1172

and a relevant portion of which is quoted and the has been
considered in greater detail

by

a Division Bench of this

Court in the case of Damyanti G. Chandiramani Vs. S.

Vaney, reported in AIR 1966 Bombay 19 wherein this
Court found that the contemnor had been in the habit of
making reckless allegations against the Court and its
Officers. Paragraph 13 & 16 of the Judgment, are relevant
and the Court held as follows;
(13) In this background, let us now examine
some of the arguments that where advanced by
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the

defendant-

contemner.

The

defendant

referred to the meaning of the word "threat"

rt

contained in the Concise Oxford Dictionary.

Several meanings of that word are mentioned.

C
ou

The defendant wanted to rely on the first and

second meaning viz. "Declaration of intention to

punish or hurt"; "such menace of bodily hurt or
injury to reputation or property as may restrain
person's freedom of action". The third meaning
of that word as given is "indication of coming

ig
h

evil" and the fourth meaning is "threat of

calamity. Even under the second meaning, it is
quite clear that the language in order to amount
to a threat need not necessarily be aimed at

causing bodily injury or hurt. It is enough if it is

calculated to cause injury to the reputation so
as to restrain the freedom of action of that

ba
y

person. On examining the words used by the

defendant, we feel no hesitation in holding that
in effect the words amounted to a threat. As
stated above, the question as to whether the

om

words amounted to a threat is not of the

essence of the matter. What is of the essence of
the matters is the course of conduct adopted by
the contemner, and if,

on the whole, the

conduct has a tendency to interfere with the

course of administration of justice or support the
course of justice, it would amount to contempt
of Court. The defendant also argued that unless
the threat is accompanied by a demand that the
party or the counsel should not proceed with his
action, the threat does not amount to contempt
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of Court. We do not think that the nexus

between the threat and the demand for doing

rt

something or refraining from doing something

need be express or need be expressly stated. It

C
ou

is enough if from the context the link between

the two is apparent. In the present case, it is

necessary to note that the threat or issued in
the presence of the Court and in the Court of the
arguments before the judge. It is quite clear that
the object of the defendant was to bring undue

ig
h

pressure upon the Advocate not to perform his

duties in a fearless and proper manner. As we
have already mentioned, the defendant had
started a prosecution for defamation against
Punwani

Advocate

on

account

of

similar

statement made by him in the course of his

argument in criminal case No.588/S of 1962. He

ba
y

also expressly stated that he would start two or

more prosecutions against the advocate and
actually, he did start a prosecution on the 9th
May 1963 in connection with the arguments

om

advanced by Mr. Punwani on 4th March 1963.

The subsequent conduct of the defendant in so
far as it relates to the prosecution having been
started against Advocate Punwani is concerned,
would, in our view, be relevant, and taking an
overall view of the matter and having regard to
the enter conduct of the defendant and further
taking into account the circumstance that the
threat

was

uttered

in

the

course

of

the

argument and in the presence of the judge, we

feel no hesitation in holding that the threat or
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intended to operate upon the mind of the

counsel so that he should flinch from performing

rt

his duties toward his client.

C
ou

(16) The law on this question has been clarified

in a recent judgment of the Supreme Court in

Partapsingh v. Gurbaksh Singh. AIR 1962
S.C. 1172. In that case, after citing the passage
from Oswald's Contempt of Court, which has
already

been

quoted

by

our

above,

their

ig
h

lordship referred to the facts of the case and

observe that although departmental proceeding
where target against the officer in accordance
with the direction contained in the Circular still

the launching of these proceedings would have

a deterring effect upon the officer, who had
already filed a suit to ventilate his grievances.

om

ba
y

And page 1177 their Lordships observed:

" ..what would be the effect of these
proceedings

on

the

Pending

the

Court

in

suit
of

which
the

was

Senior

Subordinate Judge, Amritsar? From the

practical point of view, the institution of
the proceeding at a time when the suit in
the Court of the Senior Subordinate Judge,
Amritsar, was pending could only be to
put

pressure

withdraw

his

on

the

suit,

respondent
or

face

to
the

consequences of disciplinary action. This,

in our opinion, undoubtedly amounted to
Contempt of Court. There are many ways
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of obstructing the Court and any conduct

by

which

the

course

of

justice

is

rt

perverted, either by a party or a stranger,

is a contempt; thus the use of threats, by

C
ou

letter or otherwise, to a party while his

suit is pending; or abusing a party in

letters to persons likely to be witnesses in
the cause had been held to be contempt".
The question is not whether the action in
fact interfered, but whether it had a

ig
h

tendency to interfere with the due course

of justice. The action taken in his case
against the respondent by way of a
proceeding

against

him

can,

in

our

opinion, have only one tendency, namely,

the tendency to coerce the respondent
and force him to withdraw his suit or

om

ba
y

otherwise not press it. If that be the clear

and

unmistakable

proceedings

tendency

taken

of

against

the
the

respondent, then there can be no doubt

that in law the appellants have been
guilty of contempt of Court, even though
they

were

instructions

merely

carrying

contained

in

out

the

the

circular

letter".
It may be noted that in the above
case, there were no threats issued by the
government. What the government did
was

that

disciplinary

it

started
action

departmental
against

the

respondent, and it was this action which

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was

taken

by

the

Government

in

accordance with a circular issued by it

rt

which raised the question as to whether it

amounted to contempt. Their Lordships

that

launching

of

departmental

C
ou

held

proceeding itself amounted to contempt

of Court, because it would exert pressure
upon the respondent either to withdraw
from the case or at any rate not to press
it. Their Lordships have considered the

ig
h

question found the practical point of view

and have considered the possible effect of
the institution of the proceedings upon
the respondent. In the present case also,

Advocate Punwani would be placed on the

horns of dilemma either withdraw from
the case or face the consequences of

om

ba
y

multiplicity of criminal proceeding and of

these in respect of the statement made
by him in the discharge of his duties as a
counsel. We, therefore, feel no hesitation
in holding that Judged, as

a whole, the

words used by the defendant and his

conduct

amounted

to

Contempt

of

Court.

46.

In my view the present case is clearly one where

the intention of the Applicant and his Advocate and Counsel

was clearly to
Counsel

threaten the Plaintiffs, their Advocates and

fear of prosecution and including demeaning

demands that Senior Counsel be deprived of their status as

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such, not that such frivolous allegations will dent the ability
or reputation the counsel concerned have earned but it
Thus

rt

would certainly affect any righteous legal practitioner.

the threats of being subjected to criminal complaints which

upon a practitioners mind

C
ou

no doubt are intended by way of harassment, could work

in a manner so that he or she

would flinch at the thought of being subjected to criminal

complaint for performing his duties towards his client. Such
conduct in my view would definitely amount to interfering

ig
h

with the administration of justice, being one of the methods

by which Defendant would seek to control the proceedings in
the Court, in an attempt to have the same decided in his

favour.
47.

In my view this is clearly conduct that amounts to

contempt. Even in the case of Damyanti (Supra) the Court

ba
y

observed that threatening an Advocate that prosecution

would be launch against him is certainly trying to bring
pressure on the Advocate with the object of deterring him

om

from performing his duties that it was well established law

that a statement made by an Advocate on the basis of
instructions taken from the Client and after verifying it is well
founded is privileged and protected.

It is in respect of

privileged statements that the Defendant had in that case

taken the extraordinary steps of launching prosecution. Yet
again in the case of Damyanti (Supra) the Advocates had
held

out

threat

of

implemented the threat.

prosecution

and

later

on

had

Thus the Court found that the

course of conduct that the Defendant had adopted was to be

taken in to account and the object to pressurize the Advocate
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in that case into withdrawing from the case, so as to avoid /

deter him from discharging his duties to his client by keeping

rt

the sword of prosecution handing over his head. The Division

Bench in that case found that such conduct certainly amount

C
ou

to contempt of Court. The fact situation in that case is akin

to the present set of facts and in my view one that wholly
support the conclusion that the Court has reached.

ig
h

Section 2 of the Contempt of Courts Act, 1971 defined

48.

Criminal contempt as follows:(a)

(b) ...

(c) "Criminal contempt" means the publication

(whether by words, spoken or written, or by
signs, or by visible representations, or otherwise)

ba
y

of any matter or the doing of any other act

whatsoever which-(i) Scandalises or tends to scandalise, or lowers

om

or tends to lower the authority of any court; or

(ii) Prejudices, or interferes or tends to interfere
with, the due course of any judicial proceeding;
or
(iii) Interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration
of justice in any other manner,

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49.

Section 14 of the Contempt of Courts Act, 1971

reads as under;
When it is alleged, or appears to the Supreme

rt

(1)

Court or High Court upon its own view, that a

C
ou

person has been guilty of contempt committed in its

presence or hearing, the court may cause such

person to be detained in custody, and, at any time
before the rising of the Court, on the same day, or
as early as possible thereafter, shall--

ig
h

(a) cause him to be informed in writing of the

contempt with which he is charged;
(b) afford him an opportunity to make his defence

to the charge;

(c) after taking such evidence as may be necessary

ba
y

or as may be offered by such person and after

hearing him, proceed, either forthwith or after
adjournment, to determine the matter of the

om

charge; and
(d)

make

such

order

for

the

punishment

or

discharge of such person as may be just.

(2) Notwithstanding anything contained in subsection (1), where a person charged with contempt
under that sub-section applies, whether orally or in
writing to have the charge against him tried by
some Judge other than the Judge or Judges in whose
presence or hearing the offence is alleged to have
been committed, and the Court is of opinion that it
is practicable to do so and that in the interests of
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proper administration of justice the application

should be allowed, it shall cause the matter to be

rt

placed, together with a statement of the facts of the

case, before the Chief Justice for such directions as

C
ou

he may think fit to issue as respects the trial

thereof.

(3) Notwithstanding anything contained in any other

law, in any trial of a person charged with contempt
under sub-section (1) which in pursuance of a
direction given under sub-section (2), by a Judge

ig
h

other than the Judge or Judges in whose presence or

hearing the offence is alleged to have been
committed, it shall not be necessary for the Judge
or Judge in whose presence or hearing the offence

is alleged to have been committed to appear as a

witness and the statement placed before the Chief
Justice under sub-section (2) shall be treated as

ba
y

evidence in the case.

(4) Pending the determination of the charge, the
Court may direct that a person charged with

om

contempt under this section shall be detained in

such custody as it may specify:
Provided that he shall be released on bail, if a bond
for such sum of money as the court thinks sufficient
is executed with or without sureties conditioned
that the person charged shall attend at the time
and place mentioned in the bond and shall continue
to so attend until otherwise directed by the Court:
Provided further that the court may, if it thinks fit,
instead of taking bail from such person, discharge
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him on his executing a bond without sureties for his

50.

rt

attendance as aforesaid.
In the present case the Applicant has made allegations
Counsel, who had

C
ou

of misconduct against the Advocates and

appeared for the Plaintiffs on 26th November, 2015 when an adinterim order was passed. Earlier when M/s Shah and Sanghavi,
Advocates and Solicitors were acting for the present Plaintiffs, the
applicant had made allegations of the said Advocates as well.
This was the first occasion when the Applicant took-up a plea
my

view

The applicants are following in

ig
h

against the plaintiffs Advocates.

predetermined

strategy

that

of

embarrassing

Advocates and threatening them with false complaints.

about the

On or

date the present Application was taken out, the

contention raised was that the plaintiff had made false statements
on oath to the effect that the Plaintiffs were not aware of the
Power of Attorney dated 24/11/2011. The statement in para 54 of

ba
y

the plaint according to him, was false and was made only in order
to show urgency and obtain an ad-interim order. According to the
Applicant's Counsel the Plaintiffs had knowledge of the Power of
Attorney in the month of March-2012 when Chamber Summons

om

No.428 of 2012 in Suit No.1611 of 1979 and other connected

Chamber Summons being Chamber Summons No.427 of 2012 in
Suit No.1611 of 1979, Chamber Summons No.431 of 2012 in Suit
No.917 of 1981 etc were filed. When these Chamber Summons
were filed, the plaintiff became aware that the applicant was
claiming under the said power of attorney. According to the
Applicant

the Plaintiffs

Advocates are liable to be prosecuted

under Sections 191, 193, 209, 199, 200, 465, 466, 471 and liable
to be sent to the Police Custody in view of the Provision of Section
341 (B) of the Criminal Procedure Code. Learned Counsel for the
Applicant contended that the Registrar (Judicial) should be
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WWW.LIVELAW.IN
NMSL No.3457/2015

directed to make a appropriate complaint before the Competent

Court. Contents of Purshis exemplifies gross misconduct on the

rt

part of the Applicant's Counsel. The Provisions of Section 2 and

attracted in the present case.
51.

C
ou

14 in the Contempt of Courts Act, 1971 are clearly in my view

In the result, I pass the following order:-

(i) The prayer for vacating the ad-interim order dated

ig
h

26th November, 2015 is rejected.

(ii) In view of the conclusions that I have reached

nothing survives in the Notice of Motion, accordingly
the Notice of Motion(L)No.3457 of 2015 stands

(iii)

dismissed.

Issue separate notices to the Advocate on

ba
y

record for defendant no.1 Mr. Kuldip Pawar, the

defendant no.1, Mr. Prasad Arvind Sant and Mr. Nilesh
Ojha, Advocate to show cause as to why action for
criminal contempt of Court should not be taken

om

against them.
(iv)

Notices returnable after three weeks and to

be placed the appropriate Division Bench.

(v)

There will be no orders as to costs.

(A. K. MENON, J.)

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