JUDGMENT
A.K. Ganguly, J.
1. Both the writ petitions and the applications arise out of identical facts and this judgment will cover both.
2. On writ petitions filed by Srimati Kanta Depura praying for electric connection in room Nos. 186 and 187 (2nd floor) in respect of her office at 14/2 Old China Bazar Street, an order was passed by this Court on 13th September 2000. The said order is set out below:
“Before:
The Hon’ble Justice Ganguly
Date: 13th September, 2000
Dictated Order
The Court: Heard learned counsel for both the parties.
The petitioner’s case is that his prayer for getting electric connection to the premises mentioned in the cause title is not granted by the CESC since 1996.
Learned counsel for CESC submits that in order to effect connection the people from CESC went to the spot but they could not give the connection as they were obstructed by landlord’s men and they had to come back more than once on being so obstructed.
Be that as it may, this Court is of the view that just because a landlord is not willing to allow the tenant to enjoy electric connection, that cannot debar the tenant’s right in law to enjoy electricity. The only requirement in such cases is that the application for connection must show that he is a bona fide occupant of the premises.
In that view of the matter this Court directs the CESC Authorities to give connection to the petitioner’s premises and for the said purpose take the help of the police authorities at the cost of the petitioner.
This Court adds the Officer-in-Charge, Hare Street Police Station as respondent No. 8 to this writ petition. The petitioner’s advocate-in-record is directed to amend the cause title accordingly.
This Court makes it clear that within a month of the petitioner’s payment of all charges and completion of all formalities the connection should be granted. But this grant of connection will not in any way affect the rights, title and interest of the parties in any pending proceedings before the Civil Court.
In the absence of the affidavits, the allegations are not admitted.
The writ petition is, accordingly, disposed of.”
3. Pursuant to that electric connection was given by CESC some time in October 2000. Thereafter, sometime in November 2000 applications being G.A. Nos. 4417 and 4418 of 2000 were filed by M/s. Broadway Centre, with a prayer for recalling the order dated 13th September 2000 passed in writ petitions No. 1404 and 1405 of 2000.
4. Initially M/s. Broadway Centre (hereinafter called the applicant) was not a party to the writ petition. But this Court by an order dated 9th February 2001, allowed the applicant’s prayer for being added and in fact, the applicant was added as respondent No. 9 to the proceedings. Thereafter, affidavits were exchanged and the matter was heard on a number of days.
5. This Court is of the opinion and the same has been also reflected in the order dated 13th September 2000 that disputes between landlord and tenant should not stand in the way of the tenant’s getting electric connection. Such disputes between landlord and tenant can go on in appropriate forum and an electric connection ‘per se’ cannot alter or change the nature of such dispute. The order dated 13th September 2000 was also passed on that basis.
6. But in the course of hearing the application for recalling, it was argued by the learned counsel for the applicant that in the writ petition and subsequently in the affidavits in opposition filed by the writ petitioner to the recalling applications, various statements suppressing the material facts have been made and documents which are not genuine have been disclosed by the writ petitioner in support of her claim that she is a tenant. In view of such alleged conduct of the petitioner, the Court has to consider the question whether the writ Court should maintain its order in favour of the petitioner.
7 .This Court thought this to be a matter of some importance and as such heard the matter in some details. In the course of hearing, reference was made by the parties to a large number of proceedings some of which have been concluded and some are pending. This Court is not concerned with those proceeding. But one thing is clear and beyond dispute that over the premises in respect of which the electric connection was directed to be given by the Court, there are Joint Receivers appointed by this Court.
8. In paragraph 9 of the writ petition, the following statement was made by the petitioner:
“Your petitioner was/is bona fide tenant depositing rent to the Rent Controller in view of the dispute relating to the title of the property being 14/2, Old China Bazar Street, Calcutta pending before the Hon’ble Court at Calcutta and such facts were narrated in brief under item No. 6 of the letter dated 16.1.98.
Xerox copy of the receipted letter dated 16.01.1998 is annexed and marked with the letter ‘E’ to this petition.”
9. The relevant part of the letter dated 16th January 1998 written by the Manager on behalf of Depura Agencies contains the following statements:
“It is submitted that since long we are the tenant of Room Nos. 186 and 187 of this market. Earlier this market was under the administration of Joint Receivers appointed by the Calcutta High Court in the family partition suit of Bagree family (suit No. 1736 of 1959). As such rent was paid to them. In this suit, this market was allotted to Mr. Gopal Das Bagree (as a member of said bagree family) by the High Court in September 1989. Till Joint Receivers were there we were paying rent to them but after allotment of this market to Gopal Das Bagree they discharged. But immediately thereafter dispute has cropped up in the matter of title of this market. This is the fact that Gopal Das Bagree is the allottee/owner of this market as per the records of High Court (matter No. 1736 of 1959) but some other parties e.g. Broadway Centre Ghanashyam Das Kankani, K.K. Kothari etc. are claiming that they have become the owner of this market. This claim of other parties is denied/ disputed by Gopal Das Bagree. Therefore, the parties have gone to the High Court where title suit is filed by various parties e.g. Gopal Das Bagree, K.K. Kothari Broadway Centre etc. The final judgment is still awaited. Under the circumstances and because of the reasons that Mr. Gopal Das Bagree is the recorded owner of this market as per the records of the High Court and also because so far no other party has been able to get any other order as such we are depositing rent to Rent Controller in his name. Rent upto December 1997 is already deposited with the Rent Controller.”
10. The Court in passing the order of electric connection proceeded on such statement of the petitioner.
11. In the recalling application, the list of tenants by the Joint Receivers was disclosed and in this connection the following averments were made:
“7. At the time of handing over possession of the said market to Gopal Das Bagree, the Joint Receivers and Commissioners of partition handed over a list of tenants of the said market. The Joint Receivers and Commissioner of partition also issued letter of attornment to such tenants.
The name of the writ petitioner did not appear either in the list of tenants prepared by the Joint Receivers in 1989 nor any letter of attornment was issued to the writ petitioner.
8. The said list of tenants furnished by the Joint Receivers and Commissioners of partition shows that the tenant of Room No. 186 on the 2nd floor of the said market was one, P.C. Chowdhury and tenants of Room No. 187 was Kanai Lal Dhole and Balai Dhole paying monthly rent of Rs. 44.40 (Rupees forty four and paise forty only) and Rs. 27.75 (Rupees twenty seven and paise seventy five only) respectively.
9. As on the date of handing over possession by the Joint Receivers and Commissioners of partition to the said Gopal Das Bagree and/or M/s. Broadway Centre, the writ petitioner herein was not a tenant of the said market or any portion therein.”
12. While dealing with those averments made in the recalling petition the writ petitioner filed affidavit-in-opposition. In the affidavits, the writ petitioner referred to two rent receipts granted by the Joint Receivers and annexed them at page 100 and 101 in order to show that they were tenants under the Joint Receivers.
13. In reply to the said affidavit, the applicant filed affidavits-in-reply and in para 32 of the affidavits, it was categorically stated by the applicant that the rent receipts annexed by the writ petitioner are not genuine documents and the signatures of the Joint Receivers appearing on various documents including the letters of allotment and the rent receipts which have been disclosed by the writ petitioner are not genuine.
14. This Court, on hearing the said stand of the applicant, examined the rent receipts. It appears that the rent receipts have been signed by Late Mr. J.N. Roy and Mr. Sujit Kumar Auddy, the Joint Receivers.
15. It is not in dispute that of the two learned advocates who were appointed as Joint Receivers, Mr. J.N. Roy died and in his place Mr. Dipak Deb was appointed as one of the Joint Receivers.
16. By an order dated 4th May 2001, this Court, therefore, directed the production of the original rent receipts and requested Mr. S.K. Auddy, one of the Joint Receivers to be present in this Court. Thereafter, the Joint Receivers appeared in Court on 11th May 2001 and this Court asked Mr. Auddy to look into the original receipts. Mr. Auddy whose signature is purportedly on the said receipts perused the said receipts and informed the Court that signatures appearing on the rent receipts were not genuine. Mr. Auddy further submitted that he knew the signature of Late Mr. J.N. Roy, another receiver, a member of the Bar. Mr. Auddy took time to produce before this Court documents which are admittedly signed by Late Mr. J.N. Roy.
17. Thereafter, the matter was taken up again on 15th May 2001 on which date Mr. Auddy produced two letters admittedly signed by Late Mr. J.N. Roy, and also by Mr. Auddy. Thereafter, the original receipts and the letters submitted by Mr. Auddy were encircled by the Officer of the Court and were put in a sealed cover and sent to Registrar, Original Side of this Court. The Court requested the Registrar, Original Side to send those letters and the original rent receipts to the appropriate Officers of CBI to have them properly examined by the handwriting expert.
18. By the order dated 15th May 2001 the following directions was given to CBI:
“1) Whether the signatures as appearing in the letters dated August 14, 1989 and September 25, 1989 and encircled by the Officer of this Court and the signatures of those two Joint Receivers appearing in the rent receipts are by the same hands?
2 If the expert finds that they are not signed by the same person, he should clearly give his opinion to that effect.”
19. Thereafter, the CBI after its examination sent its report to this Court and the report was opened by this Court on 21st June 2001 in the presence of the parties and the copy of the opinion of the handwriting experts dated 8.6.2001 on the basis of which the said report was given was made available to the parties.
20. The documents which were sent to CBI were marked as follows:
Q1) Signature of Mr. J.N. Roy as appearing on the original rent receipt dated 21st September 1989.
Q2) Signature of Sujit Kumar Auddy as appearing on the original rent receipt dated 21st September 1989.
Q3) Signature of Mr. J.N. Roy as appearing on the original rent receipts dated 4th October 1989.
Q4) Signature of Mr. Sujit Kumar Auddy as appearing on the original rent receipts dated 4th October 1989.
A1) Admitted signature of Mr. J.N. Roy on letter dated 14th August 1989.
A2) Admitted signature of Mr. Sujit Kumar Auddy on letter dated 14th August 1989.
A3) Admitted signature of Mr. J.N. Roy on letter dated 25th September 1989.
A4) Admitted signature of Mr. Sujit Kumar Auddy on letter dated 25th September 1989.
21. On examination of those documents, the following opinion was given by Mr. V.G.S. Bhatnagar, Deputy Government Examiner of Questioned Documents and the same was also signed by L. Loganathan, Assistant Government Examiner of Questioned Documents:
“The documents of this case have been carefully and thoroughly examined.
2. Inter se comparison of the signatures marked A1 and A3 reveals similarities in handwriting characteristics indicating that they both were written by one and the same person.
3. The person who wrote the red enclosed signatures stamped and marked A1 and A3 did not writ the red enclosed signatures similarly stamped and marked Q1 and Q3.
4. Inter se comparison of the signature marked A2 and A4 reveals similarities in handwriting characteristics indicating that they both were written by one and the same person.
5. The person who wrote the red enclosed signatures stamped and marked A2 and A4 did not write the red enclosed signatures similarly and marked Q2 and Q4.”
22. It is clear from a perusal of the aforesaid opinion of the handwriting expert that the person whose signatures were marked A1 and A3 did not put the signatures marked Q1 and Q3. Similarly, the person whose signatures were marked A2 and A4 did not put the signatures marked Q2 and Q4. The correctness of the report was not challenged by the learned counsel appearing for the writ petitioner.
23. From the perusal of the aforesaid opinion of the handwriting experts, this Court can reasonably assume that the rent receipts which were disclosed by the writ petitioner in the affidavits filed before this Court did not contain the signature of Late Mr. J.N. Roy, Barrister-at-Law and that of Mr. Sujit Auddy, advocate and that those receipts are not genuine documents.
24. Therefore, the assertions made in para 32 of the affidavits-in-reply, filed by the applicant, appear, acceptable to this Court. Even though such affidavits were filed on 12th April 2001 and thereafter, the matter was heard on a number of days, but no leave was obtained by the writ petitioner to deny those assertions by filing an affidavit. Very belatedly, the said prayer was made before this Court on behalf of the writ petitioner on 20th July 2001 and thereafter, leave was granted to writ petitioner to file a supplementary affidavit by 23rd July 2001. Such affidavit was filed and in that affidavit the writ petitioner has taken various pleas. One of the main stand taken is that against those rent receipts cheques were issued by the writ petitioner and those cheques were encashed. To that effect, supplementary affidavit-in-opposition was filed by the applicant also.
25. Such supplementary affidavit and the affidavit-in-opposition filed by the applicant contain various factual controversies with which this Court which is not concerned.
26. But from the facts which have been narrated above, one thing is clear that the rent receipts which have been annexed by the writ petitioner in their affidavits are not signed by the Joint Receives and as such they are not genuine documents. Secondly, it appears that the writ petition was affirmed by one Jamnalal Depura who described himself as the petitioner and he constituted attorney of Smt. Kanta Depura. In fact, the said assertion is incorrect as the writ petitioner is Smt. Kanta Depura not Jamnalal Depura. Smt. Kanta Depura has described herself as the wife of Jamnalal Depura.
27. From the documents and facts which have been disclosed in the writ petition, it is clear that the said Jamnalal Depura was a party to various proceedings and that there were disputes pending with the landlord and also with the applicant M/s. Broadway Centre.
28. But the Broadway Centre was not made a party in the writ petitions which were filed. The writ petitions were initially taken up by Justice K.J. Sengupta and Justice Sengupta by an order dated 4th July 2000 directed the writ petitioner to serve a copy of the said application upon the landlord and serve notice upon him and made it clear that the landlord will be entitled to make submission and to intervene in the matter. The said order of Justice K.J. Sengupta is set out below:
“Before
The Hon’ble Justice
Sengupta.
Smt. Kanta Depura v. CESC Ltd. and Ors.
Mr. B. Mitra advocate appears and submits. Mr. S. Pal, advocate appears and submits.
The Court: The writ petitioner shall serve a copy of this application upon the landlord concerned and serve a notice upon them. The landlord will be entitled to make submission and to intervene in this matter. Liberty is granted accordingly.
The matter is adjourned for a week
All parties are to act on a signed copy of the minutes of this order and as the usual undertaking.”
29. Without complying with the directions contained in the said order and without serving the landlord and without disclosing the said order to this Court on 13th September 2000, the order for electric connection was obtained from this Court. This is a very sharp practice indulged in by the writ petitioner.
30. When a Court passes an order, the Court proceeds on the representation made by the counsel. In the instant case, when the order dated 13th September 2000 was passed by this Court, this Court was not told of the previous order dated 4th July 2000 passed by another learned Judge. In fact, the said order was suppressed from this Court. Apart from that the said direction was not also complied with by the writ petitioner. Therefore, the order was obtained by deliberate misrepresentation and suppression of this Court’s previous direction and the principles of uberrimae fides, which mean petitioner should disclose all relevant facts and directions on his own, have been violated. Apart from that subsequently annexing documents which are not genuine with the affidavit-in-opposition in answer to the application for recalling the order dated 13th September 2000 further shows that the conduct of the writ petitioner is not clean and above board.
31. Considering all these facts this Court is of the view that the writ petitioner is not entitled to obtain the order, as her conduct is not certainly above board. The order dated 13th September, 2000 is recalled and the writ petitions are dismissed.
32. This Court has found that the writ petitioner tried her best to justify her stand on the basis of the rent receipts which are certainly not genuine documents. As a result of that the Court had to hear to hear the matter on a number of days. Considering these facts and considering the stand of the writ petitioner which is marked by unclean conduct, this Court dismisses the writ petitions and recalls its order dated 13th September 2000 with costs.
Both the writ petitions are thus dismissed with costs assessed at Rs. 25,000/- each to be paid by the writ petitioner in favour of the Calcutta High Court Legal Services Authority within a period of two weeks from date.
The original rent receipts and the original letters and the report of CBI be sealed in the envelope and kept with the record of this proceeding.
Later:
Xerox certified copy of this judgment and order be made available to the parties expeditiously, if applied for.