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