JUDGMENT D.K. Seth, J.
1. By an order dated 18.4.1996 passed in Appeal No. 247 of 1989, by Additional District Judge (VII) Court, Bijnor, the appeal was dismissed, for default. An application under Order XLI, Rule 19 of the Code of Civil Procedure, was filed. By an order dated 18.3.1998 the said application was dismissed. It is against this order the present writ petition has been filed.
2. Sri N. C. Rajvanshi, Senior Advocate, appearing on behalf of the petitioner points out that the impugned order is wholly perverse and could not have been passed, in the facts and circumstances of the case. He has led me through the records of the case.
3. Sri M. S. Haq, learned counsel for the opposite parties opposes the contention of Sri N. C. Rajvanshl. According to him the petitioner has not been able to show sufficient cause for his non-appearance so as to enable the Court to restore the appeal. According to him writ jurisdiction can be invoked by a person who cames with unclean hand. Unless the petitioner comes with clean hands he is not entitled to any relief. He also contends that the order Impugned is concluded by finding of fact which this Court cannot Interfere in exercise of writ Jurisdiction. He also contends that the petitioner had moved Writ Petition No. 6320 of 1998, which was disposed of by this Court on 2.3.1998. But the said fact has not been disclosed in the present writ petition. As such the petitioner is guilty of suppression of material facts, due to which it can very well be said that the petitioner has not come with clean hands. Therefore he cannot invoke writ jurisdiction. He further contends that the appeal was dismissed once earlier in the year 1992 and was restored in the year 1993. The petitioner appears to be a habitual defaulter. Infact, the petitioner's game is only to delay the process and keep the matter hanging and thereby harass the opposite parties. Therefore, by reason of his conduct this Court should not exercise Its discretionary jurisdiction in his favour. On these grounds he contends that the writ petition should be dismissed.
4. Sri Haq further contends that the appeal has been dismissed thrice and the petitioner is delaying the process and his conduct is bad and does not warrant exercise of equity in his favour. He also contends that in the meantime decree has also been executed and he has obtained the possession. This fact that the decree has already been executed in 1992, is admitted by Sri Rajvanshi. According to Mr. Haq after the decree is executed the appeal has become Infructuous. Therefore, the restoration would be futile exercise which the Court should avoid.
5. I have heard Sri N. C. Rajvanshi. learned Senior Advocate, appearing on behalf of the petitioner and Sri M. S. Haq, learned counsel appearing on behalf of respondents at length.
6. Having regard to the facts and circumstances of the case and the Issue involved, in my view, the question as to the execution of decree and taking of the possession through such execution though not very relevant for the purposes of deciding the issue involved herein but since the question has been raised, we may examine the same. Execution of the decree during pendency of the appeal never makes the appeal infructuous. The appeal continues to be pending until it is finally decided. If the appeal is dismissed and an application for restoration is made, the appeal shall be deemed to be pending during the period of pendency of such application by fiction. The dismissal of the appeal is subject to the result of such application. Thus the execution is subject to the outcome of such application. Inasmuch as if the application is ultimately allowed the appeal is restored then the appeal continues to remain pending. If, not allowed then the appeal is no more pending and the execution becomes final subject however to the attainment of finality of the decree. In other words execution reaches finality if the decree had attained finality. Finality of the decree is not dependant on its execution.
On the other hand finality of execution depends on the finality of the decree. The question of futility as raised by Mr. Haq based on such question, therefore, cannot be sustained and as such overruled.
7. So far as the question of post conduct is concerned, it is Irrelevant for the purposes of deciding the order, which is in hand and is to be decided on the basis of its own merit. However, bad the conduct of the petitioner may be in the past, the same has been raised only for the purposes of deciding the question, as to whether equity is in his favour or not and that too in relation to the order since been involved in the writ petition itself. If the conduct in relation to the question other than the present Issue is gone into then this Court would step out of the scope of the question, it is called upon to decide. However bad the past conduct may be. It cannot be gone into any more because despite such conduct earlier default was pardoned and appeal was restored and was again dismissed in default, which is to be gone into and in respect whereof discussion is to follow.
8. So far as the question that there was suppression of fact in not disclosing the material facts of disposal of Writ Petition No.6320 of 1998 is concerned, admittedly the petitioner has not disclosed the said fact. This is in effect non-disclosure of fact. There cannot be any doubt about the same. But there is distinction between non-disclosure of facts and suppression of material facts. Therefore, it is to be examined in the facts and circumstances of the case, whether the said fact was relevant for the purposes of this writ petition and amounts to suppression of material facts. The question as to whether suppression is suppression of material facts, depends on the question as to whether the facts would be relevant for the purposes of deciding the issue involved. Whether the question, that calls for decision, is dependent on the facts, not so disclosed. Only if the test, as indicated above, is satisfied then only it can be called as suppression of facts, which disentitles the party to approach this Court for invocation of equity jurisdiction. A person who claims equity is expected to come with clean hands.
9. In the present case it appears that the Writ Petition No. 6320 of 1998 was in relation to the order for grant of interim order of Injunction in favour of the petitioner. In the said writ petition the question of dismissal of appeal was not involved at all. On the other hand in the said decision it was observed that the restoration application for setting aside the order of dismissal on appeal, is pending. Therefore, the said writ petition has nothing to do with the restoration. Therefore the said facts would not be material for the purpose of deciding the question, as to whether application for restoration was rightly decided or not. It may have some impact on grant of the interim order, but it cannot be said to have any impact on decision passed on the application for restoration. The decision of application for restoration is in no manner dependent on the said facts. Therefore, non-disclosure of the said facts cannot be said to be suppression of material facts. Therefore, I am unable to persuade myself to agree with the contention advanced by Sri Haq, on this aspect.
10. Sri Haq led me through the order and the application for restoration and points out on merit that the petitioner has not been able to make out sufficient cause explaining reasons for its non-appearance on the date fixed. As observed earlier, he also contends that the said order is concluded by findings of fact which cannot be interfered with in exercise of writ jurisdiction. There is no two opinion with regard to the proposition as raised by Sri Haq. If the fact is concluded by finding of fact. In that event this Court sitting in writ jurisdiction is very slow to interfere unless it is shown to be perverse.
11. So far as the finding of fact is concerned. It might be concluded by finding of fact and there may not be any perversity. So far as finding of fact is concerned, it may be a case in respect whereof this Court may not exercise its discretion to interfere.
12. In case any perversity is found in the said order, in that event only this Court can interfere with the same. Such perversity may not be apparent in the order Itself but it might be implicit in the order. It depends on the facts and circumstances of each case. In order to find out whether there is perversity in so far as the fact that the petitioner has been able to explain the reasons sufficiently, as has been found by the Court, is concerned, the same is concluded by finding of fact and there appears to be no perversity with regard thereto, but that will not be sufficient. Inasmuch as when writ jurisdiction is invoked the Court exercises power of Court of record and it issues writ of certiorari for the purposes of calling for the record of the case. In the present case record has been produced along with the writ petition and then by Sri Haq. learned counsel for the respondent. None of the counsel disputes the authenticity of the records, produced before this Court, by each other. It is neither pointed out by Sri Rajvanshi nor by Sri Haq that any of the record, that are before this Court, are disputed. It is open to the Court to look into the record of the case on the basis of available record and find out as to whether there is any perversity Implicit in the order.
13. In order to find out as to whether there is any perversity Implicit in the order, it is necessary to look into the record and find out as to how the order become perverse in relation to the records available before the Court. The order dated 11.4.1996 by which the date 18.4.1996 in the appeal was fixed, is Annexure-5 to the writ petition. The said order was placed before this Court by Sri Rajvanshi. Sri Haq also led me through the said order in between the lines to show how it supports his contention. From the said order dated 11.4.1996, he points out that the date was fixed for hearing of the appeal on 11.4.1996, but an application for adjournment was made on behalf of the petitioner. Despite absence of the counsel for the petitioner as well as the petitioner itself, the Court on its own motion had allowed the application for adjournment on the ground that the counsel for the petitioner was unable to appear and had awarded cost of Rs. 50 to be paid within one week. However, the said cost so awarded was not made a condition precedent as it appears from the order. Thus Sri Haq contends that the date fixed on 18.4.1996 after the date 11.4.1996 was adjourned, is invariably the date fixed for hearing of the appeal.
14. In order to Interpret the order it is to be looked into the substance of the order and it has to be read having regard to the context and has to be understood on the totality of the order on the basis of substance, that it convey. It cannot be interpreted bereft of the context. A plain reading of the said order Indicates that Application No. Gha-148 was the application for adjournment which was allowed on payment of cost of rupees fifty. Sri Haq contends that this cost has not yet been paid, but that is neither here nor there. On the other hand the said order further indicates that one Application 139/Ga was also to be decided on 11.4.1996. It is not known as to how appeal could be fixed for hearing on 11.4.1996 when Application Ga-139. an application for impleadment along with respondent's objection thereto being Ga-143 were also fixed for disposal on the said date. Two matters cannot be fixed for disposal on the same day. Inasmuch as if the application for Impleadment is allowed in that event appeal could not have been taken up for disposal on the said date. Such fixing of date for disposal of the appeal, when date for disposal of Impleadment application was already fixed, appears to be Irregular exercise of Jurisdiction and seems to be on the side of perversity. Then again the said application was called out but no one appeared to support the said application. In that view of the matter 18.4.1996 was fixed for disposal of the application Ga-139 and Ga-143. The said order does not indicate that 18.4.1996 was the date fixed for disposal of appeal. It clearly Indicates that it was the date fixed for disposal of Application Ga-139 and Ga-143 respectively.
15. Thus in such circumstances in absence of the petitioner the appeal could not have been dismissed, since 18.4.1996 was not the date fixed for hearing and disposal of the appeal. At best the application Ga-139 and Ga-143 could have been decided ex-parte in absence of the petitioner. Application No. Ga-139 was not the application filed by the petitioner, but by some one else. Therefore. If the applicants in application Ga-139 were not present, in that event that application could have been dismissed. It is very difficult to conceive as to how appeal could have been dismissed when it was not the date fixed for disposal of the appeal. Even if the petitioner was not prevented by sufficient reasons from appearing on IS.4.1996 that cannot entail dismissal of appeal on a date on which the appeal was not fixed for disposal. Dismissal of the appeal on 18.4.1996 on account of the petitioner's default in such circumstances is a perversity which is implicit on record and the same having not been taken into account the order dated 18.3.1998 passed by the appellate court dismissing the application under Order XLIII. Rule 19 of the Code, cannot be sustained on account of perversity implicit in the order in view of the facts disclosed above.
16. Sri Haq has relied on the decision in the case of Godhu v. Additional District Judge (VII) Court Bulandshahr. 1989 ALJ 897, in support of his contention, that the order dated 18.4.1998 having been passed after considering the facts and circumstances of the case, exercising its jurisdiction as conferred on the Court and on the basis of materials on record. In that event in exercise of discretionary Jurisdiction under Article 226 of the Constitution, the same cannot be interfered with, particularly when the petitioner has not come with clean hands. In my view the ratio decided in the said case cannot be attracted in view of distinguished facts and circumstances of the present case. In the said case the plaintiff had filed suit for specific performance of contract for sale alleged to have been executed by the petitioner in the said writ petition in respect of certain plots and on the allegation that part of consideration was paid. The said suit was ultimately decreed ex-parte and application for restoration was filed. The restoration application was dismissed. Against which appeal was preferred and the said appeal having been dismissed, the writ petition was moved. In this background in para 10 of the said decision it was found that during the pendency of appeal the defendants had executed sale deed in respect of plots Involved in the said suit in favour of third party and thereby attempted to create a legal obstruction for the purposes of defeating the decree, which alone, according to the Court was sufficient to disentitle the petitioner from invoking equity Jurisdiction, since he did not come with clean hands. It was also held in the said case that nothing was shown that the appeal court while dismissing the appeal had exercised his discretion arbitrarily or that the order was not passed in good faith or against the material available on record on the other hand Court had come to a finding that it was of the opinion that it was a case of gross negligence on the part of the defendant, therefore, he was not entitled to any discretionary relief from the Court.
17. Whereas in the present case no such ground indicating that the petitioner has come with unclean hands, is available. Earlier it has been observed on the basis of the contention of Sri Haq with regard to suppression of material facts relating to the decision in Writ Petition No. 6320 of 1998 that the petitioner cannot be said to have come with unclean hands. Therefore, the said ground cannot be sustained and attracted. Here in the case it is not the question of exercise of Jurisdiction arbitrarily or against the material on record in respect of finding of fact with regard to sufficiency of grounds of non-appearance, that weighed with this Court in the present case in order to bring the same within the ambit of the said decision in the case of Godhu (supra). On the other hand in the present case it appears from the record that 18.4.1996 was not the date fixed for disposal of appeal. Therefore, the Court has no jurisdiction to dismiss the appeal in default on the said date. Thus this order suffers from thorough absence of jurisdiction to dismiss the appeal on the date not fixed for disposal of the appeal, a perversity implicit in the order itself. Therefore, in the peculiar facts and circumstances of the case the same is wholly distinguishable from the facts in the case of Godhu (supra).
18. For all these reasons the writ petition succeeds and the order dated 18.3.1998 passed by learned Additional District Judge (VII) Court, Bijnor in Misc. Case No. 16 of 1996, arising out of Appeal No. 247 of 1989 is hereby set aside and the Appeal No. 247 of 1989 is restored to file.
19. Since the appeal is a very old one it is expected and desired that the same should be decided as early as possible preferably within a period of six months from the date a certified copy of this order is communicated to learned court of appeal below. However, the appeal should be decided on its merit and all Interlocutory matter be decided according to the wisdom of the learned Court below without being Influenced by any of the observations made above, which are tentative for the purpose of deciding the present petition only.
20. The writ petition thus is disposed of. There will, however, be no order as to costs.