2013 Supreme(Mad) 1640

HIGH COURT OF JUDICATURE AT MADRAS
S. MANIKUMAR, J.
Duraisamy
Versus
N.P. Murugesan & Others
CRP (NPD) No. 1467 of 2013 & M.P.No. 1 of 2013
Decided on: 16-04-2013

The principle of clean hands and equity was applied by the court to deny the condonation of delay in filing the appeal, as the revision petitioner approached the court with unclean hands.

Headnote:

Delay Condonation - Civil Procedure - Order 41 Rule 3-A and Section 151 CPC - [FACT OF THE CASE] Being aggrieved by the order and decreetal order in I.A.No.85 of 2011, dated 06.10.2012, refusing to condone the delay of 3220 days in preferring the appeal, the present revision petition has been filed. Material on record discloses that a suit in O.S.No.170 of 1996 has been partly decreed on 28.02.2002. It is the case of the revision petitioner that he had engaged one Mr. V.Dhandapani, Advocate, to contest the suit. The written statement has been filed on 10.04.1997. Thereafter, the suit has been decreed. The appeal has been preferred with a delay of 3220 days. In the supporting affidavit, the revision petitioner, has contended that after filing of the written statement, his counsel Mr. Dhandapani, did not intimate the stage of the suit. When he contacted his advocate, a reply was given to him that he would take care of the suit and thus, the revision petitioner, believed the words of his advocate. Only when the notice in E.P.No.171 of 2010, was served, he came to know that a decree has been passed by the learned 1st Additional Subordinate Judge, Erode. According to the revision petitioner, it was purely due to the fault of his counsel, in not intimating the stage of the suit, he was not aware of the decree and thus, the delay. [FINDING OF THE COURT] The Court below after considering the pleadings and evidence and also the decisions relied on by both parties, has dismissed the petition, to condone the delay of 3220 days and held that the revision petitioner has not shown any sufficient cause to condone the delay of 3220 days in preferring the appeal and accordingly dismissed I.A.No.85 of 2011. [ISSUES] The main reason for condonation of the delay of 3220 days in filing the appeal, is that, the revision petitioner's counsel Mr. V.Dhandapani, did not inform the stage of the suit. [RATIO DECIDENDI] The Court below has also noticed that the said Advocate V.Dhandapani, engaged by him to defend the suit in O.S.No.170 of 1996 filed by the respondent for specific performance, was the counsel who conducted the suit in O.S.No.1041 of 1995, filed against him, by his wife for maintenance. The suit in O.S.No.1041 of 1995, has been conducted by the said V.Dhandapani, on behalf of M/s. Benhar Wesley. The Court below has also observed that the entire cross examination of PW1 was evasive in nature and that he has pleaded ignorance of the proceedings initiated against him, by his wife and son. [FINAL DECISION] In the light of the above discussion and decisions stated supra, this Court is of the view that there is absolutely no merits, bonafides and diligence shown in the supporting affidavit filed for condonation. The averments, in the supporting affidavit depicts the falsity of the revision petitioner, in throwing the blame on his previous counsel Mr.V.Dhandapani. As rightly observed by the Court below, the revision petitioner has not approached the Court with clean hands. Equity cannot be extended to such person, who has approached this Court with unclean hands. In Arunima Baruah v. Union of India reported in 2007 (6) SCC 120, the Supreme Court held as follows: "12. .......It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question." 13. In Moodyv. Cox [(1917) 2 Ch. 71: (1916-17) All ER Rep 548 (CA)],it was held: (All ER pp. 555 I-556 D) "When one asks on what principle this is supposed to be based, one receives in answer the maxim that anyone coming to equity must come with clean hands. I think the expression “clean hands” is used more often in the textbooks than it is in the judgments, though it is occasionally used in the judgments, but I was very much surprised to hear that when a contract, obtained by the giving of a bribe, had been affirmed by the person who had a primary right to affirm it, not being an illegal contract, the courts of equity could be so scrupulous that they would refuse any relief not connected at all with the bribe. I was glad to find that it was not the case, because I think it is quite clear that the passage in Dering v. Earl of Winchelsea [(1787) 1 Cox Eq Cas 318: 2 Bos & P 270], which has been referred to, shows that equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for." 14. In Halsbury’s Laws of England, 4th Edn., Vol. 16, pp. 874-76, the law is stated in the following terms: "1303. He who seeks equity must do equity.—In granting relief peculiar to its own jurisdiction a court of equity acts upon the rule that he who seeks equity must do equity. By this it is not meant that the court can impose arbitrary conditions upon a plaintiff simply because he stands in that position on the record. The rule means that a man who comes to seek the aid of a court of equity to enforce a claim must be prepared to submit in such proceedings to any directions which the known principles of a court of equity may make it proper to give; he must do justice as to the matters in respect of which the assistance of equity is asked. In a court of law it is otherwise: when the plaintiff is found to be entitled to judgment, the law must take its course; no terms can be imposed." * * * 1305. He who comes into equity must come with clean hands.—A court of equity refuses relief to a plaintiff whose conduct in regard to the subject-matter of the litigation has been improper. This was formerly expressed by the maxim ‘he who has committed iniquity shall not have equity’, and relief was refused where a transaction was based on the plaintiff’s fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design. "