The Division Bench of J&K&L HC in an Appeal against a judgment of Writ Court while observing that the appellants have taken two contradictory stands before the Single Bench and the Division Bench, according to their own convenience and have tried to mislead the Court with a view to get favorable order dismissed the LPA with costs of Rs. 20,000. 

Impugned before the Single Bench was an order passed by the Respondentsby virtue of which mutation in favor of petitioners/appellants was set aside. The Single Bench by way of its impugned judgment dismissed the petition while observing that there is a statutory remedy available to the petitioners under the J&K Land Revenue Act, Svt. 1996 which the Writ Court in exercise of its extraordinary jurisdiction under Article 226 cannot allow to be by-passed. 

The Division Bench, upon perusal of the record of the case observed that the petitioners/Appellants in the writ petition had challenged the impugned order on the ground that Respondent No 2 was not competent to review the order of mutation in view of Section 13 of J&K Land Revenue Act, 1996, however, in the appeal they took altogether a different stand contrary to what has been pleaded before the writ Court by pleading that the Respondent No. 2 was not competent to assume the jurisdiction of revision under Section 15 of J&K Land Revenue Act, 1996. 

The Court also noted from the facts that the order impugned was passed by Respondent No. 2 on the basis of a representation filed by the Appellants/petitioners, by exercising its power by way of original jurisdictionand that the order nowhere reflected having been passed either under Section 13 or 15 of J&K Land Revenue Act, 1996. In this regard, the Court,applying the principle of Estoppel by Conduct observed, “once the Appellants have themselves approached before the Deputy Commissioner for redressal of their grievance, it doesn’t lie in the mouth of the appellants/petitioners to agitate, subsequently, that the Deputy Commissioner couldn’t have passed the said order, which, according to the appellants, is without jurisdiction.”

Further, the Court, relying upon “Suzuki Parasrampuria Suitings Pvt. Ltd. V/S The Official Liquidator of Mahendra Petrochemicals Ltd. (In Liquidation) And Others [(2018) 10 SCC 707]” reiterated the settled law that a litigant approaching an authority or a court, cannot take two different stands as per his/her own convenience and cannot be allowed to plead in appellate court what he has not pleaded before the Writ Court and cannot go beyond pleadings. 

Applying the aforesaid principle to the case at hand, the Division Bench observed, “The appellants by no stretch of imagination can plead altogether a new stand before the Appellate Court, which was not pleaded before the writ Court. It is peculiar case, where the appellants after having failed to convince the learned writ Court and earned dismissal of the writ petition being not maintainable in the light of the statutory remedy under Section 11, have pleaded altogether a new stand in the instant appeal in contradistinction to what has already been pleaded before the writ Court by twisting the facts just to mislead this Court. The appellants cannot take contradictory stands before the writ and the Appellate Court according to their convenience which falls within the ambit of playing fraud with the Court.”