It is common mistaken belief that Doctrine of Clean Hands is only applicable
only to Writs under Article 226/227 of the Constitution in the High Court and
Writs under Article 32 or SLP under Article 136 of the Constitution in the
Supreme Court. However, this notion is fallacious in as much as the Doctrine of
Clean Hands is applicable with full force to all Courts necessarily including
the Subordinate Judiciary.
Clean hands, sometimes called the clean hand hands doctrine, unclean hands
doctrine, or dirty hands doctrine, is an equitable defense in which the
defendant argues that the plaintiff is not entitled to obtain an equitable
remedy because the plaintiff is acting unethically or has acted in bad faith
with respect to the subject of the complaint-that is, with "unclean hands". The
defendant has the burden of proof to show the plaintiff is not acting in good
The doctrine is often stated as "those seeking equity must do equity
"equity must come with clean hands
". A defendant's unclean hands can also
be claimed and proven by the plaintiff to claim other equitable remedies and to
prevent that defendant from asserting equitable affirmative defenses.
In the landmark case of Ramjas Foundation and another vs. Union of India and
, (2010) 14 SCC 38, Hon'ble the Apex Court has univocally held as
21. The principle that a person who does not come to the Court with clean hands
is not entitled to be heard on the merits of his grievance and, in any case,
such person is not entitled to any relief is applicable not only to the
petitions filed under Articles 32, 226 and 136 of the Constitution but also to
the cases instituted in others courts and judicial forums.
The object underlying the principle is that every Court is not only entitled but
is duty bound to protect itself from unscrupulous litigants who do not have any
respect for truth and who try to pollute the stream of justice by resorting to
falsehood or by making misstatement or by suppressing facts which have bearing
on adjudication of the issue(s) arising in the case.
It will be trite to refer to English Law almost 2 centuries back which
acknowledged this principle and it's applicability to all courts in the case of
Dalglish v. Jarvie
, (1850) 2 Mac & G 231: 42 ER 89, Mac & G wherein at P.
238, Lord Langdale and Rolfe B. observed: (ER p. 89)
It is the duty of a party asking for an injunction to bring under the notice of
the Court all facts material to the determination of his right to that
injunction; and it is no excuse for him to say that he was not aware of the
importance of any fact which he has omitted to bring forward.
Similarly in Castelli v. Cook
(1849) 7 Hare, 89 : 68 ER 36, Hare at p.
94, Wigram, V.C. stated the rule in the following words: (ER p. 38) "... A
plaintiff applying ex parte comes ... under a contract with the Court that he
will state the whole case fully and fairly to the Court.
If he fails to do that, and the Court finds, when other party applies to
dissolve the injunction, that any material fact has been suppressed or not
property brought forward, the plaintiff is told the Court will not decide on the
merits, and that, as he has broken faith with the Court, the injunction must go.
The same principle was enunciated in Republic of Peru v. Dreyfus Bros. & Co.
55 LT 802, LT at p. 803 wherein Kay J. held as under:
I have always maintained, and I think it most important to maintain most
strictly, the rule that, in ex parte applications to this Court, the utmost good
faith must be observed. If there is an important misstatement, speaking for
myself, I have never hesitated, and never shall hesitate until the rule is
altered, to discharge the order at once, so as to impress upon all persons who
are suitors in this Court the importance of dealing in good faith in the Court
when ex parte applications are made.
Relevant it is to refer to appeal wherein Lord Cozens-Hardy M.R. and Warrington
L.J. approved the view taken by the Divisional Court. Scrutton L.,J. who agreed
that the appeal should be dismissed observed: (R. v. Kensington Income Tax
(1917) 1 KB 486 (CA) "... and it has been for many years the rule of
the Court, and one which it is of the greatest importance to maintain, that when
an applicant comes to the Court to obtain relief on an ex parte statement he
should make a full and fair disclosure of all the material facts - facts, not
law. He must not misstate the law if he can help it - the court is supposed to
know the law.
But it knows nothing about the facts, and the applicant must state fully and
fairly the facts, and the penalty by which the Court enforces that obligation is
that if it finds out that the facts have not been fully and fairly stated to it,
the Court will set aside any action which it has taken on the faith of the
It would be apropos to refer to Halsburys Laws of England, 4th Edn., Vol. 16,
pp. 874-76, the law in this regard 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
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 plaintiffs 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
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.
The maxim does not, however, mean that equity strikes at depravity in a general
way; the cleanliness required is to be judged in relation to the relief sought,
and the conduct complained of must have an immediate and necessary relation to
the equity sued for; it must be depravity in a legal as well as in a moral
sense. Thus, fraud on the part of a minor deprives him of his right to equitable
relief notwithstanding his disability.
Where the transaction is itself unlawful it is not necessary to have recourse to
this principle. In equity, just as at law, no suit lies in general in respect of
an illegal transaction, but this is on the ground of its illegality, not by
reason of the plaintiffs demerits."
It would be pertinent to refer to the Apex Court decision in A.V. Papayya
Sastry & Ors. V. Govt. of A.P. & Ors
., (2007) 4 SCC wherein the Court
categorically held thus:
"It is thus settled proposition of law that a judgment, decree or order obtained
by playing fraud on the Court, Tribunal or Authority is a nullity and non est in
the eye of law. Such a judgment, decree or order --by the first Court or by the
final Court-- has to be treated as nullity by every Court, superior or inferior.
It can be challenged in any Court, at any time, in appeal, revision, writ or
even in collateral proceedings".
The basic premise/ foundation of the Doctrine of clean hands is that by coming
to the Court with unclean hands, the precious time of the Courts is wasted. It
is relevant that due to mounting pendency of cases in all courts, the time of
the subordinate judiciary is in no way less precious and therefore the doctrine
of clean hands should all the more applied by the subordinate judiciary.
Moreover, the principles of 'SATYA' as enunciated in Dalip Singh v. State of
(2010) 2 SCC 114 are applicable with full force to the proceedings
before the Civil Courts, Tribunals and Judicial Forums.
It is apposite to refer to Oswal Fats and Oils Ltd. Vs. Additional
Commissioner (Administration), Bareilly Division, Bareilly & ors
SCC 728 wherein the Apex Court dismissing the appeal, awarded penalty/cost for
violating the doctrine of clean hands. The Apex Court held thus:
35. In the result, the appeal is dismissed. Since the appellant has not
approached the quasi judicial and judicial forums i.e., the Additional
Commissioner, the High Court and this Court with clean hands and succeeded in
securing interim orders, it is ordained to pay costs, which is quantified at
With a view to ensure that functionaries of the State Government may not connive
with the appellant and compound the wrong already done, we direct the Government
of Uttar Pradesh not to renew the lease of the appellant at the end of 30 years
period and deal with excess land in accordance with the provisions of the Act.
Following the age old Precedents of the English Courts and the Apex Court, the
subordinate judiciary including the District Courts, Company Law Board, Consumer
Disputes Redressal Commission, ITAT, CESTAT, Session Courts, Revenue Courts &
Labour Courts are applying the Doctrine of Clean Hands with full force.
The counsels in the subordinate judiciary should plead violation of the doctrine
of clean hands in appropriate cases and insist the Court to decide this as a
preliminary issue. It is imperative for the judiciary to decide the issue of
violation of doctrine of clean hands, whenever raised, as a preliminary issue
and also impose heavy penalties/costs on the litigants for violation of the
doctrine of clean hands as done in Oswal Fats (supra).
Written By: Inder Chand Jain
Email: [email protected]
, Ph no: 8279945021