Himachal Pradesh High Court
Mohinder Kumar vs Surinder Kumar Sood And Another on 24 July, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 201 of 2017 .
Judgment reserved on : 18.7.2017 Date of decision: 24th July, 2017.
Mohinder Kumar ...Appellant.
Versus
Surinder Kumar Sood and another ..Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes For the Appellant : Mr. Satyen Vaidya, Senior Advocate, with Mr. Vivek Sharma, Advocate.
For the Respondents : Mr. Ajay Sharma, Advocate.
Tarlok Singh Chauhan, Judge This appeal is directed against the judgment dated 29.4.2017 passed by learned Additional District Judge-II, Una in Civil Appeal No. 36/2016 whereby he dismissed the appeal filed by the appellant and thereby affirmed the order dated 28.11.2016 passed by learned Civil Judge (Jr. Division), Court No.2, Amb, District Una, in Execution No. 13 of 2009.
2. The case has chequered history. The respondent No.1 filed a suit for possession, use and occupation charges and permanent prohibitory injunction against respondent No.2 and one Kapil. The suit was registered as Civil Suit No. 122 of 2000 and came to be decreed by 1 Whether reporters of Local Papers may be allowed to see the Judgment ?yes ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 2 the learned Civil Judge (Jr. Division), Court No.2, Amb, District Una, H.P. on 26.6.2008 and the relevant portion whereof reads as under:
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"Suit of the plaintiff is decreed for possession of premises shown by letters EFGH, ABCDEF, RASD in site plan Ext. PW-3/A filed by the plaintiff being portion of suit land i.e. measuring 0-04-88 hectares comprised in Khewat No. 323 min, Khatauni No. 609 min and Khasra No. 1713 and 1714 new (1059 old) situate in Mohal Adarsh Nagar, Amb, Tehsil Amb, District Una. However, suit of the plaintiff recovery of Rs. 28,800/- and injunction stand dismissed. Site plan Ext.PW-3/A shall form part of the decree".
3. The abovesaid decree was assailed by respondents separately by filing appeal No. 66/2008 titled Surinder Kumar vs. Kamlesh Devi and another and Appeal No. 72/2008 titled Kamlesh Devi Vs. Surinder Kumar and another. Both the appeals were decided by learned Additional District Judge, Una by a common judgment dated 10.4.2009. The appeal No. 72/2008 filed by Kamlesh Kumar was dismissed, whereas the appeal No. 66/2008 filed by Surinder Kumar was allowed and he was held entitled to an amount of Rs.28,800/-.
4. Smt. Kamlesh Kumari assailed the said judgment/decree dated 10.4.2009 passed by learned Additional District Judge, Una before this Court by filing Regular Second Appeal No. 243 of 2009 which was dismissed vide judgment dated 8.1.2016.
5. Smt. Kamlesh Kumari had earlier filed a Civil Suit No. 158/89 against respondent No.1 Surinder Kumar which was decreed by learned Sub Judge (2), Amb, on 16.2.1993 and a decree to the following effect was passed:
::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 3"Suit of the plaintiff is decreed to the extent that plaintiff is in possession of the shop in dispute marked ABCD in the site plan situated in Khasra No. 1059 min situated in Village Amb, .
Tehsil Amb, District Una and defendant is restrained to interfere in possession of the plaintiff over the shop in dispute."
6. Respondent No.1 Surinder Kumar filed an appeal against the above said decree dated 16.2.1993 before the learned District Judge, Una and the same was partly accepted. The decree passed by learned Sub Judge (2), Amb was modified to the extent that Surinder Kumar was restrained from taking forcible possession of the premises in dispute except in due course of law. Regular Second Appeal No. 305 of 2000 filed by Kamlesh Kumari against the judgment and decree passed by learned District Jude, Una was dismissed by this Court on 8.11.2012.
7. Respondent No.1 filed Execution Petition No. 13/2009 in the Court of learned Civil Judge (Jr. Division), Una for executing the decree dated 26.6.2008 passed by that Court in Civil Suit No. 122/2000 and modified by learned Additional District Judge, Una in Civil Appeal No. 66/2008 vide decree dated 10.4.2009 and subsequently affirmed by this Court vide judgment dated 8.1.2016 passed in RSA No. 243 of 2009.
8. The appellant claimed to be the owner in possession of substantial portion of the immoveable property in his own right, the possession whereof was sought by respondent No.1 in the aforesaid execution petition. Therefore, the appellant approached the Executing Court by filing objection under Order 21 Rules 97, 98, 101 to 105 read with Sections 47 and 151 of the Code of Civil Procedure seeking adjudication of his independent right, title and interest in the property ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 4 which is subject matter of the execution petition. The Executing Court after calling for the reply of respondent No.1, dismissed the objection .
petition vide judgment dated 28.11.2016.
9. The appellant filed an appeal before the learned District Judge, Una, which was assigned to learned Additional District Judge-II, Una and was registered as CMA No. 36/2016. The appeal so filed came to be dismissed by the said Court vide judgment dated 29.4.2016.
10. It is against this judgment and decree passed by the learned Courts below that the appellant/objector has filed the instant appeal on the ground that the learned Courts below have acted with illegality not exercising the jurisdiction vested in them by virtue of provisions of Rule 101 of Order 21 of CPC as they are legally bound to adjudicate all the questions as to right, title and interest in the suit property raised by the appellant but none of these questions was adjudicated upon in accordance with law. It is further averred that it was incumbent upon the Executing court to have framed the issues and thereafter affording an opportunity to the appellant to prove his case and having failed to do so, the judgment rendered by it suffers from grave illegality as the findings are not based on any legal evidence.
I have heard learned counsel for the parties and gone through the records of the case carefully.
11. A perusal of the objections filed by the appellant would reveal that the judgment and decree in Civil Suit No.122 of 2000 was being assailed on the ground that the same had been passed behind the back of the appellant and was the result of connivance and conspiracy of respondent No.1 and respondent No.2. It was stated that no doubt ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 5 respondent No.2 was the wife of the appellant but she was having inimical relations with him and was living separately for the last 30 years.
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There was no relationship of husband and wife and she always remained in search of an opportunity to cause financial loss to the appellant by hatching conspiracy with respondent No.1, who was trying to grab the property of the appellant by using respondent No.2 as an instrument. It was further claimed that the judgment and decree as had been obtained earlier by respondent No.1 including one which was sought to be executed had been obtained by committing fraud on the Court as well as the appellant/objector and, therefore, the same had no effect on the rights, title and interest of the appellant.
12. As regards the plea of fraud, the same can be out rightly rejected as the said plea has not been raised in accordance with Order 6 Rule 4 CPC, which reads thus:
"4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with date and items if necessary) shall be stated in the pleading."
13. It is more than settled that a vague or general plea of fraud cannot be permitted to be raised and it is incumbent upon the party raising such plea to plead the precise nature of the fraud alongwith other details.
14. Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Subhas Chandra Das ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 6 Mushib v. Ganga Prosad Das Mushib and others AIR 1967 SC 878 wherein it was held as under:
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"10. Before, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal (1964) 1 SCR 270: (AIR 1963 SC 1279) above referred to. In that case it was observed (at p. 295 of SCR): (at p. 1288 of AIR):
"A vague of general plea can never serve this purpose; the r party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other."
"25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show tht the impugned transaction was of such a nature as to shock one's conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstances that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father."::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 7
15. It shall be apt to make reference to the judgment of the Hon'ble Supreme Court in Afsar Shaikh and another v. Soleman Bibi .
and others AIR 1976 Supreme Court, 163, wherein the Hon'ble Supreme Court has held as under:
"While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court."
16. Yet again on the subject, a reference to a judgment rendered by this Court in Upasna and others vs. Omi Devi, 2001 (2) Current Law Journal (H.P.) 278 wherein the law on the subject was lucidly dealt and it was held as under:
"............The allegation of fraud, coercion and undue influence could not be proved by the plaintiffs and as such both the courts below have rightly held that the plaintiffs have failed to prove that the gift deed was as a result of fraud, coercion and undue influence. The possession of the land in dispute was given to the defendant and the mutation of entry in the revenue record in her name was made by the Patwari in the presence of Beli Ram during his life time. The execution of the gift deed was the personal right of the donor and since Beli Ram had not assailed the gift made by him in favour of the defendant during his life time, the plaintiffs have failed to establish that the donee had not rendered any service to the donor during his life time. The gift has been validly made by the donor in favour of the donee voluntarily and with his free will and accepted by the donee it cannot be said that the gift was induced by undue influence under Section 16 (2) & (3) of the Indian Contract Act, 1872 and was as a result of fraud as defined under Section 1 of the Act. The ratio of the judgment in Ladli Parshad Jaiswal v. The Karnal ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 8 Distillery Co., Ltd. Karnal & Ors., AIR 1963 Supreme Court 1279 strongly relied on by the learned counsel for the plaintiffs in my view does not advance the case of the plaintiffs that the gift in question was .
as a result of undue influence under S. 16 (2) & (3) of the Contract Act, 1872. In Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib & Ors., AIR 1967 Supreme Court 878, it has been observed that law under Section 122 of the Transfer of Property Act, 1882 as to undue influence is the same in case of a gift inter vivos as in case of a contract. It has further been held that the court trying a case of undue influence under Section 16 of the Contract Act, 1872 must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that or the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. The judgment further proceeded to observe that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. In this view of the matter, as noticed hereinabove, the plaintiffs have miserably failed to establish that the gift deed was executed by donor in favour of the donee under undue influence or fraud......"
17. It is rather shocking that in order to prolong this litigation the appellant has not even cared or bothered to spare his wife i.e. respondent No.2 and has alleged collusion between her and her brother respondent No.1. The learned courts below have rightly come to the conclusion that the appellant and his wife respondent No.2 were not having inimical relations because the appellant himself had filed an application under Order 41 Rule 27 CPC in RSA No. 305/2000, which was registered as CMP No. 909 of 2010. In the affidavit filed in support of the application, it was duly stated that being the husband of the appellant-applicant, he was well conversant with the facts of the case. This affidavit was attested on ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 9 27.9.2010 and, therefore, atleast till such time, the relations between the appellant and respondent No.2 were definitely not an inimical. It is thus .
obvious that the appellant and respondent No.2 were not even living separately.
18. That apart, it would be noticed that the objection of the appellant is that the judgment in favour of the decree holder had unilaterally been obtained wherein only his wife respondent No.2 was contesting defendant and it was not binding on him. Notably, he even intended to challenge the judgment passed by this Court in RSA No. 243 of 2009 by feigning ignorance of the judgment and decree so passed, little realizing that he himself had filed an application under Order 1 Rule 10 CPC in RSA No. 243 of 2009 for seeking his impleadment which was dismissed by this Court vide order dated 1.7.2011, which reads thus:
"1.7.2011: Present: Mr. K.D.Sood, counsel for the appellant.
Mr. Sanjeev Kuthiala, Advocate with Mr. T.S. Chauhan, counsel for the applicant in CMP No. 796 of 2010.
Mr. Deepak Kaushal, counsel for respondent No.1.CMP No.796 of 2010
This application has been filed by Mohinder Kumar Sood, husband of appellant. In brief the case of the applicant is that a part of suit property is in his possession. This is also his case that during the pendency of litigation he came to know this fact and earlier he was not aware of this fact. The prayer has been made for impleading him as respondent/defendant.
2. The application has been contested by filing reply. The learned counsel for the applicant has submitted that the relations between appellant and applicant are not good and therefore, the applicant was not aware of full facts of the case and only during the ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 10 pendency of the case applicant came to know that the suit has been filed regarding property, a part of which is in his possession.
3. There is no averment in the application that relations .
between appellant and applicant are not good. This apart, the respondent No.1 had filed the suit impleading appellant Kamlesh Devi and respondent No.2 Kapil. Admittedly, applicant is not a party in the suit. The plaintiff of the suit cannot be compelled to file a suit against a particular person. The parties to the suit are bound by the decree. There is no allegation of collusion in the application against respondent No.1 with appellant. The appellant has defended the suit and now she has filed the appeal. The application does not appear to be bonafide. It has been filed only to delay the decision in the appeal. There is no merit in the application and is accordingly dismissed."
19. The appellant is not in a position to dispute that vide registered sale deed dated 23.11.1974 the appellant, respondent No.1 and third brother Jatinder Kumar had purchased the land in equal share wherein all the three brothers had 1/3rd share. Once it is not the case of the appellant that he is entitled to a larger share or that the respondent No.1 is claiming a larger share than his entitlement, then the appellant virtually has no legs to stand after having failed to substantiate his plea of collusion, fraud etc., which are otherwise belied from the record.
20. As a last ditch effort, learned counsel for the appellant would argue that it was incumbent upon the Executing Court to have framed the issues and thereafter permitted the parties to lead evidence and only then decide these objections as was required under Order 21 Rules 97, 98, 101 to 105 read with Section 47 of CPC as these objections are required to be treated as a suit for all intents and purposes. In support of his contention, strong reliance has been placed on the following judgments:
::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 11Noorduddin vs. Dr. K.L. Anand (1995) 1 SCC 242, Rajeev Dutta and others vs. Punjab Wakf Board and another 2002 (3) Shim.L.C. 315 .
(DB) and Har Vilas vs. Mahendra Nath and others (2011) 15 SCC 377.
21. Order XXI, Rules 97, 98, 99, 100, 101 and 103 of the Code of Civil Procedure, reproduced as under:
"97 . Resistance or obstruction to possession of immovable property-- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
[(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.] [98 . Orders after adjudication-- (1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),--
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 12
99. Dispossession by decree-holder or purchaser-- (1) Where any person other than the judgment-debtor is dispossessed of .
immovable property by the holder of a decree for possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession-- Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,--
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
101. Question to be determined-- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.
** ** ** **
103. Orders to be treated as decrees-- Where any application has been adjudicated upon under rule 98 or rule 100 the other made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.]
22. A reading of the aforesaid provisions would indicate that the executing court is empowered to adjudicate the right, title and interest ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 13 claimed in the property arising between the parties to a proceedings or between the decree holder and the person claiming independent right, .
title and interest and an order is to be made in that behalf by the executing court. On such adjudication, it becomes conclusive between the parties and is to be construed as a decree enabling the aggrieved party to pursue the same in appeal as if it were a decree and such dispute is not to be agitated in a separate suit. The scheme of the Code is to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immoveable property which is the subject matter of execution.
23. It would be noticed that while rejecting the plea of the appellant for framing issues, the learned trial Court in para-7 of its judgment observed as under:
"7. At the hearing of the application, ld. counsel for the objector/applicant submitted that the objections raised by the applicant are required to be adjudicated upon after framing of issues and detailed inquiry. But this submission of the applicant/objector cannot be accepted in the present application. This Court does not find anything which requires to frame issues and to make detailed inquiry in the present application. There is sufficient record placed on the case file for the proper adjudication of the matter in dispute. Otherwise also, the Hon'ble Supreme Court in Silverline Forum Pvt. Ltd. vs. Rajiv Trust and another, 1998 AIR SC 1754 have held that the words "all questions arising between the parties to a proceeding in an application under rule 97" would envelop only such questions as would legally arise for determination between those parties. The Court is not obliged to determine a question merely because the resistor raised it. These questions must be relevant for consideration and determination ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 14 between the parties and those questions shouldhave legal arisen between the parties. Their Lordships have further held that the adjudication need not necessarily involve a detailed qnquiry or .
collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Moreso, learned Single Judge of Punjab and Haryana High Court in Som Parkash vs. Santosh Rani and another, 1997, AIR (P&H) 130 has held that the term "adjudication" as used in order 21 rules 97 and 98 does not start and end with the framing of the issues but it requires appreciation of the case of the objector and the documents in support of such objections. Adjudication does not mean that framing of issues is always necessary for the executing court. Similar view was discussed by Hon'ble H.C. of H.P. in MANOHAR LAL V/S KUSUM LATA MALHOTRA AND ANOTHER citation: 2015 Law Suit (HP) 693. Hence, the aforesaid submissions of the applicant/objector is rejected.
24. In Silverline Forum Pvt. Ltd. vs. Rajiv Trust and another AIR 1998 SC 1754, the Hon'ble Supreme Court in paras 10 and 14 of its judgment held as under:
"10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 15 regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising .
further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of property Act.
When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.
The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. similarly, a third party, who questions the validity of a transfer made by a decree- holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. in the adjudication process envisaged in order 21 Rule 97(2) of the Code, ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 16 execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the .
adjudication contemplated in the sub-section.
14. In Bhanwar Lal vs. Satyanarain and anr. [(1995) (1) SCC 6], a three - judge Bench has stated as under:
"A reading of Order 21, Rule 97 CPC clearly envisages that "any person" even including the judgment-debtor irrespective whether he claims derivative title from the r judgment- debtor or set up his own right, title or interest de hors the judgment debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The degree-holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done."
25. In Silverine's case (supra), the Hon'ble Supreme Court held that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refused to vacate the property. The adjudicatory process is as contemplated under Order 21 Rule 97 (2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on averments made by the resistor. The Court can also direct the parties to adduce evidence for such determination if the Court deems it necessary.
::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 1726. Similar reiteration of law can be found in the judgment rendered by the Hon'ble Supreme Court in Usha Sinha vs. Dina Ram .
and others (2008) 7 SCC 144 as also the judgment rendered by this Court in Manohar Lal vs. Kusum Lata Malhotra and another 2015 (4) ILR 1028 and Vikas Kapila and another vs. Ashok Sood and another 2016 (6) ILR 1453.
27. It is by now well settled that mere possession of the property subject matter of the decree under execution is not by itself sufficient for successfully resisting the execution of the said decree by a stranger to the said decree. The requirement of law is to establish the independent legal right to possess the said property by such person which is subject matter of the dispute.
28. The instant is an unfortunate case where the appellant and his wife respondent No.2 have succeeded for nearly three decades in their diabolic plan to deny the respondent No.1 the fruits of decree obtained by him. The appellant and respondent No.2 by their conduct have converted the litigation into a fruitful industry and have successfully managed to protect their possession, particularly over the shop, which otherwise belongs to respondent No.1. It is therefore, the bounden duty of the court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the courts must ensure that there is no wrongful, unauthorized or unjust gain to anyone as a result of abuse of process of court.
::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 1829. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Hon'ble Supreme Court held that .
false claims and defences are serious problems with the litigation. The Hon'ble Supreme Court held as under:-
"False claims and false defences
84. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent."
30. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the Hon'ble Supreme Court observed that a new creed of litigants have cropped up in the last 40 years who do not have any respect for truth and shamelessly resort to falsehood and unethical means for achieving their goals. The observations of the Supreme Court are as under:-
"1. For many centuries, Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre- Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has over shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 19 misrepresentation and suppression of facts in the court proceedings.
2. In last 40 years, a new creed of litigants has cropped up. Those .
who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
31. In Satyender Singh Vs. Gulab Singh, 2012 (129) DRJ, 128, the Division Bench of Delhi High Court following Dalip Singh v. State of U.P. (supra) observed that the Courts are flooded with litigation with false and incoherent pleas and tainted evidence led by the parties due to which the judicial system in the country is choked and such litigants are consuming Courts‟ time for a wrong cause."
The observations of Court are as under:-
"2. As rightly observed by the Supreme Court, Satya is a basic value of life which was required to be followed by everybody and is recognized since many centuries. In spite of caution, courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts„ time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court. Indeed, it is a nightmare faced by a Trier of Facts; required to stitch a garment, when confronted with a fabric where the weft, shuttling back and forth across the warp in weaving, is nothing but lies. As the threads of the weft fall, the yarn of the warp also collapses; and there is no fabric left."
32. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the appellant in this case. It has to be remembered that Court's proceedings are sacrosanct and should ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 20 not be polluted by unscrupulous litigants. The appellant has abused the process of the Court. What is 'abuse of the process of the Court' has been .
dealt with in detail by this Court in Amar Singh vs. Shiv Dutt and others, RFA No. 646 of 2012 decided on 30.7.2014 wherein it was held:
"9. .............Therefore, the question at this stage, would than arise as to whether a party can be permitted to indulge in filing frivolous and vexatious proceedings and whether the same amount to abuse of process of Court.
10. The Hon'ble Supreme Court in K.K.Modi vrs. K.N.Modi and others, reported in (1998) 3 SCC 573 has dealt in detail with the proposition as to what would constitute an abuse of the process of the Court, one of which pertains to re-litigation. It has been held at paragraphs 43 to 46 as follows:
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the Court" thus: "This terms connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. . . . . . . .
The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
44. One of the examples cited as an abuse of the process of Court is re-litigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 21 collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious .
proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of Courts' discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding.
45. In the case of Greenhalgh v. Mallard (1947) 2 All ER 255, the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the Court.
46. In Mcllkenny v. Chief Constable of West Midlands Police Force (1980) 2 All ER 227, the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the Court since it raised an issue identical to that which had been finally determined at the plaintiffs ' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the Court because it is an abuse for a party to re-litigate a question or issue which has already been decided against him even though the other ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 22 party cannot satisfy the strict rule of res judicata or the requirement of issue estoppels.
.
33. Similarly, the Hon'ble Supreme Court in Kishore Samrite vs. State of Uttar Pradesh and others, reported in (2013(2) SCC 398, has dealt in detail with "abuse of process of Court" in the following terms:
Abuse of the process of Court :
"31. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111/2011 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby r abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision.
32. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:
32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief. 32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 23 and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant. 32.3. The obligation to approach the Court with clean hands .
is an absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final. 32.6. The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
32.7. Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
32.8. The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well- justifies it. [Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].
33. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 24 process of the Court. In P.S.R.Sadhanantham v.
Arunachalam & Anr. (1980) 3 SCC 141, the Court held:
"15. The crucial significance of access jurisprudence has .
been best expressed by Cappelletti:
"The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework r of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic 'human-right' of a system which purports to guarantee legal rights."
16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ petitioner and dismiss the petition."
34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.
35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 25 take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the .
courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs.
36. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make "full and true disclosure of facts". (Refer : Tilokchand H.B. Motichand & Ors. v. Munshi & Anr. [1969 (1) SCC 110]; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Pari palanai Sangam & Anr. [(2012) 6 SCC 430]; Chandra Shashi v. Anil Kumar Verma [(1995) SCC 1, 421]; Abhyudya Sanstha v.
::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 26Union of India & Ors. [(2011) 6 SCC 145]; State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. [(2011) 7 SCC 639]; Kalyaneshwari v. Union of India & Anr. [(2011) 3 SCC .
287)].
37. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.
38. No litigant can play 'hide and seek with the courts or adopt 'pick and choose'. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court. [K.D. Sharma v. Steel Authority of India Ltd. & Ors. [(2008) 12 SCC 481].
39. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. (Buddhi Kota Subbarao (Dr.) v. K. Parasaran, (1996) 5 SCC 530)."
::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 2712. Now, it is to be seen as to whether the conduct of the respondents was in fact in abuse of the process of the Court. What is "abuse of process of Court" of course has not been defined or .
given any meaning in the Code of Civil Procedure. However, a party to a litigation can be said to be guilty of abuse of process of the Court in any of the following cases as held by the Hon'ble Madras High Court in Ranipet Municipality Rep. by its.... Vs. M. Shamsheerkhan, reported in 1998 (1) CTC 66 at paragraph 9. To quote:
" 9. It is this conduct of the respondent that is attacked by the petitioner as abuse of process of Court. What is 'abuse r of the process of the Court'? Of course, for the term 'abuse of the process of the Court' the Code of Civil Procedure has not given any definition. A party to a litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-
(1) Gaining an unfair advantage by the use of a rule of procedure.
(2) Contempt of the authority of the Court by a party or stranger.
(3) Fraud or collusion in Court proceedings as between parties.
(4) Retention of a benefit wrongly received.
(5) Resorting to and encouraging multiplicity of proceedings.
(6) Circumventing of the law by indirect means.
(7) Presence of witness during examination of previous witness.
(8) Institution vexatious, obstructive or dilatory actions. (9) Introduction of Scandalous or objectionable matter in proceedings.
(10) Executing a decree manifestly at variance with its purpose and intent.
(11) Institution of a suit by a puppet plaintiff. (12) Institution of a suit in the name of the firm by one partner against the majority opinion of other partners etc."
The above are only some of the instances where a party may be said to be guilty of committing of "abuse of process of the Court".
34. The appellant and respondent No.2 by keeping these proceedings alive have gained an undeserved and unfair advantage. The appellant and respondent No.2 have been successful in dragging the ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 28 proceedings for a very long time on one count or the other and because of their wrongful possession they have drawn delight in delay in disposal of .
the cases by taking undue advantage of procedural complications. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. One has only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. The Court has been used as a tool by the appellant and respondent No.2 to perpetuate illegalities and have perpetuated an illegal possession. It is on account of such frivolous litigation that the court dockets are overflowing.
35. Here it is apt to reproduce the observations made by the Hon'ble Supreme Court in paras 174, 175 and 197 of the judgment in Indian Council for Enviro-Legal Action vs. Union of India and others (2011) 8 SCC 161, which are as under:
174. In Padmawati vs Harijan Sewak Sangh, (2008) 154 DLT 411 (Del) decided by the Delhi high Court on 6.11.2008, the court held as under: (DLT p.413, para 6) "6.The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court.::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 29
One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the .
real costs equal to deprivation suffered by the rightful person."
We approve the findings of the High Court of Delhi in the aforementioned case.
175. The Court also stated: (Padmawati case, DLT pp. 414-15, para 9) r"Before parting with this case, we consider it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."
::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 30197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following .
principles in view.
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."
36. The further question which now arises is as to how to curb this tendency of abuse of process of court. As suggested in Kishore Samrita (supra), one of the ways to curb this tendency is to impose realistic or punitive costs. The Hon'ble Supreme Court in Ramrameshwari Devi and others Vs. Nirmala Devi and others, (2011) 8 Supreme Court Cases 249 took judicial notice of the fact that the courts are flooded with these kinds of cases because there is an inherent ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 31 profit for the wrongdoers and stressed for imposition of actual, realistic or proper costs and it was held:-
.
"52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:
A. Pleadings are the foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial Judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
B. The court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at the truth of the matter and doing substantial justice.
C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings. D. The court must adopt realistic and pragmatic approach in granting mesne profits. The court must carefully keep in view the ground realities while granting mesne profits. E. The courts should be extremely careful and cautious in granting ex parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing the parties concerned appropriate orders should be passed.::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 32
F. Litigants who obtained ex parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse .
the process of the court.
G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
H. Every case emanates from a human or a commercial problem and the court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well-settled principles of law and justice.
I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.
J. At the time of filing of the plaint, the trial court should prepare a complete schedule and fix dates for all the stages of the suit, right form filing of the written statement till pronouncement of the judgment and the courts should strictly adhere to the said dates and the said timetable as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearing fixed in the said suit itself so that the date fixed for the main suit may not be disturbed."
37. Prior to this the Hon'ble Supreme Court in South Eastern Coalfields Ltd. Vs. State of M.P (2003) 8 SCC 648 had held that the litigation should not turn into a fruitful industry and observed as under :-
"28. ...... Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 33 swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a .
relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation."
38. The Hon'ble Supreme Court in Indian Council for Enviro-
legal Action Vs. Union of India and others, (2011) 8 Supreme Court Cases 161 observed:-
"191. In consonance with the principles of equity, justice and good conscience Judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legl process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.
192. The court's constant endeavour must be ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.
193. This Court in a very recent case Ramrameshwari Devi v. Nirmala Devi had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 34 (Bhandari, J.) was the author of the judgment. It was observed in that case as under: (SCC pp. 268-69, paras 54-55) "54. While imposing costs we have to take into .
consideration pragmatic realities and be realistic as to what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter-affidavit, miscellaneous charges towards typing, photocopying, court fee, etc. r 55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years."
39. The Hon'ble Privy Council, as far back as in the year 1925 had observed in the case of Kuer Jang Bahadur Vs. Bank of Upper India Ltd, Lucknow, AIR 1925 Oudh 448 that the Courts in India have to be careful to see that process of the Civil Court and law of procedure are not abused by the judgment-debtors in such a way as to make Courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights.
40. The Hon'ble Supreme Court in T. Arivandandam Vs. T.V.
Satyapal & anr (1977) 4 SCC 467 has held;
"2......The sharp practice or legal legerdemain of the petitioner, who is the son of the 2nd respondent, stultifies the court process and makes decrees with judicial seals brutum fulmen. The long arm of the law must throttle such litigative caricatures if the ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 35 confidence and credibility of the community in the judicature is to survive......"
.
41. The Hon'ble Supreme Court in Babu Lal Vs. M/s Hazari Lal Kishori Lal & ors (1982) 1 SCC 525, observed that "...... procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections.........."
42. In Suresh Chander Jain Vs. Jai Krishna Swami & ors 1993 (2) ARC 484, the Hon'ble Supreme Court had occasion to examine a case where the tenant made repeated attempts to hold on to the tenanted premises inspite of the directions given by the court to vacate the premises and in this connection observed as under:
"This case is of sheer abuse of the process of the Court. The respondents suffered an ex-parte decree which this Court ultimately confirmed and dismissed the S.L.P. No. 8382 of 1992 on July 9, 1992. The respondents also had given an undertaking that they will vacate the premises within three months from the date of the High Court order. The High Court order was on July 1, 1992, reported in 1992 (2) ARC 246. They did not vacate. Again they launched upon the second front of litigation and filed a Writ Petition No. 3466606/92 which was dismissed by the High Court on August 18, 1992, reported in 1992 (2) ARC 645. Thereafter, a Regular Suit No. 400 of 1992 was got filed in the Court of the Civil Judge, Mahura through proxy for declaration and injunction. Civil Suit was dismissed on September 1, 1992 which was confirmed by the Division Bench of the High Court on September 30, 1992. Again in the third round of litigation in execution objecting as to jurisdiction was raised but disallowed by the Executing Court. Two proceedings were initiated against that order one before the Second Additional Civil Judge, Mathura and another by the writ ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 36 petition in which the impugned orders came to be made. It is stated that the High Court has heard the matter and the orders were reserved. That order does not detain us from disposing of .
the matter on merits. As stated earlier, this process adopted by the respondents is in sheer abuse of the process of the Court and cannot be permitted to agitate the matter even on points of jurisdiction. The appeals are allowed with exemplary costs fixed at Rs. 15,000/-. The orders of the High Court as well as of the District Court are set aside. The Execution Court is directed to give police assistance and to deliver the possession of the property within a period of two weeks from the date of the receipt of this order."
43. In Marshall Sons & Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd & anr, (1999) 2 SCC 325, it was observed by the Hon'ble Supreme as under:
"4...........it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time......."
44. In Rajappa Hanamantha Ranoji Vs. Mahadev Channabasappa & ors (2000) 6 SCC 120, the Hon'ble Supreme Court made strong observation against such a tenant when it found that the ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 37 tenant had adopted dubious method to deviate from the orders of the court and held as under:
.
"13.It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious note of and curbed by passing appropriate orders and issuing necessary directions including imposing of exemplary costs. As noticed, despite eviction order having become final nearly a quarter century ago, respondent no.1 still could not enjoy the benefit of the said order and get possession because of the filing of the present suit by the brother of the person who had suffered the eviction order. Under these circumstances, we quantify the costs payable by the appellant to respondent no.1 at Rs.25,000/-."
45. In Ravinder Kaur Vs. Ashok Kumar & anr (2003) 8 SCC 289, the Hon'ble observed as under:
"22........Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. This type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system."
46. In Gayatri Devi & ors Vs. Shashi Pal Singh, (2005) 5 SCC 527, the Hon'ble Supreme made the following observations:
"2.This appeal demonstrates how a determined and dishonest litigant can interminably drag on litigation to frustrate the results of a judicial determination in favour of the other side."
47. In Pushpa Devi Bhagat Vs. Rajinder Singh & ors (2006) 5 SCC 566, the Hon'ble Supreme made the similar observations, which read thus:
::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 38"29. At the cost of repetition, we may recapitulate the facts of this case. The suit was a simple suit for possession by a landlord against a tenant filed in the year 1993. Plaintiff's evidence was .
closed in 1998. The contesting defendant (defendant No.2) did not lead any evidence, and her evidence was treated as closed. The matter was dragged on for 3 years for defendant's evidence after the conclusion of plaintiff's evidence. It was noted on 19.5.2001 that no further adjournment will be granted for the evidence of defendants 4 and 5 (who are not contesting the matter), on the next date of hearing (23.5.2001). When the matter finally came up on 23.5.2001, no evidence was tendered. On the other hand, a statement was made agreeing to vacate the premises by 22.1.2002. The trial court took care to ensure that the statements of both counsel were recorded on oath and signed. Thereafter, it passed a consent decree. The attempts of tenants in such matters to protract the litigation indefinitely by raising frivolous and vexatious contentions regarding the compromise and going back on the solemn undertaking given to court, should be deprecated. In this context, we may refer to the observation made by this Court a similar situation in Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand [AIR 1975 SC 2202] ."
48. In Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna & ors (2009) 9 SCC 689, the Hon'ble Supreme Court has held as under:
"27 In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil ::: Downloaded on - 25/07/2017 23:58:02 :::HCHP 39 litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant."
49. In Satyawati Vs Rajinder Singh & anr, (2013) 9 SCC 491, .
three Judges' Bench of the Hon'ble Supreme Court have held as under:
"16. As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree-holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain."
"17 We are sure that the executing court will do the needful at an early date so as to see that the long drawn litigation which was decided in favour of the appellant is finally concluded and the appellant-plaintiff gets effective justice."
50. From the aforesaid conspectus of law, it would be evidently clear that it is the duty of the court to put a ceiling on unnecessary delay in the matter of enjoying the fruits by a decree holder as is often said that a litigation in this country, particularly on the Civil side commences only after obtaining a decree while executing it. A person who approaches the court must be able to enjoy the fruits of a decree and he cannot be made to suffer indefinitely even after a contest of a claim in a Court of law.
51. In view of the aforesaid discussion, I find no merit in this appeal and rather find the appellant to have abused the process of the Court. Accordingly, the present appeal is dismissed with costs of `50,000/- to be paid to opposite party i.e. respondent No.1. Pending application(s) if any, stands disposed of.
( Tarlok Singh Chauhan ) July 24, 2017. Judge.
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