Delhi District Court
Ms. Gayatri Tripathi vs Sh. S.K.Verma on 29 October, 2018
Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
RCA NO. : 24/2017
UNIQUE CASE ID NO. : 188/2017
IN THE MATTER OF :
1. Ms. Gayatri Tripathi,
D/o Sh. V.D. Tripathi
2. Smt. Geeta Mishra,
W/o Sh. V.K. Mishra
Both R/o 4312, Gali Bhaironwali,
Nai Sarak, Delhi110006.
.....Appellants/Plaintiffs
Vs.
1. Sh. S.K.Verma, (Suresh Kumar Verma),
Manager, Union Bank of India,
Mahesh Shiksha Sansthan,
Jodhpur (Rajasthan)
Through Satish Maheshwari (Attorney).
2. Trust Mandir Shri Ram Chander Ji,
Through its Trustee
Sh. Satish Maheshwari,
1428, Maliwara, Delhi110006
.....Respondents/Defendants
RCA No. 24/2017 Page 1 of 33
Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
Date of institution of the Appeal : 13/07/2017 Date on which Judgment was reserved : 13/09/2018 Date of Judgment : 29/10/2018 : J U D G M E N T:
1. The Appellants were Plaintiffs and Respondents were Defendants before the Ld. Trial Court. The Appellants and Respondents are respectively referred in this Judgment according to the original status before the trial court. The Plaintiffs/Appellants are dissatisfied with part of the Judgment and Decree dated 11.11.2016 passed by the Ld. Trial Court whereby the cost of Rs.1,00,000/ was imposed by the Ld. Trial Court.
2. The Plaintiffs/Appellants aggrieved from the part of the Judgment and decree, whereby the cost of Rs.1,00,000/ was imposed by the Ld. Trial Court, have sought to set aside said part of Judgment and decree dated 11/11/2016 interalia on the following grounds: (A) The law which the Ld. Civil Judge is referring to in the impugned judgment and decree dated 11/11/16 is not in consonance of apex Court judgments which are binding precedents.
(B) The Trial court has failed to appreciate that the Appellants bonafidely pursued the case for 25 years and did not make any misrepresentation.
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(C) The Trial Court has failed to appreciate that the suit was neither false nor vexatious to attract the applicability of Section 35A CPC.
(D) The Trial Court has failed to consider that the maximum costs under section 35A cannot exceed Rs. 3000/ as per law even if it is presumed (but not being admitted at all) that the suit was false and vexatious. (E) The Ld. Trial Court erred to appreciate that the following conditions must exist before this Section can be applied:
(a) the claim or defence must be false or vexatious;
(b) objections must have been taken by the other party that the claim or defence was false to the knowledge of the party raising it; and
(c) such claim must have been disallowed or withdrawn in whole or in part.
(F) The Principles of law enunciated by the Ld. Civil Judge in the given set of the case has no applicability as the Ld. Civil Judge has hurriedly passed the impugned judgment and decree ignoring and overlooking the pleadings and evidences of the appellants by jumping to the presumptive conclusions based on his own conjectures and surmises. Thus on this ground the impugned judgment and decree dated 11/11/2016 is liable to be set aside.
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The aforesaid grounds are also the arguments of the appellants/ plaintiffs.
3. In the aforesaid background, the following points for determination arise for the consideration of the present case:
i) Can the order under question be termed as perverse, capricious and arbitrary?
ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?
iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?
iv) What order?
ARGUMENTS OF RESPONDENTS
1. That brief facts of the case are as follows; Shri Sunder Lal Ma heshwari created a Trust namely "Trust Mandir Shri Ram Chander Ji" and executed a Trust Deed dated 1.4.1967 which was duly registered before the SubRegistrar, Delhi. After exe cution of the above Trust the properties No.1432 to 1436, Maliwara, Delhi110006, and property No.4312, Gali Bhairon Wali, Nai Sarak, Delhi110006, vested in the said Trust "Trust Mandir Shri Ram Chander Ji" and Trust became the owner of said properties. Thus, after 01.04.1967, Shri Sunder Lal Ma heshwari left with no right, title or interest in the properties No.1432 to 1436, Maliwara, Delhi110006, and property No.4312, Gali Bhairon Wali, Nai Sarak, Delhi110006.
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2. The father of the Appellants Late Shri Vidhyadhar Tripathi was also a tenant in the property on the ground floor of the property No.4312, Gali Bhairon Wali, Nai Sarak, Delhi 110006, under Shri S.K.Verma and Shri S.K.Verma used to collect the rent being thekadar of the property and issue rent receipt for the rent received by him. After the death of Late Shri Vidhya Dhar Tripathi his daughter Kumari Gayatri Tri pathi and his son Shri Madho Pershad became tenant in the Ground floor of the property No. 4312, Gali Bhairon Wali, Nai Sarak, Delhi110006.
3. That the Appellants started claiming themselves to be owner of the property No.4312, Gali Bhairon Wali, Jogiwara, Nai Sarak, Delhi110006 on the basis of documents Will, GPA, Agreement to sell, Receipt and Affidavit all dated 27.04.1995 alleged to be executed by Shri Sunder Lal Maheshwari as a sole trustee of "Balu Kesri Mandir of Shri Maharaj Ram and Laxman @ Temple Sri Ram Chander Ji Laxmanji Maharaj"
trust.
4. Admittedly, there is not even a single piece of document on record in favour of Shri Sunder Lal Maheshwari to show that he was the sole trustee of "Balu Kesri Mandir of Shri Maharaj Ram and Laxman @ Temple Sri Ram Chander Ji Laxmanji Maharaj" trust or the property no.4312, or the property vested in the said Trust or any such trust exists. The Appellants have also not proved on record that the entire consideration RCA No. 24/2017 Page 5 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
amount had been paid. As such the learned trial Court dis missed the suit vide impugned order.
5. The Appellants filed various suits on different tenants for dec laration etc. for declaring themselves to be owners of the premises No.4312, Gali Bhairon Wali, Nai Sarak, Delhi 110006, which are as follows: a. Suit No.654/14, titled as Smt. Geeta Mishra and Ors. Versus Geeta Dagga and Ors. The said suit was dis missed by the Court of Shri Vinod Kumar Meena, the then Civil Judge, vide judgment dated 15.12.2015. The Court while deciding issue No.1 to 4 on page 13 had cat egorically held that the document i.e. agreement to Sell, GPA, Receipt, and Will Ex. PW 1/2 to Ex. PW1/6 as al leged to be executed in favour of the respondents herein does not confirm any right title or interest in the prop erty No.4312, Gali Bhairon Wali, Nai Sarak, Delhi 110006. It is further held by the learned Court in para 10, 11 and 13 (Pages 15, 16, 17 of the Judgment) of the Judgment that the ownership of the property No.4312, Gali Bhairon wali, Jogiwara, Nai Sarak, Delhi110006 is with the "Trust Mandir Shri Ram Chander Ji" and defen dants Gayatri Tripathi and Geeta Mishra have got no right, title or interest in the said property. Para 10 of the said judgment read as under: RCA No. 24/2017 Page 6 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
"the plaintiffs got no right, title or interest in the suit property as Shri Sunder Lal Maheshwari was not having any title or ownership of the suit property. The ownership of the suit property was with "Trust Mandir Shree Ram Chand Ji" and Shri Sunder Lal Maheshwari was not having any title or ownership of the suit property. The own ership of the suit property was with "Trust Mandir Shree Ram Chand Ji" and Shri Sunder Lal Maheshwari was not at all entitled to confer any right, title or interest in the suit property to anybody else."
Same was the finding of the Court while deciding issue No.1A and 1B in para 13 of the judgment.
b. The Appellants herein preferred an appeal against the said judgment dated 15.12.2015 which was registered as RCA No.05/16 (New No.60970/2016) titled as Geeta Mishra and ors. Versus Geeta Dagga and Ors. which was also dismissed by the Court of Ms. Kamini Lao, the then ADJ, Delhi, vide judgment dated 25.07.2016. While de ciding the appeal it was observed by the Hon'ble Appel late Court in para 9 page No.13 of the judgment has held that: "Hence, the argument that under the given cir cumstances the documents i.e. agreement to Sell, GPA, Receipt, and Will which are Ex. PW1/2 to Ex.PW1/6 are void as per section 20 and 25 of Indian Contract Act, cannot be all that unfounded more so as the plaintiffs RCA No. 24/2017 Page 7 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
have also not proved on record that the entire consideration amount had been paid".
Even the learned appellants Court also give her finding on each document in paras 10 to 17 of the judgment as under: It is further held in paras 10, 11, 12, 13 and 14 (pages no.13 & 14 of judgment) of the said judgment held that Agreement to sell, Receipt, General Power of Attorney and Will are void documents and does not confer any right or title over Gayatri Tripathi and Geeta Dagga and Property No.4312 vest in the "Trust Mandir Shri Ram Chander Ji" and ultimately upheld the judgment dated 15.12.2015 and dismiss the appeal.
"Agreement to Sell. The Agreement to Sell had been executed by Balu Kesri Mandir of Shri Maharaj Ram and Laxman @ Temple Sri Ram Chander Ji Laxmanji Maharaj through its sole trustee Shri Sunder Lal Maheshwari. The plaintiff never filed any suit for enforcing the said Agreement to Sell.
It is settled principal of law that an agreement to sell does not confirm any right, title or interest in the property.
Even as per Section 17 of the Registration Act, Agreement to sell required compulsory registration, but the plaintiffs did not got the same registered and even is insufficiently RCA No. 24/2017 Page 8 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
stamped, as such the same cannot be enforced and cannot be read in evidence.
Receipt. There are number of cuttings on Receipt. PWl has identified the signature of Sh. S.L. Maheshwari on point X only and not on the cuttings and as such document has not been proved as per law and cannot be read in evidence as the plaintiff did not recognised the signatures on the lines written by hand on the said receipt. The payment as shown in the receipt alleged to be given to Sunder Lal Maheshwari is hand written and the plaintiffs have also failed to prove that the alleged cheque issued by them to Shri Sunder Lal Maheshwari had been duly encashed. Even otherwise also, as no consideration has been paid by the plaintiffs and the alleged sale is invalid being without any consideration. The entire alleged transaction is a sham.
GPA. It is further submitted that a careful perusal of the GPA reveals that the GPA EX PW 1/5 had been executed by Shri S.L.Maheshwari in his personal capacity and not in the capacity of the manager of the alleged Trust and do not confer any right in favour of the plaintiffs. Even otherwise after the death of the executor of the GPA, GPA came to an ends and person in whose favour the GPA had been executed cannot exercise any right on the basis of the said GPA.
Will. The will had been executed by Shri Sunder Lal Maheshwari as sole trustee and Manager of Balu Kesri Mandir of Shri Maharaj Ram and Laxman. It is submitted that the RCA No. 24/2017 Page 9 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
Manager of the Trust has no power to execute a will with respect of the suit property as he is not the owner of the suit property and as such cannot bequeath the trust property through will.
The appellate Court dealt and discussed about illegality of all the documents alleged to be executed in favour of the appellants and ultimately dismissed the appeal vide judgment dated 27.07.2018 and the appellants did not preferred any appeal against the said judgment and it attained finally.
c. The Appellants filed another suit for declaration along with recovery against Shri S. K. Verma, with respect to the premises No.4312, Gali Bhairon Wali, Nai Sarak, Delhi110006, which was registered as suit No.94011/2016, titled as Gayatri Tripathi and Ors. Ver sus Shri S. K. Verma and Ors. The said suit was dis missed by the Court of Shri Harun Pratap, the then Civil Judge, vide Judgment dated 18.10.2016. The Court while deciding issue No.1 in para 18 page 11 had cate gorically held that: "Hence, the plaintiffs have failed to prove that Shri Sunder Lal was the trustee of the trust or any such Trust ever exists or he had any right, title or interest in the property and therefore all the documents executed by Shri Sunder Lal in favour of the plaintiffs do not RCA No. 24/2017 Page 10 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
confer any legal right in favour of the plain tiffs". The Court in para 19, 20, 21, 22 had discussed about illegality of the documents i.e. agreement to Sell, GPA, Receipt, and Will Ex.PW 1/1 to Ex. PW 1/4. The Court in para
16 (Page no.9), para 23 (page no.14) of the said judgment had held that "after execution of the registered Trust i.e. Trust Mandir Shri Ram Chander Ji, vide Trust Deed dated 01.04.1967 as Ex. DW 1/4 and property No.4312, Gali Bhairon Wali, Nai Sarak, Delhi 110006 vested in the said trust and prima fa cie Shri S. L. Maheshwari was left with no right title or interest in the said properties and being incompetent to execute these documents i.e. Ex. PW1/1 to PW1/4, he could not have transferred better title then what he had." The Court while deciding issue No.3 on page 17, para 29 of the said judgment held as under;
"In view of findings on the basis of the issue as aforesaid, the Court is constrained to ob serve that a bundle of lies has been pursued by the plaintiffs before the Court for more than 25 years without any basis for claiming right over the suit property".
And ultimately, dismissed the suit of the plaintiff being devoid of any merits vide judgment and decree dated 18.10.2016. The plaintiffs (respondents herein) have not filed any appeal against the said judgment and decree and it attained finality.
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d. That during the pendency of the aforesaid suit for decla ration against Shri S. K. Verma the Appellants filed an other suit for recovery of Rs.1,07,712.00 titled as Gaya tri Tripathi Vs S.K.Verma, which was dismissed vide or der dated 11.11.2016 with cost of Rs.1,00,000.00 by the Court of Shri Harun Pratap Civil Judge, Delhi and the said judgment has been challenged by the Appellants on limited point of imposition of cost by the Learned Trial Court. While deciding the said suit it was observed by the Learned Trial Court in para 4 and 6 on page 3 of the order that;
"para 4 (page no.3): Nevertheless, it is perti nent to mention on record that the same issue of their alleged title in respect of the suit prop erty has been agitated against and again by the plaintiff before different forums and all such suits have been dismissed for want of merits in toto"
"Para 6 (page no.3): Therefore, the present suit inherently based on the alleged owner ship of the plaintiffs over the suit property is clearly barred on account of the well estab lished legal principle of 'Resjudicata'. The Court is further constrained to observe that act of the plaintiff in filing several cases si multaneously for establishing their alleged claim of ownership over the suit property is RCA No. 24/2017 Page 12 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
apparent gross abuse of the process of the Court and the same needs to be dealt strictly."
"para 3 (page no.4),: The claim of the plaintiff has been found to be prima facie false and misleading while it is a matter of record that no attempt has been spared by the plaintiffs to establish such false claim in respect of the suit property initiating several litigations."
"para 2 (page no.7): in view of the aforesaid observations made by the Hon'ble Apex Court and in the background of the facts and cir cumstances of the present suit, the Court is left with no doubt that exemplary costs need to be imposed upon the plaintiff in the present such unscrupulous litigants".
"Page 7, para 3: Hence, the present suit is hereby dismissed being barred by resjudi cata and even devoid of merits alongwith costs of Rs. 1 Lakh (out of which 50,000.00 be paid in Army Welfare Fund Battle, Casuali ties, Syndicate Bank, South Block Branch, New Delhi IFSC Code synb0009055) with ac count number 90552010165915 and Rs.50,000.00 be paid to the defendants ) as compensation by the plaintiff".
6. After dismissal of three suits and one appeal Appellants did not prefer any appeal against the said judgments.
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7. That "Trust Mandir Shri Ram Chander Ji' filed one slum peti tion against petitioner No.1 and Shri Madho Prasad who be came tenants after the death of their father in the tenanted premises and the said Slum Petition was allowed by the Com petent Authority Slum, Delhi vide order dated 25.07.2017.
8. The above mentioned judgments are sufficient to show the malafide conduct and malafide intentions of the Appellants. As such, the present petition is liable to be dismissed with further heavy cost.
9. The Appellants have filed the present petition claiming them selves to be the landlord of the respondents and as such are trying to obtain an eviction order of the property by playing fraud upon the Court as in the previous proceeding they were seeking declaration from the Court to declare them as land lord of the respondents. The said issue has been dealt in de tail by 4 Civil Courts and their finding and view came against the Appellants in the form of above mentioned judgments which have attained finality.
10. That the above act of the Appellants are highly misconceived, malafide, mischievous, illegal and is not tenable in law.
11. That in view of submissions made herein above, the present appeal filed by the appellants/ plaintiffs cannot proceed fur ther and is liable to be dismissed.
FINDINGS OF THE COURT RCA No. 24/2017 Page 14 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
The Ld. Counsel of the Appellants has also relied upon the Paras No.6 and 8 of the judgment Ashok Kumar Mittal V Ram Kumar Gupta and Anr. (2009) 2 SCC 656 in order to buttress the grounds of appeal as well as his arguments: "6. One view has been that the provisions of sections 35 and 35A CPC do not in any way affect the wide discretion vested in by High Court in exercise of its inherent power to award costs in the interests of justice in appropriate civil cases. The more sound view however is that though award of costs is within the discretion of the court, it is subject to such conditions and limitations as may be prescribed and subject to the provisions of any law for the time being in force; and where the issue is governed and regulated by sections 35 and 35A of the Code, there is no question of exercising inherent power contrary to the specific provisions of the Code. Further, the provisions of section 35A seems to suggest that even where a suit or litigation is vexatious, the outer limit of exemplary costs that can be awarded, in addition to regular costs, shall not exceed Rs.3000/. It is also to be noted that huge costs of the order of Rs. Fifty thousand or Rs.One lakh, are normally awarded only in writ proceedings and public interest litigations, and not in civil litigation to which sections 35 and 35A are applicable. The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code."
"8. We do not however propose to examine or decide the above issues here, except to observe that courts should not exceed or overlook the limitations RCA No. 24/2017 Page 15 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
placed by the Code with reference to costs in civil litigation. In so far this case is concerned, even though the order relating to costs may not strictly be correct, we do not propose to interfere with the same, in exercise of our jurisdiction under Article 136, as the order has not resulted in any injustice. It is stated that the respondents have already deposited the costs. The time for deposit of costs by the petitioner is extended at his request by a month from today."
The Ld. Counsel of the Appellants has further relied upon the Paras No.26 and 28 to 32 of the judgment N. Hiriyan V.B. Siva Kumar (S.A. No. 23/2008 and M.P. No.1/2008) : "26. Substantial Question of Law 4 :
The fourth substantial question of law raised in the second appeal is regarding the compensatory costs awarded by the trial Court under Section 35A of the Code of Civil Procedure, that was confirmed by the appellate court. It is well settled that under Section 35A CPC, the Court can impose compensatory costs on the plaintiff or the defendant, when there is vexatious claim made by a party to the suit.
"28. The scope of Section 35 and 35A of the Code of Civil Procedure has been considered by the Hon'ble Apex Court in Salem Advocates Bar Association v. Union of India, (2005) 6 SCC 344 and Ashok Kumar Mittal v. Ram Kumar Gupta & Anr, (2009) 2 SCC 656 and Vinod Seth v. Devender Bajaj & Anr, (2010) 8 SCC 1.RCA No. 24/2017 Page 16 of 33
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"29. In Salem Advocates Bar Association v. Union of India reported in (2005) 6 SCC 344, the Hon'ble Apex Court has held as follows : "Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow."RCA No. 24/2017 Page 17 of 33
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"30. In Ashok Kumar Mittal v. Ram Kumar Gupta & Anr, reported in (2009) 2 SCC 656, the Hon'ble Supreme Court has held thus: "One view has been that the provisions of Sections 35 and 35A CPC do not in any way affect the wide discretion vested in by High Court in exercise of its inherent power to award costs in the interests of justice in appropriate civil cases. The more sound view however is that though award of costs is within the discretion of the court, it is subject to such conditions and limitations as may be prescribed and subject to the provisions of any law for the time being in force; and where the issue is governed and regulated by Sections 35 and 35A of the Code, there is no question of exercising inherent power contrary to the specific provisions of the Code. Further, the provisions of Section 35A seems to suggest that even where a suit or litigation is vexatious, the outer limit of exemplary costs that can be awarded in addition to regular costs, shall not exceed Rs. 3000/. It is also to be noted that huge costs of the order of Rs. Fifty thousand or Rs. One lakh, are normally awarded only in writ proceedings and public interest litigations, and not in civil litigation to which Sections 35 and 35A are applicable. The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code."RCA No. 24/2017 Page 18 of 33
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"31. In Vinod Seth v. Devender Bajaj & Anr., reported in (2010) 8 SCC 1, the Hon'ble Supreme Court has held as follows: "23. The provision for costs is intended to achieve the following goals: (a) It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. (b) Costs should ensure that the provisions of the Code, Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court. (c) Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs. (d) The provision for costs should be an incentive for each litigant to adopt alternative dispute resolution (ADR) processes and arrive at a settlement before the trial commences in most of the cases.
"32. It has been made clear by the Hon'ble Apex Court that compensatory cost could be imposed under Section 35A of the Code of Civil Procedure, to make a deterrent effect against filing of vexatious, frivolous and speculative litigations. It is the discretion of the Court to decree a suit or dismiss the same with costs or without costs, however, it RCA No. 24/2017 Page 19 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
depends on the facts and circumstances of each case. Awarding costs should ensure that the provisions of the Code, Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that the parties do not adopt delaying tactics or mislead the court. Similarly, the court should provide adequate indemnity to the successful litigant for the expenditure incurred by him towards the litigation. It was also held in the decision in Vinod Seth v. Devender Bajaj and Anr., (Referred to above) that provisions relating to the compensatory cost (Section 35 A of the Code) in respect of false or vexatious claims or defence has become virtually infructuous or ineffective, on account of inflation. Under the said section, awarding of compensatory cost, in case of false and vexatious litigation was subject to a ceiling of Rs.3,000/. However, it was made clear that the same requires a realistic revision keeping in view, the observations in Salem Advocates Bar Association (Supra). It is also relevant to consider that lack of appropriate provisions relating to costs has resulted in a steady increase in malicious, vexatious, false, frivolous and speculative suits, apart from increase in docket explosion, making the object of Section 89 of the Code ineffective. As held by the Hon'ble Apex Court, any attempt to reduce the pendency or encourage Alternative Dispute Resolution (ADR) processes or to streamline the civil justice system will fail, in the absence of not using the appropriate provisions relating to costs, as the same should discourage maintaining false and vexatious litigations."RCA No. 24/2017 Page 20 of 33
Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
The Relevant portion of the Ld. Trial Court Judgment, whereby the Ld. Trial Court came to conclusion that the suit of the plaintiffs is false and abuse of the process of law, is reproduced as under: ".................Herein, it is pertinent to note that the previous suit filed by the plaintiffs came to be dismissed by the Court vide judgment dated 18.10.2016.
Furthermore, one another suit filed by the plaintiffs in respect of the same suit property titled as "Geeta Mishra & Ors. Vs. Geeta Dhagga & Ors." for declaring herself as the landlord of the suit property, also came to be dismissed by the concerned court. Even the appeal filed by the plaintiffs against the said judgment rejecting their claim qua the suit property has come to be dismissed by Ld. Appellate Court of Ms. Kamini Lau, ADJ, Central, THC, Delhi.
Nevertheless, it is apparent on record that the same issue of their alleged title in respect of the suit property has been agitated again and again by the plaintiff before different forums and all such suits have been dismissed for want of merits in toto.
As far as the present suit is concerned, it is evident on record that the issue of ownership of the suit property has been directly and substantially in issue in a former suit between the same parties, litigating under the same title, in a Court competent to try both these suits and the said issue has been already heard and finally decided by the Court.
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Therefore, the present suit inherently based on the alleged ownership of the plaintiffs over the suit property is clearly barred on account of the well established legal principle 'Resjudicata'. The Court is further constrained to observe that act of the plaintiffs in filing several cases simultaneously for establishing their alleged claim of ownership over the suit property is apparent gross abuse of the process of the Court and the same needs to be dealt strictly.
It has already been held by the Court in the previous suit between the parties that a bundle of lies has been pursued by the plaintiffs before the Court for more than 25 years without any basis for claiming right over the suit property. The claim of the plaintiffs being the owners and the landladies of the suit property has miserably failed to stand upon its own legs and the Court has no hesitation to hereby held that the claim of the plaintiffs in respect of the suit property is devoid of any material substance or credibility.
The claim of the plaintiff has been found to be prima facie false and misleading while it is a matter of record that no attempt has been spared by the plaintiffs to establish such false claim in respect of the suit property by initiating several litigations.
In such circumstances, the Hon'ble Supreme Court and the Hon'ble Delhi High Court have time and again held that heavy cost should be imposed in frivolous cases and in appropriate cases, prosecution be ordered to maintain purity and sanctity of judicial proceedings. It is necessary to examine the relevant judgments in this regard.
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False claims and defences
(i) In Maria Margardia Sequeria Fernandes Vs. Erasmo Jack de Sequeria, II (2012) CLT 31 (SC)=II (2012) SLT 753=2012(3) SCALE 550, the Supreme Court held that false claims and defences are serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. The Supreme Court therein held as under :
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 progmatic approach is adopted, then this problem can be minimized to a large extent."
As to the quantum of costs to be imposed by the Courts in such cases, the position has been made clear,
21. In Rameshwari Devi Vs. Nirmala Devi, V (2011) SLT 196=III (2011) CLT 44 (SC) = (2011) 8 SCC 249, the Supreme Court has held that the Courts have to take into consideration pragmatic realities and have to be realistic in imposing the RCA No. 24/2017 Page 23 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
costs. The relevant paragraphs of the said judgment are reproduced hereunder:
"45.... We are clearly of the view that unless we ensure that wrong doers are denied profit or undue benefits from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases."
"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.
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 be possible to maintain purity and sanctity of judicial proceedings..."RCA No. 24/2017 Page 24 of 33
Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
In Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria (supra), the Supreme Court held that heavy costs and prosecution should be ordered in cases of false claims and defences. The Supreme Court held as under:
"85. This Court in a recent judgment in Ramrameshwari Devi & Ors. (supra) aptly observed at page 266 that unless wrong doers are denied profit from frivolous litigation, it would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimized if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pages 267268 that imposition of actual, realistic or proper costs and/ or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false p leadings 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 be possible to maintain purity and sanctity of judicial proceedings...."RCA No. 24/2017 Page 25 of 33
Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
In view of the aforesaid observations made by the Hon'ble Apex Court and in the background of the facts and circumstances of the present suit, the Court is left with no doubt that exemplary costs need to be imposed upon the plaintiff in the present case so as to maintain the purity of the Law and to deter such unscrupulous litigants.
Hence, the present suit is hereby dismissed being barred by resjudicata and even devoid of any merits alongwith costs of Rs.1 lacs (out of which Rs.50,000/ be paid in Army Welfare Fund Battle Casualties, Syndicate Bank, South Block Branch, New Delhi (IFSC Code SYNB0009055) with account number 90552010165915 and Rs. 50,000/ be paid to the defendants) as compensation by the plaintiff.
File be consigned to Record Room as per rules."
The bare perusal of the aforesaid Judgment it is manifest the Ld. Trial Court has considered everything in detail including how the Plaintiffs have abuse the process of the Court. The aforesaid finding of the Ld. Trial Court was not assailed by the Plaintiffs/Appellants and therefore, the said finding of the Ld. Trial Court has attained finality for all intents and purposes.
I have also profit to refer paras No.2 and 8 of the judgment titled as Ashok Kumar Mittal V. Ram Kumar Gupta and Anr. (2009) 2 SCC 656: "2. The petitioner filed a suit for specific performance of an alleged agreement of sale dated RCA No. 24/2017 Page 26 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
15.7.2003. The trial court dismissed the suit by judgment and decree dated 19.5.2008. The High Court dismissed the petitioner's appeal on 29.9.2008. Both courts held that petitioner had not approached the court with clean hands and that he had failed to prove any concluded contract for sale. High Court found that the defendants in the suit were also not above board in their conduct. It found that both sides were guilty of having lied on oath and deserved to be prosecuted. On the ground that courts were overburdened with litigation, the High Court decided that instead of directing prosecution, heavy costs should be levied on both petitioner and respondents "to be paid to the state which spends money on providing the judicial infrastructure." It then proceeded to impose exemplary costs of Rs.1,00,000/ on the petitioner and Rs.1,00,000/ on the respondents, and directed that the costs should be deposited with the Delhi High Court Legal Services Committee.
"11. The Delhi High Court Legal Services Committee when it receives the sum of Rs. Two Lakhs as costs from the parties, shall make over the same to the state government as directed in para 38 of the impugned judgment. Let a copy of this order be sent to the Delhi Legal Services Committee, for compliance.
"12. With the above said observations regarding costs, the special leave petitions are dismissed."
In the Judgment relied upon by the Ld. Counsel for the Appellants, the Hon'ble Supreme Court has not reversed the order of the Costs of Rs.2,00,000/ but only modified to the extent that RCA No. 24/2017 Page 27 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
the cost of Rs.2,00,000/ would go into the account of State Government.
I have profit to refer Para No.13 of the Judgment of the Hon'ble High Court passed in RFA Nos. 45/2018 & 48/2018 decided on 1st February, 2018 titled as VIJAY KUMAR Versus VARUN KHULLAR & ANR.: "13. In view of the above, and more so because in the opinion of this Court, this Court was misled in calling for trial court record on the ground that no dates were fixed for evidence of the counter claimant and counterclaimant had not led evidence, accordingly, these appeals are dismissed with costs of Rs.2,50,000/. Costs will be deposited by the appellant/defendant no.2/counterclaimant with the website www.bharatkeveer.gov.in. Costs are imposed for wasting judicial time as also for abuse of process of law by misleading the Court by noting that the costs which are imposed under Section 35 CPC are costs which are given in favour of a party to a litigation and imposing of costs for abuse of judicial process and misleading the Court will be governed by the provision of Section 151 CPC and therefore exercising such powers costs have been imposed upon the appellant/defendant no.2/counterclaimant. Costs shall be deposited within six weeks from today and affidavit be filed of compliance within two weeks thereafter failing which Registry will list the matter in the Court for taking appropriate action against the appellant/defendant no.2/counterclaimant."
RCA No. 24/2017 Page 28 of 33Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
I have also profit upon paras No.22 and 23 passed by the Hon'ble High Court of Delhi in the case titled Praveen Saini Versus Reetu Kapur & Anr. 2018 SCC Online Del 6500, which are as follows: "22. In view of the aforesaid discussion, this appeal is dismissed with costs of Rs.10,00,000/. Costs shall be paid by the appellant/defendant within a period of six weeks from today. I am entitled to im pose actual cost by virtue of provision Punjab High Court Rules and Orders (as applicable to Delhi) Chapter VI Part I Rule 15 read with the judgment of the Supreme Court in the case of Ramramesh wari Devi and Others Vs. Nirmala Devi and Others (2011) 8 SCC 249. Out of the total costs of Rs.10,00,000/, a sum of Rs.5,00,000/ will be paid by the appellant/defendant to the respon dents/plaintiffs including by noting that the trial court has not awarded any costs in favour of the re spondents/plaintiffs and against the appellant/de fendant. The balance amount of Rs.5,00,000/ will be deposited by the appellant/defendant with the website www.bharatkeveer.gov.in within a period of six weeks from today.
"23. I may note that the power to impose costs in terms of Section 35 CPC is on account of costs in curred by a party, but there is no provision in CPC for imposition of costs on a person for initiating a completely false litigation and claim, abusing the process of law and causing gross wastage of judi cial time. With respect to the abuse of judicial process and with respect to filing of false claims since the issue is not covered by Section 35 CPC, RCA No. 24/2017 Page 29 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
the same would therefore be covered by Section 151 CPC under the inherent powers of this Court. I have, therefore, imposed costs of Rs.5,00,000/ to be deposited with the website www.bharatkeveer. gov.in, in exercise of inherent powers of this Court under Section 151 CPC."
The nutshell of the entire Judgments is that the costs which are imposed under Section 35 and 35A CPC are given in favour of a party to the litigation and imposing of costs for abuse of judicial process and misleading the Court will be governed by the provision of Section 151 CPC and not by Section 35 or 35A CPC. Moreover, the Ld. Trial Court has relied upon the Judgment of Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria (supra) and said Judgment was passed by Full Bench of the Hon'ble Supreme Court. The Judgment relied upon by the Appellants pertains to Division Bench of the Hon'ble Supreme Court. Even in the said Judgment the Hon'ble Supreme Court has confirmed the order of cost of Rs.2,00,000/ but only modified regarding its payment to State Government instead of Delhi Legal Services Committee. The Ld. Trial Court has also relied upon the Judgment Ramrameshwari Devi and Others Vs. Nirmala Devi and Others (2011) 8 SCC 249 which also forms part of the aforesaid Judgment of the Full Bench of Hon'ble Supreme Court in Maria Margardia (supra) and also the two Judgments of the Hon'ble High Court which are of 2018, whereby the Hon'ble High Court has clearly held the circumstances in which the heavy costs can be imposed. The RCA No. 24/2017 Page 30 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
findings of the judgment of Ramrameshwari Devi (supra) was approved by the full bench of Hon'ble Supreme Court in the judgment of Maria Margardia (supra).
The Ld. Trial Court has considered the abuse of the process of law by the Plaintiffs/Appellants in detail and the said findings of the Ld. Trial Court has attained finality for intends and purposes. The Ld. Trial Court has imposed the cost of Rs.1,00,000/ and out of which Rs.50,000/ was directed to deposited with Army Welfare Fund Battle Casualties, Syndicate Bank, South Block Branch, New Delhi and balance Rs.50,000/ was directed to be paid to the Defendants / Respondents.
Considering the facts and circumstances of the present case and moreover that the Plaintiffs/Appellants are women, the cost which was required to be paid to the defendants/respondents is reduced from Rs.50,000/ to Rs.25,000/ and similarly, the direction for deposit of the Cost of Rs.50,000/ in Army Welfare Fund Battle Casualties is also reduced from Rs.50,000/ to Rs.25,000/.
The perusal of the Appeal reveals that the Appellants/Plaintiffs have not paid the requisite Court fee amount in the Appeal and they have undertaken at the time of filing of file to deposit the same but they have not deposited it till date. The appellants/ plaintiffs have not filed the deficient court fees, therefore, the decision of the present Appeal would be subject to deposit of the deficient Court Fee within a period of 10 working RCA No. 24/2017 Page 31 of 33 Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
days from the date of this Judgment by the appellants/ plaintiffs. In case the Appellants/Plaintiffs fail to comply the aforesaid part within the aforesaid period, then the Appeal of the Appellants/Plaintiffs shall be deemed to be dismissed. RELIEF:
Accordingly, in view of the discussions, as adumbrated above, I hereby pass the following :: FINAL ORDER ::
1. The Regular Civil Appeal of the Plaintiffs/ Appellants is hereby partly allowed.
2. The impugned part of Judgment and decree dated 11/11/2016 is modified to the following extent:
(a) The cost which was required to be paid by the plaintiffs/ appellants to the defendants/respondents is reduced from Rs.50,000/ to Rs.25,000/ and the plaintiffs/appellants would now require to pay the defendants/respondents a sum of Rs.25,000/ instead of 50,000/.
(b) The cost which was required to be deposited in Army Welfare Fund Battle Casualties is also reduced from Rs.50,000/ to Rs.25,000/ and the Plaintiffs/ Appellants would now require to deposit the Cost in Army Welfare Fund Battle Casualties a sum of Rs.25,000/ instead of 50,000/.
RCA No. 24/2017 Page 32 of 33Gayatri Tripathi & Anr. V. S.K. Verma & Anr.
3. The rest of the judgment and decree dated 11/11/2016 is hereby confirmed.
4. The aforesaid modification of the part of impugned Judgment and decree dated 11/11/2016 shall be subject to depositing of the deficient Court fee within a period of 10 working days from the date of this judgment by the Appellants/Plaintiffs. It is made clear that in case the Appellants/Plaintiffs fail to deposit the Court fees, as directed hereinabove within the aforesaid period, then the Appeal of the Appellants/Plaintiffs shall be deemed to be dismissed and the impugned Judgment and decree dated 11.11.2016 is confirmed in toto for all intents and purposes.
5. No order as to costs in the present appeal. The parties shall bear their own respective cost.
6. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court. Decreesheet in the Appeal be prepared accordingly, in terms of this Judgment.
Announced in the open court on this 29th Day of October, 2018.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi RCA No. 24/2017 Page 33 of 33