Himachal Pradesh High Court
Sundru Devi & Anr vs Shanti Devi And Ors on 14 May, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CMPMO No. 464 of 2017.
Date of decision : 8th May, 2018.
_________________________________________________________________ Sundru Devi & Anr. ...Petitioners.
Versus
Shanti Devi and Ors. ....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No. For the Petitioners : Mr. Digvijay Singh , Advocate.
For the Respondents : Mr. Varun Rana, Advocate, for respondent No.1.
Tarlok Singh Chauhan, Judge (Oral).
Defendants No. 1 and 2 are the petitioners, who aggrieved by the rejection of their application for amendment of the written statement, have filed the instant petition under Article 227 of the Constitution of India for setting aside the order dated 08.09.2017 passed by the learned Civil Judge (Junior Division), Court No.II, Sundernagar, District Mandi, H.P.
2. The plaintiff/respondent filed a suit for declaration to the effect that the suit land i.e. land comprised in Khasra nos. 180, 185, 187, 188, 189, 190, 93, 194, 195, 196, 239, 240, 241, 424, 440, measuring 38-14-15 bighas situated at mauja Khill / 159, Nihri, Mandi, H.P. is ancestral and coparcenary amongst plaintiff and deceased father of present respondents No. 1 and 2 / defendants No. 1 and 2, ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 2 therefore, the sale deed dated 17.07.2006 executed by Paras Ram .
was declared null and void. A decree for permanent prohibitory injunction was sought restraining interference from the present defendants.
3. In the year 2010, the plaintiff/respondent filed an application for amendment of the plaint to the effect that she had come to know about one Will dated 26.02.2005 executed by Paras Ram in favour defendant/petitioner No. 1, therefore, the same be declared as null and void. This amendment was duly allowed by the learned trial Court, however, in the year 2014 another amendment was sought in the plaint whereby the plaintiff alleged that she had come to know about one more Will No. 28, dated 04.06.2003 executed by late Shri Paras Ram in favour of Sundru Devi i.e. defendant No. 1, Kuldeep Chand - defendant No. 2, on the basis of which mutation had been attested in their favour in connivance with the revenue officials and the Will be declared as null and void.
4. Thereafter, the defendants filed an application under Order 6 Rule 17, whereby they intended to amend para 6(a) of the written statement to the effect that it was Will No. 28, dated 04.06.2003 that was the legal Will of deceased Paras Ram and not the Will No. 160, dated 26.02.2005, which now stands rejected by the learned trial Court vide order dated 08.09.2017, constraining the petitioners/defendants to file the instant petition.
::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 35. It is vehemently argued by Shri Digvijay Singh, learned .
counsel for the petitioners/defendants that it was only on account of sheer inadvertence that it was pleaded that Will No. 160, dated 26.02.2005 is legal Will of deceased Paras Ram and, in fact, the valid Will of Paras Ram was the Will No. 28, dated 04.06.2003 and once the inadvertence had been established then the learned trial Court should
6.
r to not have reject the application but should have allowed the amendment.
On the other hand, Shri Varun Rana, learned counsel for the respondents would vehemently contend that the petitioners, in fact, have supported the Will No. 160, dated 26.02.2005 and not the Will No. 28, dated 04.06.2003, and, therefore the order passed by the learned trial Court warrants no interference. It is further contended by the learned counsel for the respondents that petitioners have not approached this Court with clean hands, and therefore, the petition deserves to be dismissed with heavy costs.
I have heard learned counsel for the parties and have gone through the records of the case.
7. The power of superintendence conferred by Article 227 is to be exercised most sparingly and with circumspection that too in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors.
8. In D.N. Banerji v. P.R. Mukherjee, 1953 AIR (SC) 58, the Hon'ble Supreme Court held as under:
::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 4"Unless there was any grave miscarriage of justice or flagrant .
violation of law calling for intervention, it is not for the High Court under Articles 226 and 227 of the Constitution to interfere."
9. In Waryam Singh and another v. Amarnath and another 1954 AIR (SC) 215, a Constitution Bench of the Hon'ble Supreme Court has examined the scope of Article 227 of the Constitution and observed as under:-
"This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. V. Sukumar Mukherjee, 1951 AIR (Cal) 193 to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."
10. In Mohd. Yunus v. Mohd. Mustaquim and others, 1984 AIR (SC) 38, the Hon'ble Supreme Court held that the High Court has very limited scope under Article 227 of the Constitution and even errors of law cannot be corrected in exercise of power of judicial review while exercising such power. The powers can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. It was further held that High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of Tribunal etc. has resulted in grave injustice.
::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 511. In Nibaran Chandra Bag v. Mahendra Nath Chughu .
1963 AIR (SC) 1895, the Hon'ble Supreme Court held that interference under Article 227 of the Constitution, finding of facts recorded by Authority should have been found to be perverse or patently erroneous and de hors factual and legal position on record.
12. In Rena Drego v. Lalchand Soni and others, 1998 (3) SCC 341, the Hon'ble Supreme Court has categorically held that the power under Article 227 of the Constitution is of the judicial superintendence which cannot be used to up-set the conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could have ever reached them.
13. Similar reiteration can be found in Chandra Bhushan v.
Beni Prasad and others 1999 (1) SCC 70; Savitrabai Bhausaheb and others v. Raichand Dhanraj Lunja 1999 (2) SCC 171; and Savita Chemical (P) Ltd. V. Dyes and Chemical Workers Union and another, 1999 (2) SCC 143.
14. In Union of India and others v. Himmat Singh Chahar, 1994 (4) SCC 521, the Hon'ble Supreme Court held that power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter conclusion reached by Competent Statutory Authority merely on the ground of insufficiency of evidence.
::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 615. In Ajaib Singh v. Sirhind Co-operative Marketing .
cum Processing Service Society Ltd., 1999 (6) SCC 82, the Hon'ble Supreme Court held that there is no justification for High Court to substitute its view for the opinion of Authorities/Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
16. In Mohan Amba to Prasad Agnihotiri Balwant Aheer, 2000 AIR (SC) 931, the Hon'ble Supreme Court held that the jurisdiction of High Court under Article 227 of the v. Bhaskar Constitution is not appellate but supervisory. It cannot interfere with the finding of facts recorded by the Courts below unless there is no evidence to support findings or findings are totally perverse.
17. In Union of India v. Rajendra Prabhu, 2001 (4) SCC 472, the Hon'ble Supreme Court held that High Court in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate evidence nor it can substitute its subjective opinion in place of findings of Authorities below.
18. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, 2010 (8) SCC 329, the Hon'ble Supreme Court observed that powers of interference under Article 227 is to be kept to the minimum to ensure that wheel of justice does not come to a halt and fountain of justice remains pure and unpolluted in order to maintain public confidence in functioning of Tribunals and Courts subordinate to High Court.
::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 719. Similar reiteration can also be found in Kokkanda B. .
Poondacha and others v. K.D. Ganapathi and another, 2011 AIR (SC) 1353, and Bandaru Satyanarayana v. Imandi Anasuya, 2011 (12) SCC 650.
20. In Abdul Razak (D) through Lrs. And others v.
Mangesh Rajaram Wagle and others, 2010 (2) SCC 432, the Hon'ble Supreme Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
21. In Commandant, 22nd Battalion, CRPF and others v.
Surinder Kumar 2011 (10) SCC 244, the Hon'ble Supreme Court reiterated that only in an extreme case, where on the face of it, there is perversity or irrationality, there can be judicial review under Article 226 or 227.
22. From the aforesaid conspectus of law, it can conveniently be held that the supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the Subordinate Courts within the bound of the jurisdiction. When a Subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or jurisdiction though available is exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby the High Court may step into exercise its supervisory jurisdiction. The supervisory ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 8 jurisdiction is not available to correct mere errors of fact or law unless .
the following requirement is satisfied:-
(i) The error is manifest and apparent on the face of the proceedings such as when it is based on ignorance or utter disregard to the provisions of law, and to grave injustice or gross failure of justice has occasioned thereby.
(ii) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscious of the High Court dictates which too act lest gross failure of justice or grave injustice has occasioned.
23. Order 6 Rule 17 CPC reads thus:-
"17. Amendment of Pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
24. A perusal of the proviso would show that it clearly bars an application for amendment either plaint or the written statement after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial.
::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 925. Adverting to the facts of the instant case, it would be .
noticed that the amendment as sought for by the petitioners was set out in para 6(a), which reads thus:-
"6-A. That Para No. 6(a) was wrong. The Will is executed by Shri Paras Ram in his sound disposing mind because the legatee were rendering service to him. The plaintiff was married and was not in good terms with the deceased. The Will No. 28, dated 04.06.2003 is the legal Will of deceased Shri Param Ram and not the Will No. 160, dated 26.02.2005."
26. It is urged that wrong Will number and date had been written due to inadvertence and was a typing mistake, therefore, the amendment as proposed should be allowed as it would cause no prejudice to the respondents.
27. Assistance for butterising this submission is also sought to be drawn from the defence taken by the petitioners in another suit filed by the respondent, to claim that a similar defence had also been taken in the said suit.
28. I find that in para-4 of the plaint filed in the subsequent suit, the respondent/plaintiff had assailed the Will No. 160, dated 26.02.2005 executed in favour of petitioner No. 1 as being wrong, illegal and null and void. In the written statement filed on behalf of the petitioners/defendants, the contents of para 4 were denied as wrong and it was specifically averred that the deceased Paras Ram was competent to bequeath the property and the Will was legal. Here ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 10 it shall apposite to refer to in verbatim the contents of para-4 of the .
written statement, which reads thus:
"4. That para 4 is wrong, the deceased Param Ram was competent to bequeath the property, the Will is legal."
29. The plaintiff/respondent in that suit amended the plaint and the contents of para 4 were not amended and it was claimed that she has now come to know that defendants on the basis of previous Will No. 28, dated 04.06.2003 of late Shri Para Ram had got mutation No. 281, dated 10.07.2007 of Muhal Chanda-Kufar/209 and Muation No. 168, dated 10.07.2007 of Muhal Paltu/210 and Mutation No. 146, dated 10.07.2007 of Muhal Rohanda/187, sub Tehsil Nihiri, Distt, Mandi, H.P., regarding the suit land attested in connivance with the subordinate revenue officials on the basis of said Will No. 28, which has been cancelled by late Shri Paras Ram by executing the allged Will No. 160, dated 26.02.2005. the said Muations and subsequent revenue entries regarding the suit land incorporated in the name of the defendants are wrong, illegal, null and void and does not confer any title upon the defendants on the basis of the said Will No. 28, dated 04.06.2003.
30. Surprisingly, in the written statement filed to the amended plaint, the petitioners/defendants without the leave of the Court amended para-4 of the written statement. In reply to para 4(a) of the amended written statement, it was specifically averred that the same was wrong and not admitted and the Will No. 28 was the legal ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 11 Will of Paras Ram and the other Will was not the Will of Paras Ram. It .
shall be apt to reproduce para 4(a) of the amended written statement, which reads thus:
"4(a) That Para No. 4(a) is wrong and not admitted. The Will No. 28 is legal Will of Shri Paras Ram."
31. As already observed above, no leave of the Court was obtained by the defendants before the amendment of para 4 of the written statement and, therefore, the same was introduced surreptitiously.
32. No doubt, the petitioners had a right to file amended written statement but the same could only be filed to the amended portion of the plaint without introducing a new case to those paras of the plaint which had not been amended. In case, the petitioners wanted to amend the written statement as a whole by introducing or taking up new pleas then obviously the leave of the Court had to be obtained before doing so and the amendment could not have been introduced in such a surreptitious manner.
33. That apart, once the petitioners had themselves admitted the registered Will No. 160, dated 26.02.2005 to be a valid Will then the said admission, which was now sought to be withdrawn would obviously prejudice to the respondents irretrievably and constitute a new and different case, which cannot be allowed.
34. The inconsistent and contradictory allegations in negation to the admitted position of facts and mutually destructive allegation ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 12 of facts cannot be allowed to be incorporated by means of amended .
written statement, that too, without obtaining leave of the Court.
35. On the basis of aforesaid discussion, this Court is of the considered view that the defendants have set up a false claim and defence, which is a serious problem with the litigation.
36. It is proved on record that the claim set up by the defendants was absolutely false. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, 2012 5 SCC 370, the Supreme Court held that false claims and defences are serious problems with the litigation. The Supreme Court held as under:-
"False claims and false defences
84. False claim s 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."
37. In Dalip Singh v. State of U.P., 2010 2 SCC 114, the 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).::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 13
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, postIndependence 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, 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."
38. In Satyender Singh v. Gulab Singh, 2012 129 DRJ 128, the Division Bench of Delhi High Court following Dalip Singh v. State of U.P. 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 ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 14 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."
39. In Sky Land International Pvt. Ltd. v. Kavita P. Lalwani, 2012 191 DLT 594, Delhi High Court held as under:-
"26.20 Dishonest and unnecessary litigations are a huge strain on the judicial system. The 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.
26.22 Unless the Courts ensure that wrongdoers are denied profit or undue benefit 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 the Courts? scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases. It becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation, ultimately they must suffer the costs. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 15 gamble, knowing fully well that the 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."
40. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the defendants/petitioners in this case. It has to be remembered that Court's proceedings are sacrosanct and should not be polluted by unscrupulous litigants. The defendants/petitioners have abused the process of the Court.
41. The Hon'ble Supreme Court in K.K.Modi vs 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 ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 16 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 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 AllER 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 AllER 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 ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 17 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 party cannot satisfy the strict rule of res judicata or the requirement of issue estoppels."
42. 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. It is on account of such frivolous litigation that the court dockets are overflowing. 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 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. One of the aims of every judicial ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 18 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) "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."
197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and ::: Downloaded on - 14/05/2018 23:16:50 :::HCHP 19 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."
43. 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, 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 SCC 249 took judicial notice of the fact that the courts are flooded with these ::: Downloaded on - 14/05/2018 23:16:51 :::HCHP 20 kinds of cases because there is an inherent 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 ::: Downloaded on - 14/05/2018 23:16:51 :::HCHP 21 respondents and only after hearing the parties concerned .
appropriate orders should be passed.
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."
44. The Hon'ble Supreme Court in Indian Council for Envirolegal Action Vs. Union of India and others, (2011) 8 SCC 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 ::: Downloaded on - 14/05/2018 23:16:51 :::HCHP 22 bounden duty of the court to ensure that dishonesty and any attempt .
to abuse the legal 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 (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.
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 ::: Downloaded on - 14/05/2018 23:16:51 :::HCHP 23 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."
45. It is evident from the aforesaid discussion that the petitioners have tried to play hard and fast with the courts and have sought to take different pleas so as to suit their convenience and in this manner the precious time of the Court, which could otherwise have been utilised for deciding the real litigation, has been wasted.
46. Therefore, the present petition being an abuse of the process of the Court is dismissed with Rs.30,000/- as costs to be paid to the opposite party i.e. respondent No. 1 on or before 11.06.2018.
8th May, 2018. (Tarlok Singh Chauhan) Judge (sanjeev) ::: Downloaded on - 14/05/2018 23:16:51 :::HCHP