Punjab-Haryana High Court
Smt. Munni Devi vs Matroo Lal --Respondent on 22 February, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
RSA No. 831 of 2007 (O&M)
Date of Decision: 22.2.2012.
Smt. Munni Devi --Appellant
Versus
Matroo Lal --Respondent
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:- Mr. Abhishek Sethi, Advocate for the appellant.
Mr. R.B. Gupta, Advocate for the respondent.
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TEJINDER SINGH DHINDSA.J The present second appeal has been filed by the plaintiff against the judgement of the Lower Appellate Court dated 19.9.2006.
Briefly noticed, the plaintiff filed a suit against the defendants for a decree of mandatory injunction for removing obstruction/encroachment and construction made by defendant no.1 on the disputed 20 feet wide rasta existing between the house of the plaintiff and defendant no.1. Further prayer had been made for a decree for recovery of Rs.2 lacs from the defendant no.1 as damages towards malicious prosecution. It was pleaded that the plaintiff is the owner in possession of a residential house bearing no.1076, F.C.A situated in Sanjay Gandhi Memorial Nagar, Faridabad. In front of the residential house there existed a pucca road 20 feet wide under the ownership of Municipal Corporation, Faridabad, defendant no.2 and it was meant for the use and enjoyment of the inhabitants of the locality. Defendant no.1 in collusion with defendant no.2 had unlawfully made encroachment on such 20 feet wide road and it was causing inconvenience and hindrance to the users and residents of the RSA No. 831 of 2007 (O&M) -2- locality. The plaintiff had filed a complaint under Section 133 Cr.P.C in the court of S.D.M., Faridabad for removal of such illegal encroachment at the hands of defendant no.1 and the same was disposed of in terms of passing of order dated 13.2.2001. It was further pleaded that defendant no.1 had filed a civil suit in which the plaintiff had been impleaded and the same had been dismissed on 25.9.2001 and even the civil appeal preferred by defendant no.1 was dismissed vide order dated 5.11.2001. Defendant no.1 then filed a Regular Second Appeal in the High Court which was also dismissed vide judgement dated 20.11.2001. It was pleaded that the plaintiff had, thus, been put to harassment and humiliation and had been unnecessarily dragged in false and frivolous litigation. The plaintiff pleaded that she was put to loss and had suffered mentally as also physically apart from economically as the wages that she earned by doing household work in other houses was deducted by the employers as she was forced to remain absent from work on account of attending to the litigation. On such pleadings her claim of damages/compensation amounting to Rs.2 lacs had been set up. The decree for mandatory injunction was with respect to the removal of the encroachment and to restore the 20 feet wide road/rasta to its original condition.
Defendant no.1 contested the suit and denied having caused any illegal encroachment upon the 20 feet wide road. Defendant no.1 on the other hand pleaded that it was the plaintiff, who had initiated a number of frivolous litigations and as such defendant no.1 was entitled to be awarded compensatory cost to the tune of Rs.20,000/-. Broadly, a case of denial was set up by defendant no.1. Defendant no.2 also filed a written statement and stated that the encroachment made by defendant no.1 i.e. Sh.Matroo Lal in RSA No. 831 of 2007 (O&M) -3- front of the house of Munni Devi, plaintiff had already been removed and as such there was no encroachment as alleged.
The parties went to trial on the following issues framed by the Trial Court:-
"1. Whether the defendant no.1 is liable to remove the encroachment, obstructions made in the rasta existing between the house of the plaintiff and between the house of the defendant no.1?OPP.
2. Whether the plaintiff is entitled for recovery of damages for an amount of Rs.2,00,000/- from the defendant no.1?OPP.
3. Whether the plaintiff is entitled for injunction, as prayed for?OPP.
4. Whether the suit of the plaintiff is not maintainable in the present form?OPD.
5. Whether the present suit is barred under Section 289 of Haryana Municipal Act?OPD.
6. Whether the plaintiff has no locus standi to file the present suit?OPD.
7. Whether the plaintiff has not affixed the proper court fee?OPD.
8. Relief."
In view of the specific stand in the written statement filed by the Municipal Corporation that the alleged encroachment already stood removed as such the prayer regarding mandatory injunction was rendered infructuous. In fact defendant no.2, Municipal Corporation, Faridabad was given up by the plaintiff vide order dated 4.3.2006 passed by the Trial Court.
As regards damages on account of forced litigation and malicious prosecution the suit filed by the plaintiff was decreed and she was held entitled for recovery of Rs.1 lac from defendant no.1 subject to RSA No. 831 of 2007 (O&M) -4- payment of court fee. Aggrieved of the same, defendant-appellant preferred a civil appeal and vide impugned judgement dated 19.9.2006 passed by the Additional District Judge, Faridabad, the appeal was accepted and the judgement and decree of the Trial Court dated 16.5.2006 was set aside and the suit of the plaintiff was ordered to be dismissed. It is under such circumstances that the plaintiff-appellant is in second appeal before this Court.
It would be appropriate to notice herein that this Court vide order dated 13.2.2009 had passed an order accepting the Regular Second Appeal holding the findings recorded by the Lower Appellate Court to be perverse and had directed payment of damages to the plaintiff-appellant to the tune of Rs.50,000/-. Upon the matter having been taken up before the Hon'ble Apex Court in Civil Appeal No.8682 of 2009 the judgement dated 13.2.2009 passed by this Court was set aside and the matter was remanded back to the High Court for a fresh consideration of the second appeal. Accordingly, I have heard Mr. Abhishek Sethi, learned counsel appearing for the appellant and Mr. R.B. Gupta, learned counsel for the respondent at length.
Learned counsel appearing for the appellant strenuously argued that the judgement of the Lower Appellate Court in reversing the well reasoned findings of the Trial Court is wholly erroneous. Learned counsel would contend that the appellant had suffered litigation initiated at the hands of the respondent and such litigation was wholly misconceived and frivolous. Learned counsel would further submit that the intent of the respondent in having initiated litigation and which had remained unsuccessful after the High Court was lacking in bonafides and in fact had RSA No. 831 of 2007 (O&M) -5- been malicious in nature. In furtherance of his submissions, learned counsel has relied upon a judgement of this Court dated 22.7.2005 passed in R.S.A. No.2112 of 2003 in case of Pawan Kumar and another Vs. Hans Raj.
Learned counsel for the respondent on the other hand would contend that the respondent was a bonafide litigant. He had initiated civil proceedings on the basis of a sale deed, wherein the width of the street in question had been mentioned as 20 feet wide and it was in furtherance towards adjudication of his legal rights that the civil suit had been filed. Learned counsel for the respondent in support of the impugned judgement of the Lower Appellate Court would contend that the findings of the Trial Court deserved to be reversed in as much as no issue with regard to a frivolous or false litigation had been framed.
In the judgement relied upon by the counsel for the appellant i.e. Pawan Kumar and another Vs. Hans Raj (supra) reliance has been placed upon a Full Bench judgement of the Kerala High Court and it had been noticed that four ingredients were required to be proved by a plaintiff in an action for malicious prosecution i.e. (i) that he faced prosecution at the hands of the defendant (ii) that the prosecution terminated in favour of the plaintiff (iii) that the prosecution was malicious and (iv) that it was with a reasonable and probable cause. In facts in hand, even though, the first two ingredients would certainly be met in so far as the plaintiff-appellant having faced civil proceedings initiated at the hands of the respondent in which she had been impleaded as a party and such prosecution having ultimately failed, as regards the prosecution being malicious, no such issues have been framed by the Trial Court. It was imperative for the Trial Court for purposes of awarding damages to have framed an issue as to whether there RSA No. 831 of 2007 (O&M) -6- was any malicious prosecution/false, frivolous litigation. No such issue was framed and no evidence had been led to show that there was any malicious prosecution. It would be useful to refer to the relevant discussion by the Trial Court in relation to issues no.1 and 3 while awarding damages to the tune of Rs.1 lac against the respondent, which was in the following terms:-
"16. Defendant also admitted in his cross- examination that it is correct that his illegal encroachment was demolished by the MCF by virtue of the court order. He also admitted that court also found his illegal encroachment. He also admitted that it is correct that in the suit as well as in the appeal, the counsel for the plaintiff was appeared. From the order of Hon'ble High Court it is also revealed that counsel for the plaintiff was also appeared.
17. Thus, it is established that the plaintiff had to face the false and frivolous litigation of the defendant Matroo Lal up to the Hon'ble High Court. So far as the other litigation is concerned, the same has no effect on this suit because this is a suit filed by the plaintiff not by the defendant for damages. Moreover, defendant no.1 himself admitted that he was in illegal encroachment over the street in question. Consequently, the plaintiff is entitled for damages against the false and unauthorized encroachment of the defendant. Resultantly, I find it justified that plaintiff is legally entitled for recovery of damages from the defendant no.1 of Rs.1,00,000/-. Thus, these issues are decided in favour of the plaintiff."
The question of malicious abuse of civil proceedings and the distinction between a malicious use as opposed to a malicious abuse of the legal process was considered by Hon'ble the Supreme Court in the matter of West Bengal State Electricity Board Vs. Dilip Kumar Ray reported as 2007 (2) S.L.R 814 and it was observed in the following terms:- RSA No. 831 of 2007 (O&M) -7-
"29. Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. S.R. Venkataraman Vs. Union of India, AIR 1979 SC 49, 51:1979(1) SLR 130 (SC).
30. MALACIOUS. Done with malice or an evil design; wilful; indulging in malice, harboring ill- will, or enmity malevolent, malignant in heart; committed want only, wilfully, or without cause, or done not only wilfully and intentionally, but out of cruelty, hostility of revenge; done in wilful neglect of a known obligation.
"MALACIOUS" means with a fixed hate, or done with evil intention or motive, not the result of sudden passion.
31. Malicious abuse of civil proceedings. In general a person may utilize any from of legal process without any liability, save liability to pay the costs of proceedings if unsuccessful. But an action lies for initiating civil proceedings. Such as action, presentation of a bankruptcy or winding up petition, an unfounded claim to property, not only unsuccessfully but maliciously and without reasonable and probable cause and resulting in damage to the plaintiff. (Walker).
32. Malicious abuse of civil proceedings. In general, a person may utilize any form of legal process without any liability, save liability to pay the costs of proceedings if unsuccessful. But an action lies for initiating civil proceedings. Such as action, presentation of bankruptcy or winding up petition, an unfounded claim to property, not only successfully but maliciously and without reasonable and probable cause and resulting in damage to the plaintiff. (Walker).RSA No. 831 of 2007 (O&M) -8-
Malicious abuse of legal process. A malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by order of Court the malicious perversion of a regularly issued process, whereby an improper result is secured.
33. There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employees it for some unlawful object not the purpose which it is intended by the law to effect; in other words, a perversion of it."
As opposed to no evidence having been led with regard to a malicious intent as also a malicious abuse of legal proceedings at the hands of the defendant-respondent, the First Appellate Court has recorded findings to the contrary that it was the plaintiff, who had repeatedly dragged the defendant in a series of litigation. It was noticed by the First Appellate Court that an injunction suit had been filed at the hands of the plaintiff in which Matroo Lal had been unnecessarily made a party. Even in the present suit the plaintiff had claimed a relief for mandatory injunction inspite of having been in knowledge that the encroachment in question stood already demolished. It was held that Matroo Lal, defendant had initiated proceedings in terms of a certain width of the road that had been reflected in the sale deed executed in his favour and it was on the strength of such sale deed that he wanted to prove that he had not made any such encroachment as alleged by the plaintiff. The First Appellate Court while reversing the findings of the Trial Court has returned a categoric finding that there was neither any pleading nor any proof with regard to the defendant-respondent having initiated any false and frivolous proceedings against the plaintiff. RSA No. 831 of 2007 (O&M) -9-
In exercise of jurisdiction under Section 100 of Code of Civil Procedure, I do not find it to be a fit case to interfere with the findings and conclusions drawn by the Lower Appellate Court. The Trial Court having not framed any issue with regard to malicious prosecution alleged to have been initiated at the hands of the present respondent, I find that the Lower Appellate Court had rightfully reversed the judgement and decree passed by the Trial Court. I find no infirmity in the impugned judgement dated 19.9.2006 passed by the Additional District Judge, Faridabad.
No question of law much less substantial question of law arises for adjudication in the present second appeal.
For the reasons recorded above, the present second appeal is dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE 22.2.2012.
lucky Whether to be reported? Yes.