Himachal Pradesh High Court
Prakash Chand & Anr vs Durga Singh & Anr on 15 July, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 229 of 2016 Date of decision: 15.7.2016 .
Prakash Chand & anr ...Petitioners
Versus
Durga Singh & anr ...Respondents
Coram:-
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes.
of For the Petitioners: Mr.Sanjeev Kuthiala, Advocate.
For the Respondents: Mr.G.D.Verma Senior Advocate with
rt Mr. B.C. Verma, Advocate.
Tarlok Singh Chauhan J (Oral)
By the medium of this petition under article 227 of the Constitution of India, the following reliefs have been prayed:
"(i) To call for the record of the case pertaining to execution petition No.55-1 of 2015/11 pending before the Ld. Rent Controller Court No.IV Shimla, HP titled as Durga Singh Vs. Sukhdev and after examining the legality and propriety of the impugned order annexure P-5 to quash and set aside the same.
(b) To directing the executing court to decide the objections annexure P-4 in accordance with law after framing the issues and giving opportunity of evidence."
2. The necessary facts leading to the filing of the instant petition are that respondent/decree holder had filed an application for eviction against the proforma respondent Sukhdev Sharma with respect to the premises known as Set No.1, Upper Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 2Floor House, Cart Road, Ram Singh House, Shimla. The grounds on which the eviction was sought;
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(i) arrears of rent and
(ii) sub letting the premises in favour of petitioners.
3. The proforma respondent did not choose to contest the proceedings and was thus proceeded ex parte and finally of orders of eviction came to be passed on 8.12.1986.
4. On coming to know about the orders of eviction, rt petitioners filed a suit for declaration and injunction by arraying the proforma respondent as also the respondent/ decree holder as party on the ground that they were in fact tenants in the suit premises and eviction order passed to their detriment and in their absence was void and, therefore, landlord be permanently restrained from interfering in their possession.
5. The learned trial court dismissed the suit vide judgment and decree dated 9.7.1990, however, the appeal preferred before learned first appellate court was partly accepted and it was held that the order of learned Rent Controller was void and at the same time decree holder/respondent was restrained from evicting the petitioners. The judgment passed by the First appellate court was assailed by way of RSA No.127 of 1998 and this court vide its judgment and decree dated 27.9.2010 accepted the appeal and set aside the findings of the learned First Appellate court and even the cross objections filed by the petitioners were ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 3 ordered to be dismissed. Consequently the suit filed by the petitioners was ordered to be dismissed.
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6. In the execution petition filed by the decree holder for executing the eviction order, the petitioners filed objections under Section 47 read with order 21 Rule 97 and 101 of CPC which came to be dismissed on 28.5.2016, yet undeterred the petitioners of have approached this court assailing the aforesaid order, primarily on the ground that the objection preferred by them could not have rt been ordered to be dismissed without framing issues.
7. At this stage, I may observe that when the case came up for consideration on 16.6.2016, it was represented by the learned counsel for the decree holder that the instant petition was more in the nature of a mercy petition and the petitioners be granted some time to remain in occupation of the premises as they were in the midst of construction of their own house and would shortly shift to the premises under construction. This fact is also pleaded in clause (d) of the ground raised in the petition which reads thus:
"(d) That another factor which the petitioners wanted to place before Ld. Executing court was that the petitioner was in the midst of getting his own construction made and had got his plans sanctioned through the competent local body/authorities, copy of the sanction of residential plan of the petitioners are annexed herewith as Annexure P-6, to the petition. After grant of sanction the petitioner have made sufficient construction and have raised the columns as also the lintel and the finishing work has to be completed which would be completed within a span of atleast one year. The composite ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 4 photographs are annexed herewith as Annexure P-7, to the petition. The Ld. Executing court could have granted reasonable period for the petitioners to vacate the .
premises in the alternative instead of ordering the eviction thereto (which submissions is made without conceding by the petitioner)."
8. After considering the representation, this court vide of order dated 16.6.2016 stayed the operation and execution of the order and the case was fixed for 23.6.2016.
9. rt On 23.6.2016 it was pointed out by the learned Senior Counsel for the decree holder/respondent No.1 that the petitioners have not even paid the arrears of use and occupation charges. On such representation, this court passed the following orders:
"23.6.2016 Present: Mr.Sanjeev Kuthiala, Advocate for the petitioners.
Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate for respondent No.1.
It is represented by respondent No.1 that the petitioner has not paid the arrears of use and occupation charges. Before the petitioner can be heard in the matter, let the entire arrears of use and occupation charges @ Rs.2000/- per month be deposited by him within one week from today, failing which petition shall be dismissed without reference to the court. Needless to say that this amount has only been worked out on tentative basis and the final amount shall be worked out at the time of final hearing of the petition. List on 15.7.2016. In the meanwhile, call for the records of execution petition."
10. When the matter was taken today, it was conceded by the petitioners that the order dated 23.6.2016 has not been ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 5 complied with. The matter could have been closed here, but what is more shocking is that the family members of the petitioners .
have even obstructed the bailiff in the discharge of his official duties when pursuant to the orders of the learned executing court he had gone to deliver possession.
11. However, at this stage without being prejudiced by of the conduct of the petitioner and without even being swayed by the preemptory order passed by this court on 23.6.2016, I have rt considered the petition in its entirety and I do not find any merit in the same. Though the learned counsel for the petitioners would vehemently argue that the learned executing court was under
obligation to frame issues, but what appears to have been conveniently ignored while raising such argument is the fact that the petitioners themselves had filed a civil suit questioning the order of eviction which ultimately was decided against them in the Regular Second Appeal No. 127 of 1998 decided by this court on 27.9.2010.
12. Even at that stage, petitioners very well knew that their remedy, if any available, was only under order 21 Rule 97 and 101 of read with Section 47 CPC. But in order to delay the eviction orders which would be finally passed against them, they intentionally filed the civil suit and have now filed the objection petition under the aforesaid provisions which obviously was required to be dismissed as the matter has already attained finality in RSA NO.127 of 1998 and cannot, therefore, be reopened.
::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 613. The instant is an unfortunate case where the petitioners have succeeded for three decades in their diabolic plan .
to deny the decree holder the fruits of decree obtained by him.
The petitioners by their conduct have converted the litigation into a fruitful industry and have successfully managed to protect their possession.
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14. It is the bounden duty of the court to ensure that dishonesty and any attempt to surpass the legal process must be rt effectively curbed and the courts must further ensure that there is no wrongful, unauthorized or unjust gain to anyone as a result of abuse of process of court.
15. The Hon'ble Supreme Court has repeatedly pointed out that rent acts have not been enacted only to protect the tenants from unjust eviction but have been enacted to equally enforce the lawful right of the landlords to obtain a possession of their own property in the event of satisfying the grounds prescribed for eviction. In this case the appellant is not even tenant and yet he has succeeded in depriving the landlord of his property for more than three decades.
16. It is proved on record that the defence set up by the appellant 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 ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 7
84. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real .
estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent."
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17. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, rt 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). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has over shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, 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 ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 8 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."
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18. In Satyender Singh Vs. Gulab Singh, 2012 (129) DRJ, 128, the Division Bench of Delhi High Court following Dalip Singh v. State of U.P. (supra) observed that the Courts are flooded of with litigation with false and incoherent pleas and tainted evidence led by the parties due to which the judicial system in the country is rt choked and such litigants are consuming Courts‟ time for a wrong cause."
The observations of Court are as under:-
"2. As rightly observed by the Supreme Court, Satya is a basic value of life which was required to be followed by everybody and is recognized since many centuries. In spite of caution, courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts„ time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court. Indeed, it is a nightmare faced by a Trier of Facts; required to stitch a garment, when confronted with a fabric where the weft, shuttling back and forth across the warp in weaving, is nothing but lies. As the threads of the weft fall, the yarn of the warp also collapses; and there is no fabric left."
19. In Sky Land International Pvt Ltd Vs.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 ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 9 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.
xxx xxx xxx 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 of ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the Courts‟ rt 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 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."
20. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the petitioners in this case. It has to be remembered that Court's proceedings are sacrosanct and should not be polluted by unscrupulous litigants.
The petitioners have abused the process of the Court. What is 'abuse of the process of the Court' has been dealt with in detail by this Court in Amar Singh vs. Shiv Dutt and others, RFA No. 646 of 2012 decided on 30.7.2014 wherein it was held:
"9. .............Therefore, the question at this stage, would than arise as to whether a party can be permitted to indulge in filing frivolous and vexatious proceedings and whether the same amount to abuse of process of Court.::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 10
10. The Hon'ble Supreme Court in K.K.Modi vrs. K.N.Modi and others, reported in (1998) 3 SCC 573 has dealt in detail with the proposition as to what would constitute an abuse of the .
process of the Court, one of which pertains to re-litigation. It has been held at paragraphs 43 to 46 as follows:
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the Court"
thus: "This terms connotes that the process of the Court of must be used bona fide and properly and must not be abused. The Court will prevent improper use of its rt machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. . . . . . . .
The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
44. One of the examples cited as an abuse of the process of Court is re-litigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a 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 ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 11 sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding.
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45. In the case of Greenhalgh v. Mallard (1947) 2 All ER 255, the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot of thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on rt a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the Court.
46. In Mcllkenny v. Chief Constable of West Midlands Police Force (1980) 2 All ER 227, the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the Court since it raised an issue identical to that which had been finally determined at the plaintiffs ' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the Court because it is an abuse for a party to re-litigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppels.
21. Similarly, the Hon'ble Supreme Court in Kishore Samrite vs. State of Uttar Pradesh and others, reported in (2013(2) SCC 398, has dealt in detail with "abuse of process of Court" in the following terms:
Abuse of the process of Court :
"31. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111/2011 ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 12 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon .
the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision.
32. The cases of abuse of the process of court and such of allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated rt the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases. These are:
32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
32.3. The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 13 malicious intent have over-shadowed the old ethos of litigative values for small gains.
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32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
32.6. The Court must ensure that its process is not abused and in order to prevent abuse of the process the of court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs. rt 32.7. Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
32.8. The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it. [Refer : Dalip Singh v. State of U.P. & Ors. (2010) 2 SCC 114; Amar Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].
33. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. In P.S.R.Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141, the Court held:
"15. The crucial significance of access jurisprudence has been best expressed by Cappelletti: "The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 14 as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy .
within the framework of the judicial system.
Effective access to justice can thus be seen as the most basic requirement the most basic 'human-
right' of a system which purports to guarantee legal rights."
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16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through rt frivolous invocation of Article 136 is chimerical.
Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ petitioner and dismiss the petition."
34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.
35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 15 working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood must be appropriately dealt with. The parties must state forthwith .
sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is of no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs. rt
36. The party not approaching the Court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to abuse of the process of the court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the court. A litigant is bound to make "full and true disclosure of facts". (Refer : Tilokchand H.B. Motichand & Ors. v. Munshi & Anr. [1969 (1) SCC 110]; A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Pari palanai Sangam & Anr. [(2012) 6 SCC 430]; Chandra Shashi v. Anil Kumar Verma [(1995) SCC 1, 421]; Abhyudya Sanstha v. Union of India & Ors. [(2011) 6 SCC 145]; State of Madhya Pradesh v. Narmada Bachao Andolan & Anr. [(2011) 7 SCC 639]; Kalyaneshwari v. Union of India & Anr. [(2011) 3 SCC 287)].
37. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 16 and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri .
locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is of genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the rttrue facts and approach the court with clean hands.
38. No litigant can play 'hide and seek with the courts or adopt 'pick and choose'. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court. [K.D. Sharma v. Steel Authority of India Ltd. & Ors. [(2008) 12 SCC 481].
39. Another settled canon of administration of justice is that no litigant should be permitted to misuse the judicial process by filing frivolous petitions. No litigant has a right to unlimited drought upon the court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be used as a licence to file misconceived and frivolous petitions. (Buddhi Kota Subbarao (Dr.) v. K. Parasaran, (1996) 5 SCC 530)."
12. Now, it is to be seen as to whether the conduct of the respondents was in fact in abuse of the process of the Court. What is "abuse of process of Court" of course has not been defined or given any meaning in the Code of Civil Procedure. However, a party to a litigation can be said to be guilty of abuse ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 17 of process of the Court in any of the following cases as held by the Hon'ble Madras High Court in Ranipet Municipality Rep. by its.... Vs. M. Shamsheerkhan, reported in 1998 (1) CTC 66 at .
paragraph 9. To quote:
" 9. It is this conduct of the respondent that is attacked by the petitioner as abuse of process of Court. What is 'abuse of the process of the Court'? Of course, for the term 'abuse of the process of the Court' the Code of Civil Procedure has not given any definition. A party to a of litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-
rt(1) Gaining an unfair advantage by the use of a rule of procedure.
(2) Contempt of the authority of the Court by a party or stranger.
(3) Fraud or collusion in Court proceedings as between parties.
(4) Retention of a benefit wrongly received. (5) Resorting to and encouraging multiplicity of proceedings.
(6) Circumventing of the law by indirect means.
(7) Presence of witness during examination of previous witness.
(8) Institution vexatious, obstructive or dilatory actions. (9) Introduction of Scandalous or objectionable matter in proceedings.
(10) Executing a decree manifestly at variance with its purpose and intent.
(11) Institution of a suit by a puppet plaintiff. (12) Institution of a suit in the name of the firm by one partner against the majority opinion of other partners etc."
The above are only some of the instances where a party may be said to be guilty of committing of "abuse of process of the Court".
22. The petitioners by keeping these proceedings alive has gained an undeserved and unfair advantage. The petitioners have been successful in dragging the proceedings for a very long time ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 18 on one count or the other and because of their wrongful possession they have drawn delight in delay in disposal of the .
cases by taking undue advantage of procedural complications.
The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. One has only to engage professionals to prolong the litigation so as to of deprive the rights of a person and enjoy the fruits of illegalities.
The Court has been used as a tool by the petitioners to perpetuate rt illegalities and have perpetuated an illegal possession. 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 (Del) decided by the Delhi high Court on 6.11.2008, the court held as under: (DLT p.413, para 6) "6.The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court. One of the aims of every judicial system has to be to ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 19 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, of para 9) "Before parting with this case, we consider it necessary to rtobserve 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 undeserved gain ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 20 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 of 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 rt 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."
23. The further question which now arises is as to how to curb this tendency of abuse of process of court. As suggested in Kishore Samrita (supra), one of the ways to curb this tendency is to impose realistic or punitive costs. The Hon'ble Supreme Court in ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 21 Ramrameshwari Devi and others Vs. Nirmala Devi and others, (2011) 8 Supreme Court Cases 249 took judicial notice of the fact .
that the courts are flooded with these kinds of cases because there is an inherent 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 of 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 rt 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.::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 22
Ordinarily short notice should be issued to the defendants or 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.
of 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 rt 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."
24. Prior to this the Hon'ble Supreme Court in South Eastern Coalfields Ltd. Vs. State of M.P (2003) 8 SCC 648 had held that the litigation should not turn into a fruitful industry and observed as under :-
"28. ...... Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 23 and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even .
though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had of remained in operation."
25. The Hon'ble Supreme Court in Indian Council for rt Enviro-legal Action Vs. Union of India and others, (2011) 8 Supreme Court Cases 161 observed:-
"191. In consonance with the principles of equity, justice and good conscience Judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legl process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.
192. The court's constant endeavour must be ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 24
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 of incur in contesting the litigation before different courts. We have to also broadly take into consideration the rtprevalent 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 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."
26. The facts of the case are extremely disturbing where unscrupulous persons, having no connection with the premises in question, have clinged on to the premises and have successfully resisted the decree of eviction passed more than three decades ago in the year 1986.
27. The Hon'ble Privy Council, as far back as in the year 1925 had observed in the case of Kuer Jang Bahadur Vs. Bank of Upper India Ltd, Lucknow, AIR 1925 Oudh 448 that the Courts in India have to be careful to see that process of the ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 25 Civil Court and law of procedure are not abused by the judgment-debtors in such a way as to make Courts of law .
instrumental in defrauding creditors, who have obtained decrees in accordance with their rights.
28. The Hon'ble Supreme Court in T. Arivandandam Vs. T.V. Satyapal & anr (1977) 4 SCC 467 has held;
of "2......The sharp practice or legal legerdemain of the petitioner, who is the son of the 2nd respondent, stultifies the court process rt and makes decrees with judicial seals brutum fulmen. The long arm of the law must throttle such litigative caricatures if the confidence and credibility of the community in the judicature is to survive......"
29. The Hon'ble Supreme Court in Babu Lal Vs. M/s Hazari Lal Kishori Lal & ors (1982) 1 SCC 525, observed that "...... procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained by him. The judgment debtor tries to thwart the execution by all possible objections.........."
30. In Suresh Chander Jain Vs. Jai Krishna Swami & ors 1993 (2) ARC 484, the Hon'ble Supreme Court had occasion to examine a case where the tenant made repeated attempts to hold on to the tenanted premises inspite of the directions given by the court to vacate the premises and in this connection observed as under:
"This case is of sheer abuse of the process of the Court. The respondents suffered an ex-parte decree which this Court ultimately confirmed and dismissed the S.L.P. No. 8382 of 1992 on July 9, 1992. The respondents also had given an undertaking ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 26 that they will vacate the premises within three months from the date of the High Court order. The High Court order was on July 1, 1992, reported in 1992 (2) ARC 246. They did not vacate.
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Again they launched upon the second front of litigation and filed a Writ Petition No. 3466606/92 which was dismissed by the High Court on August 18, 1992, reported in 1992 (2) ARC 645.
Thereafter, a Regular Suit No. 400 of 1992 was got filed in the Court of the Civil Judge, Mahura through proxy for declaration and injunction. Civil Suit was dismissed on September 1, 1992 of which was confirmed by the Division Bench of the High Court on September 30, 1992. Again in the third round of litigation in execution objecting as to jurisdiction was raised but disallowed rt by the Executing Court. Two proceedings were initiated against that order one before the Second Additional Civil Judge, Mathura and another by the writ petition in which the impugned orders came to be made. It is stated that the High Court has heard the matter and the orders were reserved. That order does not detain us from disposing of the matter on merits. As stated earlier, this process adopted by the respondents is in sheer abuse of the process of the Court and cannot be permitted to agitate the matter even on points of jurisdiction. The appeals are allowed with exemplary costs fixed at Rs. 15,000/-. The orders of the High Court as well as of the District Court are set aside.
The Execution Court is directed to give police assistance and to deliver the possession of the property within a period of two weeks from the date of the receipt of this order."
31. In Marshall Sons & Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd & anr, (1999) 2 SCC 325, it was observed by the Hon'ble Supreme as under:
"4...........it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 27 unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the .
cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time......."
32. In Rajappa Hanamantha Ranoji Vs. Mahadev of Channabasappa & ors (2000) 6 SCC 120, the Hon'ble Supreme Court made strong observation against such a tenant when it rt found that the tenant had adopted dubious method to deviate from the orders of the court and held as under:
"13.It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious note of and curbed by passing appropriate orders and issuing necessary directions including imposing of exemplary costs. As noticed, despite eviction order having become final nearly a quarter century ago, respondent no.1 still could not enjoy the benefit of the said order and get possession because of the filing of the present suit by the brother of the person who had suffered the eviction order. Under these circumstances, we quantify the costs payable by the appellant to respondent no.1 at Rs.25,000/-."
33. In Ravinder Kaur Vs. Ashok Kumar & anr (2003) 8 SCC 289, the Hon'ble observed as under:
"22........Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. This type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system."::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 28
34. In Gayatri Devi & ors Vs. Shashi Pal Singh, (2005) 5 SCC 527, the Hon'ble Supreme made the following observations:
.
"2.This appeal demonstrates how a determined and dishonest litigant can interminably drag on litigation to frustrate the results of a judicial determination in favour of the other side."
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35. In Pushpa Devi Bhagat Vs. Rajinder Singh & ors (2006) 5 SCC 566, the Hon'ble Supreme made the similar rt observations, which read thus:
"29. At the cost of repetition, we may recapitulate the facts of this case. The suit was a simple suit for possession by a landlord against a tenant filed in the year 1993. Plaintiff's evidence was closed in 1998. The contesting defendant (defendant No.2) did not lead any evidence, and her evidence was treated as closed. The matter was dragged on for 3 years for defendant's evidence after the conclusion of plaintiff's evidence. It was noted on 19.5.2001 that no further adjournment will be granted for the evidence of defendants 4 and 5 (who are not contesting the matter), on the next date of hearing (23.5.2001). When the matter finally came up on 23.5.2001, no evidence was tendered. On the other hand, a statement was made agreeing to vacate the premises by 22.1.2002. The trial court took care to ensure that the statements of both counsel were recorded on oath and signed. Thereafter, it passed a consent decree. The attempts of tenants in such matters to protract the litigation indefinitely by raising frivolous and vexatious contentions regarding the compromise and going back on the solemn undertaking given to court, should be deprecated. In this context, we may refer to the observation made by this Court a similar situation in Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand [AIR 1975 SC 2202] ."::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 29
36. In Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna & ors (2009) 9 SCC 689, the .
Hon'ble Supreme Court has held as under:
"27 In the present system, when preliminary decree for partition is passed, there is no guarantee that the plaintiff will see the fruits of the decree. The proverbial observation by the Privy Council is that the difficulties of of a litigant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a rtparty unless he gets the relief. Therefore to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant."
37. In Satyawati Vs Rajinder Singh & anr, (2013) 9 SCC 491, three Judges' Bench of the Hon'ble Supreme Court have held as under:
"16. As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree-holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain."
"17 We are sure that the executing court will do the needful at an early date so as to see that the long drawn litigation which was decided in favour of the appellant is finally concluded and the appellant-plaintiff gets effective justice."
38. From the aforesaid conspectus of law, it would be evidently clear that it is the duty of the court to put a ceiling on ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 30 unnecessary delay in the matter of enjoying the fruits by a decree holder as is often said that a litigation in this country, particularly .
on the Civil side commences only after obtaining a decree while executing it. A person who approaches the court must be able to enjoy the fruits of a decree and he cannot be made to suffer indefinitely even after a contest of a claim in a Court of law.
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39. Applying the above view and anxiety of the Hon'ble Privy Council, other Hon'ble Courts and also the principles laid rt down by the Hon'ble Supreme Court to the facts of the present case, this court is of the considered view that long litigation which has been decided in favour of respondent-landlord has only resulted in a decree in favour of landlord which can only become meaningful and efficient when the landlord not only gets the possession, but is also compensated for the entire period he has been deprived of the user of the property by granting of mesne profits.
40. The unscrupulous litigations like petitioners cannot simply walk away by not paying the use and occupation charges or the mesne profitis for the period they have enjoyed the property.
Therefore, in such circumstances, I feel that the ends of justice would be met in case the learned executing court is directed to ensure that:
(i) the landlord is put in physical possession of the premises within a period of four weeks from today.;
(ii) the petitioners are made to pay use and occupation charges at the rate to be determined by the learned ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP 31 executing court for the entire period when the respondent/landlord has been deprived of his property;
(iii) In addition to the mesne profits, the executing court shall .
award meaningful cost in favour of landlord in terms of the judgment rendered by the Hon'ble Supreme Court in Ramrameshwari Devi, South Eastern Coalfields Ltd and Enviro-Legal cases (supra).
(iv) Till and so long, the possession of the premises is not handed over and further till and so long mesne profits, as of determined by the executing court along with cost, are not paid to the landlord, petitioners shall not sell, rt mortgage, alienate, encumber or create a charge over the said property, known as Ram Singh House, Cart Road, Shimla-4, more specifically defined in Annexure P-6, or dispose of in any manner, save and except with the express leave and permission of the executing court and the undertaking, by affidavit, to this effect, will be filed by all the landlords/owners of the property before the executing court within a period of four weeks. The order shall be operative forthwith.
(v) In the event of petitioners failing to pay mesne profit so determined, the executing court shall be at liberty to attach the properties of the petitioners and in case still failure on their part to pay the mesne profit, the same be put to sale strictly in accordance with law.
With these observations, petition is dismissed, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan), Judge.
July 15, 2016 (sl) ::: Downloaded on - 15/04/2017 20:49:40 :::HCHP