Punjab-Haryana High Court
Oma Devi And Another vs Sanatan Dharam Sabha And Others on 26 February, 2014
Author: Mahesh Grover
Bench: Mahesh Grover
C.R. No. 1436 of 2014 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.R. No. 1436 of 2014
Date of Decision : 26.02.2014
Oma Devi and another
....Petitioners
Versus
Sanatan Dharam Sabha and others
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present:- Mr. Ashok Tyagi, Advocate
for the petitioners
MAHESH GROVER, J.
The petitioners are aggrieved of the order dated 11.02.2014 vide which their application under Order 21 Rule 29 CPC pleading for stay of the proceedings in execution was declined.
The facts may be noticed in brief.
The respondent-Sanatan Dharam Sabha, Guru Daronacharya Mandir, Bhim Nagar, Gurgaon which is a registered Society filed a suit for declaration, permanent injunction and possession alleging that the predecessor-in-interest of the present petitioners (arrayed as defendants in the suit) were unauthorized occupants thereof on the basis of collusive decree suffered in their favour in the year 1994. It was pleaded that the suit property fell within the municipal limits of Gurgaon and decree dated 04.01.1994 in Civil Suit No. 481 of 1994 passed in favour of defendant No. 1- Prabhu Dayal was illegal, null and void. As a consequential relief, Reena 2014.03.18 12:21 I attest to the accuracy and integrity of this document chandigarh C.R. No. 1436 of 2014 2 they sought a restraint upon the defendants from raising further construction in the suit property and from alienating it. They also pleaded for possession. The property was described both on the strength of a site plan and revenue record and was stated to be a part and parcel of Khasra No. 1318 and 1319 in village Gurgaon.
It was pleaded that initially this area which fell in the village was now within the municipal limits of Gurgaon and part of Bhim Nagar and a temple with ancient idols existed there. It was also stated that there was a Dharamshala, a Pond, a School, a Piao and some shops.
The petitioners who contested the suit as defendants stated that Moti Ram son of Bihari Lal, one of the defendants was in possession of the property for the last 30 years and had, thus, acquired ownership on the basis of adverse possession.
After the collusive decree of 1994 suffered by Moti Ram in favour of defendant No. 1 i.e. Prabhu Dayal, he proclaimed himself as the owner. It was denied that Sanatan Dharam Sabha was a registered body, although the existence of temple was admitted. It was denied by the petitioners that a temple existed in Khasra No. 1318 and 1319 and similarly existence of Dharamshala on the suit property was also denied but it was admitted that a School was being run by one Sh. Ishwar Chand Jhamb, who had filed the civil suit and that the income derived from the monthly rent of the shop was being used by him for his own benefit. Similarly the allegations of more area and construction as alleged in the plaint were also denied. It was reasserted that Moti Ram was continuously in possession for the Reena 2014.03.18 12:21 I attest to the accuracy and integrity of this document chandigarh C.R. No. 1436 of 2014 3 last 30 years and upon becoming owner by adverse possession, a collusive decree was suffered in favour of defendant No. 1-Prabhu Dayal. The decree of 1994 was pleaded to be valid and it was also stated that the suit is barred under the provisions of Order 2 Rule 2 and Section 11 CPC. The counter claim was also filed seeking injunction to restrain the plaintiffs in the suit from demolishing the property.
Learned trial Court framed the following issues:-
"1.Whether the plaintiff is registered with Registrar of Societies, Haryana as alleged? OPP
2. Whether there exist, Guru Dronacharya Temple, pond and Dharamshala in Khasra No. 1318, 1319 as alleged?
OPP
3. Whether defendant No. 2 had encroached upon part of the suit property shown in red colour in the site plan attached with the plaint as alleged? OPP
4. Whether defendants have no right, title in the suit property and have raised unauthorized construction as alleged? OPP
5. Whether the judgment and decree dated 4.1.94 passed in favour of defendant No. 1 by the Court of Senior Sub Judge, Gurgaon are illegal, void, nonest and not binding on plaintiff as alleged?OPP
6. Whether suit has not been filed through authorized person and if so to what effect?OPP
7. Whether the plaintiff has no locus-standi and no cause Reena 2014.03.18 12:21 I attest to the accuracy and integrity of this document chandigarh C.R. No. 1436 of 2014 4 of action to file the present suit?OPP
8. Whether plaintiff is estopped by its own act, admission, conduct, acquiescence from filing the present suit as alleged? IPD
9. Whether defendant No. 1 has become owner of the suit property vide civil court decree and by adverse possession also as alleged?OPD
10.Whether the suit is bad for non-joinder and mis joinder of necessary party as alleged?OPD
11.Whether the suit is not within limitation?OPD
12.Whether suit is not properly valued for purposes of court fee and jurisdiction as alleged?OPD
13.Relief."
The parties went to trial and the suit was decreed with a specific negation of the pleas set up by the defendants. The decree of 1994 was held to be bad on account of non-registration and, thus, invalidated. The plea of adverse possession was also negated as Moti Ram (defendant No. 1) could not disclose as to how and when he entered upon the property as claimed by him. Similarly the plea of family settlement taken by the present petitioners was also negated. If Moti Ram was not the owner as held by the Civil Court, then where was the question of his suffering a decree in favour of Prabhu Dayal.
The judgment of the leaned trial Court was tested upto the Hon'ble Supreme Court and was upheld, which led to the filing of Reena 2014.03.18 12:21 I attest to the accuracy and integrity of this document chandigarh C.R. No. 1436 of 2014 5 execution by the decree holder.
The petitioners who are the legal representatives of Prabhu Dayal (since deceased) then filed a civil suit for declaration, permanent and mandatory injunction against the Sanatan Dharam Sabha, as also with the prayer that the decree passed by the learned trial Court affirmed upto the Hon'ble Supreme Court be declared null and void and a result of fraud and misrepresentation by not disclosing the material facts.
Before the Executing Court an application under Order 21 Rule 29 CPC was also moved praying for stay of the proceedings in execution on account of the pendency of the civil suit preferred by the present petitioners seeking nullification of the decree in execution. The Executing Court has declined the instant application where the learned counsel for the petitioners contended that a decree obtained by fraud is a nullity and, therefore, such a plea can be raised at any point of time, even by filing a subsequent suit.
Learned counsel for the petitioners has placed reliance on a decision of the Hon'ble Supreme Court in the case of Kiran Singh and others vs. Chaman Paswan and others, 1954 AIR (SC) 340, wherein it has been observed in para 6 as follows:-
"6. The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever Reena 2014.03.18 12:21 and wherever it is sought to be enforced or relied upon, I attest to the accuracy and integrity of this document chandigarh C.R. No. 1436 of 2014 6 even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position."
I have heard learned counsel for the petitioners and have perused the material on record.
The Court is clearly of the view that the subsequent suit filed by the petitioners is obstructive to the cause of justice. Once the respondents have a hard earned decree in their favour, which has been upheld upto the Hon'ble Supreme Court, there was absolutely no occasion for the present petitioners to resort to the filing of the suit. Evidently, it is a result of ill advised remedy for which only the counsel can be blamed.
The Hon'ble Supreme Court in Shamsher Singh Bedi vs. High Court of Punjab & Haryana, (1996) 7 SCC 99 while relying upon M.Y. Shareef (AIR 1955 SC 19) had held that a counsel who drafts the pleading can not escape his responsibility of the contents pleaded therein. A natural corollary is that a counsel who drafts pleadings would be aware of the facts of the earlier litigation, which in Reena 2014.03.18 12:21 I attest to the accuracy and integrity of this document chandigarh C.R. No. 1436 of 2014 7 this case is evident from the nature of the prayer made in the subsequent suit. Even otherwise as per Order 7 Rule 1(j) CPC, it is obligatory upon a party filing the pleadings to disclose the factum of the earlier litigation between the parties.
If the pleas taken up by the present petitioners in the civil suit are to be considered, then these were objections which were available to them when they were contesting the suit. They did not take up the plea of fraud or misrepresentation and the plea that the land was shamlat as is being done now. No plea of any allotment in family of Moti Ram was ever made but only adverse possession was pleaded. They were conscious of the pleadings that the suit property originally existed in Khasra No. 1318 and 1319, which was specifically set up by the plaintiffs-respondents themselves with a further qualification that now the land fell within the municipal limits of Gurgaon and was a part of area known as Bhim Nagar. Having failed to take up such pleas which the petitioners now urge before the Civil Court, maintainability of the subsequent suit would be seriously a debatable issue and the only inference that can be derived is that the petitioners are interested in obstructing the execution of the decree, the consequences of which are deprivation of the property which has been in possession of the petitioners since long.
This Court in Chander Bhushan Anand vs. Devinder Kumar Singla (C.R. No. 582 of 2014) decided on 30.01.2014 has also opined that in case the Court concludes upon a perception that the filing of the suit and objections is frivolous and obstructive to the cause of justice, then in such an eventuality not only the Court will Reena 2014.03.18 12:21 I attest to the accuracy and integrity of this document chandigarh C.R. No. 1436 of 2014 8 step in to restore the possession of the original claimants/decree holder but would also not hesitate to take action against the counsel who has given such ill conceived advice and the litigant who obstructs the execution of decree on flimsy grounds. The Court has also opined that in case such attempts are not thwarted it will lead to great unrest in the Society as hard earned decrees would be reduced to a mere scrap of paper and it would even erode the confidence of the persons in the judicial dispensation system, which would be perceived to be unable to deliver and sub serve the cause for which it exists.
For the purpose of reference the relevant portion of the observations made in Chander Bhushan Anand's case (supra) are extracted herein below:-
"To the mind of this Court, this is subversion of the process of law and defiance of the orders of the Court as also being obstructive to the cause of justice. Such acts may not only result in acute unrest in the society the members of which would be compelled to perceive the judicial dispensation system inefficient and possibly impotent and the Courts' existence itself may be imperiled if it is unable to deliver and protect the rights of the citizenry for which it was conceived. It would also result in unwarranted litigation and unnecessary burden on courts themselves in turn resulting in wastage of public time and money.
Therefore, this Court by virtue of this order wishes to caution not only the courts but also the legal professionals who indulge in imparting such dishonest advice.
The Court, thus, directs all the civil and executing Reena 2014.03.18 12:21 I attest to the accuracy and integrity of this document chandigarh C.R. No. 1436 of 2014 9 courts that whenever an execution is preferred and the objections of such kind exemplified above (these examples are merely intended to bring home the point and not necessarily intended to serve as a straight-jacket formula for the courts to adopt) are raised then it is for the courts to minutely examine the intent and content of the objections, and in cases of suits, the plaints presented before them and see if they have the effect of defeating the rights which stand defined conclusively by the orders of Courts in earlier proceedings and whether such objections are intended to defeat the rights of the successful litigants and dismiss them upon forming an opinion. To separate wheat from chaff with great circumspection is the watchword, lest the genuine cases suffer.
** ** ** In the civil suits preferred raking up pleas contrary to the well defined and determined rights of the parties the court should not hesitate to take recourse to the provisions under Order 7 Rule 11 CPC when such facts are brought to their notice and pass reasoned orders and if they come to the conclusion that it is an attempt to frustrate the rights of a decree-holder in some other proceedings, then it should not hesitate to dismiss the suit at the threshold besides taking recourse to referring the matter to the High Court for appropriate action against the person delivering wrongful advice and for nullifying such proceedings in case the trial Court perceives an obstacle and legal hurdle in doing so.
It has to be kept in mind that an Advocate cannot escape the responsibility for drafting petitions and pleadings and, hence, a great responsibility rests on his shoulders to do so with great sense of professionalism as Reena the matter drafted by an Advocate constitutes the sum 2014.03.18 12:21 I attest to the accuracy and integrity of this document chandigarh C.R. No. 1436 of 2014 10 and substance of the grievance of a litigant.
** ** ** It is high time that the Courts wake up to this malaise. A hard earned decree by a litigant cannot be reduced to a scrap of paper because of the attempts of mavericks who through these unfounded objections or proceedings tend to introduce an anarchic order."
Keeping in view the above observations, the Court directs the Executing Court to forthwith execute the decree and restore the possession of the suit property to the respondents decree holders by ordering police help, but before doing so one opportunity be given to the petitioners, if they are willing to restore the possession voluntarily.
Issue notice of contempt to Sh. Gopal Sharma, Advocate, District Court Gurgaon for 31.03.2014 to show cause as to why the proceeding under the Contempt of Courts Act be not initiated against him and as to why this matter should not be referred to the Bar Council of Punjab and Haryana for taking appropriate action against him for giving completely unethical advice, which runs contrary to the higher standards of the profession intended to be maintained by the counsel.
The petition is dismissed.
Office is directed to prepare a separate file of Contempt Petition and list the same on 31.03.2014.
February 26, 2014 (Mahesh Grover)
reena Judge
Reena
2014.03.18 12:21
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chandigarh