Himachal Pradesh High Court
Pratap Singh Verma vs State Of H.P. And Others on 31 May, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 364 of 2016.
Judgment reserved on 23.5.2016 Date of decision: 31st May, 2016.
.
Pratap Singh Verma ..... Petitioner.
Versus
State of H.P. and others. ....Respondents Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of Whether approved for reporting ?1 Yes.
For the petitioner: rt Mr. Hamender Chandel, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan and Mr. M.A. Khan, Additional Advocate Generals, & Mr. Kush Sharma, Deputy Advocate General for respondents No. 1 and 2.
Mr. Rajiv Jiwan, Advocate, for respondent No.3.
_______________________________________________ Mansoor Ahmad Mir, Chief Justice.
The case in hand is a glaring example of misuse of process of law and demonstrates to what extent a disgruntled litigant can succeed in abusing the process of Court and misusing the majesty of law to the 1 Whether the reporters of Local Papers may be allowed to see the judgment ?::: Downloaded on - 15/04/2017 20:29:33 :::HCHP -2-
total disadvantage and detriment to his opponent and the judicial system.
2. In order to set the controversy at rest, it is .
necessary to give a brief narration of the conspectus of relevant facts, which has given birth to the instant writ petition.
3. Petitioner, in terms of advertisement notice, of Annexure P6, came to be appointed as District Child Protection Officer (DCPO) in District Shimla vide rt appointment letter dated 17.2.2014, Annexure P4, under the "Centrally Sponsored", "Integrated Child Protection Scheme" on contract basis for a period of one year on the basis of Selection and Appointment Process Annexure P2. Vide Annexure P7, he joined as such on 19.2.2014. His tenure was extended vide Annexure P3 from 19.5.2015 to 18.11.2015. He made representation for further extension on the analogy of similarly situated District Child Protection officers (DCPOs), as mentioned in Annexure P1, vide representation Annexure P5 but vide Annexure P8, his request was not acceded to.
4. Feeling aggrieved, on 16.11.2015, the petitioner filed Original Application No. 4331 of 2015, ::: Downloaded on - 15/04/2017 20:29:33 :::HCHP -3- before the H.P. State Administrative Tribunal, seeking mainly the following reliefs.
"A). Respondents may kindly be directed to extend the further .
tenure of the petitioner as state-respondents already extended further tenure of all the DCPO's in another districts as in Annexure A/1 on the same ground District Child Protection Officer (DCPO) district Shimla on contractual basis is also entitled for further extension as per the guidelines of "Centrally Sponsored" integrated Child Protection Scheme (ICPS), i.e. every personnel shall have a contract of 3 years, extendable of by 2 years on the basis of performance appraisal reports. There is violation of the principle of natural justice as well as ignoring the guidelines of the "Centrally Sponsored" integrated Child Protection Scheme (ICPS) on the basis of grant/fund rt issued by the government of India in the ratio of 90:10.The document of selection and appointment process of district Child Protection Officer (DCPO) is annexed in Annexure A/2 for the kind perusal of this Hon'ble Court. B) Respondents may kindly be directed that not to terminate the services of the petitioner as a District Child Protection Officer (DCPO) on contractual basis which is "Centrally Sponsored" integrated Child Protection Scheme (ICPS) on the basis of grant/fund issued by the government of India. Which is arbitrary, discriminatory and violation of Article 14 & 16 of the Constitution of India.
(E)Directing the respondents not to dispense with the services of the petitioner as a District Child Protection Officer (DCPO) on contractual basis by way of transfer or by any mode of fresh appointment through a deputation or any other mode of contract Appointment in the interest of justice and fair play till the decision of this case."
5. Along with the Original Application, an application for interim direction was filed but no relief came to be granted in favour of the petitioner and ::: Downloaded on - 15/04/2017 20:29:33 :::HCHP -4- respondents were only directed to consider the case of the applicant to work as Child Protection Officer, vide order dated 19.11.2015. In the meantime, respondent .
No.2 vide order dated 26.11.20115, Annexure P10, rejected the case of the petitioner for further extension.
6. The petitioner filed COPC before the Tribunal, which was ordered to be listed alongwith of Original Application vide order dated 3.12.2015 Annexure P15. Vide order dated 9.12.2015, Annexure rt P16, the petitioner was allowed by the Tribunal to amend the Original application.
7. The petitioner made another attempt to get orders from the Court by filing CMPMO No. 23/2016 before this Court, during the pendency of the Original Application, which was dismissed as withdrawn on 11.1.2016.
8. The hunger of the petitioner for getting directions from the Court did not stop here. He then invoked the jurisdiction of this Court by the medium of the writ petition in hand on 16.2.2016, during vacation in the High Court, seeking same reliefs, as sought in the Original Application, that too, during the pendency of the ::: Downloaded on - 15/04/2017 20:29:33 :::HCHP -5- Original Application, before the Tribunal. It is apt to reproduce the reliefs sought in the writ petition herein.
"(A)To issue writ in the nature of certiorari for quashing both .
the orders of respondents i.e. Annexure A/8 and Annexure A/10 and petitioner immediately be allowed to be reinstated with all monetary consequential benefits as admissible with effect from 19.11.2015 and further extended the tenure of the District Child Protection officer District Shimla as per centrally sponsored "integrated Child Protection Scheme." (B)Respondents may kindly be directed to extend the further of tenure of the petitioner as state-respondents already extended further tenure of all the DCPO's in another districts as in Annexure A/1 on the same ground District Child Protection Officer (DCPO) district Shimla on contractual basis is also rt entitled for further extension as per the guidelines of "Centrally Sponsored" integrated Child Protection Scheme (ICPS).
(C) Respondents directed to strictly follow centrally Sponsored" integrated Child Protection Scheme (ICPS) i.e. Every personnel shall have a contract of 3 years, extendable by 2 years on the basis of performance appraisal reports.
There is violation of the principle of natural justice as well as ignoring the guidelines of the "Centrally Sponsored" integrated Child Protection Scheme (ICPS) on the basis of grant/fund issued by the government of India in the ratio of 90:10. (D) Respondents may kindly be directed that not to terminate the services of the petitioner as a District Child Protection Officer (DCPO) on contractual basis which is "Centrally Sponsored" integrated Child Protection Scheme (ICPS) on the basis of grant/fund issued by the government of India. Which is arbitrary, discriminatory and violation of Article 14 & 16 of the Constitution of India.
(E)Directing the respondents not to dispense with the services of the petitioner as a District Child Protection Officer (DCPO) on contractual basis by way of transfer or by any mode of fresh appointment through a deputation or any other mode of contract Appointment in the interest of justice and fair play till the decision of this case."
::: Downloaded on - 15/04/2017 20:29:33 :::HCHP -6-9. The petitioner, ultimately remained successful in obtaining the interim directions from this Court on 17.2.2016. It is apt to reproduce order dated .
17.2.2016 passed on CMP No. 884 of 2016 for interim directions, in this writ petition herein.
"17.2.2016 Present:Mr. Hamender Chandel, Advocate, for the petitioner.
of Mr. Parmod Thakur and Mr. V.S. Chauhan, Additional Advocate Generals for the respondents.C.M.P. No. 883 of 2016
rt Allowed. The application stands disposed of.CWP No. 364 of 2016
Notice. Mr. V.S. Chauhan, Additional Advocate General appears and waives service of notice on behalf of the respondents. Reply, as prayed for, be filed within six weeks.C.M.P. No. 884 of 2016
Notice in the aforesaid terms. Prima facie the non- continuation of services of the petitioner as District Child Protection Officer, District Shimla is in breach of "Centrally Sponsored" integrated Child Protection Scheme (ICPS).
Consequently, there shall be stay of impugned order dated 18.11.2015 (Annexure A-8) and order dated 26.11.2015(Annexure P-10) till further orders from this Court. The respondents are directed to permit the petitioner to discharge his duties as District Child Protection Officer, District Shimla. Copy Dasti."
10. On obtaining the interim directions from this Court, the Original Application filed before the Tribunal was disposed of having rendered Infructuous on ::: Downloaded on - 15/04/2017 20:29:33 :::HCHP -7- 8.3.2016 alongwith COPC on the basis of the statement made by the learned counsel for the petitioner that he has invoked the jurisdiction of the High Court, vide .
Annexure R5. It is profitable to reproduce order dated 8.3.2016, made by the Tribunal herein.
"In view of the statement at the bar made by the learned counsel for the applicant that with a view to ventilate the of grievance raised by the applicant in the present original application, he has filed a writ petition in the Hon'ble High Court of Himachal Pradesh, owing to which, the present original application as also the contempt petition have rt been rendered Infructuous, the same are disposed of accordingly."
11. The writ petition in hand was resisted by the respondents by filing the reply and it is averred in the reply that the writ petition is misuse of judicial process. It is averred that without taking the Original Application to its logical end, the petitioner has invoked the jurisdiction of this Court for the same reliefs which is not legally permissible.
12. It is only after noticing the reply filed by the respondents; petitioner again moved an application before the Tribunal for recalling the order dated 8.3.2016. On 20.4.2016, the Original Application was ::: Downloaded on - 15/04/2017 20:29:33 :::HCHP -8- restored to its original number and respondent/State was directed to file reply within four weeks positively.
13. It is evident from the record that the writ .
petitioner has sought same reliefs before the Tribunal as well as in the writ petition. The Tribunal has been created only for hearing service matters. How the writ petition was filed here and what were the reasons of behind it, are not forthcoming. What were the reasons for withdrawal and recalling of the order, as mentioned rt supra, are also not forthcoming. But it speaks volumes about the conduct of the writ petitioner.
14. It is not the case of the petitioner that he has questioned the interim directions granted by the Tribunal. It is a moot question whether the writ petition is competent against the interim order made by the Tribunal, which is yet to be made absolute. However, it is not the question to be determined here at this stage.
Thus, we leave this question open.
15. The petitioner is enjoying the interim directions granted by this Court on 17.2.2016, quoted supra, which, he had obtained by misleading the Court, concealing the material facts and by misusing the entire ::: Downloaded on - 15/04/2017 20:29:33 :::HCHP -9- judicial process, which is against all the ethics and equity, needs to be dealt with sternly.
16. It is also apt to record herein that the .
petitioner, in para 24 of the writ petition has averred that he has not filed any similar writ petition relating to the same matter in this Hon'ble Court or in any other Court of law, which is contrary to the factual position. Thus, he of has sworn-in a false affidavit and made this Court to believe that no such remedy has been sought by the rt petitioner from any other Courts and on the face of it, is misuse of process of law.
17. Our this view is fortified by the judgment delivered by the apex Court in case titled T. Arivandandam versus T.V. Satyapal and another reported in (1977) 4 SCC 467. It is apt to reproduce para 2 of the judgment herein.
"2. Here is an audacious application by a determined engineer of fake litigations asking for special leave to appeal against an order of the High Court on an interlocutory application for injunction. The sharp practice or legal legerdemain of the petitioner, who is the son of the 2nd respondent, stultifies the court process 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 ::: Downloaded on - 15/04/2017 20:29:33 :::HCHP
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community in the judicature is to survive. The contempt power of the Court is meant for such persons as the present petitioner. We desist from taking action because of the sweet reasonableness of counsel Sri Remasesh."
.
18. The apex Court in P.S. R. Sadhanatham versus Arunachalam and another reported in (1980) 3 SCC 141 laid down the following similar principles of law.
of "13. It is true that the strictest vigilance over abuse of the process of the Court, especially at the expensively rt exalted maintained level and of the Supreme ordinarily Court, meddlesome should be bystanders should not be granted 'visa'. It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from this Court may result in irretrieval injury to life or liberty.
14. Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Art. 136 even though the justice of the lis may well justify it. While "the criminal law should not be used as a weapon in person vendettas between private individuals", as Lord Shawcross2 once wrote, in the absence of an independent to every citizen, a wider connotation of the expression 'standing' is necessary for Art. 136 to further its mission. There are jurisdictions in which private individuals - not the State alone - may institute criminal proceedings. The law Reforms Commission (Australia) in its Discussion Paper No.4 on ::: Downloaded on - 15/04/2017 20:29:33 :::HCHP
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"Access to Courts - I Standing: Public Interest Suits"
wrote :
The general rule, at the present time, is that anyone may commence proceedings and prosecute in the Magistrate's court. The argument for retention of that .
right arises at either end of the spectrum - the great cases and the frequent petty cases. The great cases are those touching government itself - a Watergate or a Poulson. However independent they may legally be any public official, police or prosecuting authority, must be subject to some government supervision and be of dependent on government funds; its officers will inevitably have personal links with government. They will be part of the "establishment". There may be cases rt where a decision not to prosecute a case having political ramifications will be seen, rightly or wrongly, as politically motivated. Accepting the possibility of occasional abuse the Commission sees merit in retaining some right of a citizen to ventilate such a matter in the Courts. Even the English System, as pointed by the Discussion Paper, permits a private citizen to file an indictment. In our view, the narrow limits set in Vintage English Law, into the concept of 'person aggrieved' and 'standing' needs liberalisation in our democratic situation. In Dabholkar's case (1975) 2 SCC 702 this Court imparted such a wider meaning. The American Supreme Court relaxed the restrictive attitude towards 'standing' in the famous case of Baker v. Carr. (1962) 369 US 186. Lord Denning, in the notable case of the Attorney-General of the Gambia v. Pierra Sarr N'jie, 1961 AC 617 spoke thus:
................the words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him;
Prof. S. A. de Smith takes the same view:::: Downloaded on - 15/04/2017 20:29:33 :::HCHP
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All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest - the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the .
professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him.
Prof. H.W.R. Wade strikes a similar note: In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of of the action popularis. This is because it looks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper working order by rt preventing inferior tribunal snad public authorities from abusing their powers.
In Dabholkar's case, one of wrote in his separate opinion:
The possible apprehension that widening legal standing with a public connotation may unloose a flood of litigation which may overwhelm the Judges is misplaced because public resort to courtto suppress public mischief is a tribute to the justice system.
This view is echoed by the Australian Law Reforms Commission."
19. The apex Court in cases Chandrapal Singh and others versus Maharaj Singh and another reported in (1982) 1 SCC 466 and State of Kerala versus Thressia and another reported in AIR 1994 SC 1488 has laid down the similar principles of law.::: Downloaded on - 15/04/2017 20:29:33 :::HCHP
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20. The apex Court in K.K. Modi versus K.N. Modi and others reported in (1998) 3 SCC 573 held as .
under:
"43. The Supreme Court Practice 1995 published by Sweet and 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 of 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 rt 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 ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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."
21. Similar principles of law have been laid down by the apex Court in Mayar (H.K.) Ltd. and others of versus Owners & Parties, Vessel M.V. Fortune Express and others reported in (2006) 3 SCC 100.
and
rt
Udyami Evam Khadi Gramodyog Welfare
Sanstha and another versus State of Uttar Pradesh and others reported in (2008) 1 SCC 560. It is apt to reproduce paras 15 to 17 of the judgment rendered in Udyami Evam's case supra, herein.
"15.In the said counter-affidavit, it has further been disclosed that after being unsuccessful in their attempt to stall the recovery proceedings against the Samiti, a fictitious welfare Sanstha, namely, Udyami Evam Khadi Gramodyog Welfare Sanstha was started by appellant 2. We, therefore, are of the opinion that the attempt on the part of the appellants herein must be termed as "abuse of the process of law".
16. A writ remedy is an equitable one. A person approaching a superior Court must come with a pair of clean hands. It not only should not suppress any material fact, but also should not take recourse to the legal proceedings over and over again which amounts to abuse of the process of law. In Advocate General, State ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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of Bihar v Madhya Pradesh Khair Industries and Another, 1980 3 SCC 311, this Court was of the opinion that such a repeated filing of writ petitions amounts to criminal contempt.
17. For the reasons aforementioned, there is not merit in .
this appeal which is dismissed accordingly with costs. Counsel's fee quantified at Rs. 50,000."
22. This Court in CWP No. 9480 of 2014 alongwith connected matter titled Vijay Kumar Gupta of versus State of HP and others decided on 9.1.2015 and RSA No. 481 of 2002, decided on 9.1.2015 titled rt Subhash Chand Sharma versus Smt. Shakuntla Devi (deceased) through her LRs Dr. Chander Shekhar and another, has laid down the same law.
23. This Court in a latest judgment delivered in case titled Rakesh Kumar and another versus Sh.
Pratap Chand and others (Civil Revision No. 155 of 2014) decided on 7.5.2015 held as under.
"11. 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 courts must further ensure that there is no wrongful, unauthorized or unjust gain to anyone as a result of abuse of process of court. This court while adjudicating upon RSA No. 481 of 2002, titled Subhash Chand Sharma Vs. Smt. Shakuntla Devi decided on 9.1.2015 observed :-
"20. 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 ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 retaining the premises by not residing but putting a lock on the same.
.
21. 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 of
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 rt 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."
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). 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.::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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."
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 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 choked and such litigants are consuming Courts? time for a wrong cause."
rt 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."
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 ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 of 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 rt in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."
22. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the defendant/appellant in this case. It has to be remembered that Court's proceedings are sacrosanct and should not be polluted by unscru pulous litigants. The defendant/appellant has 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.
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 must be used bona fide and ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 and contrary to justice and public policy for a party to re-litigate of 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 rt 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 ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 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 of against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppels.
11. Similarly, the Hon'ble Supreme Court in Kishore Samrite vs. State of Uttar Pradesh and others, 2013 2 SCC 398, has rt 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 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 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 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 ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 the y 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 of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
rt 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 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.
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 ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 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 of the most basic requirement the most basic 'human-right' of a system which purports to guarantee legal rights."
16. We are thus satisfied that the bogey of busybodies rtblackmailing adversaries through 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 working, those who indulge in immoral ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 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.
36. The party not approaching the Court with clean hands of 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 rt 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 1 SCC 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 and clean objective that are the equifundamentals 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 ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true 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 of 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].
rt
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 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, 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 litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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(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.
of (9) Introduction of Scandalous or objectionable matter in proceedings.
(10) Executing a decree manifestly at variance with its purpose rtand 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".
23. The appellant by keeping these proceedings alive has gained an undeserved and unfair advantage. The appellant has successful in dragging the proceedings for a very long time on one count or the other and because of his wrongful possession he has 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 deprive the rights of a person and enjoy the fruits of illegalities. The Court has been used as a tool by the defendant/appellant to perpetuate illegalities and has 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 decided by the Delhi high Court on 6.11.2008, the court held as under: (DLT p.413, para 6) ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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"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 of the aims of every judicial 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."
rt 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 ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 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 of 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 rt 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."
12. 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 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:::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 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 rt 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 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.::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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."
13. 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 :-
of "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 rt 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 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 remained in operation."
14. 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 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 ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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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 of 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 rt 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 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 app ellants have also wasted judicial time of the various courts for the last 40 years."
15. In view of the aforesaid discussion not only is there any merit in this petition but the same is also a gross abuse of the ::: Downloaded on - 15/04/2017 20:29:34 :::HCHP
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process of court and is accordingly dismissed with costs of Rs.
50,000/-"
24. Having glance of the above discussion, the .
writ petition merits to be dismissed with costs and is accordingly dismissed with costs of Rs. 1 lac, to be paid to the H.P. High Court Bar Association Welfare funds.
25. Interim directions granted by this Court on of 17.2.2016 are vacated forthwith.
rt (Mansoor Ahmad Mir)
Chief Justice.
May 31, 2016. (Tarlok Singh Chauhan)
(cm Thakur) Judge
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