Himachal Pradesh High Court
Bhagat Ram vs State Of H.P on 20 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 510 of 2017
.
Date of decision: 20.12.2017.
Bhagat Ram ..... Appellant/Plaintiff.
Versus
State of H.P. ....Respondent/Defendant.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No
For the Appellant : Mr. Anil God, Advocate, vice Mr. Trilok
Jamwal, Advocate.
For the Respondent : Mr. J. S. Guleria, Assistant Advocate
General.
Tarlok Singh Chauhan, Judge (Oral)
The appellant is the plaintiff, who has lost before both the learned Courts below and aggrieved against the judgments and decrees so passed against him, has filed the instant appeal under Section 100 of the Code of Civil Procedure.
The parties shall be referred to as the 'plaintiff' and 'defendant'.
2. The plaintiff filed a suit for declaration and for permanent prohibitory injunction against the defendant on the ground that he is owner in possession of the land comprised in Khata/Khatauni No. 77/111 (old), Khasra No. 13/1 (old), 348 (new), measuring 4-15 bighas, situated in Village Sai Fardya, Pargna and Tehsil Sadar, District Bilaspur, H.P. 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 2 (hereinafter referred to as the suit land). It was averred that the defendant was the owner of the suit land prior to 30.11.1978 and on that day the .
land was sanctioned in favour of the plaintiff by the Tehsildar, Sadar as he had applied for the same as landless person and thereafter a Patta was issued to the plaintiff on 30.11.1978, on the basis of which, mutation was attested on 27.4.1979. Since the plaintiff was in possession of the suit land, therefore, he has made improvements over the same by spending huge amount of money by raising construction of a house.
However, one Anant Ram S/o Sh. Jiunu Ram, resident of Village Oel, Pargna and Tehsil Sadar, District Bilaspur, H.P. had assailed the order of Tehsildar made in favour of the plaintiff by filing a revision petition before the Deputy Commissioner, Bilaspur on 12.2.1980 on the ground that the suit land had already been sanctioned in his favour and as such, there was duplicacy in allotment. The Deputy Commissioner without verifying the factual position on the spot cancelled the allotment made in favour of the plaintiff without affording an opportunity of hearing and even otherwise no reasons were assigned in the order. It was claimed that the order passed by the Deputy Commissioner was, therefore, illegal and time barred and had no effect on the allotment already made in favour of the plaintiff. It was claimed that even though the land in favour of the plaintiff stands cancelled, the revenue entries changed in the name of the defendant, yet the plaintiff is in possession of the suit land and, therefore, the defendant cannot interfere in his peaceful possession and he cannot be evicted forcibly.
3. The suit was contested by the defendant by filing written statement wherein preliminary objections qua maintainability, cause of ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 3 action, res judicata, limitation, locus standi, valuation, non-joinder of necessary parties and jurisdiction etc. were raised. On merits, it was .
averred that the suit as filed is not maintainable as it is hit by the principle of res judicata as the plaintiff had earlier filed Civil Suit No. 50/1 of 1981 decided on 22.05.1984 by the then Senior Sub Judge, Bilaspur. An appeal preferred against the same was also dismissed by learned Additional District Judge, Bilaspur on 10.08.1989 and such material facts were concealed from this Court. It was further averred that the suit land was allotted to the plaintiff but was subsequently cancelled by the Deputy Commissioner as the plaintiff was an employee and was working as Chowkidar on workcharge basis in the H.P. State Electricity Board at that time and was earning more than Rs.3,000/- per month and his father was already possessing the land in his own name and was alive. Even otherwise, the land sanctioned in favour of the plaintiff was already sanctioned in favour of Anant Ram (supra), as such, the allotment in favour of the plaintiff was cancelled by the Deputy Commissioner.
4. The plaintiff filed replication to the written statement filed by the defendant by reiterating the averments made in the suit and denying those made in the written statement.
5. The learned trial Court on 15.03.2007, framed the following issues:
1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP.
2. Whether the plaintiff is entitled for relief of declaration, as prayed for? OPP
3. Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 4
4. Whether the suit is not maintainable? OPD
5. Whether the plaintiff has no cause of action? OPD
6. Whether the suit is barred by principle of res judicata?
.
OPD
7. Whether the suit is barred by limitation? OPD
8. Whether the plaintiff has suppressed material facts?
OPD
9. Whether the plaintiff has no locus standi to file the present suit? OPD
10. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD
11. Whether the plaintiff has not come to the Court with clean hands? OPD
12. Whether the suit is barred for non-joinder of necessary parties? OPD
13. Whether the suit is bad for non-compliance of Section 80 CPC? OPD
14. Whether this Court has no jurisdiction to entertain and try the suit? OPD.
15. Relief.
6. After recording the evidence and evaluating the same, the suit filed by the plaintiff was dismissed by the learned trial Court on 14.10.2015 and even the appeal preferred against the same, came to be dismissed by the learned first Appellate Court vide judgment and decree dated 23.02.2017, constraining the appellant to file the instant appeal.
7. It is vehemently argued by Mr. Anil God, learned counsel appearing for the appellant that the findings recorded by the learned Courts below are perverse inasmuch as not only the pleadings but even the oral and documentary evidence have been misread, misconstrued and misinterpreted by both the learned Courts below.
::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 58. On the other hand, Mr. J.S. Guleria, learned Assistant Advocate General would support the impugned judgments and decrees .
as being strictly in consonance with the law and would further argue that since the plaintiff has not come with clean hands and the instant appeal being a gross abuse of process of Court, should be dismissed with heavy costs.
I have heard learned counsel for the parties and have gone
9. to through the material placed on record.
What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v.
Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 6 PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition .
PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether r against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 730. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) .
SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts r based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness -
as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
10. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 8
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers .
from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
11. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 9 reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
.
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and
2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 10 conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the .
court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) r to "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 11 in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after .
referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is r some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
12. Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court's entire approach with respect to dealing with the evidence or the pleadings is found to be ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 12 patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the .
facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at.
Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.
13. Now, adverting to the facts of the case. It would be noticed that the controversy between the parties already stands decided in Civil Suit No. 50/1 of 1981 which was earlier filed by the plaintiff and decided against him by the then learned Senior Sub Judge, Bilaspur on 22.5.1984. Admittedly, this fact has not been disclosed by the plaintiff while filing the instant suit.
14. Now, adverting to the judgments and decrees so passed, it would be noticed that issues No. 1 and 2 framed therein were:
(1) Whether the plaintiff is owner in possession of the suit land? and (2) Whether the order dated 15.01.1981 passed by the Deputy Commissioner, Bilaspur is illegal and void ?
15. Both the issues were decided against the plaintiff and it was held that even though the plaintiff is in possession, but he is not the owner. It is not in dispute that the aforesaid judgment and decree was affirmed by the learned Additional District Judge, Bilaspur on 10.08.1989 in an appeal preferred by the plaintiff.
::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 1316. Once that be the admitted position, then obviously the instant lis which is in the nature of re-litigation, is not maintainable and amounts .
to gross abuse of the process of the Court.
17. It is more than settled that if in any Court of competent jurisdiction, a decision is reached, a party is esstopped from questioning it in new proceedings. This principle extends to any point whether on fact or law. Therefore, it is not a case where the Court lacked inherent
18. to jurisdiction so as to render its decision void, ab initio and null and void.
Here it was a Court of competent jurisdiction which has rendered a decision and therefore, the appellant/plaintiff was estopped from questioning this decision in new legal proceedings. This principle is embodied in Section 11 of the C.P.C. (for short the 'Code') The principle of res judicata is a fundamental principle based on the view that there must be an end to litigation, where a question has been decided by a Court of competent jurisdiction in a lis, then those parties are estopped for reopening the same question in subsequent proceedings between themselves.
19. The re-assertion of cause of action is fraud upon the Court.
The reason for this, as a proper rule of evidence, is that two objectives are sought to be achieved. Firstly, the final termination of disputes is in the general interest of the community as a matter of public policy.
Secondly, the interest of opposite party is to be protected against multiplicity of litigation.
20. As observed above, a statutory manifestation of this rule is to be found in Section 11 of the Code, whereunder there is a bar for trying any suit, in which the matter has directly and substantially in issue in a ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 14 former suit between the same parties and the former suit has been conclusively decided by a competent Court.
.
21. The provision of Section 11 of the Code also bars the adjudication of an issue in subsequent proceedings, which issue could have been raised in the earlier proceedings. The idea behind this provision is to prohibit multiplicity of litigation.
22. Apart from the statutory manifestation of the said principle, the said principle is recognized in judicial decision from which it can be seen that the Courts refuse to entertain a dispute or a plea which amounts to or is an abuse of the process of the law. The Court will not grant relief to a plaintiff if he had adopted previous proceedings in which he could have asked for relief, which he is now trying to seek by adopting successive proceedings.
23. From the aforesaid discussion, it is evidently clear that the suit instituted by the plaintiff was not only misconceived but amounts to re-litigation time and again, which is not only impermissible, but is also abuse of the process of Court and against the principle of finality of litigation. It is more than settled that re-agitation may or may not be barred by res judicata, but if the same issue is sought to be re-agitated, it would amount to abuse of the process of Court.
24. The Hon'ble Supreme Court in K.K.Modi vs. K.N. Modi and others (1998) 3 SCC 573, while elaborately considering the abuse of process of the Court, held that re-litigation is one of the examples of abuse of process of Court and such litigation should be summarily dismissed in order to prevent the time of the public and the Court from being wasted, it was observed:
::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 15"42. Under Order 6 Rule 16, the Court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his .
treatise on the Code of Civil Procedure. (15th Edition, Volume II, page 1179 note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of Court on the basis of what is stated in the plain.
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 term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation........ The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.
44. "One of the examples cited as an abuse of the process of court is re-litigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to re-litigate the same issue which h as 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 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 ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 16 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 [19147 (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 thereafter bring the same transaction before the court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexation and an abuse of the process of court.
46. In Mcllkenny v. Chief Constable of West Midlands Police Force and another [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 estoppel."
25. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Hon'ble Supreme Court held that false claims and defences are serious problems with the litigation. The Hon'ble Supreme Court held as under:-
"False claims and false defences
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.::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 17
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."
.
26. 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 with litigation with false and incoherent pleas and tainted evidence led by the parties due to which the judicial system in the country is choked and such litigants are consuming Courts‟ time for a wrong cause."
The observations of Court are as under:-
"2. As rightly observed by the Supreme Court, Satya is a basic value of life which was required to be followed by everybody and is recognized since many centuries. In spite of caution, courts are continued to be flooded with litigation with false and 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."
27. 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 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.::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 18
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 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 malicious intent have over-shadowed the old ethos of litigative values for small gains. 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 ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 19 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 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."
16. We are thus satisfied that the bogey of busybodies blackmailing 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, ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 20 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 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 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 ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 21 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 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 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 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 ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 22 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, 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 litigation is said to be guilty of abuse of process of the Court, in any of the following cases:-
(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".
28. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the appellant in this case. It has to be remembered that Court's proceedings are sacrosanct and should not be polluted by unscrupulous litigants. The appellant has abused the process of the Court.
29. The further question which now arises is as to how to curb this tendency of abuse of process of court. As suggested in Kishore ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 23 Samrita (supra), 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 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 whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:
A. Pleadings are the foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial Judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
B. The court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at the truth of the matter and doing substantial justice. C. Imposition of actual, realistic or proper costs and/or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.
D. The court must adopt realistic and pragmatic approach in granting mesne profits. The court must carefully keep in view the ground realities while granting mesne profits. E. The courts should be extremely careful and cautious in granting ex parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 24 only after hearing the parties concerned appropriate orders should be passed.
F. Litigants who obtained ex parte ad interim injunction on the .
strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.
G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
H. Every case emanates from a human or a commercial problem and the court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well-settled principles of law and justice. I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.
J. At the time of filing of the plaint, the trial court should prepare a complete schedule and fix dates for all the stages of the suit, right form filing of the written statement till pronouncement of the judgment and the courts should strictly adhere to the said dates and the said timetable as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearing fixed in the said suit itself so that the date fixed for the main suit may not be disturbed."
30. The Hon'ble Supreme Court in Indian Council for 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 ::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 25 would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must .
effectively discourage fraudulent, unscrupulous and dishonest litigation.
192. The court's constant endeavour must be ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.
193. This Court in a very recent case Ramrameshwari Devi v. Nirmala Devi had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under: (SCC pp. 268-69, paras 54-55) "54. While imposing costs we have to take into consideration pragmatic realities and be realistic as to what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter-affidavit, miscellaneous charges towards typing, photocopying, court fee, etc.
55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various 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."
31. Even though, this is a fit case where not only heavy costs but exemplary costs ought to have been imposed. But only on account of the persuasive submissions made by learned counsel for the appellant as also taking into consideration the fact that the appellant has since retired, this Court refrains from doing so.
::: Downloaded on - 26/12/2017 22:59:24 :::HCHP 2632. However, before parting, a stern warning is issued to the plaintiff not to indulge in such misadventure in future.
.
33. Accordingly, the appeal is dismissed, so also the pending application(s) if any.
(Tarlok Singh Chauhan)
December 20, 2017. Judge
(GR)
r to
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