Himachal Pradesh High Court
Subhash Ahuja & Anr vs Union Of India & Ors on 29 August, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 324 of 2017 .
Reserved on: 23.08.2017
Date of decision: 29.08.2017
Subhash Ahuja & Anr. ...Appellants
Versus
Union of India & Ors. ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No. For the Appellants r : Mr. S.D. Sharma, Advocate.
For the Respondents : Mr. Ashok Sharma, ASGI with Ms. Sukarma Sharma, Advocate, for respondent No. 1.
Ms. Meenakshi Sharma, Addl.A.G. with Mr. Neeraj K. Sharma, Dy.A.G. for respondents No. 2 and 3.
Tarlok Singh Chauhan, Judge This regular second appeal has been preferred against the concurrent finding of facts recorded by learned Courts below.
2. The plaintiff initially filed the suit (out of which the instant appeal arises) before this Court but in view of the subsequent amendment effected in the H.P. Courts Act whereby the pecuniary Whether the reporters of the local papers may be allowed to see the Judgment?yes.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 2jurisdiction of the various Courts including trial courts had been enhanced, the matter ultimately came to be transferred to the .
Court of learned Civil Judge (Senior Division), Court No. 1, Shimla.
3. The plaintiff filed a suit for damages, declaration and injunction on the ground that after partition of the country, the Central Hotel Estate, Shimla was declared evacuee property and it was put in the compensation pool under the provisions of displaced Performs (Compensation and Rehabilitation) Act, 1954.
4. For the purposes of the auction, the above referred hotel was divided into four separate lots i.e. Lot No. 119(c), constituting of main building of Central Hotel, Lot No. 119 (a), constituting of Central Hotel Annexe, Lot No. 119 (b) constituting of Central Hotel Stables and Servant Quarters, Lot No. 119 (c) constituting of Central Hotel Additional Houses situated just over the stables. All of the aforementioned lots were put to auction. On 23- 10-1959 Lot No. 119(b) was also put to auction and was sold to Shri Dina Nath Malhotra for a sum of Rs.7100/-. This lot was bound and abutted by the natural boundaries. In the East, there was a common road passage, in the West, there was municipal road, in the North there was central hotel additional houses and in the South, the municipal road. Lot No. 119 (b) was sold to Dina Nath Malhotra as per these boundaries and in the site plan annexed with ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 3 the sale certificate the sold property as shown with yellow ink. This area was shown having 660 sq. yards in the valuation report dated .
18.11.1955 prepared by the then Assistant Valuation Officer. This lot constituted of built up as well as inbuilt area. The sanction for the auction had been accorded by Chief Settlement Commissioner.
5. After the sale, sale certificate dated 28.6.1961 was also issued by defendant No. 1 and the same was duly registered in the office of Sub-Registrar, Shimla on 30.6.1961. But for reasons best known to defendants, the same was registered on August 5, 1961.
After the registration of the sale certificate on 30.6.1961, the defendants had no right to get this document re-registered after a period of about two months.
6. Subsequently, on 17.1.1962 above named Dina Nath sold Lot No. 119(b) hereinafter referred to as the 'suit property' to the plaintiff and he was also put in possession of the suit property.
Thereafter, he constructed a new building in place of old stables and servant quarters and the other vacant land.
7. After sometime, a dispute with respect to the boundaries of the suit property arose and he on 17.10.1963 made a representation to the Managing Officer, Jalandhar and in this behalf he also instituted Civil Suit No. 16 of 1963 which was decreed ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 4 in his favour on 31.8.1964 and therein his stand that the suit property had been sold by boundaries, was also upheld.
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8. However, one Shri B.L. Kochar preferred an appeal against this judgment and the matter was remanded to the Trial Court. In the Trial Court, a fraud was played upon him i.e. the plaintiff and he was duped to enter into a compromise. Having come to know about the fraud, he challenged the compromise before the Civil Court but his prayer was not accepted. His plea that suit property had been sold by natural boundaries had also been affirmed by Secretary to Government of Himachal Pradesh vide order visited 16.6.1972 while exercising the powers of Central Government under the Displaced Persons (Compensation and Rehabilitation) Act, 1954.
9. In the year 1967, one Shri H.D. Sardana by exercising his influence got the entire Central Hotel Estate recorded in the name of Smt. Shakuntla Kochar and thereafter he purchased the suit property from Smt. Shakuntla Kochar.
10. In the year 1973, above named Sardana made a complaint to Chief Settlement Commissioner, Himachal Pradesh.
The plaintiff filed a detailed reply setting out in detail the relevant facts. But the Chief Settlement Commissioner without any jurisdiction and authority passed order dated 7.12.1973 whereby he upheld the ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 5 complaint made by the above named complainant i.e. H.D. Sardana.
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11. Thereafter plaintiff preferred a revision petition before Financial Commissioner-cum-Secretary, Relief and Rehabilitation, Government of Himachal Pradesh but he too did not properly appreciate the relevant documents and unauthorizedly affirmed the order passed by the Settlement Commissioner. The aforesaid order was thereafter challenged by the plaintiff before this Court by way of writ petition No. 104 of 1982 but the same was also dismissed vide order dated 12.11.1996. Special Leave petition preferred by him before the Hon'ble Supreme Court also met with the same fate as it also entailed dismissal vide order dated 14.2.1991.
12. After the passing of the judgment dated 12.11.1996 by this Court, defendant No. 3 sealed certain portion of the suit property. So under these circumstances, the plaintiff filed a civil writ petition in this Court wherein he prayed for removal of the seals from the suit property but this Court vide its order dated 23.4.1998 granted him liberty to approach appropriate court of law for the redressal of his grievances as it was observed by this Court that disputed questions of facts were involved in this case. Hence, the suit.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 613. In the alternate, the plaintiff had also pleaded that since his possession over the suit property has been continuous, .
peaceful, open and hostile to the knowledge of the defendant's right from the year 1958, so he has otherwise also perfected his title in respect of the suit property by way of adverse possession.
Therefore, he was entitled to a decree of damages to the tune of Rs. 5,24,000/- an account of loss of bank security and loss of income due to illegal sealing of property by defendant No. 3. Plaintiff further prayed for a decree of declaration to the effect that he is owner-in-
possession of the suit property and that the revenue entry prepared on the basis of the impugned orders passed by Chief Settlement Commissioner and Financial Commissioner and affirmed by this Court, were wrong, illegal, void and without jurisdiction, with the consequential relief of perpetual injunction restraining the defendants from causing any sort of interference what so ever in his peaceful possession over the suit property, and in the alternative prayer for declaring him as owner by way of adverse possession.
14. The defendants filed joint written statement wherein they raised preliminary objections of limitation, res judicata, maintainability, locus-stand and valuation etc. On merits, they did not dispute that initially the suit property formed part of Central Hotel Estate and that the same had been purchased by one Dina ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 7 Nath Malhotra in a public auction but they denied that above named Dina Nath had purchased 818 Sq. yards and took the plea .
that in fact he had purchased only 257 sq. yards and 1 square feet area in a public auction, and also that he in turn had subsequently sold this very area to the plaintiff. They also admitted that proceedings had been initiated against the plaintiff by Chief Settlement Commissioner on the basis of the complaint received by him and after conducting enquiry, he had passed order dated 7-12- 1973, and also that the Financial Commissioner-cum-Secretary, Relief and Rehabilitation, Government of Himachal Pradesh vide order dated 18.12.1981 had dismissed his revision petition, and also this Court in Writ Petition No. 104 of 1982 filed by the plaintiff had passed dismissal order dated 12.11.1986, and further that the Special Leave Petition preferred by the plaintiff had been dismissed by Hon'ble Supreme Court. But they emphatically denied the plea of the plaintiff that these orders had been passed by these Authorities/Court without any jurisdiction. Rather, on the premises of the above, they took the plea that in view of the categorical findings given by these competent Authorities/Court, the instant suit preferred by the plaintiff is hit by the principles of res judicata as contained in Section 11 of the CPC. Besides above, the plaintiff had also filed two Civil Suits bearing No. 69 of 1996 and 45/1 of 1997 ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 8 before learned Sub Judge, Shimla and the same had also been dismissed. According to them, possession of the area found in .
excess had already been taken back by them from the plaintiff.
They also refuted the claim of the plaintiff that he had perfected his title in respect of the suit property by way of adverse possession. In short, they have taken the plea that in view of the judgments already suffered by the plaintiff; he has got no locus stand and cause of action to file the present suit.
15. On the basis of the pleadings, this Court on 13.09.2001 framed the following issues:-
1. Whether the plaintiff is owner of the suit property, as alleged? ...OPP
2. Whether the suit is within limitation?...OPP
3. Whether the order dated 7.12.1973 passed by the Chief Settlement Commissioner, the order dated 18.12.1981 passed by the Financial Commissioner, the order dated 12.11.1996 passed by Hon'ble High Court and order 14.3.1997 passed by the Hon'ble Supreme Court are without jurisdiction, illegal, void and in-operative against the right of the plaintiff, as alleged?...OPP
4. Whether the plaintiff is entitled for damages in the sum of Rs.5,24,000/- as claimed or any other amount? ...OPP ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 9
5. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? ...OPP .
6. Whether the plaintiff is entitled for relief of mandatory injunction against defendant No. 3 as prayed for? ...OPP
7. Whether the suit is barred by the principles of res judicata?...OPD
8. Whether the suit is barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure? OPD.
9. Relief.
16. The parties thereafter led their evidences and after evaluating the same the learned trial Court dismissed the suit vide judgment and decree dated 10.9.2009.
17. Aggrieved by the judgment and decree so passed, the plaintiffs/appellants filed appeal before the first appellate Court, however, the same was also dismissed vide judgment and decree dated 28.8.2015.
18. Now, aggrieved by the judgment and decree passed by the learned Courts below, the appellants, who are the successor-in-interest of the original plaintiff who died during the pendency of the suit have filed the instant appeal on the ground that the findings recorded by the learned Courts below are perverse inasmuch as they have erred in invoking the principle of ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 10 res judicata and further erred in not deciding the plea of adverse possession as raised by the plaintiffs/appellants.
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I have heard learned counsel for the parties and have gone through the records of the case.
19. 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 - 29/08/2017 22:56:26 :::HCHP 11 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 r Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether 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."
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 1229. 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 r 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."
30. 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 based on primary facts found by the statutory authorities. But what was assailed in review was, in ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 13 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."
20. 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.
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."::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 14
21. 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 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 ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 15 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 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 ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 16 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) "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 r 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 ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 17 question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
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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 r upon it, the order would be perverse. But if there is 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."
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 1822. Before adverting to the submissions made by the learned counsel for the appellants, it would be necessary to go into .
the factual matrix of the case.
23. It would be noticed that initially a complaint was filed by Shri H.D. Sardana alleging that the plaintiff had made illegal encroachment on acquired evacuee property and the Chief Settlement Commissioner vide its order Ex.DW2/A had held that the plaintiff who had unauthorisedly occupied an area measuring 337 Sq. yards out of Khasra No. 490/62 and he should be ejected therefrom. It is further not in dispute that this order was assailed by the plaintiff by filing revision petition before the Financial Commissioner, who vide his order dated 14.11.2002 Ex.DW2/B dismissed the same and upheld the order passed by the Chief Settlement Commissioner. It is further not in dispute that both these orders were assailed by the plaintiff by filing CWP No. 104 of 1982 before this Court and the same was dismissed vide order dated 12.11.1996.
24. Admittedly, the case of the plaintiff in all the earlier proceedings was that all what was purchased by his vendor under the sale certificate referred to above, comprised 818 Sq. yards, known as Central Hotel, Stables and quarters, as the same was the subject matter of auction held by the authorities under the ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 19 Displaced Persons (Compensation and Rehabilitation) Act. His further contention was that in spite of the plaintiff's vendor having .
purchased 818 Sq. yards and the plaintiff having become entitled to the said extent, an enquiry was initiated on a complaint given by one Shri H.D. Sardana and on such enquiry, the Deputy Secretary (Revenue) to the Government of Himachal Pradesh, exercising the powers of Chief Settlement Commissioner under section 24 of the Displaced Persons (Compensation Rehabilitation) Act, 1954 passed an order on 7th December, 1973 rejecting the claim of the plaintiff.
The said officer found in that order that the plaintiff has unauthorisedly occupied an area measuring 337 Sq. yards and 6 Sq.
feet out of Khasra No. 490/62 and he should be ejected therefrom.
The claim of the plaintiff that he had purchased 818 Sq. yards was negative. A reference was made in that order to a judgment of Subordinate Judge, Kandaghat, on which reliance was placed by the plaintiff to the effect that he was entitled to an extent 818 Sq.
yards. The Officer pointed out that the said judgment had been upset on an appeal by judgment dated 9th September, 1965 when the parties to the civil proceeding entered into a compromise. By that compromise, the plaintiff had accepted a much lesser extent about 300 Sq. yard.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 2025. The plaintiff had challenged the said compromise by filing Civil Suit No. 221/1 of 1974. He alleged that the compromise .
was brought about by fraud, coercion and misrepresentation. A specific issue was framed in that suit as regards fraud, coercion and misrepresentation and the Court found that the same was not made out. The Subordinate Judge Ist Class (II), Shimla vide its judgment dated 11.1.1982 found against the contentions raised by the plaintiff. He went into the evidence on record and found that the plaintiff had purchased on 257 Sq. yards in Khasra No. 62/3 and his claim that he was entitled to more extent that that, was unjustified. In view of the said finding, the Subordinate Judge dismissed the suit holding that the claim made by the plaintiff was unsustainable. The said judgment was challenged in appeal by the plaintiff before the District Judge and it was dismissed on merits on 23rd July, 1983 in C.M.A. No. 17-S/13 of 1982/58-S/13 of 1982. The judgment and decree was further challenged in the Second Appeal in RSA No. 322 of 1983 in this Court and was dismissed vide judgment and decree dated 28.3.1984. Thus, the claim of the plaintiff for a larger extent than 257 sq. yards was found against by the trial Court and confirmed by this court in the Second Appeal.
26. It is also not in dispute that the decision of the Chief Settlement Commissioner was challenged by the plaintiff in ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 21 revision petition before the Secretary to the government of Himachal Pradesh exercising the powers of Central Government .
under Section 33 of the Act, the revision petition was dismissed on merits on 18.12.1981. A petition for review was filed by the plaintiff to the same authority and that was dismissed as not maintainable. The plaintiff thereafter filed CWP No. 104 of 1982 challenging the correctness of the order passed by the Chief Settlement Commissioner as well as the revision authority. However, this Court vide its judgment dated 12.11.1996 dismissed the writ petition by holding all the claim of the plaintiff to be wholly untenable in teeth of the judgment and decree having been passed by competent Civil court that had found the plaintiff to be entitled only to 257 Sq.
yards and nothing more and on this basis it was held that the plaintiff could not maintain the writ petition that he had purchased 818 Sq. yards or larger extent that that. The contention of the plaintiff before the Court was that in the original auction notice and the sale certificate issued in favour of the plaintiff vendor, khasra number had not been mentioned and it was introduced only later on a correspondence initiated by his vendor. The writ court held that this contention was not available to the plaintiff inasmuch as the sale deed executed in his favour by his vendor clearly mention the khasra number.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 2227. In addition thereto the plaintiff/vendor had given statement before the Chief Settlement Commissioner that what he .
purchased was only an extent of 257 Sq. yards in khasra No. 62/3.
28. This Court while holding the writ petition to be not maintainable had categorically held that "in the present case, the matter is already concluded by the judgment of the Civil Court as pointed out earlier. On the basis of the judgment of the Civil Court, it is not open to the plaintiff to raise the same contention in this writ petition and claim that he is entitled to larger extent than what has been found to be his property by the by the Civil Court."
29. While commenting upon the conduct of the plaintiff, whereby he had not approached the Court with clean hands, this Court made the following observations:-
"8. We should also point out that the petitioner has not come to the Court with clean hands. In spite of the fact that in appeal as early as in 1965, he was a party to a compromise decree before the appellate Court, he did not choose to mention the same in the writ petition. He referred to it only in the rejoinder after the opposite side pointed out the same. On the other hand, he placed reliance on a judgment of the Subordinate Judge, which decided the issue in his favour in spite of the fact that the said judgment was no longer in force in view of the compromise decree passed by the Appellate Court. The judgment in the Civil Suit in which the petitioner challenged the compromise had also been rendered by the trial Court before the writ petition was filed. No doubt, the appeal against that judgment was pending. But he ought to have made a reference to the judgment and also ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 23 mentioned that he had filed an appeal challenging the said judgment.
9. In view of the fact that the petitioner has not chosen to disclose .
all the facts in the writ petition, he does not deserve any relief whatever in this writ petition under Article 226 of the Constitution of India.
10. We find that there is no merit whatever in the writ petition and it is dismissed with costs. Counsel's fee Rs.5,000/-"
30. It is vehemently argued by Shri S.D. Sharma, Advocate that the learned Courts below erred in holding that the suit was barred by principle of res judicata while completely ignoring the provisions of Section 141 of the Code of Civil Procedure which clearly provides that no provisions of the Code of Civil Procedure is applicable to proceedings under Article 226 of the Constitution.
31. I really do not find any substance in such contention, as the principle of res judicata has been invoked by the learned Courts below in civil proceedings and not by the writ Court. Even otherwise, it is by now well settled that even though the provisions of the Code of Civil Procedure are not applicable in the writ jurisdiction by virtue of the provisions of Section 141 but the principle enshrined therein are applicable vide Gulabchand Chhotalal Parikh vs. State of Gujarat, AIR 1965 SC 1153, Babubhai Muljibhai Patel v.
Nandlal Khodidas Barot & others, AIR 1974 SC 2105 and Sarguja Transport Service v. State Transport Appellate Tribunal & others, AIR 1987 SC 88.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 2432. It is more than settled that if 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 jurisdiction so as to render its decision void, ab initio and null and void.
33. Here it was a Court of competent jurisdiction which has rendered a decision and therefore, the appellant 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.
34. 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.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 2535. 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 former suit between the same parties. and the former suit has been conclusively decided by a competent Court.
36. 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.
37. 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.
38. The mere fact that in the subsequent writ petition, this Court had refused to entertain the same on the ground of disputed question of facts, did not give a cause of action to the plaintiff for filing present suit as nowhere in the proceedings, the plaintiff was permitted to re-open issues that had attained finality.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 2639. The question in such a case is to find out whether it was possible for the plaintiff to claim the previous proceeding the relief .
which he is now trying to seek in the successive proceeding. Even if the grounds for reliefs in the subsequent proceedings are different from the grounds for reliefs in the earlier proceedings, if such grounds for reliefs urged in the subsequent proceeding were available to the plaintiff when he initiated the earlier proceedings, the Court will not grant relief and will refuse to entertain the subsequent proceeding, r in order to prevent multiplicity of proceedings. This principle of abuse of process of law is applicable even when the principle of res judicata does not apply.
40. The main purpose behind this is to discourage a cantankerous litigants, who chooses his grounds or cause of action and selects different Courts for trying them in succession, thereby increasing the burden of litigation.
41. It is then vehemently argued by the learned counsel for the appellants that the findings rendered by this Court in Civil Writ Petition No. 104 of 1982, decided on 12.11.1996, even though upheld by the Hon'ble Supreme Court vide order dated 14.03.1997, would not operate as res judicata as those proceedings were in writ petition and not civil proceedings.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 2742. I am afraid even this contention of the appellants cannot be countenanced as it is more than settled that decision in .
earlier writ petition on merits would bar a subsequent suit involving the same question and for the same relief under the general principle of res judicata. In case any precedent is required on this issue, a reference in this regard can conveniently be made to the judgment of Constitution Bench in Gulabchand Chhotalal Parikh's case (supra), wherein it was observed as under:-
"60. As a result of the above discussion, we are of opinion that the provisions of S.11, C.P.C., are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not unnecessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial.
61. We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Arts. 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. We, therefore, hold that, on the general principle of res judicata, the decision of the High Court on a writ petition under Art. 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 28
43. Now, adverting to the submissions of the appellants regarding adverse possession, it would be noticed that the property .
in dispute is admittedly a public property, therefore, the question of adverse possession is required to be considered more seriously and effectively for the reasons it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third party encroacher title where he had none. (Refer: State of Rajasthan vs. Harphool Singh (Dead) through his LRS. (2000) 5 SCC
652. r
44. It has to be remembered that a person pleading adverse possession has no equity in his favour since he trying to defeat the right of truthful owner, therefore, for him to clearly plead and establish all facts necessary to establish adverse possession.
Even otherwise the plea of adverse possession is not available to the appellants for more than one reason.
45. Firstly, such plea was not seriously raised before the learned trial Court and, therefore, no issue to this effect was framed.
46. Secondly, the plea of adverse possession was not available to the plaintiff as a specific claim set up by him was that he was the owner of the suit property and it is on this allegation that the learned trial Court framed a specific issue to this effect by way of issue No. 1.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 2947. Thirdly, it is more than settled that the pleas based on title and simultaneously on adverse possession are mutually .
inconsistent and the latter does not begin to operate until the former is renounced. Therefore, it was incumbent upon the appellants to have chosen one line of defence.
48. Fourthly, the plea of adverse possession is only available as a shield and not as a sword , as has been held by Hon'ble Supreme Court in Gurudwara Sahib vs. Gram Panchayat Village Sirthala and Anr., (2014) 1 SCC 699, wherein, it was observed as under:-
"8.There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
49. Fifthly, the plea of adverse possession was otherwise not available to the appellants in the teeth of the judgment and decree passed by the Subordinate Judge Ist Class (II), Shimla on 11.1.1982 , whereby the suit filed by the predecessor-in-interest of the appellants for a larger extent of area than 257 Sq. yards came to be dismissed and the said judgment was upheld not only by the ::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 30 District Judge but even by this Court in RSA No. 322 of 1983 decided on 30.3.1984.
.
50. Earlier to the decision in RSA No. 322 of 1983, the plaintiff had already filed CWP No. 104 of 1982 before this Court, which was decided only on 12.11.1996 and therefore, in the interregnum the possession of the appellants, cannot by any stretch of imagination be said to have ripened into ownership by way of adverse possession as in those proceedings the plaintiff had admittedly never raised the plea of adverse possession.
51. Sixthly, once the plaintiff did not acknowledge any of the defendants to be the lawful owner of the property and had set up a complete title in himself, then obviously the plea of adverse possession is not available to him.
52. From the aforesaid narration of facts, 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.
::: Downloaded on - 29/08/2017 22:56:26 :::HCHP 3153. 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:
"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.::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 32
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 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 ::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 33 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."
54. The dictum laid down in the aforesaid judgment is squarely applicable to the case in hand and it is, therefore, absolutely clear that the appellants have tried to overreach the orders already passed by this Court and this attempt to re-argue the case, which has finally decided, is clear abuse of process of the Court.
55. 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. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic ::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 34 approach is adopted, then this problem can be minimized to a large extent."
.
56. In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the Hon'ble Supreme Court observed that a new creed of litigants have cropped up in the last 40 years who do not have any respect for truth and shamelessly resort to falsehood and unethical means for achieving their goals. The observations of the Supreme Court are as under:-
"1. For many centuries, Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre- Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has over shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a 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."::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 35
57. 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."
58. 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 :::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 36
"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 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.::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 37
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 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:
::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 38"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 r 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, 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 ::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 39 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 Rajakula Vamsathu Madalaya Nandhavana Pari palanai ::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 40 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 ::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 41 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, reported in 1998 (1) CTC 66 at paragraph 9. To quote:
" 9. It is this conduct of the respondent that is attacked by r 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.::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 42
(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".
59. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the appellants 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.
60. The further question which now arises is as to how to curb this tendency of abuse of process of court. As suggested in Kishore Samrita (supra), one of the ways to curb this tendency is to impose realistic or punitive costs. The Hon'ble Supreme Court in 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 ::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 43 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. r 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 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.::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 44
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 r 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."
61. 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 ::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 45 in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be .
permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.
192. The court's constant endeavour must be ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.
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 ::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 46 various courts. The appellants have also wasted judicial time of the various courts for the last 40 years."
.
62. It would be relevant to mention that this Court had initially heard the matter on 9.8.2017 and after addressing arguments, in detail, the learned counsel for the appellants had sought adjournment to seek instructions and the matter was adjourned to 16.8.2017. However, when the case was taken up on 16.8.2017, the learned counsel for the appellants again addressed arguments but finding the observations of the Court not palatable, he again prayed for adjournment and the matter was adjourned to 23.8.2017. On 23.8.2017, the learned counsel for the appellants again addressed arguments and after hearing him, the judgment was reserved.
63. The learned counsel for the appellants was duly apprised of the fact that the conduct of his clients in seeking to re-
open judicial proceedings which had attained finality right up to Hon'ble Supreme Court was nothing but an abuse of the process of Court and it was expected that the appellants would be well advised not to press the appeal but, alas! it was not so. The appellants have persisted with their cantankerous attitude to pursue this litigation to frustrate the result of judicial determination, which has already repeatedly been made in favour of the other ::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 47 side. The appellants have abused the legal process, which must be effectively curbed and one way to curb this tendency is to impose .
realistic cost which the respondents/defendants have, in fact, incurred in the legal proceedings as also the earlier proceedings.
64. Notably, even the writ petition filed by the plaintiff being CWP No. 104 of 1982 was dismissed with cost of Rs.5000/-.
Yet, the appellants who are the successor-in-interest of the plaintiff do not appear to have learnt any lesson and have shamelessly resorted to re-litigate the issue which otherwise has attained finality in RSA No. 322 of 1983 and thereafter in CWP No. 104 of 1982 decided on 12.11.1996.
65. In view of the aforesaid discussion, I, not only, do not find any merit in this appeal, but I am of the considered view that the appellants have abused the legal process and thereby made themselves liable for being imposed punitive costs.
66. Accordingly, the present appeal is dismissed with costs of Rs.1,00,000/- to be paid equally to respondents No. 1 and 2 i.e. Rs.50,000/- each within a period of four weeks. In the event of non-
payment of costs within the stipulated period, respondents No. 1 and 2 shall free to execute this order and recover the costs.
::: Downloaded on - 29/08/2017 22:56:27 :::HCHP 4867. The petition is disposed of in the aforesaid terms, so also the pending application(s), if any.
.
August 29, 2017 (Tarlok Singh Chauhan)
(Sanjeev) Judge
r to
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