Himachal Pradesh High Court
Amarjeet Singh vs Rajender Singh And Others on 19 November, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 10 of 2018
.
Date of decision: 19.11.2019
Amarjeet Singh ....Appellant/Defendant
Versus
Rajender Singh and others ...Respondents/Plaintiff
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No
For the Appellant : Mr. Dheeraj K. Verma and Mr. K.K.
Verma, Advocates.
For the Respondents : Mr. Jeevan Kumar, Advocate, vice
Mr. Desh Raj Thakur, Advocate, for
respondents No.1, 2, 3 (a) to 3 (d).
Tarlok Singh Chauhan, Judge (Oral)
The defendant is the appellant, who aggrieved by the judgment and decree passed by the learned Courts below, has filed the instant appeal.
The parties shall be referred to as the 'plaintiff' and the 'defendant'.
2. Brief facts of the case are that the plaintiff filed a suit for declaration and partition of the property comprised in Khasra Nos. 1386 to 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 2 1388, area measuring 74.83 Sq. Mtrs., situated in Ward No.8, Near Gita Bhawan, Tehsil Paonta Sahib, District Sirmaur, H.P. (hereinafter referred .
to as the suit property.) against the defendant and proforma respondents for declaring the share of the plaintiff as 1/7th over the same. It was averred by the plaintiff that late Sh. Gurmukh Singh had four sons and three daughters. Sh. Gurmukh Singh and Jagat Singh had purchased land comprised in Khata Khatauni No.69, Khasra No. 164, measuring 03 biswas vide sale deed dated 05.02.1954 from Durga Dutt, Vendor for a consideration of Rs.1000/-. Thereafter both the vendee's mutually partitioned the land so purchased by them as per their shares and raised construction of permanent nature being the ground floor. After the death of Gurmukh Singh, this property came to be inherited by the plaintiff, defendant No.1 and proforma defendants No.2 to 5 and later Smt. Motia Rani being his children in equal shares. Smt. Motia Rani had also expired and was succeeded by proforma defendants No.6 to 10. It was averred that in this manner the share of the plaintiff and his brothers and sisters comes to 1/7th each respectively being 7 in numbers. Gurmukh Singh had raised a ground floor during his life time consisting of three shops, a room, toilet, passage etc and after his death, two floors were jointly constructed by the plaintiff, defendant No.1 and proforma defendants. The profits of the property were also shared by all among them. In January, 2005, when the plaintiff asked defendant No.1, who is in possession of the property more than his share, to partition the same by metes and ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 3 bounds amongst all the co-sharers, he assured the plaintiff and proforma-
defendants that partition shall be done shortly after necessary revenue .
record are collected. In April, 2005 when further inquiry was made from defendant No.1, he gave unsatisfactory reply and the plaintiff approached the local Patwari to collect the revenue papers and was surprised to know that defendant No.1 during settlement operation in the town of Paonta Sahib, has connived with the officials of settlement department and got his name exclusively incorporated in the column of ownership, which revenue record was fraudulently prepared by ignoring other legal heirs of deceased Gurmukh Singh and the same was liable to be declared as illegal as the plaintiff and proforma defendants were never summoned by the officials of settlement department at the time of preparation of the record and mutation was also attested behind their back. It was averred that the cause of action accrued to the plaintiff and proforma defendants in the month of April, 2005 when defendant No.1 refused to partition the suit property as the defendant No.1 played fraud by causing the entries of the suit property made in his name. It was further averred that the plaintiff and proforma defendants are said to be in constructive possession of the suit property and lastly the plaintiff prayed for declaration and preliminary decree for partition.
3. Defendant No. 1 contested and resisted the suit by filing written statement wherein preliminary objections qua maintainability, locus standi, estoppel and valuation were taken. On merits, defendant No.1 ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 4 came up with the plea that he was serving in Armed forces and used to send money to his father for purchasing land in his name. After this land .
was purchased, the father of defendant No.1 reported that the vendor was trying to encroach upon the suit property and a complaint was made by defendant No.1 to Deputy Commissioner and illegal encroachment was removed by the order of the Deputy Commissioner, Nahan. Defendant No.1 further took up the plea that he sought retirement from the Army and came back to Nahan and started the work of repairing of watches. It was averred that there was no sufficient accommodation at Nahan to accommodate the large family. The father of defendant No.1 instructed him to go to Paonta Sahib to start his business there and his father also allowed him to construct his house on the suit land which was purchased from the money provided by defendant No.1. It was further averred that in compliance to the instructions of his father, defendant No.1 shifted to Paonta Sahib and started his business and raised construction on the suit land step by step. Defendant No.1 claimed that he had contested various proceedings pertaining to the suit property and neither the plaintiff nor other brothers and sisters had ever resided in the building hence they have no right, title and interest in the same. Defendant No.1 further reiterated that the suit property was purchased out of the funds provided by him to his father and hence he was permitted to raise construction over the same without any objection. It was averred that the ownership of Khasra No. 155, Abadi deh land was changed vide mutation No.1600 and ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 5 the settlement authorities had rightly passed the order. It was also averred that defendant No.1 reserves right for the share in the property at Nahan .
which belongs to his deceased father and is exclusively possessed by defendants No.1 and 2 as co-sharers. Other allegations were denied and defendant No.1 prayed for dismissal of the suit.
4. The other proforma defendants also filed written statement and they supported the case of the plaintiff fully and prayed for decree for partition of the suit property.
5. to The plaintiff filed replication to the written statement filed by defendant No.1 and reaffirmed the averments so made in the plaint and denied those made in the written statement. The main locus was on the point that defendant No.1 was one of the co-sharers and whatever acts were done on the joint land, the same were on behalf of the co-sharers.
6. From the pleadings of the parties, the learned trial Court on 1.6.2006 framed the following issues:
1. Whether vide sale deed dated 5.2.1954, registered at Nahan on 26.2.1954, S/Shri Gurmukh Singh and Jagat Singh had purchased land, which was at that time comprised in Khatauni No. 69, bearing Khasra No. 164, measuring 3 biswas in equal share as alleged? OPP
2. Whether soon after purchase of the land as mentioned in issue No.1, both the vendees mutually partitioned the land so purchased by them, as per their share and raised construction of permanent nature on the ground floor, as per their respective share, as alleged? OPP ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 6
3. Whether plaintiff alongwith defendant inherited the share of Gurmukh Singh, as alleged? OPP
4. Whether plaintiff is co-sharer in possession to the extent of .
1/7the share in the suit land, as alleged? OPP
5. Whether order dated 20.12.2002, in file No.60/2002 by the Collector Settlement Department, Shimla and upon this basis mutation No. 107 dated 12.3.2003 in favour of defendant No.1 is illegal, fraudulent, null and void, as alleged? OPP
6. Whether revenue entries of the suit land in favour of defendant No.1 is illegal, fraudulent, null and void, as alleged? OPP
7. Whether plaintiff is entitled for decree of partition of the suit land as prayed for? OPP
8. Whether present suit is not maintainable as alleged? OPD1.
9. Whether plaintiff has no locus standi to file the present suit, as alleged? OPD-1
10. Whether the plaintiff is estopped from filing the present suit by his act, conduct and acquiescence, as alleged? OPD-1.
11. Whether this court is having no jurisdiction to entertain and try the present suit, as alleged?OPD1.
12. If, suit property is proved to be joint, whether the defendant No.1 is entitled to purchase the share of other co-sharer, as alleged? OPD1.
13. Whether late Gurmukh singh purchased the suit land in his own name with the money sent by defendant No.1, as alleged? OPD1.
14. Whether proforma defendants are entitled for relief of separate possession in their share in suit land, as alleged? OPD
15. Relief.
7. After recording the evidence and evaluating the same, the learned trial Court decreed the suit declaring that plaintiff, defendant No.1 ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 7 and proforma defendants No.2 to 5 each and defendants No.6 to 10 collectively have 1/7th share in the suit property.
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8. Aggrieved by the judgment and decree passed by the learned trial Court, defendant No.1 filed an appeal before the learned first Appellate Court, however, the same was dismissed with costs vide judgment and decree dated 31.8.2017, constraining the defendant No.1/appellant to file the instant appeal.
9. substantial question of law:
r to On 23.10.2018, the appeal was admitted on the following "Whether on account of mis-appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the findings recorded by both Courts below are erroneous and as such the judgment and decree impugned in the main appeal being perverse and vitiated is not legally sustainable?"
I have heard learned counsel for the parties and have gone through the records of the case carefully.
10. It is vehemently argued by Mr. Dheeraj K. Verma, learned counsel for the appellant that the suit filed by the plaintiff was not maintainable as the same was for partial partition of the property consisting of shops and residence constructed on Khasra No. 1386 to 1388 of the land measuring approximately 74.83 sq.mtrs. situated in Ward No.8, near Gita Bhawan, Tehsil Paonta Sahib, District Sirmaur, H.P. whereas, it was the admitted case of the parties that the predecessor-in-
::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 8interest of the parties to the lis was also owner in possession of the property at Nahan which was exclusively in possession of respondent .
No.1/plaintiff and defendants No.2 and 3 and after the death of defendant No.3 in possession of his legal heirs.
11. I have considered the contention of the learned counsel for the appellant and find no merit in the same as firstly, this issue was never raised in the trial Court nor before the first Appellate Court and the same cannot be permitted to be raised and argued for the first time in second appeal since the issue is purely a question of fact though it is sought to be raised as a question of law.
12. Learned counsel for the appellant argued that the suit filed by the plaintiff was for partition simplicitor without seeking further relief of possession was not maintainable as it was defendant No.1/appellant who was admittedly in possession of the suit land. Even this contention is equally without merit as the plaintiff has specifically sought a decree for partition of the building by metes and bounds after determining the shares of the plaintiff, defendant No.1 and proforma defendants by passing a preliminary decree and thereafter a final decree for separate possession of the portion allotted in the partition to the plaintiff as would be evident from the relief clause which reads as under:
"It is therefore prayed that a decree for partition of building, consisting of shops and residence, now existing in Khasra Nos. 1386 to 1388, built on an area of land measuring 74.83 sq.mtrs. situated in Ward No.8, Near Gita Bhawan, Tehsil Paonta Sahib, ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 9 Distt. Sirmaur, H.P. by metes and bounds, after determining the shares of the plaintiff, defendant No.1 and proforma defendants by passing a preliminary decree and thereafter a final decree for .
separate possession of the portion allotted in the partition to the plaintiff and further a decree of declaration, that the revenue entry incorporated in the Missal Haquiat for the year 2002-03, prepared by the Settlement Deptt., incorporating the name of defendant No.1 only, is illegal, fraudulent, collusive and inoperative on the rights of the plaintiff and proforma defendants may kindly be passed in favour of the plaintiff and proforma defendants and against the defendant No.1, alongwith the costs of the suit and or any other relief which this Ld. Court deems fit, may also be granted to the plaintiff in the interest of justice."
13. Lastly, the learned counsel for the appellant would argue that both the learned Courts below while returning the findings on issue No.11 and decreed the suit of the plaintiff, have not appreciated the fact that there was a specific plea of the appellant that the plaintiff had not affixed the appropriate Court fees on the plaint. Even this contention is without merit in view of the specific provision contained in Section 149 of the Code of Civil Procedure, which reads as under:
"Section 149. Power to make up deficiency of court-fees.
Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court- fee; and upon such payment the document, in respect of ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 10 which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."
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14. Learned counsel for the appellant has failed to point out that part of the pleadings or evidence that has been mis-appreciated or misread rendering the judgments passed by the learned Courts below to be perverse.
15. As noticed above, it is the specific case of the appellant/defendant that he is in possession of the major part of the property and that is the precise reasons that the defendant had converted this litigation into a fruitful industry. The case in hand shows that frivolous litigation has been prolonged by the defendant and the same is calculated venture involving no risk situation. After all, one has only to engage professionals to prolong litigation so as to deprive the rights of the parties and enjoy the fruits of illegalities. It is on account of such frivolous litigation that the court dockets are over-flowing. Here it is apt to reproduce the observations made by the Hon'ble Supreme Court in paras 174, 175 and 197 of the judgment in Indian Council for Enviro-Legal Action vs. Union of India and others, 2011 8 SCC 161, which are as under:
"174. In Padmawati vs Harijan Sewak Sangh, 2008 154 DLT 411 decided by the Delhi high Court on 6.11.2008, the court held as under: (DLT p.413, para 6) ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 11 "6. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to .
prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court.
One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool.
The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person."
We approve the findings of the High Court of Delhi in the aforementioned case.
175. The Court also stated: (Padmawati case, DLT pp. 414- 15, para 9) "Before parting with this case, we consider it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 12 illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person .
deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."
197. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.
1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.
::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 132. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be .
presumed to be conferment of additional right upon the litigating party.
3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine,penalty and costs. Any leniency would seriously affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his own wrongs.
7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."
16. From the narration of the aforesaid facts, it is absolutely clear that the defendant has resorted to false claim and false defence thereby depriving the plaintiff and proforma defendants, who are, none other than his real brothers and sisters or their legal representatives. The defendant has polluted the stream of justice and touched the pure fountain of justice with tainted hands and, therefore, is not entitled to any relief.
::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 1417. It is because of such false and incoherent pleas by the parties due to which the judicial system in the country is chocked and .
such litigants 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. This clearly is the abuse of the process of the Court as the intent of the defendant is to deceive and mislead the Court that too by taking shelter of falsehood, misrepresentation and suppression facts in the court proceedings.
Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains. This Court is required to maintain strictness, vigilance over the abuse of the process of the Court and curb such tendencies with iron hands.
18. 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 approach is ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 15 adopted, then this problem can be minimized to a large extent."
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19. 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 ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 16 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."
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20. 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."::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 17
21. Similarly, the Hon'ble Supreme Court in Kishore Samrite vs. State of Uttar Pradesh and others, reported in (2013) 2 SCC 398, has .
dealt in detail with "abuse of process of Court" in the following terms:-
Abuse of the process of Court :
"31. Now, we shall deal with the question whether both or any of the petitioners in Civil Writ Petition Nos. 111/2011 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.::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 18
32.3. The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
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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:
"15. The crucial significance of access jurisprudence has been best expressed by Cappelletti:::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 19
"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, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.
35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 20 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 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 ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 21 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 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 ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 22 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".
22. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the defendant in this case. It has to be remembered that Court's proceedings are sacrosanct and should not be polluted by unscrupulous litigants. The defendant has abused the process of the Court.
23. The further question which now arises is as to how to curb this tendency of abuse of process of Court. As suggested in Kishore ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 23 Samrite (supra), one of the ways to curb this tendency is to impose realistic or punitive costs.
.
24. The Hon'ble Supreme Court in Ramrameshwari Devi and others vs. Nirmala Devi and others, (2011) 8 SCC 249 took judicial notice of the fact that the courts are flooded with these kinds of cases because there is an inherent profit for the wrongdoers and stressed for imposition of actual, realistic or proper costs and it was held:-
"52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:
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.::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 24
D. The court must adopt realistic and pragmatic approach in granting mesne profits. The court must carefully keep in view the ground realities while granting mesne profits.
.
E. The courts should be extremely careful and cautious in granting ex parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing the parties concerned appropriate orders should be passed.
F. Litigants who obtained ex parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.
G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
H. Every case emanates from a human or a commercial problem and the court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well-settled principles of law and justice.
I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.
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."
25. The Hon'ble Supreme Court in Indian Council for Enviro-
legal Action case (supra) observed:-
::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 25"191. In consonance with the principles of equity, justice and good conscience Judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to .
perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legl process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.
192. The court's constant endeavour must be ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation.
The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases.
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 ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP 26 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."
The substantial question of law is answered accordingly.
26. In view of the aforesaid discussion, not only this appeal sans merits, but as observed above, is an abuse of the process of the Court and, therefore, the same is dismissed with costs of Rs.1,00,000/- to be paid to the plaintiff and proforma respondents. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan) th 19 November, 2019. Judge (GR) ::: Downloaded on - 23/11/2019 20:23:13 :::HCHP