Himachal Pradesh High Court
Subhash Chand Sharma vs Smt. Shakuntla Devi (Deceased) Through ... on 9 January, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 481 of 2002 .
Judgment reserved on: 2.1.2015 Date of decision: 9.1. 2015 Subhash Chand Sharma ...Appellant/Defendant.
Versus Smt. Shakuntla Devi (deceased) through her LRs:
Dr. Chander Shekhar and another ..Respondents/Plaintiff Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. Subhash Sharma, Advocate.
For the Respondents : Mr. N.K.Sood, Senior Advocate, with Mr. Aman Sood, Advocate.
Tarlok Singh Chauhan, Judge The defendant is the appellant, who is aggrieved by the judgment and decree dated 4.9.2002 passed by learned District Judge, Shimla in Civil Appeal No. 34-S/13 of 2002/2001 whereby he reversed the judgment and decree dated 29.12.2000 passed by learned Sub Judge (3), Shimla in Civil Suit No. 490/1 of 1996/93 dismissing the suit filed by the plaintiff.
The facts in brief may be noticed.
2. The original plaintiff Smt. Shakuntla Devi filed suit against the appellant/defendant for issuance of mandatory injunction directing the 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 2 defendant to withdraw from the one room/eastern godown, in the ground floor of building No.2, Alley No. 15, the Mall, Shimla and to hand over the .
same to the plaintiff and also for recovery of Rs. Nil on account of use and occupation charges. The case set out by the plaintiff is that she is the absolute owner of half (western) portion of the building No.2, Alley No.15, The Mall, Shimla, which is three storeyed structure. First and top floor of the building is in her own occupation. In the ground floor, there are two rooms/godowns. One godown/room, measuring about 3 metres x 5 metres as shown in red colour in the plan attached to the plaint was in occupation of Pandit Jagan Nath, tenant, who died in the month of March, 1991; and consequently his tenancy came to an end. The defendant, who is a major son of deceased Jagan Nath was not ordinarily residing with his father. He is employed as a government servant and had his independent family establishment even during the life time of his father and used to reside in premises, bearing No. 120/2, Lower Bazar, Shimla.
It was alleged that the defendant after the death of his father is inter-
meddling with his estate and being in constructive control of the aforesaid godown is under every legal obligation to withdraw from the same as there exists no right, title or interest in his favour to either control, inter-
meddle or deal with the said room/godown in any manner. After the death of Sh. Jagan Nath, the defendant was time and again asked to take out all the belongings of his deceased father from the said godown/room but on one pretext or the other he had been avoiding to vacate the premises despite issuance of notice, dated 30.9.1992. It was also alleged that after the death of Sh. Jagan Nath, the defendant, having not withdrawn from the said room is liable to pay Rs. 200/- per month on account of use and ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 3 occupation charges with effect from April, 1991 as he has kept the said room locked after the death of Sh. Jagan Nath. It was also averred that .
as the defendant is not withdrawing from the premises, the plaintiff is entitled to the relief of mandatory injunction and that the plaintiff voluntarily foregoes and relinquish her claim qua the past amount of use and occupation charges and reserves her right to recover the same for the future period. It was also averred that if the relief claimed by the plaintiff is not granted, an irreparable loss and injury shall be caused to her and that there is no other efficacious remedy available to the plaintiff, than to file the present suit.
3. The defendant/appellant while resisting the suit, raised preliminary objection that suit is not maintainable in view of the provisions laid down in H.P. Urban Rent Control Act, 1987. It was denied that the plaintiff is the absolute owner of the western half portion of the building No.2, Alley No. 15, The Mall, Shimla. It was pointed out that first and top floor of the said building are in occupation of Sh. Chander Shekhar and Sh. Sudarshan Kumar, respectively. It was further pointed out that there are three rooms in the ground floor of the said building, out of which one room was in occupation of Sh. Jagadhar and the other two rooms are in occupation of the defendant and family. It was averred that after the death of Sh. Jagan Nath, his tenancy has been inherited by all his legal heirs, who were ordinarily residing with him. It was a joint family. It was denied that the defendant at the time of death of Sh. Jagan Nath, tenant was not ordinarily residing with him. It was asserted that the defendant is no doubt in government service but was residing jointly with his father.
The joint family was sharing both the accommodations i.e. the premises ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 4 in dispute and the other premises i.e. No. 120/2 (middle flat), Lower Bazar, Shimla, which hardly consists of one small room, one pantry .
(which is used as passage to room and kitchen) and one small kitchen, bath and latrine. It was averred that the other accommodation was taken due to paucity of accommodation in the disputed set, in view of the large joint family. It was also averred that "the defendant is in constructive and legal possession of the said set and he and other legal heirs have got every legal right to occupy the set". It was denied that the tenanted set is not in physical possession of the defendant. It was clarified that the defendant alongwith other legal heirs of late Sh. Jagan Nath are the joint tenants qua the disputed set and their landlord is Sh. Sudarshan Sood.
4. Replication was filed by the plaintiff wherein the allegations made in the written statement were denied and that of plaint are re-
asserted.
5. On 22.4.1998, the learned trial Court framed the following issues:
1. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed? OPP.
2. Whether the plaintiff is entitled to recover the amount on account of use and occupation charges as prayed? OPP.
3. Whether the suit in the present form is not maintainable, as alleged? OPD.
4. Relief.
6. After recording the evidence, the learned trial Court dismissed the suit. However, the appeal preferred against the said judgment and decree was accepted by the learned lower Appellate Court and the suit of the plaintiff was ordered to be decreed as prayed for.
::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 57. Aggrieved by the judgment and decree passed by the learned lower Appellate Court, the defendant/appellant has preferred this .
second appeal before this Court.
8. Vide order dated 28.10.2002, the appeal was ordered to be admitted on the following substantial questions of law:
1. Whether the lower Appellate Court has committed grave procedural illegality in not appreciating that the suit for mandatory injunction as filed by the plaintiff-respondent was not maintainable?
2. Whether the learned District Judge has mis-appreciated and misapplied the provisions of Section 2 (j) of the H.P.Urban Rent Control Act and the definition of tenant contained therein?
3. Whether the findings of the learned District Judge considering the defendant-appellant to be in unauthorized occupation on the ground that he was not ordinarily residing with late Sh. Jagan Nath are illegal, erroneous and perverse, having been returned by discarding the material evidence and taking into consideration the irrelevant circumstance?
4. Whether the learned District Judge has committed procedural illegality in not considering that the suit was not properly valued for the purpose of court fees and jurisdiction which was not only affecting the jurisdiction of the trial court but the Appellate Court also?
5. Whether the learned District Judge has misapplied the provisions of Evidence Act and has wrongly applied the proper ratio laid down in the main judgment resulting in wrong conclusion?
9. I have heard learned counsel for the parties and also gone through the records carefully.
Substantial questions of law No. 1, 4 and 5:
10. Learned counsel for the appellant addressed arguments only on substantial questions of law No. 2 and 3, while no arguments were addressed on substantial questions of law No. 1, 4 and 5. Even otherwise, there is nothing on the record to suggest that the suit filed by the plaintiff was not maintainable or had not been properly valued for the ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 6 purpose of court fees and jurisdiction and further it is not forthcoming as to how the learned District Judge has misapplied the provisions of the .
Evidence Act and how he has wrongly applied the so called proper ratio as laid down in the main judgment resulting in wrong decision as alleged.
Accordingly, substantial questions of law No. 1, 4 and 5 are answered against the appellants.
Substantial questions of law No. 2 and 3:
Since these substantial questions of law are inter-related and inter-connected, therefore, they are taken up together for consideration and I proceed to decide the same through common reasoning.
11. The premises in dispute consist of one room, one store and sans bath room, toilet or even kitchen, whereas the premises situate at 120/2, Lower Bazar, Shimla, is a full fledge two room set having all amenities. Bearing in mind this important factual aspect, I proceed to determine the merits of the case.
12. It is not disputed that the appellant is the legal heir of original tenant Jagan Nath, but then the question is as to whether he is entitled to inherit the tenancy because pre-condition on the basis of which a legal heir can claim inheritance of tenancy is that he at the time of death of the tenant should have ordinarily been residing with him. Section 2 (j) of the H.P. Urban Rent Control Act, 1987 reads as under:
"2.(j) "tenant" means any person by whom or on whose account rent is payable for a residential or non-residential building or rented land and includes a tenant continuing in possession after termination of the tenancy, a deserted wife or a tenant who has been or is entitled to be in occupation of the matrimonial home or tenanted premises of husband, a divorced wife of a tenant who has a decree of divorce in which the right of residence in the matrimonial home or tenanted premises has been ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 7 incorporated as one of the condition of the decree of divorce and in event of the death of such person such of his heirs as are mentioned in Schedule-I to this Act and who were ordinarily residing with him or .
carrying on business in the premises at the time of his death, subject to the order of succession and conditions specified, respectively in Explanation-I and Explanation-II to this clause, but does not include a person placed in occupation of a building or rented ladn by its tenant, except with the written consent of the landlord, or a person to whom the collection of rent or fees in a public market, cart stand or slaughter house or of rents for shops has been framed out or leased by a Municipal Corporation or a Municipal Council or a Nagar Panchayat, or a Cantonment Board;
Explanation-I. The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:-
(a) firstly, his surviving spouse;
(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased persons as a member of his family up to the date of his death;
(c) thirdly, his parent(s), if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son, daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and
(d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parent(s) of the deceased person or if such surviving spouse, son, daughter or parent(s), or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death;
Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependent on the deceased tenant:
Provided further that a right of tenancy shall not devolve upon a successor in case he or his spouse or any of his dependent son or daughter is owning or occupying a premises in the urban area in relation to the premises let.
Explanation-II. The right of every successor, referred to in Explanation- I, to continue in possession after the termination of the tenancy, shall be ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 8 personal to him and shall not, on the death of such successor, devolve on any of his heirs; and.] .
13. In order to prove that he as well as his siblings had been ordinarily residing together with the deceased father in the disputed premises the appellant had examined himself as DW-5 and in his statement, he had stated that Jagan Nath had three daughters, who are married and are residing with the matrimonial homes. His one brother Piare Lal was earning his livelihood while doing "Panditai" and permanently residing at village Garli, Paragpur in Kangra District, while his other brother was employed and was working in a Bank and was permanently residing at Palampur. The deceased Jagan Nath had shifted to Garli Paragpur in the year 1989 and died there in March 1991. Prior to his death, the mother of the appellant had died in the year 1987. It has further come in the evidence of the appellant that he was not residing in the premises in dispute though he claimed that his children had been residing there.
14. Further the appellant in support of his case examined one Naresh Lakhanpal as DW-4, who has stated that at the time of death of Jagan Nath, all his children i.e. three daughters and three sons had been residing with him and thereafter it is only the appellant, who is residing in the premises. In cross-examination, this witness has clearly admitted that the accommodation in Lower Bazar, consists of two rooms and is having all basic amenities while the disputed accommodation does not have a kitchen, bath room or toilet.
15. Now, in case the entire evidence led by the defendant/ appellant is perused, it would be seen that the defendant himself is not ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 9 residing in the premises in dispute and claims that his children were residing therein. Interestingly, it has been testified by the defendant that .
he is consuming the electricity and also enjoying the facility of water while residing in the disputed premises, but then he has failed to place on record the bills showing consumption of electricity and water. This was the best evidence available to the appellant and having failed to place the same on record, I am constrained to draw an adverse inference against the appellant.
16. to Admittedly, the appellant was a Government servant and could not have looked after his father at the time of his death because his father had been residing at Garli, while the appellant was residing at Shimla. In fact, deceased Jagan Nath had already ceased to occupy the premises when he left for Garli in November, 1989 never to return to Shimla, then how was the defendant ordinarily residing with the tenant i.e. Jagan Nath at the time of his death, is not forthcoming.
17. No doubt, the appellant has sought to claim that the premises comprised in 120/2, Lower Bazar, Shimla were joint between him and his deceased father, but this does not in any manner improve the case of the appellant because admittedly the premises in dispute were in the sole tenancy of deceased Jagan Nath.
18. On a pointed query from this Court as to whether the appellant is still residing in the premises in dispute, learned counsel for the appellant candidly admitted that he is not residing there but then taking strong exception to such query claimed that the Court was not concerned with this fact since terminus a quo and terminus ad quem under the statute was the date of the death of the tenant and this Court ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 10 had no concern for any event subsequent thereto because the same could not be taken into consideration.
.
19. The appellant in CMP(M) No. 259 of 2014, which is an application for bringing on record the legal representatives of original landlord late Smt. Shakuntala Devi, has specifically averred that he retired on 31.7.2007 and came to occupy the residential premises in Santoshi Complex, Khalini, Shimla and started living with his spouse in the new premises. His two sons are employed away from Shimla and both the appellant and his wife are spending substantial time of the year with the said sons. It is apt to reproduce paragraph 2 of the application which reads thus:
"2. That the above noted appeal was admitted on 28.10.2002. At the relevant time, applicant/appellant was serving State of H.P. at Shimla. On attaining the age of superannuation, applicant/appellant was retired on 31.7.2007. Thereafter, applicant/appellant came to occupy residential premises in Santoshi Complex, Khalini, Shimla and started living with his spouse in the new premises. Also, the two sons of the applicant/appellant are employed away from Shimla and both the applicant and his wife are spending substantial time of the year with the said sons. In the circumstances, the information of the death of the deceased-respondent did not come to the knowledge of the applicant/appellant."
Thus, it is proved on record that the appellant though is not residing in the premises but yet wants to retain the possession of the same. Therefore, the question which arises for consideration is as to whether the right of a person claiming himself to be a tenant to squat over the property belonging to another person can be put above the right of the land owner to get possession of the property bonafide for his own use ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 11 especially when the person alleging himself to be a tenant is not residing there.
.
20. The Hon'ble Supreme Court has repeatedly pointed out that rent acts have not been enacted only to protect the tenants from unjust eviction but have been enacted to equally enforce the lawful right of the landlords to obtain a possession of their own property in the event of satisfying the grounds prescribed for eviction. In this case the appellant is not even tenant and yet he has succeeded in retaining the premises by not residing but putting a lock on the same.
21. It is proved on record that the defence set up by the appellant was absolutely false. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Supreme Court held that false claims and defences are serious problems with the litigation. The Supreme Court held as under:-
"False claims and false defences
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 adopted, then this problem can be minimized to a large extent."
In Dalip Singh v. State of U.P., (2010) 2 SCC 114, the Supreme Court observed that a new creed of litigants have cropped up in the last 40 years who do not have any respect for truth and shamelessly resort to ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 12 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."
In Satyender Singh v. Gulab Singh, 2012 (129) DRJ, 128, the Division Bench of Delhi High Court following Dalip Singh v. State of U.P. (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 ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 13 flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts„ time for a wrong cause. Efforts .
are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court. Indeed, it is a nightmare faced by a Trier of Facts; required to stitch a garment, when confronted with a fabric where the weft, shuttling back and forth across the warp in weaving, is nothing but lies. As the threads of the weft fall, the yarn of the warp also collapses; and there is no fabric left."
In Sky Land International Pvt. Ltd. v. Kavita P. Lalwani, (2012) 191 DLT 594, Delhi High Court held as under:-
"26.20 Dishonest and unnecessary litigations are a huge strain on the judicial system. The Courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts„ time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court.
xxx xxx xxx 26.22 Unless the Courts ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that the Courts‟ scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases. It becomes the duty of the Courts to see that such wrong doers are discouraged at every step and even if they succeed in prolonging the litigation, ultimately they must suffer the costs. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that the dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."
22. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the defendant/appellant in this case. It has to be remembered that Court's proceedings are sacrosanct ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 14 and should not be polluted by unscrupulous litigants. The defendant/ appellant has abused the process of the Court. What is 'abuse of the .
process of the Court' has been dealt with in detail by this Court in Amar Singh vs. Shiv Dutt and others, RFA No. 646 of 2012 decided on 30.7.2014 wherein it was held:
"9. .............Therefore, the question at this stage, would than arise as to whether a party can be permitted to indulge in filing frivolous and vexatious proceedings and whether the same amount to abuse of process of Court.
10. The Hon'ble Supreme Court in K.K.Modi vrs. K.N.Modi and others, reported in (1998) 3 SCC 573 has dealt in detail with the proposition as to what would constitute an abuse of the process of the Court, one of which pertains to re-litigation. It has been held at paragraphs 43 to 46 as follows:
43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (page 344) explains the phrase "abuse of the process of the Court" thus: "This terms connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. . . . . . . .
The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
44. One of the examples cited as an abuse of the process of Court is re-litigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the same issue which has already been tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re-agitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 15 proceedings may also amount to an abuse of the process of Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such .
proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of Courts' discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The Court should also be satisfied that there is no chance of the suit succeeding.
45. In the case of Greenhalgh v. Mallard (1947) 2 All ER 255, the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. r 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 vexatious and an abuse of the process of the Court.
46. In Mcllkenny v. Chief Constable of West Midlands Police Force (1980) 2 All ER 227, the Court of Appeal in England struck out the pleading on the ground that the action was an abuse of the process of the Court since it raised an issue identical to that which had been finally determined at the plaintiffs ' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the Court because it is an abuse for a party to re-litigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppels.
11. 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 - 15/04/2017 17:33:02 :::HCHP 16
"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.
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.::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 17
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:
"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 ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 18 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 r dismiss the petition."
34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System.
35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral 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 ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 19 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 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 ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 20 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 r 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 infact 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 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.::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 21
(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".
23. The appellant by keeping these proceedings alive has gained an undeserved and unfair advantage. The appellant has successful in dragging the proceedings for a very long time on one count or the other and because of his wrongful possession he has drawn delight in delay in disposal of the cases by taking undue advantage of procedural complications. The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. One has only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. The Court has been used as a tool by the defendant/appellant to perpetuate illegalities and has perpetuated an illegal possession. It is on account of such frivolous litigation that the court dockets are overflowing. Here it is apt to reproduce the observations made by the Hon'ble Supreme Court in paras 174, 175 and 197 of the judgment in Indian Council for Enviro-Legal Action vs. Union of India and others (2011) 8 SCC 161 which are as under:
174. In Padmawati vs Harijan Sewak Sangh, (2008) 154 DLT 411 (Del) decided by the Delhi high Court on 6.11.2008, the court held as under:
(DLT p.413, para 6) ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 22 "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 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 ::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 23 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.
r 2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the 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."
::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 2424. The suit was filed more than two decades back on 5.7.1993, but the land-lady, who died during the pendency of this appeal, has been .
deprived of the possession of the premises despite the appellant not residing in the same. The appellant at different occasions has sought time to settle the matter amicably which only suggests that the appellant was only seeking some illegal benefit and adopting hand twisting tactic to vacate the premises which he had retained on the condition of paying a
25.
r to paltry amount of `200/- per month which had been fixed by this Court more than a decade back vide its order dated 3.9.2003.
No doubt, the rent legislations continue to protect the tenants against arbitrary and unfair demand for eviction or enhancement of rents at the instance of the landlord but they do not also protect the tenant when such unfair demands are raised. It is on account of persons like the appellant that there is a visible reluctance amongst the owners to let out the available accommodation for fear of losing the same altogether. As observed earlier, the appellant is not even tenant and yet he has succeeded in retaining the premises by not residing but putting a lock on the same. I have no hesitation to conclude that the appellant under the garb of his so called inherited tenancy has abused the process of the Court and despite his not even being a tenant, he has been successful in exploiting the system and depriving the landlord of the possession of the disputed premises for over two decades that too, without residing in the same.
Substantial questions of law No. 2 and 3 are accordingly answered against the appellant.
::: Downloaded on - 15/04/2017 17:33:02 :::HCHP 2526. In view of aforesaid discussion, there is no merit in this appeal and the same is dismissed. As observed earlier, the .
defendant/appellant has illegally deprived the respondents of the possession of the property of which he is not even in occupation nor he has any right, title or interest over the same. He has perpetuated by illegally retaining the same for decades together. Therefore, it is the duty of the Court to see that such wrongdoers are discouraged at every step and even if he has succeeded in prolonging the litigation, then he must suffer the costs of all these years for long litigation and also bear the expenses of such unwanted and otherwise avoidable litigation, therefore, the appellant is burdened with costs which has assessed at `50,000/-.
Pending applications, if any, are also disposed of.
( Tarlok Singh Chauhan )
January 9, 2015 Judge
(GR)
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