Himachal Pradesh High Court
Surat Singh And Others vs Dhaju Ram And Others on 18 June, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 240 of 2018.
.
Judgment reserved on: 12.06.2018.
Date of decision: 18th June, 2018.
Surat Singh and others ..... Appellants.
Versus
Dhaju Ram and others ....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellants : Mr. G.D.Verma, Senior Advocate with Mr. B. C.Verma, Advocate.
For the Respondents : Ms.Jyotsna Rewal Dua, Senior Advocate with Ms.Charu Bhatnagar, Advocate.
Tarlok Singh Chauhan, Judge.
The plaintiffs are the appellants, who have lost before both the learned Courts below and have filed the instant appeal. The parties hereinafter shall be referred to as the plaintiffs and defendants.
2. The plaintiffs filed a suit for recovery of possession of land comprised in Khata Khatauni No.6min/13min, Khasra Nos.
1Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 2 5505/849/1,measuring 1 biswa; 5505/849/2 measuring 1 biswa;
5505/849/3 measuring 1 biswa; 5505/849/4 measuring 17 biswas;
.
5505/849/5 measuring 1 biswa and Khasra No. 5505/849/6 measuring 14 biswas, situate in Mauza Shillai, Tehsil Shillai, District Sirmaur, H.P. ( hereinafter to be referred as the suit land). The plaintiffs claimed to be the owners of total land measuring 19 bighas 14 biswas, comprised in Khasra No.5505/849 and claimed that this plot had been divided into two parts by 'Paonta to Shillai' road. Shri Gulab Singh was owner in possession of the land comprised in Khasra no.5508/849 from whom defendants No.1 and 2 purchased 4 biswas, defendants No.5 and 6, 10 biswas and defendants No.3 and 4 exchanged 1 bigha. Defendants No.3 and 4 thereafter started interfering and the same consequently led to filing of a suit for injunction, but the same was dismissed.
However, in the meantime, the demarcation was obtained by the plaintiffs in which it was pointed out that a part of the suit land had been occupied by the defendants either by raising fence, khokha etc. This possession was taken somewhere in the year 2003 which gave the plaintiffs' cause of action to file the aforesaid suit.
3. Defendants No.1 and 2 resisted and contested the suit by filing written statement wherein they took the plea that the plaintiffs have no cause of action as they have not encroached upon any ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 3 portion of the suit land, as alleged. However, they admitted to have purchased the land from Shri Gulab Singh.
.
4. Defendants No.3 and 4 resisted and contested the suit by filing written statement wherein preliminary objections regarding maintainability, cause of action etc. were raised. It was contended that since there was a government road in between the plots, therefore, there was no question of any encroachment. They also pleaded that r to in view of the decision of the previously instituted suit to the effect that there was a road in between the suit land and the land of the defendants, the instant suit was hit by the principle of res judicata.
5. Likewise, defendants No.5 and 6 also resisted and contested the suit by filing written statement wherein preliminary objections regarding maintainability, cause of action, suit being hit by Order 2 Rule 2 CPC, were taken. On merits, it was contended that there was a road in between two parcels of land, so there was no question of their having encroached upon the suit land, especially, when the road was still in operation.
6. On the basis of the pleadings of the parties, the learned trial Court on 22.12.2005 framed the following issues:-
"1. Whether the plaintiffs are owner of the suit land, as alleged? OPP.::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 4
2. If issue No.1 is held in affirmative, whether the plaintiffs are entitled to the decree for possession? OPP.
3. Whether the plaintiffs have no cause of action? OPP.
.
4. Whether the suit is not maintainable? OPD.
5. Whether the suit is hit by the principle of resjudicata, as alleged? OPD.
6. Relief."
7. After recording evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiffs.
8. Aggrieved by the judgment and decree passed by the learned trial Court, the plaintiffs filed an appeal before the learned first appellate Court, which too came to be dismissed vide judgment and decree dated 30.11.2017.
9. It is against this judgment that the plaintiffs have filed the instant appeal merely on the ground that once the report of the Local Commissioner as relied upon by the plaintiffs had been discarded by the Courts below, it was incumbent upon the Court to have appointed another Local Commissioner for demarcation of the boundaries.
I have heard the learned counsel for the parties and have gone through the records of the case.
10. Normally, whenever there is a dispute of encroachment, the proper procedure is to get the land demarcated through a ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 5 competent revenue Officer. (Refer: Haryana Waqf Board vs. Shanti Sarup and others, (2008) 8 SCC 671).
.
11. However, where a suit is filed on the basis of a demarcation report obtained by the plaintiff(s) and the same is found to be not only erroneous, but false and manipulated one, obviously then, the plaintiff cannot claim any right and rather loses his right to seek appointment of a Commissioner to demarcate the land because the very genesis of the allegations on which the suit is filed is based upon this demarcation report and in absence thereof, there is nothing on record to prima facie establish the allegations of encroachment.
12. Adverting to the report of the demarcation, the same is Ex.PW2/A and was prepared by Som Dutt, Field Kanungo. It has been found by the learned trial Court in this demarcation report that the existing revenue records of Field No.5482/849 as well as Field No.5508/849 was found to be incorrect and to be a part of Field No.5505/849. However, this report nowhere suggested that the Field Kanungo concluded that the existing revenue records as well as revenue map of Field No.5482/849 and 5508/849 was in fact found to be incorrect vis-a-vis the factual position on the spot. The demarcation report was absolutely silent as to the area as well as the nature of any encroachment of each of the defendants. Such area and nature of ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 6 encroachment have been depicted in the encroachment map Ex.PW2/B which was admittedly prepared only on 16.04.2005, .
whereas, the demarcation was conducted on 09.03.2004/20.03.2004 which clearly establishes that the encroachment map was prepared after more than a year of the demarcation report. Why this map was not prepared along with the demarcation report or immediately thereafter, is not forthcoming? Therefore, the learned trial Court has rightly held the encroachment map to be doubtful.
13. In view of the above, this Court has no hesitation to conclude that the report obtained by the plaintiffs was a procured one or else Field Kanungo after finding the existing revenue records as well as revenue map qua Field Nos.5482/849 and 5508/849 to be incorrect was required to report this matter to his higher authorities along with these reports, so that the official record is corrected with the existing spot position.
14. Adverting to the judgment and decree passed by the learned first appellate Court, it would be noticed that it has meticulously considered the request of the plaintiffs for appointment of another Commissioner to demarcate the land after the plaintiffs alleged that they were not responsible for the faulty report and this ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 7 contention has been rejected by the learned first appellate Court by observing as under:-
.
"31. It is argued on behalf of the appellants that in case the demarcation report has been found faulty then the remedy lies in appointing another commissioner as the plaintiffs are not responsible for the faulty report. It is true that in case any demarcation report is not found upto the mark, the suit cannot be dismissed and remedy lies in appointing of local commissioner yet the facts of the present case are entirely different. In this case, the report of demarcation is wrong on the face of it and it is an admitted fact that there is a PWD road in between two parcels of the land and there is no question of overlapping of the land on the other side. When this is so, there is no reason to appoint a new local commissioner when the findings by the Civil Court are also there to the effect that PWD road exists in between the suit land and that of the defendants. In these facts and circumstances, appointment of local commissioner is not going to serve any purpose and the question of appointment of local commissioner does not arise at all."
15. The learned Senior Advocate for the plaintiffs has not been able to convince me as to how the findings recorded by the learned Courts below are in any manner erroneous much less perverse. Rather, what stands proved on record is that the plaintiffs after procuring the report from the Field Kanungo have filed the present suit simply in order to harass the defendants.
16. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Hon'ble Supreme Court ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 8 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 adopted, then this problem can be minimized to a large extent."
17. 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.::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 9
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."
18. 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 - 19/06/2018 23:00:58 :::HCHP 10
19. 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.::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 11
32.2. The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and .
where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant. 32.3. The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final. 32.6. The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
32.7. Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine 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 ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 12 Singh v. Union of India & Ors. (2011) 7 SCC 69 and State of Uttaranchal v Balwant Singh Chaufal & Ors. (2010) 3 SCC 402].
.
33. Access jurisprudence requires Courts to deal with the legitimate litigation whatever be its form but decline to exercise jurisdiction, if such litigation is an abuse of the process of the Court. In P.S.R.Sadhanantham v. Arunachalam & Anr. (1980) 3 SCC 141, the Court held:
"15. The crucial significance of access jurisprudence has been best expressed by Cappelletti:
"The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured be a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement the most basic 'human-right' of a system which purports to guarantee legal rights."
16. We are thus satisfied that the bogey of busybodies blackmailing adversaries through frivolous invocation of Article 136 is chimerical. Access to justice to every bona fide seeker is a democratic dimension of remedial jurisprudence even as public interest litigation, class action, pro bono proceedings, are. We cannot dwell in the home of processual obsolescence when our Constitution highlights social justice as a goal. We hold that there is no merit in the contentions of the writ petitioner and dismiss the petition."
34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 13 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 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 ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 14 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 facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 15 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 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.::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 16
(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".
20. The judicial system has been abused and virtually brought to its knees by unscrupulous litigants like the plaintiffs in this case. It has to be remembered that Court's proceedings are sacrosanct and should not be polluted by unscrupulous litigants. The plaintiffs have abused the process of the Court.
21. The further question which now arises is as to how to curb this tendency of abuse of process of Court. As suggested in Kishore Samrite (supra), one of the ways to curb this tendency is to impose realistic or punitive costs. The Hon'ble Supreme Court in Ramrameshwari Devi and others vs. Nirmala Devi and others, ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 17 (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 r 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 - 19/06/2018 23:00:58 :::HCHP 18
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."::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 19
22. The Hon'ble Supreme Court in Indian Council for Enviro-legal Action vs. Union of India and others, (2011) 8 SCC .
161 observed:-
"191. In consonance with the principles of equity, justice and good conscience Judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legl process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant 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) ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 20 "54. While imposing costs we have to take into consideration pragmatic realities and be realistic as to what the defendants or the respondents had to actually incur in contesting the .
litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter-affidavit, miscellaneous charges towards typing, photocopying, court fee, etc.
55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years."
23. Even otherwise, the findings recorded by the learned Courts below are pure finding of fact. Therefore, since no question of law much less substantial question of law arises for consideration, the appeal is dismissed with costs of Rs.10,000/-. Pending application, if any, also stands disposed of.
24. However, before parting, it needs to be noticed that apart from the mischief played by the plaintiffs, the role played by PW-2 Som Dutt, Field Kanungo, is no better and in fact appears to be the root cause of the problem. Having demarcated the land on 09.03.2004 and 20.03.2004, he did not care to prepare the so called encroachment ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 21 map for over a period of one year and the same ultimately came to be prepared on 16.04.2005. That apart, in his report, PW-2 has .
specifically observed that as per the existing revenue record, Field No.5482/849 as well as Field No.5508/849 was found to be incorrect and to be part of Field No.5505/849. However, despite this, PW-2 did not care to bring these facts to the notice of the higher authorities.
After all, it is extremely a serious matter. In case, the existing revenue record was not found to be correct as per the spot position, obviously, the same was required to be rectified and corrected, but the same could have been done only in case PW-2 would have apprised his higher authorities.
25. In absence of any such recommendation, this Court has no hesitation to conclude that it was with the active connivance and in order to illegally help the plaintiffs that PW-2 prepared a false report along with demarcation report and thereafter after more than one year prepared the encroachment map. This has led to the precious time of this Court being wasted and the defendants being compelled to face otherwise an avoidable litigation. Therefore, PW-2 is also penalized and burdened with costs of Rs.10,000/-. Both costs shall be paid to those of the respondents, who have put in appearance before this Court. In addition thereto, in case PW-2 is still in the services of the ::: Downloaded on - 19/06/2018 23:00:58 :::HCHP 22 State, appropriate disciplinary proceedings are directed to be initiated against him and the same shall be taken to its logical end as .
expeditiously as possible and in no event later than 31 st December, 2018.
( Tarlok Singh Chauhan )
th
18 June, 2018. Judge
(krt)
r to
::: Downloaded on - 19/06/2018 23:00:58 :::HCHP