Surinder Mohan vs Pritam Kaur And Another on 16 April, 2009

[Cites 8, Cited by 3]

Punjab-Haryana High Court

Surinder Mohan vs Pritam Kaur And Another on 16 April, 2009

1. The above two petitions invoke the jurisdiction of this Court under Article 227 of the Constitution seeking for rejection of the respective plaints filed before the Courts below. The petitioner has not adopted the procedure of filing a written statement or seeking for rejection of plaint under Order 7 Rule 11 CPC but have come directly to this Court by pointing out that the suits filed and pending before the respective Courts are wholly vexatious and constitute an abuse of Civil Revision No.6225 of 2002 (O&M) & -2- Civil Revision No.5373 of 2004 process of Court, having regard to the finality that has obtained as regards the very same property between the same parties or persons who are close privies to parties.

2. Civil Revision No.6225 of 2002 has been filed seeking for dismissal of the suit filed by one Ms. Pritam Kaur widow of Mohan Singh for declaration that she is the joint owner of the property with the 4th respondent-Baldev Singh and not to execute the judgement and decree dated 17.05.2001 in favour of the defendants No.1 and 2, who were Surender Mohan and Amar Vivek Aggarwal. This suit is pending before the Additional Civil Judge, Kharar, District Ropar. Civil Revision No.5373 of 2004 seeking for a similar relief of quashing of the suit instituted by Pritam Kaur widow of Mohan Singh for specific performance of a contract alleged to have been executed on 23.06.1990 between the husband Mr. Mohan Singh and Surender Mohan, the defendant in respect of the property in House No.14, Ph- II, Mohali, District Ropar. In the said suit also, the plaintiff's son Baldev Singh is arrayed as a party defendant.

3. The plenary powers of the Court endowed on this Court under Article 227 of the Constitution, by the very nature that its wide amplitude, shall be exercised with due restraint. In view of the attempt of the revision petitioner to strike off the plaints without going through the usual process of allowing the parties to file the written statement and letting the trial Court to decide one way or the other, the attempt of the petitioner is to show that the Judgment Debtor in an earlier round of litigation, who faced with the prospect of delivering up the property, has adopted a questionable method of harassing the Civil Revision No.6225 of 2002 (O&M) & -3- Civil Revision No.5373 of 2004 Decree-holder by instituting suits through his mother. The contention of the petitioner is that the Judgment Debtor is a Police Officer and he was trying to use his own official status to cause the vexatious suits to be filed.

II. History of earlier litigation:

4. Now to some facts: It may be necessary to assess the contention of the petitioner whether the suits filed are indeed an abuse of process of Courts or there is any scope for letting the matter be decided in a fullfledged trial. Admittedly, the property belonged to Surender Mohan, who is the petitioner before this Court in both the civil revisions. He had rented out the property to one Ajay Kumar on 16.10.1989. An action had been instituted through a suit against Ajay Kumar by Surender Mohan alleging that he had sublet the premises without written consent, to a person described as 2nd defendant in the suit. The defence was taken by the 1st defendant-Ajay Kumar setting up an alleged rent deed dated 30.09.1989 on the ground that the rent was only Rs.200/- and not Rs.1150/- with reference to a rent deed dated 16.10.1989 as contended by Surender Mohan. The 2nd defendant, Baldev Singh, took up a different plea and contended that the property had been agreed to be sold on 23.06.1990 in favour of his father and that after the death of the father, he had been in possession as a heir under the agreement of sale. In fact, he denied that there was any sub-tenancy and contended that his possession was independent under the so-called lease between Surender Mohan and Ajay Kumar.

5. Two issues were required to be considered namely, whether Civil Revision No.6225 of 2002 (O&M) & -4- Civil Revision No.5373 of 2004 the rent deed as propounded by the plaintiff-Surender Mohan was true and that his plea of sub-tenancy as alleged to have been created by the 1st defendant was established to entitle him to the relief of recovery of possession. The second important consideration was whether the possession of the 2nd defendant was independent of the lease deed propounded by the plaintiff and that he was in possession of the property under agreement dated 23.06.1990. Having regard to the fact that Ajay Kumar was setting up his own lease deed, the truth and genuineness of the so-called document was also required to be adjudicated.

III. Findings: Lease deed propounded by plaintiff true;

agreement propounded by defendant was a forgery:

6. In the earlier round of litigation, the trial Court found the lease deed between the 1st defendant and the plaintiff to be true. It found the alleged lease deed dated 30.09.1989 propounded by the 1st defendant as forged and fabricated. As regards the contention that an agreement of sale had been executed by the plaintiff in favour of the 2nd defendant-Baldev Singh's father, the Court examined the document and also found that the agreement was forged and fabricated by the 2nd defendant. Under the circumstances, the Court found the subletting as pleaded by the plaintiff to be established and directed recovery of possession of the property.


IV.       Defendant's (Baldev Singh's) machinations by himself
          and through his mother's (Pritam Kaur's)

          (a)        At the trial stage

7. The first case initiated for recovery of possession did not begin and end in its usual course. It had several ups and downs. The Civil Revision No.6225 of 2002 (O&M) & -5- Civil Revision No.5373 of 2004 1st defendant had initially remained ex parte and later, on his application, the ex parte order was set aside. The suit had been initiated at the Court at Kharar but later on, on an application of transfer by Baldev Singh, this Hon'ble Court transferred the suit to be tried at Chandigarh. Even when the suit was pending, Baldev Singh filed his own suit for a declaration that the rental agreement relied on by the plaintiff on 16.10.1989 was forged and fabricated. The institution of the suit itself had been challenged as vexatious and a revision is pending before this Court in C.R. No.3499 of 2004. The suit filed for recovery of possession was ultimately decreed on 17.05.2001.

(b) At the stage of appeal, revision and SLP

8. Both the defendants had filed the appeal. Even when the case was pending at the trial Court, the trial Court had lodged a complaint of forgery of the agreement propounded by Baldev Singh and for action against the defendants in the suit under Section 340 of the Criminal Procedure Code. Baldev Singh's mother, who is now the plaintiff in both the suits, which are sought to be quashed, moved an application under Order 1 Rule 10 before the Appellate Court claiming that she was a heir to her husband along with Baldev Singh and again setting up a plea that the possession of her son was under

the agreement of sale propounded by him under the document dated 23.06.1990. That application had been dismissed on 23.02.2002.

Even before the ink dried up in the order dismissing the application, the mother Pritam Kaur filed an appeal as an indigent person against the judgment of the trial Court on 20.03.2002, which was numbered as Civil Revision No.6225 of 2002 (O&M) & -6- Civil Revision No.5373 of 2004 Civil Appeal No.12 of 2002. The Appellate Court had been flooded with consecutive applications for leading additional evidence, amendment of pleadings etc. and of the three appeals, two appeals filed by the defendants No.1 and 2 and the third appeal by the mother were all dismissed on 09.09.2002. The Appellate Court affirmed that the agreement propounded by Baldev Singh and his mother Pritam Kaur was forged. Pritam Kaur's appeal was also dismissed on the ground that she was not a party to the suit and her own application for impleadment had been dismissed at the trial Court. Even the appeal filed by her without seeking for leave of the Court was not maintainable.

9. After the disposal of the appeal, the plaintiff put the decree in execution on 23.09.2002. An objection statement was filed by Pritam Kaur on 31.10.2002 that the decree was not executable. Simultaneously, within a few days, Pritam Kaur filed a suit which is now impugned in the present Civil Revision No.6225 of 2002 that the plaintiff shall be restrained from executing the decree. Soon after the institution of the suit, the objection taken by the both Baldev Singh and his mother Pritam Kaur for execution of the decree was dismissed on 22.07.2003. The appeals disposed of by the Appellate Court came for a challenge through Baldev Singh by instituting R.S.A. No.777 of 2003, which was dismissed by the High Court on 25.02.2004. A review application had been filed on 18.03.2004 and it was also dismissed. The matter went up to the Hon'ble Supreme Court at the Civil Revision No.6225 of 2002 (O&M) & -7- Civil Revision No.5373 of 2004 instance of Baldev Singh but the Hon'ble Supreme Court dismissed the Special Leave Petitions 9354-55 of 2004 on 05.07.2004. It is most important to observe that Baldev Singh had given an undertaking before the Hon'ble Supreme Court that he would vacate the premises within three months. During all the stages, although there was no order of stay of the execution of the decree, the Decree-holder could not take possession.

(d) Undertaking to vacate the premises flouted

10. The mother, Pritam Kaur, who had opened up a new vista to stake her claim and who had not successful in the adjudication that she invited by her objections to the executability of the decree before the Executing Court, preferred Appeal No.14 of 2003 before the Additional District Court, Chandigarh, reiterating her objections that the decree was not executable. She also filed C.R. No.5058 of 2004 before this Court against the dismissal of her objections in the Executing Court. The civil revision was also dimissed. The time for evicting the premises as undertaken by her before the Hon'ble Supreme Court was running out and therefore, Baldev Singh gave an undertaking in Civil Revision No.5373 of 2004 that he would vacate the premises but at the same time contended that he had delivered possession to his mother Pritam Kaur and that it was her mother, who was in possession of the property. The undertaking, which Baldev Singh gave in C.R. No.5373 of 2004 was actually in the revision filed by the present revision petitioner seeking for quashment of a suit instituted in the meanwhile by Pritam Kaur for specific performance. Civil Revision No.6225 of 2002 (O&M) & -8- Civil Revision No.5373 of 2004 V. Basis for two suits and other obstructive tactics by mother

11. The suit for specific performance was for enforcement of agreement alleged to have been executed by the revision petitioner, Surender Mohan in favour of Pritam Kaur's husband on 23.06.1990. Most importantly, this document was found to have been forged and even criminal prosecution had been lodged against the defendants by the Learned Judge, who tried the suit. Pritam Kaur sought to assail this judgment in ways more than one: (i) by seeking for impleadment in appeal filed by her son, Baldev Singh; (ii) by filing an independent appeal against the judgment of the trial Court directing delivery of possession; (iii) by filing objection in execution petition filed by the plaintiff for recovery of possession of property; (iv) by preferring an appeal against the order of the Executing Court that resulted in dismissal. Even if the agreement was true, the suit was for enforcement of an agreement dated 23.06.1990 and the suit for specific performance had been filed on 05.08.2004 that is immediately after the disposal of the case before the Hon'ble Supreme Court on 05.07.2004 and after the dismissal of the appeal by the Additional District Judge against the order rejecting her objections in execution petition.

(a) Review Petition before Hon'ble Supreme Court and RSA before High Court dismissed

12. As if all these proceedings were not sufficient, Baldev Singh filed an application for review of the judgment rendered by the Hon'ble Supreme Court but that was also dismissed by the Hon'ble Supreme Court on 18.11.2004. On the same day, when the Hon'ble Civil Revision No.6225 of 2002 (O&M) & -9- Civil Revision No.5373 of 2004 Supreme Court was dismissing the review application, the High Court also dismissed the Second Appeal, which Pritam Kaur filed against the judgment in Appeal No.14 of 2003, which in turn was an appeal rejecting the objections filed by her in the execution Court.

(b) Property delivered, but restitution petition filed

13. The saga of several litigations almost seemed over and when it seemed, like all the armoury was downed, Baldev Singh and her mother Pritam Kaur at least did not lose heart. The delivery of possession applied for by the Decree-holder was resisted and the Decree-holder applied for police help and ultimately the plaintiff, Surender Mohan took possession of the property on 03.01.2005 with police protection. Not to be undone, Pritam Kaur has again moved an application for restitution of her possession by filing a petition under Section 144 CPC stating that a decree obtained was a nullity and that petition is now reported to be pending before the Additional Civil Judge (Sr. Divn.), Mohali.

VI. Vexatious nature of two suits:

14. The two suits, which have now been filed are suit for a declaration that the decree obtained on 17.05.2001 after nearly 12 years of litigation as illegal and not enforceable. The other suit for specific performance is for enforcement of an agreement alleged to have been made on 23.06.1990 but filed 14 years later on 15.08.2004. The patent untenability of the suits require no further dilation. While it would be possible for the defendants to enter appearance, file the written statement and take up all objection, it is doubtful if they could still tire out either Baldev Singh or Pritam Kaur to rest by themselves Civil Revision No.6225 of 2002 (O&M) & -10- Civil Revision No.5373 of 2004 or to leave alone the Decree-holder, who has obtained a decree after a long contest that went upto Hon'ble Supreme Court.

15. Learned counsel for the respondents in C.R. No.5373 of 2004 refers me to the judgment of Hon'ble Supreme Court in T. Arivandandam Vs. T.V. Satyapal and another AIR 1977 SC 2421 that the Court has the powers under Order 7 Rule 11 to reject the plaint, which is vexatious and meritless and the Court also has the power to strike down by deterrent action imposing exemplary costs under Section 35-A CPC. It is surprising that the counsel must cite this judgment, which if he had properly understood, would not be before me to urge that the suit should be continued. In the said judgment, Justice Krishna Iyer reminds lawyers, just as he castigates vexatious litigants that:-

"It may be valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co-operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of."

VII. Intervention under Article 227, how justified:

16. The maintainability of the petition under Article 227 in such Civil Revision No.6225 of 2002 (O&M) & -11- Civil Revision No.5373 of 2004 type of cases is never in doubt in my mind. Learned counsel appearing for the respondent refers me to the decision in Abdul Rahman Vs. Prasony Bai and another 2003(90) AIR 718 SC where the Hon'ble Supreme Court approved the withdrawl of suit by the High Court to its own file and disposing of the same on the admitted facts. The Court was dealing with the cases where it found that there had been an abuse of process of Court and that the Court should refuse him from pursuing his remedy in a Court of law. Situations cannot be better to invoke the jurisdiction of this Court to throw out vexatious suits than I have found in this case.

17. This is a paradigm case of a judgment debtor, who multiplied proceedings merely to harass the decree holder. The Courts play a sterling role in transporting street brawls between persons in conflict to dignified legal battles through learned persons draped in black and white. Courts are indeed a safety valve that keep the society's tensions wrought through vociferous voices to sublime forensic skills in imposing buildings that evoke confidence and honour. If the haloed institution of justice such as Courts are abused by mindless litigations fueled by persons of unholy spirit, there is need to stop them at the threshold and pitch-fork them to where they belong. Courts are not the venues where such persons can be allowed to cool their heels. If the sanctity of the institutions such as the Courts have to remain, the symbol that this Court embodies through the innovative design of Le Carbusier has to be activated. That is, if parties are not evenly matched, the Court will move towards the weak to even the scales of balance. It cannot be merely a passive act by Civil Revision No.6225 of 2002 (O&M) & -12- Civil Revision No.5373 of 2004 allowing frivolous litigations to be taken on board and unemotional judgments rendered by Courts after a fullfledged trial. To such type of persons, who misuse the process, the Court shall play the role of Mahakali of vanquishing the demons masquerading as bona fide litigants. The life exists in such alternations, like the brightness and dark, the day and night, the black and white, the sorrow and happiness, to name but few. The Court that has a kind countenance that ought to be ever a safe harbour for persons to shore up seeking for justice shall also be an abattoir that chops and instils fear in vexatious litigants. All these expressions are not meant to be indeed words in rhetoric. They are meant to spell out a clear message that if we use this institution for trifle causes, we will damage the only insitution that is still the hope for the millions of people in India.

18. The Law Commission of India has in its Report numbers 189 and 192 has recommended to the Central Government to enact a law to prevent vexatious litigation modeled on Madras Vexatious Litigation (Prevention) Act 8 of 1949. This Act was incidentally extended to the State of Andhra Pradesh and the validity of the Act itself was upheld by the Hon'ble Supreme Court in its judgment dated Prabhakar Rao N-Maide Vs. State of Andhra Pradesh in AIR 1965 SC 1827. A similar Act has already been passed in Maharashtra as early as in 1971 and gone past the stage of Bill in Kerala 2002. The Hon'ble Supreme Court in a recent judgment in Ashok Kumar Mittal Vs. Ram Kumar Gupta reported in (2009) 1 SCALE 321 : (2009) 1 JT 382, while still not interfering with the judgment of the Delhi High Court that imposed exemplary costs of Rs.1,00,000/- on parties who Civil Revision No.6225 of 2002 (O&M) & -13- Civil Revision No.5373 of 2004 had been found to have lied on oath, observed:-

"The present system of levying meagre costs in civil matters (or no costs in some matters) no doubt, is wholly unsatisfactory and does not act as a deterrent to vexatious or luxury litigation borne out of ego or greed or resorted to as a 'buying time' tactic. More realistic approach relating to costs may be the need of the hour. Whether we should adopt suitably the western models of awarding actual and more realistic costs in a matter that required to be debated and should engage the urgent attention of the Law Commission of India."

VIII. Present disposition:

19. The Law Commission has made its recommendation. The Hon'ble Supreme Court has delivered its verdict. Let us wait for the day when the legislature acts. Till then the disposition of this case shall be:-

The suits, which have been filed by the respondents and which are sought to be struck off through the civil revisions, have therefore, to be dismissed and civil revisions have to succeed. Plaintiff in both the suits namely Pritam Kaur and Baldev Singh at whose instance, the suits have been filed shall be burdened with costs of Rs.3,000/- each. The name of Pritam Kaur and Baldev Singh being the widow and son respectively of Late Mohan Singh shall be notified as vexatious litigants in the notice boards for public viewing and no suit in relation to the property in dispute shall be Civil Revision No.6225 of 2002 (O&M) & -14- Civil Revision No.5373 of 2004 entertained by any Courts, without the leave of this Court. Para 19 of this judgment shall be affixed in the notice board of all the Courts, which have territorial jurisdiction over the property in dispute.

20. The copies of this judgment shall be sent by the registry to the jurisdictional civil courts for display of para 19 in the notice boards, as directed herein.

21. In the circumstances, both the revision petitions are allowed with costs as indicated above.

(K. KANNAN) JUDGE April 16, 2009 Pankaj*

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