Bangalore District Court
Smt. Fahmeedunnisa vs Smt. Mumtaz Begum on 17 December, 2020
IN THE COURT OF XLIV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-45)
Dated this the 17th day of December, 2020
PRESENT: Smt.Latha,
XLIV Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.8794/2013
PLAINTIFF : Smt. Fahmeedunnisa
D/o. Sri. Khazi Mastan Shariff,
W/o. Mr. Fakrulla Khan,
Aged about 56 years,
Occ: Housewife,
R/at. No.3/2, Ground Floor,
2nd Cross, Arekempanahalli,
Someshwara Nagar,
Bangalore - 560 027.
(By Sri.SAN. Advocate.)
Vs
DEFENDANT : Smt. Mumtaz Begum
W/o. Mohammed Zafarulla,
Aged about 50 years,
Occ: Housewife,
R/o. No.209, 11th Cross,
11th Main, Wilson Garden,
Bangalore - 560 027.
(By Sri.TVG Advocate)
Date of Institution of the suit: 03.12.2013
Nature of the suit : Suit for
Permanent injunction.
Date of recording evidence: 6.2.2019
Date of Judgment : 17.12.2020
Total Duration : 1Day/s Month/s Year/s
14 00 07
2 O.S.No.8294/2013
JU D GM E N T
This is a suit filed by the plaintiff against the
defendant for the relief of permanent injunction restraining
the defendant from interfering with her peaceful possession
and enjoyment of plaint 'A' Schedule property without due
process of law.
2. According to the plaintiff, the defendant is the
absolute owner of the suit schedule property and she
rented out the said premises to the plaintiff on monthly
rent of Rs.5,000/- and plaintiff has also paid advance
amount of Rs.75,000/-. The agreement is an oral
agreement. When the plaintiff was in peaceful possession
and enjoyment of the suit schedule property and was
regular in payment of rent to the defendant, on 31.10.2013
the defendant without giving notice to the plaintiff insisted
her to vacate the suit schedule property and the defendant
is again and again insisting her to vacate the suit schedule
property. Therefore, the plaintiff without any other go-bye
approached this court seeking the relief of permanent
injunction against the defendant restraining her from
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dispossessing her from the suit schedule property without
due process of law.
3. On the other hand, the defendant appeared
through her counsel and filed written statement by denying
the plaint averments which are traversed against her
contentions and specifically contended that the suit
schedule property is her absolute property, that the
husband of plaintiff was the tenant under her, that she had
filed a suit in O.S.No.83/2007 before CCH-23, that the said
suit came to be decreed on 21.10.2009, that the court had
granted three months time to the defendant to vacate the
suit schedule property, that the husband of plaintiff did not
vacate the suit schedule property as per the order of the
court, that the defendant had filed Execution Petition
No.1524/2013 and got vacated the suit schedule property
with due process of law. The plaintiff knowing fully well
about the legal proceedings filed this false suit only to
harass her. Accordingly, the defendant prayed to dismiss
the suit with exemplary costs.
4. On the basis of the pleadings, the Predecessor-
in Office of this court had framed the issues as under:
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I SSU E S
1. Whether plaintiff proves her possession over
the suit schedule property ?
2. Whether she further proves the interference
of the defendant over the suit property ?
3. Whether plaintiff is entitled for permanent
injunction ?
4. To what decree or order?
5. The plaintiff in order to substantiate her
contention got herself examined as PW.1 and also got 46
documents marked as Ex.P.1 to P.46. However, PW.1 did not
tender herself for cross-examination and her side of evidence
was taken as closed. The defendant in order to substantiate
her contention got her husband, the Special Power of Attorney
holder examined as DW.1 and got 2 documents marked as
Ex.D.1 and D.2 and closed her side of evidence.
6. Heard arguments.
7. The findings of the Court on the above issues are:
5 O.S.No.8294/2013
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
Issue No.4 : As per final order;
for the following:
REASONS
8. Issue Nos.1 to 3: Since these issues require
common discussion, to avoid repetition, these issues are
taken up together for discussion.
The plaintiff specifically contended that the defendant
is the owner of the suit schedule property viz., the Flat
No.3/2, Ground Floor, 2nd Cross, Arekempanahalli,
Someshwara Nagar, Bangalore and she is tenant under the
defendant. However, the defendant did not admit the
contention taken by the plaintiff and the defendant
specifically contended that she is the owner of the suit
schedule property and she has leased out the suit schedule
property to the husband of plaintiff viz., Fakrulla Khan as
per the Lease Agreement dated 1.7.2003 for monthly rent of
Rs.4,750/- by receiving security amount of Rs.75,000/-.
The defendant further contended that since the husband of
plaintiff did not vacate the suit schedule property, she had
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filed a suit in O.S.No.83/2007 for ejectment before CCH-23,
that the said suit came to be decreed on 21.10.2009, that
in spite of the order of the court, the husband of plaintiff
did not vacate the suit schedule property and without any
other go-bye, the defendant filed Execution Petition
No.1524/2013 and got vacated the husband of plaintiff
from the suit schedule property.
9. The plaintiff suppressed this fact before the
court and created her own story and filed the suit.
According to her, she is the tenant under defendant, that
the tenancy is the oral tenancy, that she is regular in
payment of monthly rent of Rs.5,000/-, that she has also
deposited an advance amount of Rs.75,000/-, that she
insisted the defendant to get executed written Agreement of
Lease, that the defendant said her that if the written Lease
Agreement is executed, she has to face problem with regard
to Income Tax. Though the plaintiff has taken all these
contentions in the plaint, she has failed to establish all
these aspects. Though she filed affidavit in lieu of
examination-in-chief she has not made up her mind to
7 O.S.No.8294/2013
come before the Court and face the cross-examination of
the learned counsel for the defendant. In spite of giving
sufficient opportunity, the plaintiff did not turn up for
cross-examination. On the other hand, the Special Power
of Attorney Holder of defendant filed his affidavit in lieu of
his examination-in-chief and specifically contended that
she has obtained decree from the court for eviction of
plaintiff and her husband, she has produced certified copy
of the judgment in O.S.No.83/2007. Though the suit was
filed in the year 2007, the suit was decreed in the year
2009 and the Execution Petition came to be filed in the year
2013 to execute the decree. By suppressing all these
aspects, the plaintiff filed this suit in the year 2013 itself by
mis-using the process of court. This court after hearing the
plaintiff had issued ad-interim ex-parte temporary
injunction against the defendant on 4.12.2013. If at all the
plaintiff had disclosed the real facts before the court, the
court would not have issued ad-interim ex-parte temporary
injunction against the defendant. Immediately after the
said order, the plaintiff filed I.A.No.III under Order IXXXX
Rule 2A of Code of Civil Procedure seeking to take action
8 O.S.No.8294/2013
against the defendant for violating the order of the court.
In the affidavit filed in support of the application, the
plaintiff has contended that though this court had granted
temporary injunction against the defendant, in the absence
of herself and her family, the defendant broke open the lock
of the plaint schedule property, thrown the articles of the
house out side the house and took possession of the said
property, that she does not know where the defendant kept
all those household articles. Though the plaintiff pleaded
all these aspects, she suppressed the suit filed by the
defendant in O.S.No.83/2007 against her husband for
ejectment.
10. If at all the plaintiff is really the tenant under the
defendant, the plaintiff would have examined any
independent witness to prove her oral tenancy. On the other
hand, the defendant by producing the certified copy of the
judgment in O.S.No.83/2007 has established before the court
that it is the husband of plaintiff who was tenant under the
defendant and as seen from the judgment of the learned CCH-
23, the Lease Agreement between the parties was in writing
9 O.S.No.8294/2013
which was dated 1.7.2003, that the defendant in the said suit
was very irregular in payment of rent and in spite of the
request of the defendant herein, the husband of plaintiff did
not vacate the suit schedule property. When there was legal
battle between the parties for two years, the plaintiff without
disclosing all those aspects by pretending that she does not
know anything about the said legal proceedings has appeared
before this court by filing this suit. This is the sheer abuse of
process of Court. There may not be other best example than
this suit regarding mis-using the process of court. It is very
strange to say that when husband was tenant under the
defendant and when there is no material to show that there is
dispute between husband and wife, the plaintiff who is the
wife of the tenant has no knowledge of tenancy between her
husband and the defendant. If at all the litigants do not know
the legal consequences and process of court, it is for the legal
professionals to advise and guide the litigants properly. It is
because of this type of suits the pendency in the courts of
Law are increasing. It is the considered view of this court that
when the nature of this suit is seen, it is not only the plaintiff
but also the legal professional who advised the plaintiff to file
10 O.S.No.8294/2013
this type of suit has tried to mis-use the process of court and
wasted the valuable time of the court unnecessarily from
2013 to till date and if the order sheet of this suit is gone
through, the plaintiff was very irregular before the court and
even at last, she herself did not offer for cross-examination. It
appears, she had no such courage to come before the court
and face the cross-examination that will be conducted by the
learned counsel for the defendant. The courts are meant for
giving justice to the needy litigants and they are not meant for
the mischievous litigants who can mis-use its process. In this
regard, the Hon'ble Apex Court, time and again held that
where unscrupulous litigants adopt dubious methods,
including filing of fraudulent litigation, to defeat orders of
courts, the court must take serious note and pass appropriate
orders and issue necessary directions, which may include
imposing of exemplary costs. The Hon'ble Supreme Court in
the decision reported in (2012) SCC page 249 in the case of
Ram Rameshwari Devi and Others vs. Nirmala Devi and
Others has held as under;
"a. Civil Suit - Abuse of Process of Court
- Dilatory Tactics - Consequent
11 O.S.No.8294/2013
harassment of opposite party, wastage of
courts time and benefit to wrong doer
under existing system of administration
of civil litigation, wrong doer should not
get benefit out of frivolous litigation,
steps including the system, penal costs,
mesne profits and prosecution for
perjury.
- prolonging trial by creating obstacles by
making frivolous applications or filing
forged documents with motive of avoiding
dispossession of unauthorised person
from immovable property of plaintiff -
even if wrong doers are ultimately evicted
from property by court after a long lapse
of time, they are not generally adequately
punished - thus there is an inherent gain
or incentive for wrong doer under present
system which requires to be eliminated.
The Hon'ble Supreme Court in the decision reported in
(2000) 5 SCC page 668, in the case of Swaran Singh vs. State
of Punjab has held as under;
"In order to curb uncalled for and
frivolous litigations, the courts have to
ensure that there is no incentive or
motive for uncalled for litigations. It is a
12 O.S.No.8294/2013
matter of common experience that courts
otherwise scarce and valuable time is
consumed or more appropriately, wasted
in a large number of uncalled for cases.
The credibility of entire judiciary is at
stake unless effective remedial steps are
taken without further loss of time."
The Hon'ble Apex Court has also observed in the said
decision about the measures the court has to take while
imposing costs, which reads as under;
"While imposing costs, the court has to
take into consideration pragmatic realities
and be realistic as to what the defendants
or respondent had to actually incur in
contesting the litigation before different
courts. The court has 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 affidavits, miscellaneous charges
towards typing, photocopying, court fee
etc., The other factor is for how long the
defendants or respondent were compelled
to contest and defend the litigation in
various courts.
13 O.S.No.8294/2013
And it is further held in the said decision that,
there is no infirmity in the well reasoned
impugned order, that appeals are
consequently dismissed with costs quantified
at Rs.2 lakhs, that imposing of costs is not
out of anguish but by following the
fundamental principle that wrong doers
should not get benefit out of frivolous
litigation.
11. Unlike the observations of Hon'ble Supreme
Court in the aforesaid decisions, in the present suit also, as
observed above, the plaintiff has filed frivolous suit with
dishonest motive in order to harass the defendant and
waste the precious time of the court. The plaintiff not only
filed frivolous suit but also unnecessarily dragging the suit
for such a long period of 7 years. Therefore, the suit of the
plaintiff is not only liable to be dismissed with costs of the
suit but also with exemplary costs.
12. On the light of the principles laid down in the
aforesaid decisions, this court in the present suit has already
come to the conclusion that this is a frivolous suit filed
14 O.S.No.8294/2013
against the landlady-defendant to harass her. If at all the
plaintiff is a law abiding citizen of this nation, when there is
already a decree against her husband, she would have abide
by the said decree and both the plaintiff and her husband
would not have harassed the defendant only because she
rented out her house to the plaintiff and her husband and
would not have made the defendant to dance before the court
from 2007 to 2020 who is the landlady unknowingly rented
out her house to such a mischievous person. It is pity on the
part of the landlady.
13. It appears as soon as the Execution petition is filed
by the defendant in Execution Petition No.1524/2013, this
suit has been filed. The defendant has not taken law into her
hands. She has taken the aid of law to get vacated the
mischievous tenants under her. It appears, with due process
of law in Execution Petition the defendant got vacated the
plaintiff and her husband from the suit schedule property. It
cannot be said that the defendant has interfered with
plaintiff's peaceful possession and enjoyment of the suit
schedule property. Therefore, it is the considered view of this
15 O.S.No.8294/2013
court that the plaintiff failed to prove the illegal interference of
the defendant and in view of the observations made herein
above, this suit has to be dismissed with exemplary costs by
invoking Section 35-A of Code of Civil Procedure, then only
the mischievous litigants can learn the lesson and the poor
landladies like the defendant can be saved from unnecessarily
litigations. Section 35-A reads as under;
Section 35-A (1) If any suit or other
proceedings including an execution
proceedings but [excluding an appeal or a
revision] any party objects to the claim of
defence on the ground that the claim or
defence or any part of it is, as against the
objector, false or vexatious to the knowledge of
the party by whom it has been put forward,
and if thereafter, as against the objector, such
claim or defence is disallowed, abandoned or
withdrawn in whole or in part, the Court if it
so thinks fit, may, after recording its reasons
for holding such claim or defence to be false or
vexatious, make an order for the payment to
the object or by the party by whom such claim
or defence has been put forward, of cost by
way of compensation.
16 O.S.No.8294/2013
(2) No Court shall make any such order for the
payment of an amount exceeding [three
thousand rupees] or exceeding the limits of it
pecuniary jurisdiction, whichever amount is
less:
Provided that where the pecuniary limits of
the jurisdiction of any Court exercising the
jurisdiction of a Court of Small Causes under
the Provincial Small Cause Courts Act, 1887
(9 of 1887) or under a corresponding law in
force in any part of India to which the said Act
does not extend and not being a Court
constituted under such Act or law, are less
than two hundred and fifty rupees, the High
Court may empower such Court to award as
costs under this section any amount not
exceeding two hundred and fifty rupees and
not exceeding those limits by more than one
hundred rupees :
14. On the basis of the provisions contemplated under
Section 35-A of Code of Civil Procedure, keeping in mind
about the mental agony undergone by the defendant in the
process of evicting the plaintiff and her husband from the suit
schedule property and also keeping in mind about the
17 O.S.No.8294/2013
prolonged litigation from 2007 to till date, expenses incurred
for the litigation, it is expedient to award exemplary cost of
Rs.50,000/- on the plaintiff apart from costs of this suit.
Accordingly, Issue Nos.1 to 3 are answered in the negative.
15. Issue No.4. In view of the discussions made
herein above and findings given on Issue Nos.1 to 3 herein
above, this Court proceed to pass the following ;
ORDER
The suit of the plaintiff is hereby dismissed with costs along with exemplary cost of Rs.50,000/-.
If the plaintiff has failed to pay the cost to the defendant, the defendant is at liberty to recover the same in accordance with law.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, corrected and then pronounced in the open court on this the 17 th day of December, 2020).
(Latha) XLIV Addl. City Civil & Sessions Judge, Bengaluru.
18 O.S.No.8294/2013A NN E X U R E List of witnesses examined for Plaintiff:
PW.1 Smt. Fahmeedunnissa List of witnesses examined for Defendant:
D.W.1 Mohammed Zafrulla List of documents marked for the Plaintiff :
Ex.P.1-9 Electric Bills
Ex.P.10-16 Receipts of Electricity Bills.
Ex.P.17-25 Electricity Bills.
Ex.P.26-36 Receipts of Electricity Bills.
Ex.P.37-45 Electricity Bills.
Ex.P.46 Copy of Police Complaint filed by the
plaintiff.
List of documents marked for the Defendant :
Ex.D.1 Special Power of Attorney. Ex.D.2 Certified copy of the Judgment in O.S.No.83/2007.
XLIV Addl. City Civil & Sessions Judge, Bengaluru.