Himachal Pradesh High Court
Santa Singh vs Gupta on 15 July, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 15th DAY OF JULY, 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL MISC. PETITION MAIN (ORIGINAL) No.4092 of 2013
Between:-
1. SANTA SINGH
S/O SH. GULZAR SINGH,
R/O VILLAGE GHUTUNPUR, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR, H.P.
2. HARBHAJAN KAUR
D/O SH. GULZAR SINGH,
R/O VILLAGE GHUTUNPUR, TEHSIL PAONTA
SAHIB, DISTRICT SIRAUR, H.P.
3. SURJEET SINGH
S/O SH. JASWANT SINGH,
S/O SH. GULZAR SINGH,
R/O VILLAGE GHUTUNPUR, TEHSIL PAONTA
SAHIB, DISTRICT SIRAUR, H.P.
4. HARJEET SINGH
S/O SH. LAKHBIR SINGH,
R/O VILLAGE GHUTUNPUR, TEHSIL PAONTA
SAHIB, DISTRICT SIRAUR, H.P.
......PETITIONERS/DEFENDANTS NO.1, 2, 5 & 6
(BY SH. KARAN SINGH KANWAR, ADVOCATE)
AND
1. MAHINDER KAUR
W/O SH. AJAYAB SINGH,
R/O S-120, A SCHOOL BLOCK,
SHAKARPUR, DELHI-92
2. CHANDER SINGH
(DELETED VIDE ORDER DATED 11.11.2021
OF HON'BLE COURT)
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2
3. PRITAM SINGH
S/O SH. JAGIR SINGH,
THROUGH HIS GPA SH. SUKH DEV SINGH,
R/O VILLAGE GIDAR PINDI,
TEHSIL JAGRAON, DISTT. LUDHIANA
4. MAHINDER SINGH
.
S/O SH. JAGIR SINGH,
THROUGH HIS GPA SH. SUKH DEV SINGH,
R/O VILLAGE GIDAR PINDI,
TEHSIL JAGRAON, DISTT. LUDHIANA
5. BHUPINDER SINGH
S/O SH. JAGIR SINGH,
THROUGH HIS GPA SH. SUKH DEV SINGH,
R/O VILLAGE GIDAR PINDI,
TEHSIL JAGRAON, DISTT. LUDHIANA
6. SUKH DEV SINGH
S/O SH. JAGIR SINGH,
THROUGH HIS GPA SH. SUKH DEV SINGH,
R/O VILLAGE GIDAR PINDI,
TEHSIL JAGRAON, DISTT. LUDHIANA
7. SMT. PRITAM KAUR
(SINCE DECEASED THROUGH HER
LEGAL REPRESENTATIVES):-
(a) MANDEEP SINGH
S/O LATE SMT. PRITAM KAUR,
R/O HOUSE NO.3, WARD NO.4B,
RELIANCE SOCIETY ADIPUR, KUTCH,
GUJARAT
(b) SUKHPREET SINGH,
S/O LATE SMT. PRITAM KAUR,
R/O HOUSE NO.3, WARD NO.4B,
RELIANCE SOCIETY ADIPUR, KUTCH,
GUJARAT
(c) MANPREET KAUR,
D/O LATE SMT. PRITAM KAUR,
R/O HOUSE NO.3, WARD NO.4B,
RELIANCE SOCIETY ADIPUR, KUTCH,
GUJARAT
8. MAHINDER KAUR
D/O SH. JAGIR SINGH,
THROUGH HIS GPA SH. SUKH DEV SINGH,
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R/O VILLAGE GIDAR PINDI,
TEHSIL JAGRAON, DISTT. LUDHIANA
......RESPONDENTS/PLAINTIFFS
9. KRISHAN KAUR
D/O SH. GULZAR SINGH,
R/O VILLAGE GHUTUNPUR,
.
TEHSIL PAONTA SAHIB,
DISTRICT SIRMAUR, H.P.
10. AMARJEET SINGH
(SINCE DECEASED THROUGH HIS
LEGAL REPRESENTATIVES):-
(a) SUMINDER KAUR
W/O AMARJEET SINGH,
R/O GHUTTUNPUR, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR, H.P.
(b) AVNEET KAUR (MINOR)
D/O AMARJEET SINGH,
THROUGH MOTHER AND NATURAL
GUARDIAN SMT. SUMINDER KAUR,
R/O GHUTTUNPUR, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR, H.P.
(c) JASKIRAN SINGH (MINOR)
S/O AMARJEET SINGH,
THROUGH MOTHER AND NATURAL
GUARDIAN SMT. SUMINDER KAUR,
R/O GHUTTUNPUR, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR, H.P.
11. KAMALJEET KAUR
WD/O SH. LAKHBIR SINGH,
R/O VILLAGE GHUTUNPUR, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR, H.P.
PRESENTLY RESIDING AT MALAKPUR
KHADAR, TEHSIL CHHACHHRAULI,
YAMUNANAGAR
12. RANO D/O SH. JAI SINGH,
S/O SH. AMAR SINGH,
R/O PURUWALA, TEHSIL PAONTA SAHIB,
DISTRICT SIRMAUR, H.P.
13. KAMALEET KAUR D/O SH. JAI SINGH,
S/O SH. AMAR SINGH,
R/O PURUWALA, TEHSIL PAONTA SAHIB,
DISTRICT SIRMAUR, H.P.
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14. BALJEET KAUR D/O SH. JAI SINGH,
S/O SH. AMAR SINGH,
R/O PURUWALA, TEHSIL PAONTA SAHIB,
DISTRICT SIRMAUR, H.P.
15. NIRANJAN KAUR D/O SH. JAI SINGH,
S/O SH. AMAR SINGH,
.
R/O PURUWALA, TEHSIL PAONTA SAHIB,
DISTRICT SIRMAUR, H.P.
16. AMARJEET KAUR D/O SH. JAI SINGH,
S/O SH. AMAR SINGH,
R/O PURUWALA, TEHSIL PAONTA SAHIB,
DISTRICT SIRMAUR, H.P.
17. JAS KAUR (DELETED VIDE ORDER
DATED 11.11.2021 OF HON'BLE COURT)
18. ISHWAR KAUR
W/O SH. PHOOL SINGH,
R/O HARIPUR TOHANA, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR, H.P.
19. SANGAT SINGH S/O SH. KALA,
R/O PURUWALA, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR, H.P.
20. SURJEET KAUR
W/O SH. GURDASS SINGH,
R/O AMARKOT, TEHSIL PAONTA SAHIB,
DISTRICT SIRMAUR, H.P.
21. TARAN KAUR
W/O SH. DILBAG SINGH,
R/O PURUWALA, TEHSIL PAONTA
SAHIB, DISTRICT SIRMAUR, H.P.
.......PROFORMA RESPONDENTS
(MS. DEVYANI SHARMA, ADVOCATE, FOR
R-1, 3 TO 6, 7(a) TO 7(c) & 8,
MR. GURINDER SINGH PARMAR, ADVOCATE,
FOR R-12, 16, 18, 20 AND 21,
R-9, 10(a) TO 10(c), 11, 13, 14 & 19 EX-PARTE)
RESERVED ON : 06.07.2022
DECIDED ON : 15.07.2022
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This petition coming on for admission this day, the
Court passed the following:
ORDER
An application moved by defendants No.1 to 7
.
under Order 8 Rule 1A(3) of the Code of Civil Procedure (CPC) seeking to produce certain additional documents at the stage of arguments was dismissed by the learned Trial Court on 04.03.2013. This order has been questioned by the defendants by invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
2. Before proceeding further, it will be appropriate to describe status of parties before the learned Trial Court alongwith gist of the case.
2(i)(a). Set No.1 (Plaintiffs):-
Jagir Singh and Chanan Singh, both sons of Jawahar Singh, were the predecessors-in-interest of the following plaintiffs, namely:-
1. Mahinder Kaur W/o Ajayab Singh
2. Chander Singh S/o Jagir Singh
3. Pritam Singh S/o Jagir Singh
4. Mahinder Singh S/o Jagir Singh
5. Bhupinder Singh S/o Jagir Singh
6. Sukhdev Singh S/o Jagir Singh
7. Pritam Kaur D/o Jagir Singh
8. Mohinder Kaur S/o Jagir Singh ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 6 Suit was filed by the above plaintiffs pleading that their predecessors-in-interest were owners in possession of the land bearing Khasra Nos.40, 41, 64, 65 .
Kite 4, total measuring 32-5 bighas, situated in Mauza Ghuttunpur, Tehsil Paonta Sahib, District Sirmour. They had mortgaged the suit land with possession in favour of predecessors of defendants No.8 to 18 (Set No.2).
2(i)(b). Set No.2 (Defendants No.8 to 18):-
Jagir Singh and Chanan Singh (predecessors-in-
interest of set No.1) had mortgaged the suit land to set No.2 as under:-
(i) Amar Singh S/o Chuhar Singh
(ii) Hazor Singh S/o Chuhar Singh
Both predecessors in interest of defendants No.8 to 18 namely:-
8. Rupinder Singh
9. Smt. Rano
10. Smt. Kamaljeet Kaur
11. Smt. Baljeet Kaur
12. Smt. Niranjan Kaur
13. Smt. Amarjeet Kaur
14. Smt. Jas Kaur
15. Smt. Ishwar Kaur
16. Sangat Singh
17. Surjeet Singh
18. Smt. Taran Kaur Plaintiffs' further contention in the civil suit was that Gulzar Singh, the predecessor-in-interest of defendants No.1 to 7 (Set No.3) purchased mortgagees' rights over the ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 7 suit land by paying mortgage debt/money amounting to Rs.466/- vide registered deed No.86 on 08.06.1951. Thus, Gulzar Singh became mortgagee with possession vide .
mutation No.104, dated 09.08.1951, i.e. the date he entered on the possession of the suit land.
2(i)(c). Set No.3 (Defendants No.1 to 7):-
Mortgagees' rights over the suit land were purchased by Gulzar Singh, predecessor-in-interest of defendants No.1 to 7, namely:-
1. Santa Singh S/o Gulzar Singh
2. Harbhajan Kaur D/o Gulzar Singh
3.
Krishan Kaur D/o Gulzar Singh
4. Amarjeet Singh, GS of Gulzar Singh
5. Surjeet Singh, GS of Gulzar Singh
6. Harjeet Singh S/o Lakhbir Singh
7. Kamaljeet Kaur W/o Lakhbir Singh 2(i)(d). The case of the plaintiffs was that set No.3 (defendants No.1 to 7) had earned many times more profit than the mortgaged money from the mortgaged land. Set No.3 was not entitled to any more amount at the time of restoration of possession of the suit land to the plaintiffs (set No.1) as per Section 8 of the Himachal Pradesh Debt Reduction Act, 1976 (in short 'Debt Act'). That there was no limitation under the Debt Act for redemption of mortgage and redeeming the property. That mortgage could be redeemed at any time under the said Act. The mortgaged ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 8 amount paid by set No.3 to set No.2, the mortgage debt of plaintiffs (set No.1), falls under the definition of loan under the Debt Act. The plaintiffs also alleged that cause of action .
had accrued to them from the date of execution of the mortgage deed/attestation of mutation, i.e. 08.06.1951 and 09.08.1951, respectively. It was stated to be continuing at the time of filing of the civil suit on 21.05.2007. With these basic averments, the plaintiffs filed the civil suit seeking decree for restoration of possession of the suit land measuring 32-5 r bighas as described above. In the alternative, a decree for possession on the strength of title was also prayed for.
2(ii). In the written statement filed on behalf of Set No.3, preliminary objections of suit being barred by limitation and the plaint disclosing no cause of action were taken. On merits, Set No.3 did not dispute that they were legal heirs and successors of deceased Gulzar Singh. They also did not dispute that Gulzar Singh had paid the mortgage amount to Set No.2 (defendants No.8 to 18). They refuted the contentions of Set No.1 (plaintiffs) that they were not entitled for the mortgaged money. The other defendants filed separate written statement almost on similar grounds.
::: Downloaded on - 15/07/2022 20:03:29 :::CIS 92(iii). The matter reached the stage of arguments. An application was moved by Set No.3 on 16.04.2012 for leading additional evidence. The application was allowed.
.
The matter was again fixed for arguments. Again an application was moved by Set No.3 for leading additional evidence in form of documents. This application was dismissed by the learned Trial Court on 04.03.2013. Hence, instant petition.
3. Contentions:-
3(i). Sh. Karan Singh Kanwar, learned counsel for the petitioners (some of the defendants from Set No.3) contended that Set No.3 wanted to place on record documents establishing that Jawahar Singh S/o Sh. Diwan Singh-Grandfather of Set No.1 (plaintiffs) had mortgaged the suit land in favour of one Phillo on 19.01.1910. Heirs of Phillo, namely Dulla, Abrahim and Husandeen created mortgage in favour of Amar Singh and Hazoor Singh sons of Chuhar Singh (Set No.2) on 19.06.1944. Learned counsel submitted that it was from Set No.2 that the suit land had come to Set No.3. That the documents in respect of creation of mortgage deeds dated 19.01.1910 and 19.06.1944 would have established that the suit filed by the plaintiffs (Set No.1) was barred by limitation. The plea of limitation had ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 10 already been set up by Set No.3 in its written statement.
These documents would have demonstrated that the mortgage of the suit property was first created in 1910, .
whereas the plaintiffs had started the events in their plaint from 1951 onwards. Another contention raised was that the plaintiffs in alternative, had claimed relief of possession on the strength of title. The new documents sought to be placed on record by Set No.3 would have gone to show that the mortgaged land had already changed hands in the intervening period. The plaintiffs had lost their title over the suit land, therefore, they were not entitled to the alternative prayer as well. Learned counsel argued that the documents being material, should have been allowed to be produced in evidence. Learned Trial Court erred in rejecting petitioners' (Set No.3) application moved under Order 8 Rule 1A(3) CPC.
3(ii). Ms. Devyani Sharma, learned counsel for the plaintiffs (Set No.1) argued that the suit was already at the stage of arguments when Set No.3 had moved the application for producing additional evidence in form of documents. Set No.3 did not exercise due diligence. No cogent explanation was furnished as to why the documents sought to be produced by them at the fag end of trial could not be produced earlier. It was also argued that the ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 11 documents intended to be produced by Set No.3 were wholly irrelevant for deciding the controversy raised by Set No.1 (Plaintiffs). It was also submitted that under the guise .
of moving the application under Order 8 Rule 1 (3-A) CPC for producing additional record, an altogether new plea in respect of plaintiffs' lack of title was being attempted to be raised by Set No.3, which was not permissible. Learned counsel also argued that filing of the present petition was an abuse of the process of the Court and that such application was not even maintainable under Article 227 of the Constitution of India.
4. I have heard learned counsel for the parties and gone through the case file.
5. Observations:-
The application was moved under Order 8 Rule 1A(3) CPC, which reads as under:-
"1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.- (1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter- claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.::: Downloaded on - 15/07/2022 20:03:29 :::CIS 12
(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents-
.
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory."
I. Due diligence:-
It will be pertinent to take note of following observations regarding late production of documents made in (2013) 14, SCC 1, titled Bagai Constructions Vs Gupta Building Material Store, in reference to Order 18 Rule 17 and Section 151 CPC:-
"15. After change of various provisions by way of amendment in CPC, it is desirable that the recording of evidence should be continuous and followed by arguments and decision thereon within a reasonable time. This Court has repeatedly held that courts should constantly endeavour to follow such a time schedule. If the same is not followed, the purpose of amending several provisions in the Code would get defeated. In fact, applications for adjournments, reopening and recalling are interim measures, could be as far as possible avoided and only in compelling and acceptable reasons, those applications are to be considered. We are satisfied that the plaintiff has filed d those two applications before the trial court in order to overcome the lacunae in the plaint, pleadings and evidence. It is not the case of the plaintiff that it was not given adequate opportunity. In fact, the materials placed show that the plaintiff has filed both the applications after more than sufficient opportunity had been granted to it to prove its case. During the entire trial, those documents have remained in exclusive possession of the plaintiff, still e the plaintiff has not placed those bills on record. It further shows that final arguments were heard on a number of times and the judgment was ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 13 reserved and only thereafter, in order to improve its case, the plaintiff came forward with such an application to avoid the final judgment against it. Such course is not permissible even with the aid of Section 151 CPC."
.
Admittedly, the suit was at the stage of arguments when Set No.3 moved the application in question for producing additional documents. The only reason put forth by Set No.3 for delayed production of documents is that they became aware about the existence of documents in question only when the old record was got searched by them through their Advocate in the office of Sub-Registrar, Paonta Sahib. The assigned reason leads to the question as to why the petitioners (Set No.3) got their Advocate to examine the old record, that too specifically of the years 1910 and 1944. The obvious reason perhaps is that Set No.3 was aware of existence of these documents from the very beginning and it is for this reason that the record specific to the years 1910 and 1944 was allegedly got searched by them through their Advocate. The fact can also not be lost sight of that Gulzar Singh, Predecessor-in-
interest of Set No.3 is stated to be the Grandson of Jawahar Singh, who is also the Grandfather of Set No.1. Therefore, it is even otherwise difficult to believe that Set No.3 was not aware of the existence of the documents at the time of filing ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 14 of the written statement. Additionally, the application does not give any date as to when Set No.3 got the old record searched in the office of Sub-Registrar, Paonta Sahib, .
District Sirmour as alleged by them. It is also an admitted fact that Set No.3 had previously also moved an application for leading additional evidence on 16.04.2012. That application was allowed. Had Set No.3 exercised due diligence even at that time, they could have made the prayer contained in the present application at that time.
Looking from any angle, there is, thus, no escape from the conclusion that Set No.3 did not exercise due diligence at all in moving the concerned application.
II. Relevancy of Documents:-
The mortgage deeds sought to be placed on record by Set No.3 pertain to the years 1910 and 1944.
According to the learned counsel for Set No.3 (present petitioners), these two documents would go on to prove that the suit filed by Set No.1 was beyond limitation and that Set No.1 had lost title over the suit land.
II(a). In the facts of the case, learned Trial Court was justified in observing that the documents sought to be placed on record by Set No.3 were totally irrelevant for deciding the issues raised by Set No.1 in their plaint. The ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 15 civil suit was filed on the strength of mortgage deed dated 08.06.1951. In case the suit was to be filed within the limitation period of thirty years as contended by Set No.3, .
then the suit filed on 21.05.2007 would have been barred even if the starting point of limitation is construed from 1951. The documents pertaining to the years 1910 and 1944 sought to be produced now would not add any impact on the plea of limitation.
II(b). Otherwise also, the suit was filed under the provisions of the H.P. Debt Reduction Act. Hon'ble Apex Court in Kanshi Ram and another Versus Lachhman (Dead) through LRs and others, AIR 2001 SC 2393, has held that there is no period prescribed for redemption of mortgage under the H.P. Debt Reduction Act. Relevant observations from the judgment regarding this are as under:-
"16. In the backdrop of the above the question of limitation is to be considered. The reason given by the High Court in support of the finding that the suit was barred by limitation is that more than 30 years had elapsed since the date of the mortgage (February, 1946) when the suit was filed in 1981. Therefore the mortgagor had lost his right to redeem the property mortgaged. The provisions in Section 27 of the Limitation Act have been considered in support of the finding. This reasoning appears to us to be fallacious. It defeats the object and the purpose of the statute enacted by the legislature specially to give relief to debtors in the State. The first appellate Court had given cogent reasons in support of its finding in favour of the appellants. The Court held and in our ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 16 view, rightly that the suit was one for recovery of possession from the mortgagee who was in unauthorised possession of the mortgaged property after the mortgage loan was satisfied. The cause of action for filing such a suit under the Act arose when the enactment was enforced in 1979. Viewed from that .
angle the suit was filed in time and the trial Court and the first appellate Court rightly recorded the findings to that effect. The High Court erred in reversing the concurrent finding of the Courts below on the erroneous assumption that the suit was one for redemption of the mortgage simpliciter. It is relevant to note here that the present suit is not one filed under Section 60 or 62 of the Transfer of Property Act. It is a suit filed for relief on the basis of the Himachal Pradesh Debt Reduction Act 1976."
II(c). It is also not in dispute that the mortgage in question was a usufructuary mortgage in terms of Section 58(d) of the Transfer of Property Act, 1882. In (2014) 9 SCC 185, titled Singh Ram (Dead) through Legal Representatives Versus Sheo Ram and others, the Hon'ble Supreme Court held that mere expiry of period of 30 years from the date of creation of the mortgage does not extinguish the right of mortgagor to recover possession under Section 62 (pertaining to usufructuary mortgage) of the Transfer of Property Act. Relevant para is as follows:-
"12. A perusal of the above provisions shows that Article 61 refers to the right to redeem or recover possession. While right of mortgagor to redeem is dealt with under Section 60 of the TP Act, the right of usufructuary mortgagor to recover possession is specially dealt with under Section 62. Section 62 is applicable only to usufructuary mortgages and not to any other mortgage. The said right of usufructuary mortgagor though styled as "right to recover possession" is for all purposes, right ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 17 to redeem and to recover possession. Thus, while in case of any other mortgage, right to redeem is covered under Section 60, in case of usufructuary mortgage, right to recover possession is dealt with under Section 62 and commences on payment of mortgage money out of the usufructs or partly out of the usufructs and partly .
on payment or deposit by the mortgagor. This distinction in a usufructuary mortgage and any other mortgage is clearly borne out from provisions of Sections 58, 60 and 62 of the TP Act read with Article 61 of the Schedule to the Limitation Act. Usufructuary mortgage cannot be treated at par with any other mortgage, as doing so will defeat the scheme of Section 62 of the TP Act and the equity. This right of the usufructuary mortgagor is not only an equitable right, it has statutory recognition under Section 62 of the TP Act. There is no principle of law on which this right can be defeated. Any contrary view, which does not take into account the special right of usufructuary mortgagor under Section 62 of the TP Act, has to be held to be erroneous on this ground or has to be limited to a mortgage other than a usufructuary mortgage. Accordingly, we uphold the view taken by the Full Bench that in case of usufructuary mortgage, mere expiry of a period of 30 years from the date of creation of the mortgage does not extinguish the right of the mortgagor under Section 62 of the TP Act."
In Civil Appeal No.89 of 2012, titled Harminder Singh (D) Thr. LRs Versus Surjit Kaur (D) Thr. LRs & Ors., the mortgage was not redeemed by the mortgagor within a period of thirty years. The mortgagee filed a suit for declaration that she had become the owner after extinguishment of the mortgagor's rights and also for permanent injunction. Her suit was decreed by the learned Trial Court. Such decree was affirmed by the learned First Appellate Court. In second appeal, the suit was dismissed ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 18 by the High Court relying upon a judgment of the Hon'ble Apex Court in (1999) 2 SCC 679, titled Sampooran Singh Versus Niranjan Kaur. While dismissing the appeal .
preferred by the mortgagee, the Hon'ble Apex Court held as under:-
"After the judgment was rendered by the Single Judge Bench, the Full Bench of the Punjab and Haryana High Court in 'Ram Kishan & ors. Vs. Sheo Ram & ors.' Reported in AIR 2008 P&H 77 held that once a usufructuary mortgage is created, the mortgagor has a right to redeem the mortgage at any point of time on the principle that once a mortgage always a mortgage. Such judgment was affirmed by this Court in 'Singh Ram (Dead) Through Legal Representatives Vs. Sheo Ram & ors.' reported in (2014) 9 SCC 185."
II(d). No plea was taken by Set No.3 refuting title of the plaintiffs over the suit land. Under the pretext of producing new documents, Set No.3 cannot be allowed to take up a new plea at the stage of arguments, which was not raised by them in their written statement.
From the above, it is evident that the documents sought to be produced by the defendants (Set No.3) were not at all necessary for the adjudication of the lis.
III. Maintainability of Petition under Article 227 of the Constitution of India:-
It would be beneficial to refer here to (2022) 4 SCC 181, titled Garmet Craft vs Prakash Chand Goel, wherein the nature and scope of exercise of supervisory ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 19 jurisdiction under Article 227 was reiterated. The Hon'ble Apex Court held that while exercising supervisory jurisdiction under Article 227 of the Constitution of India, .
the High Court does not act as a Court of First Appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. Power under Article 227 is to be exercised where there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly came to such a conclusion arrived at by the Courts below. Relevant paras of the judgment read as under:-
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 20 reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 .
has observed: (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is rrestricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
In the instant case, learned Trial Court has exercised the jurisdiction in accordance with law while considering and deciding the application under Order 8 Rule 1 (3-A) of the Code of Civil Procedure. The observations made in the order are based upon ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 21 appreciation of facts and law. The same cannot be held out as perverse.
IV. Abuse of process of Court:-
.
Hon'ble Apex Court in (2011) 8 SCC 249, titled Ramrameshwari Devi and others Versus Nirmala Devi and others, has cautioned against uncalled for and frivolous litigation and emphasized upon taking following steps:-
"52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:
A. Pleadings are the foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Code. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at 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. D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 22 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 concerned parties 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 endeavor 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 complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed."
Any attempt by a litigant to abuse the process of the court must be viewed with disfavour. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 23 the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a .
misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth........................ Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure.r Productive resources which should be deployed in the handling of genuine cases are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay [Re: (2017) 5 SCC 496, titled Dnyandeo Sabaji Naik and another Versus Pradnya Prakash Khadekar and others].
In SLP(C) No.11030/2022, titled Charu Kishor Mehta Versus Prakash Patel & Ors., decided on 22.06.2022, while upholding the order passed by the Bombay High Court dismissing the appeal with costs of Rs.5 Lakhs, Hon'ble Apex Court reiterated its earlier observations in (2010) 2 SCC 114, titled Dalip Singh Vs. State of Uttar Pradesh and Others and (2014) 8 SCC ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 24 470, titled Subrata Roy Sahara Vs. Union of India, as under:-
"19. The Supreme Court in Dalip Singh Vs. State of Uttar Pradesh and Others, reported in (2010) 2 SCC 114 has .
this to say for methods adopted at the hands of litigants under similar circumstances. Paragraph nos.1 and 2 as produced below:
"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 justice delivery system which was in vogue in 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 the 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."
20. We may record here that we were initially persuaded in this case, to initiate contempt proceedings against the Petitioner, considering that there has been a deliberate attempt on her part in the non-disclosure of absolutely relevant facts before this Court. We are not doing so purely due to the age of the Petitioner as she is a lady of 78 years of age. The present petition is no doubt an abuse of the process of law and has caused harm to the other parties to the litigation, some of whom may have been needlessly drawn into the litigation. We may refer ::: Downloaded on - 15/07/2022 20:03:29 :::CIS 25 here an observation given in the case of Subrata Roy Sahara Vs Union of India (2014) 8 SCC 470:
"191. The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-
.
considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part."
The facts of the case make it loud and clear that the petitioners (Set No.3) have unnecessarily delayed the conclusion of the civil suit. Repeated applications one after the other have been moved for leading additional evidence at the stage of arguments. Apart from suffering with complete lack of diligence, the application in question in the present petition was totally frivolous. The documents sought to be produced at the stage of arguments were irrelevant to the controversy involved and do not leave any impact on the defence set up in the written statement of the petitioners (Set No.3). An altogether new defence not put forth in the written statement, in the facts of the case, cannot be allowed at the stage of arguments. The civil suit instituted in the year 2007 and at the stage of arguments in the year 2013, because of concocted and incoherent pleas of the petitioners (Set No.3), is still at that stage. Petitioners have abused process of Court.
::: Downloaded on - 15/07/2022 20:03:29 :::CIS 26In view of above discussion, present petition is dismissed with costs of Rs.25,000/-. The costs be paid by the petitioners to the plaintiffs before the learned Trial .
Court. Parties through learned counsel, are directed to appear before the learned Trial Court on 01.08.2022.
It is, however, clarified that above order shall remain confined to the adjudication of the present petition and shall have no bearing on the merits of the matter.
Learned Trial Court shall decide the main matter on its own merit without being influenced by any of the observations made above.
Jyotsna Rewal Dua
July 15, 2022 Judge
Mukesh
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