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7. To recapitulate the approach adopted by the Appellate Court, it could be seen from the judgment under challenge that, the Appellate Court first examined the issue as to whether the suit filed by the petitioners against respondent No. 3 was a false suit and the petitioner had obtained fraudulent decree against the fictitious person for deciding the said issue against the petitioner. The Appellate Court has considered various circumstances to indicate that the suit was false suit and the decree obtained was fraudulent one being against a fictitious person. The Appellate Court has taken into account the manner of service of writ of summons on defendant - judgment debtor and the fact that the judgment debtor neither resisted the suit notice not the suit or the notice under Order XXI Rule 22, on the contrary he was conveniently available to the petitioner for effecting service of notice on him whenever required. The Appellate Court also noted that inspite of assurance given by the petitioner that he would produce respondent No. 3 before the Court in execution proceedings, he did not do so. Besides these circumstances, the Appellate Court has taken into account the variance in the signatures as well as the names found at different places in the records before the Executing Court coupled with the fact that although the petitioner had originally filed the suit against the judgment debtor on the ground of default as also on the ground of unlawful subletting but suit was pressed only on the ground of default and no evidence was led with regard to the ground of unlawful subletting. Moreover, the Appellate Court has taken into account the fact that the petitioner has admitted in his evidence in the obstructionist notice that the respondent No. 2 came to occupy the suit premises in the year 1974. It has also come on record that the respondent No. 2 was sought to be dispossessed by the petitioner and pursuant to the order passed by Tahsildar, Andheri, possession of the suit premises was restored to the respondent No. 2 some time in 1977. Notwithstanding the abovcsaid position and the admission of the petitioner, the petitioner did not implead the respondent No. 2 in a suit filed before the Small Causes Court in the year 1979. The Appellate Court has also considered all the documentary evidence as well as oral evidence adduced by the parties to conclude that the same would indicate that the possession of the suit premises was with respondent No. 2 in his own rights Inasmuch as the registration certificate under the Shops and Establishment Act Issued in the year 1967, compensation receipts for the compensation paid by the respondent No. 2 to the Corporation showing period from January 1976 onwards which would indicate that the respondent No. 2 was doing his business, the fact that the petitioner knew and had knowledge and has admitted possession of the respondent No. 2 in respect of the suit premises since the year 1974. All these circumstances would clearly indicate that the respondent No. 2 was in possession of the suit premises in his own rights. The Appellate Court has also considered the two documents which were relied by the Executing Court to rule in favour of the petitioner that he is the owner in respect of the chawl including the suit premises. The Appellate Court has found that the case regarding description of the property has been inconsistent inasmuch as the description mentioned in the plaint does not match with the description of the property given in the documents relied upon by the petitioner but the same would match with the stand taken by the respondent No. 2. The Appellate Court has observed that the assessment bill produced by the petitioner indicates the description of the property as "K-1992 (2A) 2A Government Sahar Scheme Tiled shed" and the petitioner has been shown as occupier of the said property. The Appellate Court has rightly observed that there is no evidence to show that the tiled shed recorded in the said document corresponds to the premises in question or it refers to the Bengali Chawl or some other shed. In other words the petitioner had failed to prove the identity of the said tiled shed with the suit premises. With regard to the property register card, the Appellate Court has rightly observed that it describes the property as Survey No.7 and holder of the said property the origin of the title has traced to the Bishop of Bombay and the petitioner's name appeared in the column of encumbrances. Entry in that behalf has been recorded on 25.2.1978 showing him as the owner of the structure. The Appellate Court has rightly observed that on comparing the two documents relied upon by the petitioner it is not possible to countenance that they pertained to one and the some properly. On the other hand, the assessment bill indicates the properly relating to Government Sahar Scheme whereas the property indicated in the regisler card is the property belonging to Bishop of Bombay and that the petilioner has been shown as owner of the structure standing thereon. Besides this there is nothing on record that the structures referred to in the said document correspond with the Bengali Chawl stated to be owned by the petitioner on which the suit premises are situaled. The Appellate Court has therefore rightly observed that the petitioner has not produced any title deed in respect of the land on which the said structure is standing. Thus the Appellate Court, on comparig the evidence adduced by both the parties, preferred to accept the version of the respondent No. 2 that he is in possession of the suit premises in his own rights which was supported by the evidence on record. These findings of fact cannot be upset and in fact the learned Counsel for the petitioner has not been able to successfully assail the said findings recorded by the Appellate Court.
8. On careful examination of the materials on record, I have no hesitation in taking the view that this is one of those cases where the litigant (petitioner) has engaged in sharp practice and made calculated moves with ulterior design so as to evict the respondent No. 2 who was in possession of the suit prtemises, by instituting a false suit against respondent No. 3 on the premise that he was his tenant in respect of the suit premises; notwithstanding the fact that the petitioner had full knowledge at the time of institution of the said suit that it was respondent No. 2 who was in physical possession and occupation of the suit premises. The various circumstances which would justify the finding that the petitioner has abused the process of Court can be summarised are as under :
It is not in dispute that the respondent No.2 was dispossessed by the petitioner from the subject premises, which matter was enquired into by the Tahsidlar. Andheri who ordered restoration of possession of the premises to respondent No. 2. Undisputedly, this proceedings were allowed to attain finality by the petitioner. The petitioner has advisedly made no reference to the abovesaid proceedings which were anterior in point of time to the suit filed in the year 1979 against respondent No. 3 Mr. Mohamed Chand Amirulla. Whereas, the suit proceeds on the premise that legal notice was Issued to the defendant-respondent No. 3 on 15.7.1979 and the same has been duly served on him on the address of the suit premises: that inspite of this notice, the defendant-respondent No. 3 did not pay the arrears of rent and therefore committed default within the meaning of Section 12 of the Bombay Rent Act. The other ground asserted in the suit is that the defendant- respondent No. 3 had unlawfully sublet the suit premises, albeit without mentioning the name of the respondent No. 2 as unlawful occupant. It is also relevant to note that suit summons are stated to be duly served on the defendant respondent No. 3 but even then, the defendant did not resist the suit and allowed it to go ex parte. Further it is intriguing to note that the defendant was conveniently available to the petitioner for effecting service of notice under Order XXI Rule 22, but even that notice was not contested by the defendant. The evidence on record indicates that there is variance in the name of the defendant on different documents as also in his acknowledgment of the notice. Interestingly, the petitioner did not pursue the suit with regard to the ground of unlawful subletting, but led evidence only in respect of the ground of default for the reasons best known to him. According to the petitioner, unlawful subletting was done recently in the year 1973-74, this period obviously corresponds with the period when the respondent No. 2 is stated to have obtained possession of the premises in question. The petitioner has not produced any evidence on record to show that the defendant-respondent No. 3 herein was the tenant and was occupying the suit premises in that capacity. Moreover, the description of the suit premises in the plaint does not match with the record and the evidence adduced by the petitioner. On the other hand the record would indicate that the respondent No. 2 was doing business in the premises in question at least since June 1974 and that the petitioner has admitted this position in his evidence. It is also not in dispute that criminal case is pending against the petitioner for having committed criminal trespass in the suit premises. Although the petitioner gave assurance during the evidence that he would produce the defendant- respondent No. 3 before the Court, he has not done so. As observed by the Appellate Court there is clear variance in the description of the suit premises in the suit notice, plaint, evidence including the documentary evidence. All these circumstances considered together would leave no manner doubt that the petitioner had filed a false suit with ulterior designs thereby indulged in abuse of the process of the Court. I have no hesitation in concluding that petitioner not only filed false and frivolous claim but also modulated the records to subserve his ulterior design.
12. In my view the petitioner has not only filed frivolous and vexatious suit and modulated records to subserve his ulterior design, but had the audacity to take out obstructionist notice after the decree was obstructed by the respondent No. 2 No doubt, the petitioner succeeded before the first Court, but in appeal, the Appellate Court has considered all the relevant matters which were overlooked by the first Court and rightly concluded that the suit filed by the petitioner was a false suit and the petitioner had obtained a fraudulent decree. Notwithstanding this finding, the petitioner has chosen to approach this Court by way of present writ petition. In that sense, the petitioner has not only consumed precious Judicial time of the Courts below but also engaged this Court by reiterating his frivolous and vexatious plea. There can be no doubt that to defend all these proceedings the respondent Nos. 1 and 2 must have spent their fortune and therefore it would be traversity of justice to compensate the said respondents only by awarding the limited amount quantified by Section 35A of the Code of Civil Procedure. Since the petitioner had the audacity to approach this Court in writ jurisdiction, and, having polluted the justice delivery system and resultantly blocked the opportunity of genuine litigants who are waiting in queue for several years; and with a view to create deterring effect on such litigation, I would prefer to follow the dictum of the Apex Court in awarding exemplary and punitive costs to such litigants. Accordingly, taking over all view of the matter, I am satisfied that this is a fit case where exemplary and punitive costs to the extent of Rs. 25,000/- be awarded. The petitioner shall pay this amount within six months from the date of this order, failing which it will be open to the respondent No. 2 to get the amount recovered in execution. It is however made clear that it will be open to the respondents 1 and 2 to take recourse to such other remedy against the petitioner which may be permissible in law, including to demand further demages.