and Ors. Vs. Nirmala Devi and Ors.
Dalveer Bhandari, J.
appeals are directed against the judgment and order dated 01.09.2010 passed in
Civil Miscellaneous Petition (Main) No. 1084 of 2010 and the order dated 25.10.2010
passed in Review Petition No. 429 of 2010 in Civil Miscellaneous Petition (Main)
No. 1084 of 2010 by the High Court of Delhi at New Delhi.
apparent discernible question which requires adjudication in this case seems to
be a trivial, insignificant and small one regarding imposition of costs, but in
fact, these appeals have raised several important questions of law of great
importance which we propose to deal in this judgment. Looking to the importance
of the matter we requested Dr. Arun Mohan, a distinguished senior advocate to
assist this court as an Amicus Curiae.
is a classic example which abundantly depicts the picture of how the civil
litigation moves in our courts and how unscrupulous litigants (appellants in
this case) can till eternity harass the respondents and their children by abusing
the judicial system.
basic facts which are necessary to dispose of these appeals are recapitulated
the year 1952, almost about half a century ago, the government allotted a
residential house bearing nos. 61-62, I-Block, Lajpat Nagar-I, measuring 200
yards to Ram Parshad. The Lease Deed was executed in his favour on 31.10.1964.
humane considerations of shelter, Ram Parshad allowed his three younger brothers
- Madan Lal, Krishan Gopal and Manohar Lal to reside with him in the house. On
16.11.1977, these three younger brothers filed a Civil Suit No.993 of 1977 in the
High Court of Delhi claiming that this Lajpat Nagar property belonged to a joint
Hindu Family and sought partition of the property on that basis.
suit was dismissed by a judgment dated 18.01.1982 by the learned Single Judge of
the High Court of Delhi. The appellants (younger brothers) of Ram Parshad, aggrieved
by the said judgment preferred a Regular First Appeal (Original Side) 4 of 1982
which was admitted to hearing on 09.03.1982. During the pendency of the appeal,
Ram Parshad on 15.01.1992 filed a suit against his three younger brothers for
mandatory injunction to remove them and for recovery of mesne profits. In 1984
Ram Parshad sold western half (No.61) to an outsider. That matter is no longer
first appeal filed by the other three younger brothers of Ram Parshad against Ram
Parshad was dismissed on 09.11.2000. Against the concurrent findings of both of
the judgments, the appellants filed a Special Leave Petition No.3740 of 2001 in
this court which was also dismissed on 16.03.2001.
the suit filed by Ram Parshad (one of the respondents) (now deceased) against the
appellants in these appeals the following issues were framed:
the suit is liable to be stayed under Section 10 CPC as alleged in para no.1 of
defendants are licencees in the suit premises and if so whether the plaintiff is
entitled to recover possession of the same from them?
suit of plaintiff is time barred?
suit has been properly valued for the purpose of court fees and jurisdiction?
the suit property is joint family property of parties?
the plaintiff is entitled to mesne profits for use and occupation of the suit property
by the defendants and if so at what rate and for which period?
defendants have become the owner of three- fourth share of the suit property by
fixed the matter for evidence on 22.11.2004.
defendants in the suit contended that inasmuch as Regular First Appeal (Original
Side) 4 of 1982 was still pending, therefore, Ram Parshad's suit be stayed under
section 10 of the Code of Civil Procedure. Accepting the contention, on 20.07.1992,
the 1992 suit was ordered to be stayed.
Regular First Appeal was dismissed on 9.11.2000 and the Special leave petition
against the said appeal was also dismissed on 16.3.2001. Consequently, the suit
filed by Ram Parshad for mandatory injunction and for mesne profit stood
revived on 05.12.2001.
the first round of litigation from 16.11.1977 to 16.3.2001 it took about twenty
four years and thereafter it had taken 10 years from 16.3.2001. In the 1992 suit,
the defendants (appellants herein) sought amendment of the written statement
which was refused on 28.07.2004. Against this order, a Civil Miscellaneous
(Main) 1153 of 2004 was filed in the High Court which was disposed of on
02.09.2004 with liberty to move an application before the trial court for
framing an additional issue. The additional issue regarding the claim of adverse
possession by the three younger brothers was framed on 6.10.2004. The issue was
whether the defendants have become the owner of three-fourth share of the suit
property by adverse possession and the case was fixed up for recording of the evidence.
According to the learned Amicus Curiae, the court before framing Issue Number 7
and retaining the other issues, ought to have recorded the statement of
defendants under Order 10 Rule 2 of the Code of the Civil Procedure (for short,
CPC) and then re-cast the issues as would have been appropriate on the
pleadings of the parties as they would survive after the decision in the
to the learned Amicus Curiae, the practice of mechanically framing the issues needs
to be discouraged. Framing of issues is an important exercise. Utmost care and
attention is required to be bestowed by the judicial officers/judges at the time
of framing of issues. According to Dr. Arun Mohan, twenty minutes spent at that
time would have saved several years in court proceedings.
the suit, on 6.11.2004 the application seeking transfer of the suit from that court
was filed which was dismissed by the learned District Judge on 22.3.2005. The
trial commenced on 22.11.2004, adjournment was sought and was granted against costs.
The plaintiffs' evidence was concluded on 10.2.2005.
28.5.2005 the defendants failed to produce the evidence and their evidence was closed.
Against that order, Civil Miscellaneous (Main) 1490 of 2005 was filed in the
Delhi High Court. Stay was granted on 15.7.2005 and the application was
dismissed on 17.12.2007 with liberty to move an application for taking on
record further documents.
12.2.2008, an application under Order 18 Rule 17A of the CPC was moved. On `No
Objection' from the plaintiff, it was allowed on 31.7.2008 and the documents and
affidavits were taken on record. On 23.10.2009, the matter was fixed for
evidence. The appellants filed an application under Order 7 Rule 11 (b) of the
CPC for rejection of the 1992 plaint on the ground of not paying ad valorem court
fees on the market value of property and for under-valuation of relief. This
application was dismissed by the Civil Judge on 09.07.2010 by the following
Present : Ld. Counsel for plaintiff Ld. Counsel for defendant Application under
section 151 CPC is filed by defendant for treating Issue No.4 as preliminary issue.
It pertains to court fees and jurisdiction. It is pertinent to mention that suit
is at the stage of final arguments and both the parties have led the entire
evidence. Ld. Counsel for defendant submits that this application has been
filed by the defendant in view of the liberty granted to the defendant by the Hon'ble
High Court vide order dated 26.4.2010 dismissing the Civil Revision Petition application
no.76/10 as withdrawn against the order dated 12.10.2006 passed by this court. It
is pointed out to the counsel for defendant that case is at the stage of final arguments
and law enjoins upon the court to return finding on all the issues. Counsel for
the defendant filing this application seeks disposal of the same. Perused the application
and gone through record. Order 20 Rule 5 clearly states that court has to
return finding on each issue.
Even Order 14 Rule 2 CPC
states that the court has to pronounce the judgment on all issues notwithstanding
that the case may be disposed off on preliminary issue. Sub Rule 2 refers to the
discretion given to the court where the court may try issue relating to the
jurisdiction of the court or the bar to the suit created by any law for the
time being in force as preliminary issue. It further relates to disposal of the
suit treating these points as preliminary issues and also relates to deferring
the settlement of other issues. But there is no such case.
Entire evidence has
been led, the matter is at the stage of final arguments and the point raised
does not relate to the point pertaining to Sub Rule 2. Neither it relates to bar
created by any law nor the jurisdiction of the court to entertain the suit. It
is averments made in the plaint. Contention of the applicant for treating the
issue as preliminary issue is against the spirit of law as referred in Order 20
Rule 5 and Order 14 Rule 5 CPC. I do not see any merit in this application and the
same is dismissed with the costs of Rs.2000/-. To come up for payment of cost
and final arguments.
Put up on 09.08.2010
by the order dated 23.10.2009, the defendants (appellants herein) preferred a
Civil Revision Petition No.76 of 2010 in the High Court of Delhi. At the preliminary
hearing, the petition was allowed to be withdrawn, leaving the trial court at liberty
to consider the request of the appellants to treat Issue Number 4 regarding court
fee as a preliminary issue.
09.07.2010, the defendants filed an application before the Civil Judge for treating
Issue Number 4 as a preliminary issue. This application was rejected by the Civil
Court on 9.7.2010 with costs. The matter is at the stage of final arguments before
the trial court. At this stage, against the order of the Civil Judge, on 7.8.2010,
the appellants filed a petition being Civil Miscellaneous (Main) No.1084 of 2010
under Article 227 of the Constitution in the High Court which came up for
preliminary hearing on 26.8.2010. On 1.9.2010, the High Court dismissed the Civil
Miscellaneous (Main) No.1084 of 2010 by a detailed judgment rendered at the
preliminary hearing and imposed cost of Rs.75000/- to be deposited with the
Registrar General. Review Petition No. 429 of 2010 was filed which was
dismissed on 25.10.2010.
appeals have been filed against the order imposing costs and dismissing the
learned Single Judge observed that the present appellants belong to that category
of litigants whose only motive is to create obstacles during the course of
trial and not to let the trial conclude. Applications after applications are
being filed by the appellants at every stage, even though orders of the trial court
are based on sound reasoning. Moreover, the appellants have tried to mislead the
court also by filing wrong synopsis and incorrect dates of events.
High Court further observed that the purpose of filing of brief synopsis with list
of dates and events is to give brief and correct summary of the case and not to
mislead the court. Those litigants or their advocates who mislead the courts by
filing wrong and incorrect particulars (the list of dates and events) must be
dealt with heavy hands.
the list of dates and events, it is stated that the respondents filed a suit
for mandatory injunction and recovery of Rs.36,000/- on 22nd September, 2003. In
fact, as per typed copy of the plaint placed on record, the suit was filed by the
predecessor-in-interest of the respondents in 1992. Written statement was filed
by the predecessor-in-interest of the appellants in 1992. Thus, the appellants
tried to mislead the court by mentioning wrong date of 22nd September, 2003 as
the date of filing.
High Court has also dealt with number of judgments dealing with the power of
the High Court under Article 227 of the Constitution. According to the High Court,
the suit was filed in the trial court in 1992. The written statement was filed
as far back on 15th April, 1992. On pleadings, Issue Number 4 was framed with regard
to court fee and jurisdiction. The appellants never pressed that Issue Number 4
be treated as a preliminary issue. Both the parties led their respective
evidence. When the suit was fixed before the trial court for final arguments, application
in question was filed. The appellants argued that Issue Number 4 would also be
determined along with other issues.
the impugned judgment, it is also observed that it is revealed from the record
that the appellants have been moving one application after the other, though
all were dismissed with costs.
may be pertinent to mention that the appellants also moved transfer application
apprehending adverse order from the trial judge, which was also dismissed by the
learned District Judge. This conduct of the appellants demonstrates that they
are determined not to allow the trial court to proceed with the suit. They are creating
all kinds of hurdles and obstacles at every stage of the proceedings.
learned Single Judge observed that even according to Order 14 Rule 2 CPC the
court has to pronounce the judgment on all issues notwithstanding that the case
may be disposed of on preliminary issue. Order 14 Rule 2 of the CPC is reads as
under: "ORDER XIV: SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES
OF LAW OR ON ISSUES AGREED UPON. ... ... ... ... ... ... 2. Court to pronounce
judgment on all issues:
(1) Notwithstanding that
a case may be disposed of on a preliminary issue, the Court shall, subject to
the provisions of sub-rule (2), pronounce judgment on all issues. ... ... ... ...
Rule 2 refers to the discretion given to the court where the court may try
issue relating to the jurisdiction of the court or the bar to the suit created by
any law for the time being in force as preliminary issue. It further relates to
disposal of the suit treating these points as preliminary issues and also
relates to deferring the settlement of other issues, but there is no such case.
The entire evidence has been led, the matter is at the stage of final arguments
and the point raised does not relate to the point pertaining to Sub Rule 2. Neither
it relates to bar created by any law nor the jurisdiction of the court to
entertain the suit. It is just an averment made in the plaint. Contention of
the appellants for treating the said issue as preliminary issue is against the
spirit of law as referred in Order 20 Rule 5 and Order 14 Rule 5 of the CPC. These
observations of the courts below are correct and in pursuance of the provisions
of the Act. The High Court properly analysed the order of the trial court and
observed as under:- "Looking from any angle, no illegality or infirmity can
be found in the impugned order. The only object of petitioners is just to delay
the trial, which is pending for the last more than 18 years. To a large extent,
petitioners have been successful in delaying the judicial proceedings by filing
false, frivolous and bogus applications, one after the other. It is well settled
that frivolous litigation clogs the wheels of justice making it difficult for courts
to provide easy and speedy justice to the genuine litigations. Dismissed List for
compliance on 7th October, 2010."
have carefully examined the impugned judgment of the High Court and also order dated
9.7.2010 passed by the learned Civil Judge, Delhi.
is abundantly clear from the facts and circumstances of this case that the appellants
have seriously created obstacles at every stage during the course of trial and
virtually prevented the court from proceeding with the suit. This is a typical
example of how an ordinary suit moves in our courts. Some cantankerous and
unscrupulous litigants on one ground or the other do not permit the courts to
proceed further in the matter.
learned Amicus Curiae has taken great pains in giving details of how the case
has proceeded in the trial court by reproducing the entire court orders of 1992
suit. In order to properly comprehend the functioning of the trial courts,
while dealing with civil cases, we deem it appropriate to reproduce the order sheets
of 1992 suit. This is a typical example of how a usual civil trial proceeds in
our courts. The credibility of entire judiciary is at stake unless effective
remedial steps are taken without further loss of time. Though original
litigation and the appeal which commenced from 1977 but in order to avoid
expanding the scope of these appeals, we are dealing only with the second litigation
which commenced in 1992.
The order sheets of
the suit of 1992 are reproduced as under :- Proceedings of Suit - 1992 17.01.1992
Summons to Defendants on plaintiff and RC 28.02.1992 Fresh summons to
Defendants 1 & 2. Defendant No. 3 refused service. Proceeded ex-parte 30.03.1992
Time sought to file Written Statement for all the Defendants. Allowed. 20.04.1992
Written Statement filed. Fixed on 30.04.1992 for replication, admission/denial and
framing of issues. 01.05.1992 Plaintiff sought time to file replication. 11.05.1992
Replication filed. Adjourned for admission/ denial on joint request. 26.05.1992
No document for admission/denial. Issues framed. Fixed for arguments on
17.07.1992. 17.07.1992 Arguments heard on preliminary issue. 20.07.1992 Suit
stayed. Plaintiff granted liberty to make application for revival after disposal
of RFA (OS) 4/82.01.06.2001 File sent to District Judge for transferring the case
to proper court.04.06.2001 District Judge marked to case to the court of Shri Naipal
Singh, Additional District Judge.02.07.2001 Presiding Officer is on vacation leave.
Fixed for 03.07.2001.03.07.2001 Miscellaneous application notice issued to the
Main Suit 47/92
summoned.23.08.2001 Suit file be summoned. Notice of application to Defendant on
PF & RC.16.10.2001 Copy of application given to all the Defendants. Adjourned
for reply to application and further proceedings.05.12.2001 Suit has to proceed
for the decision on merits.28.02.2002 Application under Order 6 Rule 17 moved
by Defendant for amendment of Written Statement. Adjourned for reply and arguments
on the application.16.04.2002 As the value of the suit is below 3 lakhs, the suit
transferred to the court of Civil Judge. 23.04.2002 Reply to application filed.
Summons to Defendants other than Defendant No. 3.21.08.2002 Counsel for the
parties not present.28.11.2002 Presiding Officer on leave.07.12.2002 At joint request,
adjourned. Last opportunity.22.09.2003 None present. Adjourned for arguments on
Order 6 Rule 17. File transferred to the court of Shri Prashant Kumar, Civil
Judge.12.11.2003 Son of the Plaintiff stated that the Plaintiff has expired. Adjourned.06.12.2003
Presiding Officer not available.16.01.2004 Copy of application under Order 22 Rule
3 supplied. As requested, adjourned.16.02.2004 Reply not filed. Counsel for the
Defendant seeks time to file reply.01.03.2004 Reply filed.
Counsel for the Defendant
objected that the addresses of Legal Representatives are not correct.24.03.2004
Application Order 22 Rule 3 is allowed. Right to sue survives. Order 6 Rule 17 pending
for disposal. 27.04.2004 Arguments heard.22.05.2004 Plaintiff wants to file written
submissions with regard to clarification. Allowed.03.07.2004 None for Defendants.
Written submissions filed by Plaintiff.28.7.2004 Present none. Order 6 Rule 17 dismissed.02.09.2004
None for Defendants. Fixed for PE to 06.10.200428.09.2004 Defendant moved application
Order 14 Rule 5. Notice issued.06.10.2004 Issues reframed. Defendant sought time
to cross-examine PW.22.11.2004 PW present. Defendant prayed for adjournment. Defendant
moved application for transfer of the case. Last opportunity for cross- examination.21.12.2004
PW present. Previous cost not pressed for. PW sought time for obtaining copies
of documents.10.02.2005 PW cross-examined. PE closed.15.03.2005 No DW
present19.04.2005 Affidavit of DW filed.
However DW stated that
he is not feeling well. Adjourned. 28.05.2004 Defendant stated that he does not
want to lead evidence. DE closed. Fixed for final arguments.15.07.2005 Stay by
the High Court in CM (Main) 1490/2005.18.07.2005 Counsel for the Defendant states
that the High Court has stayed the matter. Directed to file the copy of the
order.25.08.2005 No copy of the order is filed.29.10.2005 Matter under stay by
High Court.30.01.2006 Fresh suit received by transfer. Adjourned for proper
orders.02.05.2006 Notice to Defendants.31.05.2006 Counsel for the Defendants served
but none appeared. Adjourned for final arguments.21.08.2006 File not traceable.
Adjourned.09.12.2006 Present: Counsel for the plaintiff. Adjourned for final
arguments.19.02.2007 Counsel for the plaintiff. Proceedings stayed by the High Court.21.08.2007
Counsel for the Plaintiff. Matter under stay by the High Court.17.12.2007 CM
(Main) 1490/2005 dismissed by the High Court. Stay vacated.10.1.2008Counsel for
the Plaintiff. None for the Defendant. Adjourned.12.02.2008 Defendant filed application
Copy supplied. Adjourned
for reply and arguments.30.04.2008 Reply filed by the Plaintiff. Application allowed
to cost of Rs.7,000/-, out of which Rs.1,000/- to be deposited in Legal Aid. Adjourned
for DE.31.07.2008 Defendant sought adjournment on the ground that witness is not
feeling well.29.9.2008 Plaintiff moved application Order 6 Rule 17. Copy
supplied. 23.12.2008 Reply filed. Come up for arguments on the
application.21.5.2009 Part arguments heard.22.07.2009 Plaintiff does not press for
the application. Dismissed. To come up for DE.05.10.2009 Defendants witness not
present. Application for exemption allowed. Affidavit already filed.23.10.2009 Application
under Order 7 Rule 1 CPC filed. Dismissed. Affidavit of Kishan Gopal tendered as
DW1, and he is cross-examined and discharged. No other witness.
DE closed. 11.01.2010
Presiding Officer on leave. 23.03.2010 Defendant seeks adjournment on the ground
that main counsel not available. 3.5.2010 Adjournment sought on behalf of the
parties. 26.5.2010 File not traceable. 9.7.2010 Application under Section 151 CPC
for treating No. 4 as preliminary issue. Dismissed with cost of Rs.2,000/- 9.8.2010
Application for adjournment filed. 27.9.2010 Presiding Officer on leave. 23.10.2010
For final arguments. 18.12.2010 For final arguments. 22.1.2011 For final
arguments. 5.2.2011 For final arguments. 26.2.2011 Sought adjournment on the ground
that the matter regarding cost is pending in Hon'ble Supreme Court.
Arun Mohan, learned amicus curiae, has written an extremely useful, informative
and unusual book "Justice, Courts and Delays". This book also deals with
the main causes of delay in the administration of justice. He has also
suggested some effective remedial measures. We would briefly deal with the aspect
of delay in disposal of civil cases and some remedial measures and suggestions to
improve the situation. According to our considered view, if these suggestions are
implemented in proper perspective, then the present justice delivery system of civil
litigation would certainly improve to a great extent.
to the learned author, 90% of our court time and resources are consumed in attending
to uncalled for litigation, which is created only because our current
procedures and practices hold out an incentive for the wrong- doer. Those involved
receive less than full justice and there are many more in the country, in fact,
a greater number than those involved who suffer injustice because they have little
access to justice, in fact, lack of awareness and confidence in the justice
to Dr. Mohan, in our legal system, uncalled for litigation gets encouragement because
our courts do not impose realistic costs. The parties raise unwarranted claims
and defences and also adopt obstructionist and delaying tactics because the courts
do not impose actual or realistic costs. Ordinarily, the successful party usually
remains uncompensated in our courts and that operates as the main motivating factor
for unscrupulous litigants. Unless the courts, by appropriate orders or directions
remove the cause for motivation or the incentives, uncalled for litigation will
continue to accrue, and there will be expansion and obstruction of the
litigation. Court time and resources will be consumed and justice will be both
delayed and denied.
to the learned author lesser the court's attention towards full restitution and
realistic costs, which translates as profit for the wrongdoer, the greater
would be the generation of uncalled for litigation and exercise of skills for
achieving delays by impurity in presentation and deployment of obstructive
to him the cost (risk) - benefit ratio is directly dependent on what costs and penalties
will the court impose on him; and the benefit will come in as: the other
`succumbing' en route and or leaving a profit for him, or even if it is a fight
to the end, the court still leaving a profit with him as unrestituted gains or unassessed
short levied costs. Litigation perception of the probability of the other party
getting tired and succumbing to the delays and settling with him and the court ultimately
awarding what kind of restitution, costs and fines against him - paltry or realistic.
This perception ought to be the real risk evaluation.
to the learned Amicus Curiae if the appellants had the apprehension of imposition
of realistic costs or restitution, then this litigation perhaps would not have been
filed. According to him, ideally, having lost up to the highest court (16.03.2001),
the appellants (defendants in the suit) ought to have vacated the premises and moved
out on their own, but the appellants seem to have acted as most parties
do-calculate the cost (risk)-benefit ratio between surrendering on their own and
continuing to contest before the court. Procrastinating litigation is common place
because, in practice, the courts are reluctant to order restitution and actual
cost incurred by the other side.Profits for the wrongdoer
to the learned Amicus Curiae, every lease on its expiry, or a license on its revocation
cannot be converted itself into litigation. Unfortunately, our courts are
flooded with these cases because there is an inherent profit for the wrong-
doers in our system. It is a matter of common knowledge that domestic servants,
gardeners, watchmen, caretakers or security men employed in a premises, whose
status is that of a licensee indiscriminately file suits for injunction not to be
dispossessed by making all kinds of averments and may be even filing a forged
document, and then demands a chunk of money for withdrawing the suit. It is
happening because it is the general impression that even if ultimately unauthorized
person is thrown out of the premises the court would not ordinarily punish the unauthorized
person by awarding realistic and actual mesne profits, imposing costs or
is a matter of common knowledge that lakhs of flats and houses are kept locked
for years, particularly in big cities and metropolitan cities, because owners are
not certain that even after expiry of lease or licence period, the house, flat or
the apartment would be vacated or not. It takes decades for final determination
of the controversy and wrongdoers are never adequately punished. Pragmatic
approach of the courts would partly solve the housing problem of this country.
courts have to be extremely careful in granting ad-interim ex-parte injunction.
If injunction has been granted on the basis of false pleadings or forged documents,
then the concerned court must impose costs, grant realistic or actual mesne
profits and/or order prosecution. This must be done to discourage the dishonest
and unscrupulous litigants from abusing the judicial system. In substance, we
have to remove the incentive or profit for the wrongdoer.
granting ad interim ex-parte injunction or stay order the court must record
undertaking from the plaintiff or the petitioner that he will have to pay mesne
profits at the market rate and costs in the event of dismissal of interim
application and the suit.
to the learned Amicus Curiae the court should have first examined the pleadings
and then not only granted leave to amend but directed amendment of the pleadings
so that the parties were confined to those pleas which still survived the High
Court's decision. Secondly, it should have directed discovery and production of
documents and their admission/denial. Thirdly, if the civil judge on 6.10.2004,
which was three and a half years after the dismissal of the Special Leave Petition
on 16.3.2001, instead of framing the issues that he did, had, after recording
the statements of the parties and partially hearing the matter should have passed
the following order: "In my prima facie view, your pleadings are not sufficient
to raise an issue for adverse possession, secondly how can you contend adverse possession
of three-fourth share? And thirdly, your pleadings and contentions before the High
Court had the effect of completely negating any claim to adverse possession.
of issues is a very important stage in the civil litigation and it is the
bounden duty of the court that due care, caution, diligence and attention must be
bestowed by the learned Presiding Judge while framing of issues.
the instant case when the entire question of title has been determined by the High
Court and the Special Leave Petition against that judgment has been dismissed by
this court, thereafter the trial court ought not to have framed such an issue on
a point which has been finally determined upto this Court. In any case, the same
was exclusively barred by the principles of res judicata. That clearly
demonstrates total non-application of mind.
have carefully examined the written submissions of the learned Amicus Curiae
and learned counsel for the parties. We are clearly of the view that unless we ensure
that wrong- doers are denied profit or undue benefit from the frivolous
litigation, it would be difficult to control frivolous and uncalled for litigations.
In order to curb uncalled for and frivolous litigation, the courts have to
ensure that there is no incentive or motive for uncalled for litigation. It is
a matter of common experience that court's otherwise scarce and valuable time is
consumed or more appropriately wasted in a large number of uncalled for cases.
the court should be cautious and extremely careful while granting ex-parte ad interim
injunctions. The better course for the court is to give a short notice and in
some cases even dasti notice, hear both the parties and then pass suitable biparte
orders. Experience reveals that ex-parte interim injunction orders in some
cases can create havoc and getting them vacated or modified in our existing judicial
system is a nightmare. Therefore, as a rule, the court should grant interim injunction
or stay order only after hearing the defendants or the respondents and in case the
court has to grant ex-parte injunction in exceptional cases then while granting
injunction it must record in the order that if the suit is eventually dismissed,
the plaintiff or the petitioner will have to pay full restitution, actual or realistic
costs and mesne profits.
an exparte injunction order is granted, then in that case an endeavour should be
made to dispose of the application for injunction as expeditiously as may be
possible, preferably as soon as the defendant appears in the court.
is also a matter of common experience that once an ad interim injunction is granted,
the plaintiff or the petitioner would make all efforts to ensure that injunction
continues indefinitely. The other appropriate order can be to limit the life of
the ex-parte injunction or stay order for a week or so because in such cases the
usual tendency of unnecessarily prolonging the matters by the plaintiffs or the
petitioners after obtaining ex-parte injunction orders or stay orders may not
find encouragement. We have to dispel the common impression that a party by obtaining
an injunction based on even false averments and forged documents will tire out the
true owner and ultimately the true owner will have to give up to the wrongdoer his
legitimate profit. It is also a matter of common experience that to achieve clandestine
objects, false pleas are often taken and forged documents are filed
indiscriminately in our courts because they have hardly any apprehension of
being prosecuted for perjury by the courts or even pay heavy costs. In Swaran
Singh v. State of Punjab (2000) 5 SCC 668 this court was constrained to observe
that perjury has become a way of life in our courts.
is a typical example how a litigation proceeds and continues and in the end
there is a profit for the wrongdoer.
amicus articulated common man's general impression about litigation in
following words: "Make any false averment, conceal any fact, raise any plea,
produce any false document, deny any genuine document, it will successfully stall
the litigation, and in any case, delay the matter endlessly. The other party will
be coerced into a settlement which will be profitable for me and the probability
of the court ordering prosecution for perjury is less than that of meeting with
an accident while crossing the road." This court in Swaran Singh (Supra)
observed as under: ".Perjury has also become a way of life in the law courts.
A trial Judge knows that the witness is telling a lie and is going back on his previous
statement, yet he does not wish to punish him or even file a complaint against him.
He is required to sign the complaint himself which deters him from filing the complaint.
Perhaps law needs amendment to clause (b) of Section 340 (3) of the Code of Criminal
Procedure in this respect as the High Court can direct any officer to file a
complaint. To get rid of the evil of perjury, the court should resort to the use
of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure."
a recent judgment in the case of Mahila Vinod Kumari v. State of Madhya Pradesh
(2008) 8 SCC 34 this court has shown great concern about alarming proportion of
perjury cases in our country.
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 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 Act. 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
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 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
G. The principle of
restitution be fully applied in a pragmatic manner in order to do real and substantial
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 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.
to us, these aforementioned steps may help the courts to drastically improve the
existing system of administration of civil litigation in our Courts. No doubt, it
would take some time for the courts, litigants and the advocates to follow the
aforesaid steps, but once it is observed across the country, then prevailing system
of adjudication of civil courts is bound to improve.
imposing costs we have to take into consideration pragmatic realities and be
realistic 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.
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.
consideration of totality of the facts and circumstances of this case, we do
not find any infirmity in the well reasoned impugned order/judgment. These appeals
are consequently dismissed with costs, which we quantify as Rs.2,00,000/-
(Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following
the fundamental principle that wrongdoers should not get benefit out of
appellants are directed to pay the costs imposed by this court along with the
costs imposed by the High Court to the respondents within six weeks from today.
suit pending before the trial court is at the final stage of the arguments, therefore,
the said suit is directed to be disposed of as expeditiously as possible and in
any event within three months from the date of the communication of the order
as we have not decided the matter on merits of the case.
make it abundantly clear that the trial court should not be influenced by any observation
or finding arrived at by us in dealing with these appeals as we have not decided
the matter on merits of the case.
parting with this case we would like to record our deep appreciation for extremely
valuable assistance provided by the learned amicus curiae. Dr. Arun Mohan did not
only provide valuable assistance on the questions of law but inspected the entire
record of the trial court and for the convenience of the court filed the entire
court proceedings, other relevant documents, such as the plaint, written
statement and relevant judgments. It is extremely rare that such good
assistance is provided by the amicus curiae. In our considered view, learned amicus
curiae has discharged his obligation towards the profession in an exemplary
appeals are accordingly disposed of in terms of the aforementioned directions.