Municipal
Corporation of Delhi Vs. Kamla Devi & Anr [1996] INSC
489 (3 April 1996)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Paripoornan, K.S.(J) B.P.Jeevan Reddy,
J.
CITATION:
1996 AIR 1733 JT 1996 (4) 128 1996 SCALE (3)403
ACT:
HEAD NOTE:
Leave
granted.
Heard
the counsel for the appellant and respondents.
This
appeal is preferred against the judgment and decree of the learned Civil Judge,
Ghaziabad [Uttar Pradesh] dated September 11, 1991 in Suit No.451 of 1990 in rather
peculiar circumstances. Smt.Kamta Devi, first respondent herein [who died
pending the present appeal and whose legal representatives have come on record]
was the owner of premises/building bearing Property No.416, Kucha Brijuath, Chandni
Chowk, Delhi. By an order dated January 28, 1991 the Deputy Assessor and Collector
determined the rental value and rateable value of the said building [comprising
four floors] with effect from April 1, 1993
and also determined the property taxes payable thereon. Against the order of
assessment, Kamla Devi filed an appeal before the learned District Judge, Delhi on March 8, 1991. While the appeal was pending, Kamla Devi went to Ghaziabad
and filed a Suit No.451 of 1991 against (1) Municipal Corporation of Delhi and
(2) the Deputy Assessor and Collector (House Tax) SC-I for a declaration that
"the orders dated 28.1.91 passed by Defendant No.2 as illegal, invalid and
void ab initio" and for a prohibitory injunction restraining the
defendants from "attaching the plaintiff's property or taking any other
action/proceddings/orders against the plaintiff or her assets in pursuant to
the order dated 28. 1.1991 passed by the Deputy Assessor and Collector SC-I,
MCD". The suit was filed on April 19, 1991. In the first paragraph of the plaint, Kamla Devi stated
that she is resident of C-92, Inder Puri, Loni, Ghaziabad owned by her grand-children. In Para-2, she stated that on April 18, 1991 "three persons claiming to
represent defendant came to the residence of the plaintiff and threatened to
attach her assets that the rateable value for the purposes of fixing house tax
has been increased by Defendant NO. 2 in respect to property No. 416, Kucha Brijnaths
Chandni Chowk, Delhi-6 owned by the plaintiff" and that after great
persuasion. and interference by local respectable persons, did the officials
postpone their action for a day. Then follow a number of paragraphs.
Paragraphs
3 to 16, set out the reasons and grounds for which the order of assessment
dated January 28~ 1991 was said to be contrary to law and illegal. In Paragraph
19 pertaining to cause of actions she stated that the cause of action for the
suit arose on April 18, 1991 when the defendent sent their officials to C-92, Inder
Puri, Loni, Ghaziabad to attach the properties belonging to the plaintiff and
also because the defendants were persisting with their illegal acts. It is on
the above pleas that the declaration and prohibitory injunction aforementioned
were asked for. It is significant to note that no document was filed along with
the plaint or later - showing that any attempt was made by the defendants or
their officials to distrain or attach the plaintiff's movables or other
properties at Ghaziabad. Among the twelve documents filed by the plaintiff, the
last document is the assessment order dated January 28, 1991. No other document subsequent to that date has been filed.
It is equally significant to notice that the declaration asked for is with
respect to assessment order passed by the second defendant [an officer of the
appellant-Corporation] relating to a house situated in Delhi. More significant is the wide
language in which the prohibitory injunction was asked for. It is worded widely
to restrain proceedings against any of the properties or assets of the
plaintiff [situated anywhere] for recovery of the said tax. Another important
fact to be noticed is that the plaintiff, while setting out in detail the
reasons for which the assessment order aforesaid was said to be illegal, did
not disclose in her plaint that she had already filed an appeal against the said
assessment order before the appropriate authority and it was pending. Suit
notices were issued to the defendants and were supposed to be served upon them.
The suit was decreed on September
11, 1991.
The
judgment sets out the averments in the plaint at length and then says that
though served, the defendants have not filed any reply and that, therefore, the
case is proceeded with ex parte. Except stating that the plaintiff has
reiterated the averments in the plaint and that "the case of the plaintiff
as stated deserves to be accepted in a one sided matter", no specific
finding is recorded in the judgment that the officials of the
appellant-Corporation did indeed seek to attach or sell the assets of the
plaintiff.
The
suit was decreed in the following terms: "it is declared that the
defendant's order dated 28.1.91 are illegal, bad and contrary to law and that
the defendant and his representatives/agents are hereby restrained from
auctioning the property at C-92, Inder Puri, Loni, Ghaziabad pursuant to the
orders dated 28.1.91". While it is true that the prohibitory injunction is
confined only to properties at Ghaziabad, yet
the declaration that the order dated January 28, 1991 is illegal and contrary to law
makes it unenforceable and ineffective for all purposes.
In the
present appeal filed by the Municipal Corporation, it is stated that having
filed an appeal against the assessment order, Kamla Devi filed a suit in Ghaziabad deliberately concealing the fact of
filing of the said appeal and has obtained a decree thereby trying to hoodwink
the courts below. It is then stated in Para 10 that the Corporation has sent a
Dill dated July 8, 1991 to the respondent-assessee on the basis of the
assessment order dated January 28, 1991 and that it was shocked when it was apprised
of an order of stay passed by a court in Uttar Pradesh. It is also stated that
the Corporation has not received any suit notice from the Ghaziabad court. Since the filing of the suit
in Ghaziabad court is said to be an abuse of the
process of courts it is prayed that the said judgment and decree be set aside
by this Court.
Ms.Madhu
Tewatia, learned counsel for the appellant- Corporation, submitted that the
filing of the suit by Kamla Devi was a stark abuse of process of court. She
submitted that no proceedings for recovery were ever taken against her
properties in Ghaziabad by the Corporation or its officials
and that allegation in Para 2 of the plaint is only a pretence
and a total fabrication put forward with a view to create jurisdiction in Ghaziabad court. It is submitted that
property is situated in Delhi, that the assessment was made at Delhi by an
authority competent in law to do so which was indeed questioned by Kamla Devi
by filing an appeal which was pending before the competent authority. Filing of
the said suit in the above circumstances is said to be a clear case of
over-reaching the processes of law and amounts to a sharp practice. Which
should be sternly put down by this Court. It is submitted that if this type of
suits are allowed to be filed anywhere outside Delhi, it would be impossible for the Corporation to function
effectively. She placed strong reliance upon the decision of this Court in Oil
and Natural Gas Commission V. Utpal Kumar Basu (1994 (4)S.C.C.711), delivered
by a Bench comprising M.N.Venkatachaliah,CJ., A.M.Ahmadi,J. and one of us [B.P.Jeevan
Reddy,J.].
On the
other hand, the learned counsel for the respondents [legal representatives of Kamla
Devi], submitted that when the suit summons were served upon the Corporation
and the assessing officer by the Ghaziabad court, it was their duty to appear
before the court and contest it by putting forward such Defences as were open
to them in law.
Not
having done that and having suffered a decree and allowed the limitation for
filing the appeal to lapse, it is not open to the Corporation to approach this
court directly under Article 136 of the Constitution against the Judgment and
decree of the Ghaziabad court. It is submitted that the
only manner in which the said judgment and decree could be avoided by the
Corporation was to file an appeal as provided by law. The several allegations
made against the first respondent are denied and it is submitted that when the
officials of the Corporation wanted to attach their movables at Ghaziabad, Kamla Devi was obliged to file the
suit in Ghaziabad. Counsel also sought to argue that
the order of assessment dated January 28, 1991
is contrary to law, excessive and deserves to be set aside. It is also brought
to our notice that the appeal filed by Kamla Devi against the assessment order
dated January 28, 1991 was dismissed for default on September 12, 1994.
The
first question is whether the filing of this suit by Kamla Devi in Ghaziabad court was a proceeding taken bonafide
by her or whether it was only a sharp practice designed to abuse the process of
law and to take unfair advantage over the Corporation. On a consideration of
the facts and circumstances of the satisfied that it was a clear case of abuse
of process of court and of law. We are also satisfied that the averment made in
Para 2 of the plaint to the effect that the officers of the appellant-Coporation
went to Ghaziabad to attach the movables of Kamla Devi or her grand-children to
realise the tax under the order dated January 28, 1991 is a total falsehood and
was a mere pretence to create jurisdiction in Ghaziabad court. Not a single
document or any other scrap of paper has been filed before the Ghaziabad court
in support of the said allegation, Moreover, the frame of the suit and the
language and terms in which the declaration and prohibitory induction are asked
for suggest a clear attempt to over-reach the process of court. The object
clearly was to obtain a declaration that the assessment order dated January 28, 1991 is illegal and invalid from a court
outside Delhi. The fact that Kamla Devi
[plaintiff] chose to conceal the fact of her filing the appeal against the said
assessment order is also indicative of the malafides on her part. It is true
that the court has limited the prohibitory injunction only to properties in Ghaziabad but it has granted a declaration
that the very assessment order is void and illegal which means that it cannot
be enforced even within the limits of Delhi Municipal Corporation. In the
Special Leave Petition, it is stated by the Corporation that the Bill of demand
pursuant to the assessment order aforesaid was sent only or July 8, 1991 to the respondent whereas the suit
was filed on April 19,
1991. Once this Court
is satisfied that Kamla Devi has abused the process of law and misused the
legal system, the objections put forward by the respondents' counsel are of no
consequence. This Court is entitled to act in such cases to prevent such abuse
and misuse.
In Oil
and Natural Gas Commission, this Court was dealing with a case where Engineers
India Limited acting as consultants for Oil and Natural Gas Commission
[O.N.G.C.] issued an advertisement in the newspapers of the country inviting
tenders for a particular work to be carried oat at Hazira complex in Gujarat.
According to the advertisement, the tenders were to be communicated to E.I.L.
at Delhi. The respondent-company [NICCO]
having its registered office at Calcutta submitted a tender which was
considered along with other tenders received at New Delhi and was rejected. Tender
of another party was accepted. Thereupon, NICCO filed a writ petition in the
Calcutta High Court praying that ONGC be restrained from awarding the contract
to such other party and, if already awarded, to cancel the sane. In the writ
petition, an allegation was made by NICCO that it had come to know of the
tender from the publication in the `Times of India' within the jurisdiction of
the Calcutta High Court, that it had submitted its tender from its registered
office located within the jurisdiction of the Calcutta High Court and that
further correspondence in at behalf was also done from its said registered
office at Calcutta. On the said averments, it was submitted that the Calcutta
High Court had jurisdiction in the matter. NICCO also asked for and obtained
certain interim orders which were challenged under Article 136 of the
Constitution. Before this Court, NICCO relied upon a fax message sent by
O.N.E.C./E.I.L to NICCO on its Calcutta
address. It was e reply to a letter sent by NICCO. It was submitted that in
view of the said communication along with other facts mentioned in the writ
petition, the Calcutta High Court did have the jurisdiction to entertain the
said writ petition. It was held by this Court that even if the averments in the
writ petition are taken as true, it cannot be said that a part of the cause of
action had arisen within the jurisdiction of the Calcutta High Court. This
Court pointed out that the advertisement itself mentioned that the tenders
should be submitted to E.I.L. at New Delhi, that they would be scrutinised at New Delhi and that the decision to accept or reject would also be taken at Now
Delhi. [The work, of courses to be carried out in Gujarat]. It was further held that merely
because NICCO read the advertisement at Calcutta or that it Submitted its tender from Calcutta or that it made or that a fax message was sent to it on its
Calcutta address did not constitute facts
forming integral part of the cause of action. It was held that NICCO did not
act bonafide in invoking the jurisdiction of the Calcutta High Court and that
the filing of the writ petition was an abuse of the process of court.
Accordingly, the appeal was allowed, the order of the Calcutta High Court were
set aside and exemplary costs in a sum of Rs.50,000/- were imposed upon NICCO.
In our opinion, the principle of the said decision clearly applies here.
Indeed, the present case is more guess one. In this case, there is no mention
that any demand notice or bill was sent to Kamla Devi at Ghaziabad address.
We
have already held that the averment in Para
2 of the plaint was a mere pretence and a total fabrication.
Accordingly,
this appeal is allowed, the judgment and decree of the learned Civil Judge, Ghaziabad, Uttar Pradesh dated September 11, 1991 in 199 in Suit No.451 of 1990 is
set aside. In view of there reprehensible conduct, the respondents [legal
representatives of Kamla Devi, who appeared in this court as representing her
estate] are directed to pay exemplary costs in a sum of Rupees fifty thousand.
Such practices ought no be put down with a stern hand so that others similarly
minded may desist from indulging in similar acts.
Application
for bringing legal representatives of Kamla Devi on record is ordered.
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