Shanmugam Vs. Ariya
Kshatriya Rajakulavamsathu Madalaya Nandhavanaparipalanai Sangam Represented by
Its President Etc.
[Civil Appeal Nos.
4012-4013 of 2012 arising out of S.L.P.(C) Nos. 14163-14164 of 2012]
[Arising out of Cc
Nos. 21115-21116 of 2011a.]
J U D G M E N T
DALVEER BHANDARI J.
1.
Delay
condoned.
2.
Leave
granted.
3.
These
two appeals arise out of cross suits filed before the High Court of Judicature
at Madras in S.A. No. 1973 of 2002 and S.A. No. 869 of2009 dated April 20,
2011. In both these appeals, A. Shanmugam is the appellant and Ariya Kshatriya
Raja Kulavamsa Madalaya Nandhavana Paripalana Sangam is the respondent which
for convenience hereinafter is referred to as the ‘Society’.
4.
The
property in question belonged to one, Muthu Naicker, who dedicated the suit
land for construction of a Dharamshala. In the southern part of India, it is
called as ‘choultry’. A ‘Dharamshala’ is commonly known as ‘a place where
boarding facilities are provided either free of cost or at a nominal cost’. In
the instant case, a Dharamshala was to be constructed for the benefit of the Ariya
Kshatriya community. The appellant’s father, Appadurai Pillai was engaged as a
Watchman on a monthly salary by the respondent-Society to look after the
Dharamshala and in that capacity lived in the premises with his family
including the appellant.
5.
According
to the appellant, in the year 1994, the respondent-Society claiming to be the
owner of the suit property tried to dispossess the appellant by force
necessitating the appellant to file a suit in O.S.No.1143 of 1994 on the file of
the Second Additional District Munsif, Tiruvannamalai praying for issuance of permanent
injunction against the respondent-Society. The said suit was, however, dismissed.
As against that, the appellant preferred an appeal in A.S. No.94 of 2001 on the
file of the Additional District Judge, Tiruvannamalai and the said appeal was allowed
and consequently, the appellant’s suit was decreed. The respondent-Society
preferred a Second Appeal in S.A. No.1973 of 2002 before the High Court of
Madras against the said judgment of the Additional District Judge.
6.
The
respondent-Society during the pendency of Second Appeal filed a suit in O.S. No.239
of 2003 before the Additional Subordinate Judge, Tiruvannamalai praying for
declaration of title and recovery of possession of the suit property comprised
in T.S. No.1646/1 of Tiruvannamalai Town having an extent of 70 feet east to
west and 30 feet north to south bearing Old Door No.116 and New Door No.65. The
said suit was decreed as prayed for. Against that, the appellant preferred an
appeal in A.S. No.19 of 2008on the file of the Additional District Judge, Tiruvannamalai
and the decision of the trial court was reversed in Appeal resulting in the dismissal
of the suit filed by the respondent-Society. Aggrieved against the appeal being
allowed and the suit being dismissed, the respondent-Society preferred a Second
Appeal in S.A. No.869 of 2009 before the High Court of Madras. The learned
Judge of the Madras High Court heard both the aforesaid Second Appeals together
and by a common judgment set aside the well-considered judgments of the First
Appellate Court. Aggrieved by the said common impugned judgment, the appellant
has preferred these appeals byway of special leave.
7.
It
may be pertinent to mention that the appellant filed Original Suit No.1143 of
1994 and also filed the following documents :-
a. 20.11.1899 Certified
copy of the registered agreement between Krishnasamy Raju and others
b. Certified copy of the
bye-law of the plaintiff Sangam(respondent- Society before us)
c. Certified copy of Memorandum
of Association of plaintiff-Sangam (respondent-Society before us)
d. Certified copy of
Registration Certificate
e. Certified copy of
field Map Book Plan
f. Certified copy of
Town Survey Field Register
g. Certified copy of
Demand Register Extent
h. Certified copy of Tax
receipts (9)
i. Certified copy of
Indemnity Card by Munusamy
j. Certified copy of
Ration Card of Munusamy
k. Certified copy of account
of plaintiff Sangam (respondent-Society before us)
l. Certified copy of
photocopy of Silesasanam
m. 14.5.29 Copy of
application by the President of plaintiff-Sangam to Municipal Chairman
n. 24.2.32 Copy of the application
by the President of plaintiff-Sangam to Municipal Chairman
o. 17.8.2001 Certified
copy of judgment in O.S. No. 1143/94 of District Munsif Court, Tiruvannamalai
p. 31.5.2002 Certified
copy of judgment in A.S. No.94/2001 of Additional District Judge,
Tiruvannamalai
q. 2000-02 House Tax
Receipt
r. 2001-02 House Tax
Receipt
s. 2002-03 House Tax
Receipt20. Xerox copy of the Minutes Book pages 13 to 19.
1.
2.
3.
4.
5.
6.
7.
8.
The
trial court on the basis of the pleadings has framed the following issues:-
a. Whether the plaintiff
has the right to possession and enjoyment of the suit property?
b. Whether the plaintiff
and his father have obtained right of enjoyment through adverse enjoyment?
c. As per the averments
on the defendant’s side, is it true that the plaintiff’s father in the capacity
of the watchman of the suit property has been in enjoyment of the suit
property?
d. Whether the plaintiff
is entitled to a relief of permanent injunction as prayed for by him?
e. Other relief?
9.
In
Suit No. 239 of 2003 filed by the respondent-Society against theappellant
seeking a decree for possession, the following issues wereframed:-
a. Whether the plaintiff
Association is competent to file this case?
b. Whether the plaint
property belongs to the plaintiff’s club?
c. Is it right that the
defendant’s father Appadurai Pillai in the capacity of a Watchman, has been
maintaining the suit property?
d. When there is a
Second Appeal pending before the High Court in S.A. No.1923 of 2002 against the
judgment and decree of the Court of the District Munsif in O.S. No. 1143 of 1994
is sustainable.
e. Whether the defendant
has acquired the right of possession in the plaint property due to adverse
possession?
f. Whether this case has
been procedurally evaluated for the court fee and jurisdiction?
g. Is the Court
competent to try this Court?
h. To what other relief
is the plaintiff entitled to?
10.
The
trial court in Suit No.1143 of 1994 has held that the appellant was in
possession of the suit property in the capacity of a Watchman. Regarding Issue
No. 3, the trial court has observed as under: “… … …As per the July 1949
register Ex.D5 it is established that the plaintiff’s father has been employed
as a watchman in the association. Further, it has already been decided that the
suit property belongs to the defendants Association. Further it has also been
decided that apart from that the plaintiff’s father has only been a watchman to
the suit property. Only source of the plaintiff’s father had been a watchman,
he was permitted to stay in a portion in the suit property only because of that
he had not instituted a case for the total extent 110 x 56 feet but only for
the extent of 70 x 30 feet. He admits that the remaining portion is in the
possession of the association. It is true that only for this reason the defendants
association has permitted that plaintiff and his family members to reside in
the suit property. It is evident that only in the status of a watchman that the
plaintiff’s father has been occupying a portion in the suit survey number. This
issue is decided accordingly.”
11.
Regarding
Issue No. 2 of adverse possession, the trial court found that the appellant’s
father was employed by the respondent-Society as a Watchman on a petty monthly
salary and in that capacity he was allowed to stay in the suit property. The
appellant did not acquire the suit property by adverse possession and the issue
was rightly decided against the appellant by the trial court.
12.
Regarding
issue No. 4, the trial court found that the appellant’s father was residing in
the suit premises as a Watchman and after his death the appellant was also
allowed to continue to stay in the suit property as a Watchman.
13.
The
trial court relied on a judgment of the Madras High Court reported in Alagi
Alamelu Achi v. Ponniah Mudaliar AIR 1962 Madras 149. The Court held that a
person in wrongful possession is not entitled to be protected against lawful
owner by an order of injunction.
14.
The
trial court also came to a definite conclusion that the appellant has concealed
certain vital facts and has not approached the Court with clean hands and consequently,
he is not entitled to the grant of discretionary relief of injunction.
15.
The
First Appellate Court reversed the judgment of the trial court and held that
the appellant was entitled to the relief of injunction because of his long
possession of the suit property. The First Appellate Court also set aside the
decree passed by the trial court in O.S. No.239 of2003.
16.
The
Suit No. 239 was decreed against the appellant. Aggrieved by this, the
appellant preferred First Appeal before the District Judge which was allowed on
3rd April, 2009. Aggrieved by this judgment, the respondent-Society filed a
Second Appeal before the High Court which was allowed. The High Court heard
both the appeals filed by the respondent-Society and the same were allowed by a
common judgment dated 20th April, 2011.
17.
The
High Court by a detailed reasoning, set aside the judgment of the First
Appellate Court and held that the First Appellate Court was not justified in
reversing the judgments passed by the trial court in both the abovementioned
suits, O.S. No.1143 of 1994 and O.S. No.239 of 2003. The appellant, aggrieved
by the said judgment, has preferred these two appeals. We propose to decide
both these appeals by this common judgment.
18.
We
have heard the learned counsel for the appellant at length.
19.
In
our considered view, a well-reasoned judgment and a decree passed by the trial
court ought not to have been reversed by the First Appellate Court. It is
reiterated that the appellant’s father was engaged as a Watchman on a monthly
salary and in that capacity he was allowed to stay in the suit premises and after
his death his son (the appellant herein)continued to serve the
respondent-Society as a Watchman and was allowed to live in the premises. The
property is admittedly owned by the respondent-Society.
20.
The
appellant has also failed to prove the adverse possession of the suit property.
Only by obtaining the ration card and the house tax receipts, the appellant
cannot strengthen his claim of adverse possession. The High Court was fully
justified in reversing the judgment of the First Appellate Court and restoring
the judgment of the trial court. In our considered opinion, no interference is
called for.
21.
This
case demonstrates widely prevalent state of affairs where litigants raise disputes
and cause litigation and then obstruct the progress of the case only because
they stand to gain by doing so. It is a matter of common experience that the
Court’s otherwise scarce resources are spent in dealing with non-deserving
cases and unfortunately those who were waiting in the queue for justice in genuine
cases usually suffer. This case is a typical example of delayed administration
of civil justice in our Courts. A small suit, where the appellant was directed
to be evicted from the premises in 1994, took 17 years before the matter was decided
by the High Court. Unscrupulous litigants are encouraged to file frivolous cases
to take undue advantage of the judicial system.
22.
The
question often arises as to how we can solve this menace within the frame work
of law. A serious endeavour has been made as to how the present system can be
improved to a large extent. In the case of Maria Margarida Sequeria Fernandes
and Others v. Erasmo Jack de Sequeria (Dead)through L.Rs. (2012) 3 SCALE 550
(of which one of us, Bhandari, J. was the author of the judgment), this Court
had laid stress on purity of pleadings in civil cases. We deem it appropriate
to set out paras 61 to 79 of that judgment dealing with broad guidelines provided
by the Court which are equally relevant in this case:-
“61. In civil cases, pleadings
are extremely important for ascertaining the title and possession of the property
in question.
62. Possession is an incidence
of ownership and can be transferred by the owner of an immovable property to another
such as in a mortgage or lease. A licensee holds possession on behalf of the
owner.
63. Possession is
important when there are no title documents and other relevant records before the
Court, but, once the documents and records of title come before the Court, it
is the title which has to be looked at first and due weightage be given to it. Possession
cannot be considered in vacuum.
64. There is a
presumption that possession of a person, other than the owner, if at all it is to
be called possession, is permissive on behalf of the title-holder. Further, possession
of the past is one thing, and the right to remain or continue in future is
another thing. It is the latter which is usually more in controversy than the
former, and it is the latter which has seen much abuse and misuse before the
Courts.
65. A suit can be
filed by the title holder for recovery of possession or it can be one for
ejectment of an ex-lessee or for mandatory injunction requiring a person to
remove himself or it can be a suit under Section 6 of the Specific Relief Act to
recover possession.
66. A title suit for possession
has two parts – first, adjudication of title, and second, adjudication of possession.
If the title dispute is removed and the title is established in one or the
other, then, in effect, it becomes a suit for ejectment where the defendant
must plead and prove why he must not be ejected.
67. In an action for recovery
of possession of immovable property, or for protecting possession thereof, upon
the legal title to the property being established, the possession or occupation
of the property by a person other than the holder of the legal title will be
presumed to have been under and in subordination to the legal title, and it
will be for the person resisting a claim for recovery of possession or claiming
a right to continue in possession, to establish that he has such a right. To
put it differently, wherever pleadings and documents establish title to a
particular property and possession is in question, it will be for the person in
possession to give sufficiently detailed pleadings, particulars and documents to
support his claim in order to continue in possession.
68. In order to do
justice, it is necessary to direct the parties to give all details of pleadings
with particulars. Once the title is prima facie established, it is for the person
who is resisting the title holder’s claim to possession to plead with
sufficient particularity on the basis of his claim to remain in possession and place
before the Court all such documents as in the ordinary course of human affairs are
expected to be there. Only if the pleadings are sufficient, would an issue be
struck and the matter sent to trial, where the onus will be on him to prove the
averred facts and documents.
69. The person averring
a right to continue in possession shall, as far as possible, give a detailed particularized
specific pleading along with documents to support his claim and details of
subsequent conduct which establish his possession.
70. It would be
imperative that one who claims possession must give all such details as
enumerated hereunder. They are only illustrative and not exhaustive.
a.
who
is or are the owner or owners of the property;
b.
title
of the property;
c.
who
is in possession of the title documents
d.
identity
of the claimant or claimants to possession;
e.
the
date of entry into possession;
f.
how
he came into possession - whether he purchased the property or inherited or
got the same in gift or by any other method;
g.
in
case he purchased the property, what is the consideration; if he has taken it
on rent, how much is the rent, license fee or lease amount;
h.
if
taken on rent, license fee or lease - then insist on rent deed, license deed
or lease deed;
i.
who
are the persons in possession/occupation or otherwise living with him, in what
capacity; as family members, friends or servants etc.;
j.
subsequent
conduct, i.e., any event which might have extinguished his entitlement to
possession or caused shift therein; and
k.
basis
of his claim that not to deliver possession but continue in possession.
71. Apart from these pleadings,
the Court must insist on documentary proof in support of the pleadings. All those
documents would be relevant which come into existence after the transfer of title
or possession or the encumbrance as is claimed. While dealing with the civil
suits, at the threshold, the Court must carefully and critically examine pleadings
and documents. 72. The Court will examine the pleadings for specificity as also
the supporting material for sufficiency and then pass appropriate orders.
73. Discovery and production
of documents and answers to interrogatories, together with an approach of considering
what in ordinary course of human affairs is more likely to have been the
probability, will prevent many a false claims or defences from sailing beyond
the stage for issues.
74. If the pleadings
do not give sufficient details, they will not raise an issue, and the Court can
reject the claim or pass a decree on admission.
75. On vague pleadings,
no issue arises. Only when he so establishes, does the question of framing an issue
arise. Framing of issues is an extremely important stage in a civil trial. Judges
are expected to carefully examine the pleadings and documents before framing of
issues in a given case.
76. In pleadings,
whenever a person claims right to continue in possession of another property,
it becomes necessary for him to plead with specificity about who was the owner,
on what date did he enter into possession, in what capacity and in what manner
did he conduct his relationship with the owner over the years till the date of
suit. He must also give details on what basis he is claiming a right to
continue in possession. Until the pleadings raise a sufficient case, they will
not constitute sufficient claim of defence.
77. XXXX XXXX XXXX
78. The Court must ensure
that pleadings of a case must contain sufficient particulars. Insistence on details
reduces the ability to put forward a non-existent or false claim or defence.
79. In dealing with a
civil case, pleadings, title documents and relevant records play a vital role
and that would ordinarily decide the fate of the case.”
23.
We
reiterate the immense importance and relevance of purity of pleadings. The
pleadings need to be critically examined by the judicial officers or judges
both before issuing the ad interim injunction and/or framing of issues.
ENTIRE JOURNEY OF A
JUDGE IS TO DISCERN THE TRUTH
24.
The
entire journey of a judge is to discern the truth from the pleadings, documents
and arguments of the parties. Truth is the basis of justice delivery system. This
Court in Dalip Singh v. State of U.P. and Others (2010) 2 SCC 114 observed that
truth constitutes an integral part of the 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.
25.
This
Court in Maria Margarida Sequeria Fernandes (supra) had an occasion to deal
with the same aspect. According to us, observations in paragraphs 31 to 52 are
absolutely germane as these paragraphs deal with relevant cases which have
enormous bearing on the facts of this case, sothese paragraphs are reproduced
hereunder:-
“31. In this unfortunate
litigation, the Court’s serious endeavour has to be to find out where in fact
the truth lies. The truth should be the guiding star in the entire judicial
process.
32. Truth alone has
to be the foundation of justice. The entire judicial system has been created
only to discern and find out the real truth. Judges at all levels have to
seriously engage themselves in the journey of discovering the truth. That is their
mandate, obligation and bounden duty.
33. Justice system
will acquire credibility only when people will be convinced that justice is
based on the foundation of the truth.
34. In Mohanlal
Shamji Soni v. Union of India 1991 Supp (1) SCC 271, this Court observed that
in such a situation a question that arises for consideration is whether the
presiding officer of a Court should simply sit as a mere umpire at a contest between
two parties and declare at the end of the combat who has won and who has lost
or is there not any legal duty of his own, independent of the parties, to take
an active role in the proceedings in finding the truth and administering
justice? It is a well accepted and settled principle that a Court must discharge
its statutory functions-whether discretionary or obligatory-according to law in
dispensing justice because it is the duty of a Court not only to do justice but
also to ensure that justice is being done.
35. What people
expect is that the Court should discharge its obligation to find out where in
fact the truth lies. Right from inception of the judicial system it has been accepted
that discovery, vindication and establishment of truth are the main purposes
underlying the existence of the courts of justice.
36. In Ritesh Tewari
and Another v. State of Uttar Pradesh and Others (2010) 10 SCC 677 this Court reproduced
often quoted quotation which reads as under: “Every trial is a voyage of
discovery in which truth is the quest”
37. This Court
observed that the power is to be exercised with an object to sub serve the
cause of justice and public interest and for getting the evidence in aid of a
just decision and to uphold the truth.
38. Lord Denning, in
the case of Jones v. National Coal Board [1957] 2 QB 55 has observed that: “In
the system of trial that we evolved in this country, the Judge sits to hear and
determine the issues raised by the parties, not to conduct an investigation or examination
on behalf of the society at large, as happens, we believe, in some foreign
countries.”
39. Certainly, the
above, is not true of the Indian Judicial System. A judge in the Indian System
has to be regarded as failing to exercise his jurisdiction and thereby
discharging his judicial duty, if in the guise of remaining neutral, he opts to
remain passive to the proceedings before him. He has to always keep in mind
that “every trial is a voyage of discovery in which truth is the quest”. In
order to bring on record the relevant fact, he has to play an active role; no doubt
within the bounds of the statutorily defined procedural law.
40. Lord Denning
further observed in the said case of Jones (supra) that “‘It’s all very well to
paint justice blind, but she does better without a bandage round her eyes. She
should be blind indeed to favour or prejudice, but clear to see which way lies the
truth…”
41. World over, modern
procedural Codes are increasingly relying on full disclosure by the parties. Managerial
powers of the Judge are being deployed to ensure that the scope of the factual
controversy is minimized.
42. In civil cases,
adherence to Section 30 CPC would also help in ascertaining the truth. It seems
that this provision which ought to be frequently used is rarely pressed in service
by our judicial officers and judges. Section 30 CPC reads as under:- 30. Power
to order discovery and the like. – Subject to such conditions and limitations
as may be prescribed, the Court may, at any time either of its own motion or on
the application of any party, - (a) make such orders as may be necessary or
reasonable in all matters relating to the delivery and answering of interrogatories,
the admission of documents and facts, and the discovery, inspection, production,
impounding and return of documents or other material objects producible as
evidence; (b) issue summons to persons whose attendance is required either to
give evidence or to produce documents or such other objects as aforesaid; c)
order any fact to be proved by affidavit
43. "Satyameva
Jayate" (Literally: "Truth Stands Invincible") is a mantra from
the ancient scripture Mundaka Upanishad. Upon independence of India, it was
adopted as the national motto of India. It is inscribed in Devanagari script at
the base of the national emblem. The meaning of full mantra is as follows: “Truth
alone triumphs; not falsehood. Through truth the divine path is spread out by
which the sages whose desires have been completely fulfilled, reach where that supreme
treasure of Truth resides.”
44. Malimath
Committee on Judicial Reforms heavily relied on the fact that in discovering
truth, the judges of all Courts need to play an active role. The Committee
observed thus: 2.2………. In the adversarial system truth is supposed to emerge
from the respective versions of the facts presented by the prosecution and the defence
before a neutral judge.
The judge acts like
an umpire to see whether the prosecution has been able to prove the case beyond
reasonable doubt. The State discharges the obligation to protect life, liberty and
property of the citizens by taking suitable preventive and punitive measures
which also serve the object of preventing private retribution so essential for
maintenance of peace and law and order in the society doubt and gives the benefit
of doubt to the accused. It is the parties that determine the scope of dispute
and decide largely, autonomously and in a selective manner on the evidence that
they decide to present to the court. The trial is oral, continuous and confrontational.
The parties use cross-examination of witnesses to undermine the opposing case and
to discover information the other side has not brought out.
The judge in his
anxiety to maintain his position of neutrality never takes any initiative to
discover truth. He does not correct the aberrations in the investigation or in the
matter of production of evidence before court……..” 2.15 “The Adversarial System
lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted
with a positive duty to discover truth as in the Inquisitorial System. When the
investigation is perfunctory or ineffective, Judges seldom take any initiative
to remedy the situation. During the trial, the Judges do not bother if relevant
evidence is not produced and plays a passive role as he has no duty to search
for truth…..” 2.16.9.
Truth being the
cherished ideal and ethos of India, pursuit of truth should be the guiding star
of the Criminal Justice System. For justice to be done truth must prevail. It
is truth that must protect the innocent and it is truth that must be the basis
to punish the guilty. Truth is the very soul of justice. Therefore truth should
become the ideal to inspire the courts to pursue. This can be achieved by statutorily
mandating the courts to become active seekers of truth. It is of seminal
importance to inject vitality into our system if we have to regain the lost confidence
of the people. Concern for and duty to seek truth should not become the limited
concern of the courts. It should become the paramount duty of everyone to
assist the court in its quest for truth.
45. In Chandra Shashi
v. Anil Kumar Verma (1995) 1 SCC 421 to enable the Courts to ward off unjustified
interference in their working, those who indulge in immoral acts like perjury, pre-
variation and motivated falsehoods have to be appropriately dealt with, without
which it would not be possible for any Court to administer justice in the true
sense and to the satisfaction of those who approach it in the hope that truth would
ultimately prevail. People would have faith in Courts when they would find that
truth alone triumphs in Courts.
46. Truth has been
foundation of other judicial systems, such as, the United States of America, the
United Kingdom and other countries.
47. In James v. Giles
et al. v. State of Maryland 386 U.S. 66 (1967) 87, S.Ct. 793, the US Supreme Court,
in ruling on the conduct of prosecution in suppressing evidence favourable to the
defendants and use of perjured testimony held that such rules existed for a
purpose as a necessary component of the search for truth and justice that
judges, like prosecutors must undertake. It further held that the State’s obligation
under the Due Process Clause “is not to convict, but to see that so far as possible,
truth emerges.” 48. The obligation to pursue truth has been carried to extremes.
Thus, in United
States v. J. Lee Havens 446 U.S. 620, 100 St.Ct.1912, it was held that the government
may use illegally obtained evidence to impeach a defendant’s fraudulent statements
during cross-examination for the purpose of seeking justice, for the purpose of
“arriving at the truth, which is a fundamental goal of our legal system”. 49. Justice
Cardozo in his widely read and appreciated book “The Nature of the Judicial
Process” discusses the role of the judges. The relevant part is reproduced as
under:-
“There has been a
certain lack of candour,” “in much of the discussion of the theme [of judges’ humanity],
or rather perhaps in the refusal to discuss it, as if judges must lose respect
and confidence by the reminder that they are subject to human limitations.” I do
not doubt the grandeur of conception which lifts them into the realm of pure reason,
above and beyond the sweep of perturbing and deflecting forces. None the less,
if there is anything of reality in my analysis of the judicial process, they do
not stand aloof on these chill and distant heights; and we shall not help the cause
of truth by acting and speaking as if they do.”
50. Aharon Barak,
President of Israeli Supreme Court from 1995 to 2006 takes the position that: “For
issues in which stability is actually more important than the substance of the
solution – and there are many such cases – I will join the majority, without restating
my dissent each time. Only when my dissenting opinion reflects an issue that is
central for me – that goes to the core of my role as a judge – will I not
capitulate, and will I continue to restate my dissenting opinion: “Truth or
stability – truth is preferable”.
“On the contrary, public
confidence means ruling according to the law and according to the judge’s
conscience, whatever the attitude of the public may be. Public confidence means
giving expression to history, not to hysteria. Public confidence is ensured by the
recognition that the judge is doing justice within the framework of the law and
its provisions. Judges must act – inside and outside the court – in a manner
that preserves public confidence in them.
They must understand
that judging is not merely a job but a way of life. It is a way of life that
does not include the pursuit of material wealth or publicity; it is a way of life
based on spiritual wealth; it is a way of life that includes an objective and
impartial search for truth.” 51. In the administration of justice, judges and
lawyers play equal roles. Like judges, lawyers also must ensure that truth triumphs
in the administration of justice.
52. Truth is the foundation
of justice. It must be the endeavour of all the judicial officers and judges to
ascertain truth in every matter and no stone should be left unturned in achieving
this object. Courts must give greater emphasis on the veracity of pleadings and
documents in order to ascertain the truth.”
26.
As
stated in the preceding paragraphs, the pleadings are foundation of litigation
but experience reveals that sufficient attention is not paid to the pleadings
and documents by the judicial officers before dealing with the case. It is the bounden
duty and obligation of the parties to investigate and satisfy themselves as to the
correctness and the authenticity of the matter pleaded.
27.
The
pleadings must set-forth sufficient factual details to the extent that it
reduces the ability to put forward a false or exaggerated claim or defence. The
pleadings must inspire confidence and credibility. If false averments, evasive
denials or false denials are introduced, then the Court must carefully look
into it while deciding a case and insist that those who approach the Court must
approach it with clean hands.
28.
It
is imperative that judges must have complete grip of the facts before they
start dealing with the case. That would avoid unnecessary delay in disposal of
the cases.
29.
Ensuring
discovery and production of documents and a proper admission/denial is imperative
for deciding civil cases in a proper perspective. In relevant cases, the Courts
should encourage interrogatories to be administered. FRAMING OF ISSUES
30.
Framing
of issues is a very important stage of a civil trial. It is imperative for a
judge to critically examine the pleadings of the parties before framing of
issues. Rule 2 of Order X CPC enables the Court, in its search for the truth,
to go to the core of the matter and narrow down, or even eliminate the
controversy. Rule 2 of Order X reads as under:- “2. Oral examination of party,
or companion of party. – (1) At the first hearing of the suit, the Court - (a)
shall, with a view to elucidating matters in controversy in the suit, examine
orally such of the parties to the suit appearing in person or present in Court,
as it deems fit; and (b) may orally examine any person, able to answer any material
question relating to the suit, by whom any party appearing in person or
present in Court or his pleader is accompanied. (2) xxx xxx xxx (3) xxx xxx xxx
31.
It
is a useful procedural device and must be regularly pressed into service. As
per Rule 2 (3) of Order X CPC, the Court may if it thinks fit,put in the course
of such examination questions suggested by either party.Rule 2 (3) of Order X
CPC reads as under:- “2. (1) xxx xxx xxx (2) xxx xxx xxx (3) The Court may,
if it thinks fit, put in the course of an examination under this rule questions
suggested by either party.
32.
”
If issues are properly framed, the controversy in the case can be clearly
focused and documents can be properly appreciated in that light. The relevant
evidence can also be carefully examined. Careful framing of issues also helps
in proper examination and cross-examination of witnesses and final arguments in
the case. GRANT OR REFUSAL OF INJUNCTION
33.
In
Maria Margarida Sequeria Fernandes (supra), this Court examined the importance
of grant or refusal of an injunction in paras 86 to 89 which read as under:- “86.
Grant or refusal of an injunction in a civil suit is the most important stage in
the civil trial. Due care, caution, diligence and attention must be bestowed by
the judicial officers and judges while granting or refusing injunction. In most
cases, the fate of the case is decided by grant or refusal of an injunction. Experience
has shown that once an injunction is granted, getting it vacated would become a
nightmare for the defendant.
In order to grant or
refuse injunction, the judicial officer or the judge must carefully examine the
entire pleadings and documents with utmost care and seriousness. 87. The safe
and better course is to give short notice on injunction application and pass an
appropriate order after hearing both the sides. In case of grave urgency, if it
becomes imperative to grant an ex-parte ad interim injunction, it should be granted
for a specified period, such as, for two weeks. In those cases, the plaintiff
will have no inherent interest in delaying disposal of injunction application
after obtaining an ex-parte ad interim injunction.
The Court, in order
to avoid abuse of the process of law may also record in the injunction order
that if the suit is eventually dismissed, the plaintiff undertakes to pay restitution,
actual or realistic costs. While passing the order, the Court must take into
consideration the pragmatic realities and pass proper order for mesne profits. The
Court must make serious endeavour to ensure that even-handed justice is given
to both the parties. 88. Ordinarily, three main principles govern the grant or refusal
of injunction.
a. prima facie case;
b. balance of
convenience; and
c. irreparable injury,
which guide the Court in this regard.
89. In the broad category
of prima facie case, it is imperative for the Court to carefully analyse the
pleadings and the documents on record and only on that basis the Court must be governed
by the prima facie case. In grant and refusal of injunction, pleadings and
documents play vital role.
”RESTITUTION AND
MESNE PROFITS
34.
Experience
reveals that a large number of cases are filed on false claims or evasive pleas
are introduced by the defendant to cause delay in the administration of justice
and this can be sufficiently taken care of if the Courts adopt realistic
approach granting restitution. This Court in the case of Ramrameshwari Devi v.
Nirmala Devi (2011) 8 SCC 249 (of which one of us, Bhandari, J. was the author
of the judgment) in paragraph 52 (C, Dand G) of the judgment dealt with the
aspect of imposition of actual or realistic costs which are equally relevant
for this case reads as under:-
“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 carefully keep in view the ground realities while
granting mesne profits. G. The principle of restitution be fully applied in a pragmatic
manner in order to do real and substantial justice.”
35.
Unless
wrongdoers are denied profit or undue benefit from frivolous litigations, it
would be difficult to control frivolous and uncalled for litigations. Experience
also reveals that our Courts have been very reluctant to grant the actual or
realistic costs. We would like to explain this by giving this illustration. When
a litigant is compelled to spendRs.1 lac on a frivolous litigation there is hardly
any justification in awarding Rs. 1,000/- as costs unless there are special circumstances
of that case. We need to decide cases while keeping pragmatic realities in view.
We have to ensure that unscrupulous litigant is not permitted to derive any
benefit by abusing the judicial process.
36.
This
Court in another important case in Indian Council for Enviro-Legal Action v.
Union of India and Others (2011) 8 SCC 161 (of which one of us, Bhandari, J.
was the author of the judgment) had an occasion to dealwith the concept of
restitution. The relevant paragraphs of that judgmentdealing with relevant
judgments are reproduced hereunder:- 193. This Court in Grindlays Bank Limited v.
Income Tax Officer, Calcutta (1980) 2 SCC 191 observed as under :- “…When
passing such orders the High Court draws on its inherent power to make all such
orders as are necessary for doing complete justice between the parties. The interests
of justice require that any undeserved or unfair advantage gained by a party
invoking the jurisdiction of the court, by the mere circumstance that it has
initiated a proceeding in the court, must be neutralised.
The simple fact of the
institution of litigation by itself should not be permitted to confer an
advantage on the party responsible for it. …” 194. In Ram Krishna Verma and
Others v. State of U.P. and Others (1992) 2 SCC 620 this Court observed as
under :- “The 50 operators including the appellants/ private operators have
been running their stage carriages by blatant abuse of the process of the court
by delaying the hearing as directed in Jeevan Nath Bahl’s case and the High
Court earlier thereto. As a fact, on the expiry of the initial period of grant
after Sept. 29, 1959 they lost the right to obtain renewal or to ply their
vehicles, as this Court declared the scheme to be operative. However, by sheer
abuse of the process of law they are continuing to ply their vehicles pending hearing
of the objections.
This Court in
Grindlays Bank Ltd. vs Income-tax Officer - [1990] 2 SCC 191 held that the High
Court while exercising its power under Article 226 the interest of justice
requires that any undeserved or unfair advantage gained by a party invoking the
jurisdiction of the court must be neutralised. It was further held that the institution
of the litigation by it should not be permitted to confer an unfair advantage
on the party responsible for it. In the light of that law and in view of the
power under Article 142(1) of the Constitution this Court, while exercising its
jurisdiction would do complete justice and neutralise the unfair advantage gained
by the 50 operators including the appellants in dragging the litigation to run
the stage carriages on the approved route or area or portion thereof and
forfeited their right to hearing of the objections filed by them to the draft
scheme dated Feb. 26, 1959. …” 195.
This Court in Kavita
Trehan vs Balsara Hygiene Products (1994) 5 SCC 380 observed as under :- “The
jurisdiction to make restitution is inherent in every court and will be
exercised whenever the justice of the case demands. It will be exercised under
inherent powers where the case did not strictly fall within the ambit of Section
144. Section 144 opens with the words “Where and in so far as a decree or an order
is varied or reversed in any appeal, revision or other proceeding or is set
aside or modified in any suit instituted for the purpose, ...”. The instant case
may not strictly fall within the terms of Section 144; but the aggrieved party
in such a case can appeal to the larger and general powers of restitution
inherent in every court.” 196. This Court in Marshall Sons & Co. (I) Ltd.
v. Sahi Oretrans (P) Ltd. and Another (1999) 2 SCC 325 observed as under :-
“From the narration
of the facts, though it appears to us, prima facie, that a decree in favour of the
appellant is not being executed for some reason or the other, we do not think it
proper at this stage to direct the respondent to deliver the possession to the appellant
since the suit filed by the respondent is still pending. It is true that proceedings
are dragged for a long time on one count or the other and on occasion become highly
technical accompanied by unending prolixity, at every stage providing a legal
trap to the unwary. Because of the delay unscrupulous parties to the proceedings
take undue advantage and person who is in wrongful possession draws delight in
delay in disposal of the cases by taking undue advantage of procedural
complications.
It is also known fact
that after obtaining a decree for possession of immovable property, its
execution takes long time. In such a situation for protecting the interest of judgment
creditor, it is necessary to pass appropriate order so that reasonable mesne profit
which may be equivalent to the market rent is paid by a person who is holding
over the property. In appropriate cases, Court may appoint Receiver and direct
the person who is holding over the property to act as an agent of the Receiver with
a direction to deposit the royalty amount fixed by the Receiver or pass such
other order which may meet the interest of justice. This may prevent further
injury to the plaintiff in whose favour decree is passed and to protect the
property including further alienation.” 197. In Padmawati v. Harijan Sewak
Sangh - CM (Main) No.449 of 2002 decided by the Delhi high Court on 6.11.2008, the
court held as under:-
“The case at hand
shows that frivolous defences and frivolous litigation is a calculated venture
involving no risks situation. You have only to engage professionals to prolong the
litigation so as to deprive the rights of a person and enjoy the fruits of
illegalities. I consider that in such cases where Court finds that using the Courts
as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal
possession, the Court must impose costs on such litigants which should be equal
to the benefits derived by the litigant and harm and deprivation suffered by the
rightful person so as to check the frivolous litigation and prevent the people
from reaping a rich harvest of illegal acts through the Court.
One of the aims of
every judicial system has to be to discourage unjust enrichment using Courts as
a tool. The costs imposed by the Courts must in all cases should be the real costs
equal to deprivation suffered by the rightful person.” 198. We approve the
findings of the High Court of Delhi in the aforementioned case. 199. The Court
also stated “Before parting with this case, we consider it necessary to observe
that one of the main reasons for over- flowing of court dockets is the frivolous
litigation in which the Courts are engaged by the litigants and which is
dragged as long as possible. Even if these litigants ultimately loose the lis, they
become the real victors and have the last laugh.
This class of people who
perpetuate illegal acts by obtaining stays and injunctions from the Courts must
be made to pay the sufferer not only the entire illegal gains made by them as
costs to the person deprived of his right and also must be burdened with
exemplary costs. Faith of people in judiciary can only be sustained if the
persons on the right side of the law do not feel that even if they keep
fighting for justice in the Court and ultimately win, they would turn out to be
a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer,
who had reaped the benefits for all those years. Thus, it becomes the duty of the
Courts to see that such wrongdoers are discouraged at every step and even if
they succeed in prolonging the litigation due to their money power, ultimately
they must suffer the costs of all these years long litigation.
Despite settled legal
positions, the obvious wrong doers, use one after another tier of judicial
review mechanism as a gamble, knowing fully well that dice is always loaded in
their favour, since even if they lose, the time gained is the real gain. This situation
must be redeemed by the Courts”. 200. Against this judgment, Special Leave to
Appeal (Civil) No 29197/2008 was preferred to this Court. The Court passed the following
order: “We have heard learned counsel appearing for the parties. We find no ground
to interfere with the well-considered judgment passed by the High Court.
The Special Leave Petition
is, accordingly, dismissed.” 208. In Marshall sons and Company (I) Limited v. Sahi
Oretrans (P) Limited and Another (1999) 2 SCC 325 this Court in para 4 of the judgment
observed as under: “…It is true that proceedings are dragged for a long time on
one count or the other and, on occasion, become highly technical accompanied by
unending prolixity at every stage providing a legal trap to the unwary. Because
of the delay, unscrupulous parties to the proceedings take undue advantage and
a person who is in wrongful possession draws delight in delay in disposal of the
cases by taking undue advantage of procedural complications.
It is also a known fact
that after obtaining a decree for possession of immovable property, its execution
takes a long time. In such a situation, for protecting the interest of the judgment-creditor,
it is necessary to pass appropriate orders so that reasonable mesne profit
which may be equivalent to the market rent is paid by a person who is holding over
the property. In appropriate cases, the court may appoint a Receiver and direct
the person who is holding over the property to act as an agent of the Receiver
with a direction to deposit the royalty amount fixed by the Receiver or pass
such other order which may meet the interest of justice. This may prevent
further injury to the plaintiff in whose favour the decree is passed and to protect
the property including further alienation. …” 209.
In Ouseph Mathai and
Others v. M. Abdul Khadir (2002) 1 SCC 319 this Court reiterated the legal
position that the stay granted by the Court does not confer a right upon a
party and it is granted always subject to the final result of the matter in the
Court and at the risk and costs of the party obtaining the stay. After the dismissal,
of the lis, the party concerned is relegated to the position which existed
prior to the filing of the petition in the Court which had granted the stay. Grant
of stay does not automatically amount to extension of a statutory protection. 210.
This Court in South Eastern Coalfields Limited v. State of M.P. and others
(2003) 8 SCC 648 on examining the principle of restitution in para 26 of the
judgment observed as under: “In our opinion, the principle of restitution takes
care of this submission.
The word
“restitution” in its etymological sense means restoring to a party on the modification,
variation or reversal of a decree or order, what has been lost to him in execution
of decree or order of the court or in direct consequence of a decree or order
(see Zafar Khan v. Board of Revenue, U.P - (1984) Supp SCC 505) In law, the term
“restitution” is used in three senses: (i) return or restoration of some
specific thing to its rightful owner or status; (ii) compensation for benefits
derived from a wrong done to another; and (iii) compensation or reparation for the
loss caused to another.”
211. The Court in
para 28 of the aforesaid judgment very carefully mentioned that the litigation
should not turn into a fruitful industry and observed as under: “… …
…Litigation may turn into a fruitful industry. Though litigation is not
gambling yet there is an element of chance in every litigation. Unscrupulous
litigants may feel encouraged to approach the courts, persuading the court to
pass interlocutory orders favourable to them by making out a prima facie case when
the issues are yet to be heard and determined on merits and if the concept of restitution
is excluded from application to interim orders, then the litigant would stand to
gain by swallowing the benefits yielding out of the interim order even though
the battle has been lost at the end.
This cannot be countenanced.
We are, therefore, of the opinion that the successful party finally held
entitled to a relief assessable in terms of money at the end of the litigation,
is entitled to be compensated by award of interest at a suitable reasonable rate
for the period for which the interim order of the court withholding the release
of money had remained in operation.” 212. The Court in the aforesaid judgment
also observed that once the doctrine of restitution is attracted, the interest
is often a normal relief given in restitution. Such interest is not controlled by
the provisions of the Interest Act of 1839 or 1978. 213. In a relatively recent
judgment of this Court in Amarjeet Singh and Others v. Devi Ratan and Others
(2010) 1 SCC 417 the Court in para 17 of the judgment observed as under:
“No litigant can
derive any benefit from mere pendency of case in a court of law, as the interim
order always merges in the final order to be passed in the case and if the writ
petition is ultimately dismissed, the interim order stands nullified automatically.
A party cannot be allowed to take any benefit of its own wrongs by getting an
interim order and thereafter blame the court. The fact that the writ is found, ultimately,
devoid of any merit, shows that a frivolous writ petition had been filed. The
maxim act us curiae neminem gravabit, which means that the act of the court
shall prejudice no one, becomes applicable in such a case. In such a fact
situation the court is under an obligation to undo the wrong done to a party by
the act of the court.
Thus, any undeserved
or unfair advantage gained by a party invoking the jurisdiction of the court must
be neutralised, as the institution of litigation cannot be permitted to confer
any advantage on a suitor from delayed action by the act of the court. … …” 215.
In consonance with the concept of restitution, it was observed that courts
should be careful and pass an order neutralizing the effect of all
consequential orders passed in pursuance of the interim orders passed by the
court. Such express directions may be necessary to check the rising trend among
the litigants to secure the relief as an interim measure and then avoid
adjudication on merits.
216. In consonance
with the principle of equity, justice and good conscience judges should ensure
that the legal process is not abused by the litigants in any manner. The court should
never permit a litigant to perpetuate illegality by abusing the legal process. It
is the bounden duty of the court to ensure that dishonesty and any attempt to
abuse the legal process must be effectively curbed and the court must ensure
that there is no wrongful, unauthorized or unjust gain for anyone by the abuse
of the process of the court. One way to curb this tendency is to impose
realistic costs, which the respondent or the defendant has in fact incurred in
order to defend himself in the legal proceedings.
The courts would be fully
justified even imposing punitive costs where legal process has been abused. No one
should be permitted to use the judicial process for earning undeserved gains or
unjust profits. The court must effectively discourage fraudulent, unscrupulous
and dishonest litigation. 217. The court’s constant endeavour must be to ensure
that everyone gets just and fair treatment.
The court while
rendering justice must adopt a pragmatic approach and in appropriate cases realistic
costs and compensation be ordered in order to discourage dishonest litigation. The
object and true meaning of the concept of restitution cannot be achieved or
accomplished unless the courts adopt a pragmatic approach in dealing with the
cases. 218. This Court in a very recent case Ramrameshwari Devi and Others v. Nirmala
Devi and Others 2011(6) Scale 677 had an occasion to deal with similar
questions of law regarding imposition of realistic costs and restitution. One
of us (Bhandari, J.) was the author of the judgment.
It was observed in
that case as under: “While 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. The 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.”
37.
False
averments of facts and untenable contentions are serious problems faced by our courts.
The other problem is that litigants deliberately create confusion by introducing
irrelevant and minimally relevant facts and documents. The court cannot reject such
claims, defences and pleas at the first look. It may take quite sometime, at times
years, before the court is able to see through, discern and reach to the truth.
More often than not, they appear attractive at first blush and only on a deeper
examination the irrelevance and hollowness of those pleadings and documents
come to light.
38.
Our
courts are usually short of time because of huge pendency of cases and at times
the courts arrive at an erroneous conclusion because of false pleas, claims, defences
and irrelevant facts. A litigant could deviate from the facts which are liable
for all the conclusions. In the journey of discovering the truth, at times,
this Court, on later stage, but once discovered, it is the duty of the Court to
take appropriate remedial and preventive steps so that no one should derive
benefits or advantages by abusing the process of law. The court must effectively
discourage fraudulent and dishonest litigants.
39.
Now,
when we revert to the facts of this case it becomes quite evident that the
appellant is guilty of suppressing material facts and introducing false pleas
and irrelevant documents. The appellant has also clouded the entire case with
pleas which have nothing to do with the main controversy involved in the case.
IRRELEVANT DOCUMENTS:
40.
All
documents filed by the appellant along with the plaint have no relevance to the
controversy involved in the case. We have reproduced a list of the documents to
demonstrate that these documents have been filed to mislead the Court. The
First Appellate Court has, in fact, got into the trap and was misled by the
documents and reached to an entirely erroneous finding that resulted in undue
delay of disposal of a small case for almost17 years.
FALSE AND IRRELEVANT
PLEAS:
41.
The
appellant is also guilty of introducing untenable pleas. The plea of adverse
possession which has no foundation or basis in the facts and circumstances of
the case was introduced to gain undue benefit. The Court must be cautious in
granting relief to a party guilty of deliberately introducing irrelevant and untenable
pleas responsible for creating unnecessary confusion by introducing such documents
and pleas. These factors must be taken into consideration while granting relief
and/or imposing the costs.
42.
On
the facts of the present case, following principles emerge:
a. It is the bounden
duty of the Court to uphold the truth and do justice.
b. Every litigant is
expected to state truth before the law court whether it is pleadings,
affidavits or evidence. Dishonest and unscrupulous litigants have no place in
law courts.
c. The ultimate object
of the judicial proceedings is to discern the truth and do justice. It is
imperative that pleadings and all other presentations before the court should
be truthful.
d. Once the court discovers
falsehood, concealment, distortion, obstruction or confusion in pleadings and
documents, the court should in addition to full restitution impose appropriate
costs. The court must ensure that there is no incentive for wrong doer in the
temple of justice. Truth is the foundation of justice and it has to be the common
endeavour of all to uphold the truth and no one should be permitted to pollute
the stream of justice.
e. It is the bounden
obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage
obtained by abusing the judicial process.
f. Watchman, caretaker
or a servant employed to look after the property can never acquire interest in
the property irrespective of his long possession. The watchman, caretaker or a servant
is under an obligation to hand over the possession forthwith on demand. According
to the principles of justice, equity and good conscience, Courts are not
justified in protecting the possession of a watchman, caretaker or servant who
was only allowed to live into the premises to look after the same.
g. The watchman,
caretaker or agent holds the property of the principal only on behalf the principal.
He acquires no right or interest whatsoever in such property irrespective of his
long stay or possession. 8. The protection of the Court can be granted or
extended to the person who has valid subsisting rent agreement, lease agreement
or licence agreement in his favour.
43.
In
the instant case, we would have ordinarily imposed heavy costs and would have
ordered restitution but looking to the fact that the appellant is a Watchman
and may not be able to bear the financial burden, we dismiss these appeals with
very nominal costs of Rs. 25,000/- to be paid within a period of two months and
direct the appellant to vacate the premises within two months from today and
handover peaceful possession of the suit property to the respondent-Society. In
case, the appellant does not vacate the premises within two months from today,
the respondent-Society would be a liberty to take police help and get the
premises vacated.
44.
Both
the appeals are, accordingly dismissed, leaving the parties to bear their own
costs.
………………………………J.
[DALVEER BHANDARI]
………………………………J.
[DIPAK MISRA]
NEW
DELHI,
APRIL
27, 2012.
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