REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 4912-4913 OF 2011
(Arising out of SLP(C) Nos. 3157-3158 of 2011)
Ramrameshwari Devi and Ors. ...Appellants
Versus
Nirmala Devi and Ors. ...Respondents
JUDGEMENT
Dalveer Bhandari, J.
1. Leave granted.
2. These 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.
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3. The 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.
4. This 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.
5. The basic facts which are necessary to dispose of these
appeals are recapitulated as under:-
6. In the year 1952, almost about half a century ago, the
government allotted a residential house bearing nos. 61-62,
2
I-Block, Lajpat Nagar-I, measuring 200 yards to Ram Parshad.
The Lease Deed was executed in his favour on 31.10.1964.
7. On 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.
8. The 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 in dispute.
3
9. The 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.
10. In the suit filed by Ram Parshad (one of the respondents)
(now deceased) against the appellants in these appeals the
following issues were framed:
1. Whether the suit is liable to be stayed under Section
10 CPC as alleged in para no.1 of Preliminary
Objection?
2. Whether defendants are licencees in the suit premises
and if so whether the plaintiff is entitled to recover
possession of the same from them?
3. Whether suit of plaintiff is time barred?
4. Whether suit has been properly valued for the purpose
of court fees and jurisdiction?
4
5. Whether the suit property is joint family property of
parties?
6. Whether 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?
7. Whether defendants have become the owner of three-
fourth share of the suit property by adverse
possession?
8. Relief.
and fixed the matter for evidence on 22.11.2004.
11. The 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.
12. The Regular First Appeal was dismissed on 9.11.2000
and the Special leave petition against the said appeal was also
5
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.
13. In 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
6
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 previous litigation.
14. According 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.
15. In 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.
16. On 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
7
application was dismissed on 17.12.2007 with liberty to move
an application for taking on record further documents.
17. On 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 order :-
"M-61/2006
09.07.2010
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
8
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
(Vipin Kumar Rai)
9
ACJ/ARC(W)"
18. Aggrieved 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.
19. On 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
1
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.
20. These appeals have been filed against the order imposing
costs and dismissing the review petition.
21. 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.
22. The 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
1
courts by filing wrong and incorrect particulars (the list of
dates and events) must be dealt with heavy hands.
23. In 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.
24. The 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
1
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.
25. In 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.
26. It 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.
27. The 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
1
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.
... ... ...
... ... ..."
28. 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. 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
1
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."
29. We have carefully examined the impugned judgment of
the High Court and also order dated 9.7.2010 passed by the
learned Civil Judge, Delhi.
1
30. It 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.
31. The 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
1
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.
1
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 respondent. 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.
1
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.
1
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 06.10.2004
28.09.2004 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 present
19.04.2005 Affidavit of DW filed. However DW
stated that he is not feeling well.
Adjourned.
2
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.
2
10.1.2008Counsel for the Plaintiff. None for the
Defendant. Adjourned.
12.02.2008 Defendant filed application O18
R17A. 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
2
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.
32. Dr. Arun Mohan, learned amicus curiae, has written an
extremely useful, informative and unusual book "Justice,
2
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.
33. According 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 system.
2
34. According 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.
35. According 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 tactics.
2
36. According 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.
37. According 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
2
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
38. According 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
2
realistic and actual mesne profits, imposing costs or ordering
prosecution.
39. It 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.
40. The 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.
2
41. While 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.
42. According 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
2
and contentions before the High Court had the
effect of completely negating any claim to adverse
possession. ..."
43. Framing 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.
44. In 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.
45. We 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
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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.
46. Usually 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
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is eventually dismissed, the plaintiff or the petitioner will have
to pay full restitution, actual or realistic costs and mesne
profits.
47. If 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.
48. It 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
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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.
49. It is a typical example how a litigation proceeds and
continues and in the end there is a profit for the wrongdoer.
50. Learned 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."
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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."
51. In 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.
52. The main question which arises for our consideration is
whether the prevailing delay in civil litigation can be curbed?
In our considered opinion the existing system can be
drastically changed or improved if the following steps are
taken by the trial courts while dealing with the civil trials.
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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
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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.
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
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and forged documents should be adequately
punished. No one should be allowed to abuse
the process of the court.
G. The principle of restitution be fully applied in a
pragmatic manner in order to do real and
substantial justice.
H. Every case emanates from a human or a
commercial problem and the Court must make
serious 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.
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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.
53. According 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.
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54. 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.
55. 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.
56. On consideration of totality of the facts and
circumstances of this case, we do not find any infirmity in the
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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
frivolous litigation.
57. The 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.
58. The 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.
59. We 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.
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60. Before 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 manner.
61. These appeals are accordingly disposed of in terms of the
aforementioned directions.
..........................J.
(Dalveer Bhandari)
.......................J.
(Deepak Verma)
New Delhi
July 4, 2011
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