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Tuesday, March 7, 2017

This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.- We accordingly dismiss the Special Leave Petitions but while doing so, direct that: (i) the petitioners shall vacate the premises on or before 7 March 2017; (ii) In case the petitioners fail to vacate the premises by the date indicated in (i) above, they shall expose themselves to civil and criminal consequences under the law; (iii) the petitioners shall pay all arrears for use of the premises computed at the rate fixed in the order of this Court dated 28 August 2015 within four weeks; and (iv) the petitioners shall pay costs quantified at Rs 5 lakhs (Rupees five lakhs) to the respondents within two months.




                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

              SPECIAL LEAVE PETITION (C) NOS. 25331-33 OF 2015



DNYANDEO SABAJI NAIK AND ANR                   ..Petitioners



                                   VERSUS


MRS.PRADNYA PRAKASH KHADEKAR
AND ORS
..Respondents




                               J U D G M E N T



 Dr D Y CHANDRACHUD, J

1.          The Special Leave Petitions  in  the  present  case  arise  from
three orders of the High Court of Judicature at Bombay in a First Appeal:

(i) an order dated 22 November 2013 by which a year’s time  was  granted  to
the petitioners (in terms as prayed) to vacate  the  premises  which  formed
the subject matter of a decree for eviction, until 30 November 2014;

(ii) an order dated 2 December 2013 by which the High Court disposed of  the
First Appeal in terms of the undertaking filed by the petitioners; and

(iii) an order dated 16 June 2015 by which the petition for review has  been
dismissed.  There is a delay  of  503  and  522  days  respectively  in  the
Special Leave Petitions filed against the orders dated 2 December  2013  and
22 November 2013.  Since the petitioners moved the High Court in a  petition
for review, we condone the  delay  and  having  heard  counsel,  proceed  to
dispose of the Special Leave Petitions by this judgment.

2.          The subject  matter  of  the  dispute  comprises  of  commercial
premises bearing Shop No.8 A, Bhatia  Bhuvan  Ground  Floor,  D  S  Babrekar
Marg, Off Gokhale Road (North), Dadar, Mumbai   400  028.   The  finding  of
fact (as will be elucidated hereafter) is that  the  premises  were  granted
under a  conducting  agreement  to  the  petitioners  for  carrying  on  the
business of a laundry. The case of  the  original  plaintiff  who  sued  for
possession was that the premises were granted on the basis of  a  conducting
agreement on 31 July 1968 on a royalty of Rs.260 per month.   The  suit  for
eviction was filed against the petitioners in the Court of Small  Causes  on
26 April 1984.  Initially, the  suit was decreed on 15  September  1999.  In
an appeal filed by the petitioners, the appellate Bench of the Small  Causes
Court by a judgment dated 10 January 2002 held that  since  the  petitioners
were in occupation of the premises under a conducting agreement,  there  was
no relationship of licensor and licensee.  As a result,  the Court of  Small
Causes was held to have no jurisdiction under Section 41 of  the  Presidency
Small Causes Courts’ Act.  The appeal against the  judgment  and  decree  of
the Trial Court was hence allowed. The judgment of the appellate  Bench  was
questioned in a Writ Petition filed by the  predecessor-in-interest  of  the
respondents.  The petition was dismissed by a learned Single  Judge  of  the
High Court on 24 June 2002.

3.          The respondents thereupon instituted a suit in  the  City  Civil
Court for recovering possession of the premises.  The suit was decreed by  a
judgment  dated 5 May 2012.  The trial judge entered a finding of fact  that
the premises had been given on a  conducting  basis.   In  support  of  this
finding, the trial Judge adverted to the admission of  the  first  defendant
in certain proceedings which were instituted before the Labour  Court  under
the Payment of Wages Act to the effect that the laundry had been taken  over
on a conducting basis from the original Plaintiff.  The finding recorded  by
the trial judge was in the following terms :

“The question to be considered in this case is as to  whether  the  business
of the laundry was given to the defendant no.1 on conducting basis  or  not.
It is pertinent to note that the workers of the  Kismet  Laundry  had  filed
case in the Labour Court  under  the  Payment  of  Wages  Act  bearing  Case
nos.530 of 1974  and  531  of  1974  against  the  defendant  no.1  and  the
plaintiff. In that case defendant no.1 had given evidence.  He has  admitted
that he has taken laundry  business  “Kismat  Laundry”  for  conducting  the
laundry business on 01/08/1968 on payment of royalty of  Rs.260/-  from  the
plaintiff.  In his cross-examination DW-1 Dnyandeo Sabaji Naik in this  suit
admitted about giving  deposition  in  the  labour  Court.  Thus,  from  the
admissions of the  defendant  no.1  it  is  established  that  the  original
plaintiff had given laundry business on conducting basis  to  the  defendant
no.1.  In his cross-examination defendant no.1  has  also  further  admitted
that stock-in-trade, furniture relating to the business were  given  to  him
and the royalty of Rs.260/- per month was fixed. He has  also  not  disputed
the receipts which were issued by the  plaintiff  accepting  of  payment  of
royalty  of  Rs.260/-  from  the  defendant  no.1  towards  conducting   his
business.  Moreover the copy of license issued under the  Bombay  Shops  and
Establishment Act produced  in  the  Small  Causes  Court  relating  to  the
business run from the suit premises has been admitted by the defendant  no.1
in his evidence.  It is admitted that in the licence the  name  of  business
of Kismat Laundry managed by  Bluestar  Art  Dyers  and  Cleaners  has  been
mentioned.  In the licence Narayan Narvakar was shown as the owner and  Naik
was shown as conductor of business.  Thus, on the basis of  the  documentary
evidence  and  on  the  admissions  of  the  defendant  no.1  it  has   been
established by the plaintiffs that the suit premises  and  business  therein
was given on conducting basis to the defendant no.1.”



4.          Against the judgment and order of  the  Trial  Court,  decreeing
the suit for possession, the  petitioners  filed  a  First  Appeal.   On  22
November 2013, the learned  Single  Judge  of  the  High  Court  passed  the
following order in the First Appeal :

“In this Appeal, after  hearing  the  learned  counsel  for  the  Appellants
fully, I disclose that there is no merit in  the  Appeal.  However,  as  the
Appellants have been conducting the business  at  the  suit  premises  since
more than 40 years, it  was  suggested  that  some  time  can  be  given  to
Appellants to vacate  the  suit  premises.   The  learned  counsel  for  the
Appellants sought instructions and makes statement that the  Appellants  are
ready to give undertaking that they will vacate  the  suit  premises  on  or
before 30th November, 2014.  The learned counsel for  the  Respondent  Nos.1
and 3 submits that Appellants to disclose the names of all the occupants  of
the suit premises.

2.    The learned counsel for the Respondents submits that  if  the  Royalty
of Rs.5,000/- per month as directed by this Court is continued  to  be  paid
till 30th November, 2014 and undertaking be given that Appellants  will  not
alienate the property or create any third party right in any manner  in  the
suit property or  part  with  the  possession  of  the  property,  then  the
Respondents are ready and willing to accept the said undertaking  and  ready
to accommodate the Appellants by giving time to  Appellants  to  vacate  the
suit premises.

3.    In view of this  development  and  submissions  made  by  the  learned
counsel of both the sides, Appellants to give their undertaking. Stand  over
to 29th November, 2013 at 3.00 p.m.”



5.           In  pursuance  of  the  above  order,  the  petitioners   filed
undertakings to vacate the premises on or  before  30  November  2014.   The
petitioners took the benefit of the order of the High Court  by  which  they
were granted a year’s time to vacate the premises.  The undertakings  formed
the basis of the order of the learned Single Judge  dated  2  December  2013
when the First Appeal was disposed of.  The matter did not rest  there.   An
application for extension of time to vacate the premises  was  filed  before
the High Court which  was  allowed  by  the  learned  Single  Judge  in  the
following terms, by an order dated 5 December 2014 :

“Application is moved for extension of time till 31st  May,  2015  and  also
seeking leave to deposit the rent from September, 2014 onwards.  This  Court
by order dated 2nd December, 2013, has granted  time  to  the  applicant  to
vacate the suit premises till 30th November, 2014.  Now the applicant  seeks
extension of time.  The learned counsel for the applicant submits  that  his
daughter is doing her post graduation and the applicant wants some  time  to
find out other premises for their laundry business. The learned counsel  for
the respondent submits that the applicants have  put  up  partition  in  the
suit premises and abused respondent when they went to take  possession  30th
November, 2014 at 7.00 p.m. In view of the  submissions,  Civil  Application
is disposed of by passing the following order.

                                    Order

Applicant shall vacate  the  premises  and  hand  over  possession  of  suit
premises to respondent at 7.00 p.m. on 31st March, 2015.



This is the last extension and hereafter no extension will be given.



Applicant to remove any construction i.e. partition if put up  at  the  time
of handing over possession.



The applicant shall give  undertaking  to  that  effect  on  or  before  9th
December, 2014.



The applicant is directed to deposit the arrears  of  rent  from  September,
2014 onwards till 31st March, 2015, on or before 17th December, 2014.”





6.          By and as a result of the above order, the petitioners  obtained
an  extension of time until 31  March  2015  to  vacate  the  premises.  The
petitioners then filed a Review Petition before the High Court on  17  March
2015.  Together with the Review  Petition,  the  petitioners  filed  another
application for extension of time  to  vacate  the  premises  by  a  further
period of  five  years.  The  learned  Single  Judge  dismissed  the  Review
Petition on 16 June 2015.

7.          The petitioners moved  this  Court  under  Article  136  of  the
Constitution. On 28 August 2015, notice was issued in  the  application  for
condonation of delay as well as on the Special Leave Petitions  and  a  stay
of dispossession was granted conditional on the  petitioners  depositing  an
amount of Rs 15,000 towards compensation for using the premises with  effect
from 1 December 2013.

8.           The  submission  which  has  been  urged  on  behalf   of   the
petitioners is  that  the  learned  Single  Judge  of  the  High  Court  was
manifestly in error in rejecting the First Appeal without  reasons.  It  was
urged that the petitioners would be entitled  to  assail  the  judgment  and
order dated 22 November 2013 on merits notwithstanding  the  fact  that  the
petitioners had filed an undertaking to vacate the premises by  30  November
2014. In support of the submission reliance was  placed  on  a  judgment  of
this Court in P R Deshpande v. Maruti Balaram Haibatti[1]   to  advance  the
submission that the filing of an undertaking does not disentitle a  litigant
to question the legality of the judgment dismissing the First Appeal.

9.          We are unable to accept the contention which has  been  advanced
on behalf of the  petitioners.   The  order  of  the  High  Court  dated  22
November 2013 indicates that  at  the  hearing  of  the  First  Appeal,  the
learned Single  Judge  indicated  to  the  petitioners  that  she  found  no
substance in the First Appeal. At this stage, counsel for  the  petitioners,
upon seeking instructions, stated that the petitioners  would be willing  to
furnish an undertaking to vacate the premises  by  30  November  2014.   The
respondents acceded to  this  request  subject  to  the  compensation  being
determined at  Rs  5000  per  month  as  was  directed  by  the  High  Court
previously. The order of the High Court indicates that the petitioners  were
granted  a  period  of  ten  days  even  thereafter  to  reflect  upon   the
undertaking which they were to file and it was only on 2 December 2013  that
the First Appeal was eventually disposed of in  terms  of  the  undertaking.
The petitioners sought and obtained the benefit of an order granting them  a
period of one year to vacate the premises. The matter did  not  rest  there.
The petitioners moved the High Court again for extension of time  which  was
allowed to them by an order dated 5 December 2014.  The order  of  the  High
Court indicates that the  extension  was  sought  on  the  ground  that  the
daughter of the applicant was pursing  her  post  graduate  studies  and  in
order to enable the petitioners  “to  find  out  other  premises  for  their
laundry business”.  This sequence of events leaves no manner of  doubt  that
the undertaking was  not  called  for  by  the  High  Court  to  secure  the
occupation of the premises during the period that the petitioner would  have
required to further assail the order of the High Court in this  Court.   The
petitioners, on  the  contrary,  clearly  indicated  that  they  would  rest
content with a time of one year to vacate the premises and in fact  obtained
a further extension of time of four months even  after  the  expiry  of  the
initial term of one year.

10.         The judgment of this Court in P R Deshpande  (supra)  lays  down
the following principle:

“11. A party to a lis can be asked to give an undertaking to  the  court  if
he requires  stay  of  operation  of  the  judgment.   It  is  done  on  the
supposition that the order would remain unchanged.  By directing  the  party
to give such an undertaking, no court can scuttle or foreclose  a  statutory
remedy of appeal or revision, much less a  constitutional  remedy.   If  the
order is reversed or modified by the superior court or even the  same  court
on a review, the undertaking given by the party will automatically cease  to
operate.  Merely because a party has complied with the directions  to  given
an undertaking as a condition for obtaining stay, he cannot be  presumed  to
communicate to the other party that he is thereby giving  up  his  statutory
remedies to challenge the order.”



11.         The above principle applies in a situation where an  undertaking
is filed by a litigant, as a part of a condition for stay  of  operation  of
the judgment of the High Court.  The filing of such an undertaking does  not
deprive the litigant of the remedy to question  the  judgment  of  the  High
Court under Article  136  of  the  Constitution.   Such  a  situation  must,
however, be distinguished  from  a  case  (such  as  the  present)  where  a
litigant rests content with seeking time to  vacate  the  premises  and  the
circumstances of the case indicate that  the  litigant  did  not  intend  to
pursue any further  remedy before this Court to assail the judgment  of  the
High Court.  Having furnished an unconditional  undertaking  to  vacate  the
premises,  it  would  be  manifestly  an  abuse  of  the  process  for   the
petitioners to seek recourse to their remedies on the merits of  the  issues
which arose in the First Appeal.

12.         This case indicates a  blatant  abuse  of  the  process  of  the
Court.  The petitioners not only took the benefit of an order  of  the  High
Court granting them one year’s time to vacate the premises  but  obtained  a
further extension of a period of four months  to  vacate.   The  petitioners
then filed a Review  Petition  before  the  High  Court  and  moved  another
application, this time seeking an extension of  five  years  to  vacate  the
premises.  The time of the High Court and, unfortunately, of this  Court  as
well had to be  devoted  to  a  thoroughly  frivolous  proceeding.   Learned
counsel for the petitioners in fact sought to urge that as a result  of  the
judgment of the City Civil Court, the  petitioners  have  been  deprived  of
establishing that their status as licensees fructified into a  tenancy  with
effect from 1 February 1973. Quite apart from the  fact  that  such  a  plea
would not be open to the petitioners in the  background  of  what  has  been
observed earlier, we find even on merits that the submission  requires  only
be stated to be rejected.  We have extracted in the  earlier  part  of  this
judgment the specific finding of the Trial Court based on the admissions  of
the predecessor-in-interest  of  the  petitioners  that  the  premises  were
granted to them on the basis of a conducting  agreement.  Besides  this,  in
the earlier proceeding that was instituted in the  Small  Causes  Court,  it
was found that the premises have been granted under a  conducting  agreement
and there was no relationship of  licensor  and  licensee.  That  being  the
position, the petitioners would not acquire status as  tenants  with  effect
from 1 February 1973, there being no licence in their favour.

13.         This Court must view with disfavour any attempt  by  a  litigant
to abuse  the  process.  The  sanctity  of  the  judicial  process  will  be
seriously eroded if such attempts are not dealt with firmly. A litigant  who
takes liberties with the truth or with the procedures of  the  Court  should
be left in no doubt about the consequences  to  follow.  Others  should  not
venture along the same path in the hope or on  a  misplaced  expectation  of
judicial leniency.  Exemplary costs are inevitable, and even  necessary,  in
order to ensure that in litigation, as in the law which is practised in  our
country, there is no premium on the truth.

14.         Courts across the  legal  system  -  this  Court  not  being  an
exception – are choked with litigation.  Frivolous  and  groundless  filings
constitute a serious menace to the administration of justice.  They  consume
time and clog the infrastructure.   Productive  resources  which  should  be
deployed in the handling of genuine causes are dissipated  in  attending  to
cases filed only to benefit  from  delay,  by  prolonging  dead  issues  and
pursuing worthless causes.  No  litigant  can  have  a  vested  interest  in
delay.  Unfortunately, as the  present  case  exemplifies,  the  process  of
dispensing justice is misused by the unscrupulous to the  detriment  of  the
legitimate. The present case is an illustration of how a  simple  issue  has
occupied the time of the courts and  of  how  successive  applications  have
been filed to prolong  the  inevitable.  The  person  in  whose  favour  the
balance of justice lies has in  the  process  been  left  in  the  lurch  by
repeated attempts to revive a stale issue.   This  tendency  can  be  curbed
only if courts across the  system  adopt  an  institutional  approach  which
penalizes such behavior.  Liberal access to justice does not mean access  to
chaos and indiscipline.  A strong message must be conveyed  that  courts  of
justice will not  be  allowed  to  be  disrupted  by  litigative  strategies
designed to profit from the delays of the law.  Unless  remedial  action  is
taken by all courts here and now our society  will  breed  a  legal  culture
based on evasion instead of abidance.  It is the  duty  of  every  court  to
firmly deal with such situations.  The imposition of exemplary  costs  is  a
necessary instrument which has to be deployed to weed out,  as  well  as  to
prevent the filing of frivolous cases.  It is only then that the courts  can
set apart time to resolve genuine causes and answer the  concerns  of  those
who are in need of justice. Imposition of real time costs is also  necessary
to ensure that access to  courts  is  available  to  citizens  with  genuine
grievances.  Otherwise, the doors would be shut to legitimate causes  simply
by the  weight  of  undeserving  cases  which  flood  the  system.   Such  a
situation cannot be allowed to come to pass.   Hence  it  is  not  merely  a
matter of discretion but a duty and  obligation  cast  upon  all  courts  to
ensure that the legal system is not exploited by those who use the forms  of
the law to defeat or delay justice. We  commend  all  courts  to  deal  with
frivolous filings in the same manner.

15.         We accordingly dismiss the Special  Leave  Petitions  but  while
doing so, direct that:

(i)   the petitioners shall vacate the premises on or before 7 March 2017;

(ii)  In case the petitioners fail  to  vacate  the  premises  by  the  date
indicated in (i) above, they shall expose themselves to civil  and  criminal
consequences under the law;

(iii)       the petitioners shall pay all arrears for use  of  the  premises
computed at the rate fixed in the order of this Court dated 28  August  2015
within four weeks; and

(iv)  the petitioners shall pay costs quantified at Rs 5 lakhs (Rupees  five
lakhs) to the respondents within two months.

16.         We  also  clarify  that  this  judgment  shall  not  affect  the
contempt proceedings which have been initiated against the petitioners.

17.         There shall be an order in these terms.




...........................................CJI
                                              [JAGDISH SINGH KHEHAR]



.............................................J
                                               [Dr  D Y  CHANDRACHUD]




….........................................J
                                               [SANJAY KISHAN KAUL]

New Delhi;
March 1, 2017

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[1]   [2] [(1998) 6 SCC 507]


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|REPORTABLE        |








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