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 3 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.

                                                          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.





                                                                         1


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




                                                                                3


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





                                                                             3


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




                                                                                  3


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."





                                                                                   3


       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.





                                                                                   3


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




                                                                         3


      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





                                                                     3


      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.




                                                                     3


       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.





                                                                                              3


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




                                                                                3


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.





                                                                              4


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



                                                                           4

"In a prosecution under Section 138, Negotiable Instruments Act, the mens rea viz., fraudulent or dishonest intention at the time of issuance of cheque need not be proved. However in a prosecution under Section 420, IPC mens rea is an important ingredient to be established. In the former case the prosecution has to establish that the cheque was issued by accused to discharge a legally enforceable debt or other liability. This ingredient need not be proved in a prosecution for the charge under Section 420, IPC. Therefore, the two offences covered by Section 420 IPC and 138, Negotiable Instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, Section 300 Cr.P.C. is not a bar for separate prosecutions for the offences punishable under Section 420, IPC and 138 of the Negotiable Instruments Act. The question of application of the principles of double jeopardy or rule estoppel does not come into play.

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU            
CRIMINAL PETITION No.5711 of 2009  

10-03-2011

Mr.G.Man Mohan Hari Prakash,S/o.Mr.G. Ramaswamy    

The State of A.P. rep. by the Public Prosecutor & another.

Council for petitioner :B.M.Patro

Council for Respondent: Public Prosecutor

:ORDER:

The petitioner is accused of offence punishable under Section 420 I.P.C. in
CC.No.862 of 2009 on the file of X Additional Chief Metropolitan Magistrate,
Secunderabad.  It is alleged that the accused entered into agreement with Sripad
Commodity and Derivatives Private Limited, Secunderabad, traded in commodities
and became liable to pay Rs.30,62,880.80 paise and that towards discharge of the
said liability, the accused issued cheque dated 15.06.2006 for the said amount
in favour of the above company and that the said cheque was bounced for want of
sufficient funds in the account of the accused and that the accused issued the
cheque with an intention to cheat the de facto complainant.


        2.      The main contention on which this petition is filed is to the effect
that another complaint was filed by the complainant against the petitioner
alleging offence under Section 138 of the Negotiable Instruments Act in
CC.No.890 of 2007 and that when it is pending trial, the present case CC.No.862
of 2009 for offence under Section 420 I.P.C. on the same allegations and on the
same cause of action is not maintainable as the petitioner cannot be tried twice
on the same allegations in view of Section 300 Cr.P.C. This is not a case where
the petitioner/accused was convicted for one of the two offences by any
competent criminal Court and thereafter is being tried for another offence on
the basis of the same cause of action.  In this case, both the criminal cases
one for the offence under Section 138 of the Negotiable Instruments Act and the
second one for the offence under Section 420 I.P.C. are pending trial.
Ingredients of the above two offences are entirely different.  This Court in
V.Kutumba Rao Vs. M.Chandrasekhar Rao1 lucidly discussed this subject in the
following manner:
       
"In a prosecution under Section 138, Negotiable Instruments Act, the mens rea
viz., fraudulent or dishonest intention at the time of issuance of cheque need
not be proved.  However in a prosecution under Section 420, IPC mens rea is an
important ingredient to be established.  In the former case the prosecution has
to establish that the cheque was issued by accused to discharge a legally
enforceable debt or other liability.  This ingredient need not be proved in a
prosecution for the charge under Section 420, IPC.  Therefore, the two offences
covered by Section 420 IPC and 138, Negotiable Instruments Act are quite
distinct and different offences even though sometimes there may be overlapping
and sometimes the accused person may commit both the offences.  The two offences  
cannot be construed as arising out of same set of facts.  Therefore, Section 300
Cr.P.C. is not a bar for separate prosecutions for the offences punishable under
Section 420, IPC and 138 of the Negotiable Instruments Act.  The question of
application of the principles of double jeopardy or rule estoppel does not come
into play.  The acquittal of the accused for the charge under Section 420, IPC
does not operate as estoppel or res judicata for a finding of fact or law to be
given in prosecution under Section 138 of the Negotiable Instruments Act.  The
issue of fact and law to be tried and decided in prosecution under Section 420,
IPC are not the same issue of fact and law to be tried in prosecution under
Section 138 of the Act.  I, therefore, do not find any force in the contentions
advanced on behalf of the accused."

3.      Further, the police are incompetent to register a case for the offence
under Section 138 of the Negotiable Instruments Act and to investigate into the
same and to file charge sheet for the said offence.  Section 142(a) of the
Negotiable Instruments Act creates a bar for the Court to take cognizance of any
offence punishable under Section 138 except on a complaint in writing made by
the payee or the holder in due course of the cheque.  Therefore, there is no
possibility of the police investigating into both the offences under Section 420
I.P.C. and Section 138 of the Negotiable Instruments Act together even though
both the offences arise out of the same transaction of issuance of the cheque
which was dishonoured later.  Since the offence under Section 420 I.P.C. is a
cognizable offence, report is given by the de facto complainant to the Police
for investigation of the offence under Section 420 I.P.C;  and since cognizance
for the offence under Section 138 of the Negotiable Instruments Act can be taken
only upon a private complaint filed by the payee of the cheque, the complainant
filed separate private complaint against the accused.  Thus, two criminal cases
are filed against the petitioner/accused, one by the complainant himself and
another by the police;  and both are being tried simultaneously.  There is no
legal bar for maintaining two criminal cases against the petitioner, one filed
by the police for the offence under Section 420 I.P.C. and the other filed by
the complainant himself for the offence under Section 138 of the Negotiable
Instruments Act.  Section 300 Cr.P.C. cannot operate as a bar for the present
case as there is no conviction by any competent criminal Court basing on the
same cause of action of issue of the cheque.

4.      It is contended by the petitioner's counsel placing reliance on SIDDHARTHA
ELECTRONICS VS. VIDEOCON INTERNATIONAL LIMITED2 of this Court that in order to      
constitute the offence of cheating, the intention to deceive must be in
existence at the time when the inducement was made and since inception of the
transaction.  In this case, neither in the charge sheet nor in the statement of
the authorized person of the 2nd respondent given to the police under Section
161(3) Cr.P.C., it was stated that there was any deception from the inception of
original agreement on the basis of which the accused was permitted to trade in
commodities.  The only allegation is that the accused gave the cheque in
question with an intention to cheat the 2nd respondent.  Thus, the allegation of
deception is on the date of issue of the cheque and not on the date of entering
into the agreement for trading in commodities.  While issuing the cheque, there
was no allegation of any representation or deception and the 2nd respondent did
not part with any property or valuable security either thereunder or thereafter
in pursuance of the alleged representation or deception.  In the absence of any
such basic ingredients of inducement by fraud or deception at the inception of
the transaction, mere giving of cheque for the amount due without there being
sufficient funds in the account of the accused, cannot attract liability under
Section 420 I.P.C.  In that view of the matter, I find that the prosecution
could not make out any ingredients for maintaining the charge sheet under
Section 420 I.P.C. against the accused.

5.      In the result, the Criminal Petition is allowed quashing proceedings in
CC.No.862 of 2009 on the file of X Additional Chief Metropolitan Magistrate,
Secunderabad.

?1 2003 CRI. L. J. 4405
 2 2003-ALT (Cri)-1-409

It is true that the doctrine does not confer any title on the person who took possession of the property in part performance of a written contract of sale, but it affords protection to the person against the transferor or any person claiming under him. In the instant case, admittedly, the plaintiff obtained possession of the schedule mentioned land in part performance of Ex.A.1- agreement to sell, dated 30.7.1985. Merely because the suit for specific performance of contract is barred by limitation, it cannot be said that he has not been ready and willing to perform his part of contract. The very fact that he paid the entire sale consideration indicates that there was nothing remained to be performed on his part. The plaintiff has not only a right to defend his possession in an action brought by the transferor or any person claiming under him, he can also institute a suit for injunction for the purpose of protecting his possession. The trial court, therefore, obviously in error in holding that since the r

THE HON'BLE SRI JUSTICE R.KANTHA RAO      
S.A.NO.368 OF 2006 AND S.A.NO.369 OF 2006    

29-03-2011

Kuruvakotapaty Chinna Linganna

Alla Mallikarjuna Reddy and others

Counsel for the Appellant: Sri K.Rathanga Pani Reddy

Counsel for the Respondent :Sri G.Ramachandra Reddy  

:COMMON JUDGMENT:      


        S.A.No.368 of 2006 is filed against the decree and judgment dated
02.01.2006 passed in A.S.No.7 of 2004 by the V Additional District Judge, (Fast
Tract Court), Kurnool at Nandyal whereby and whereunder the learned V Additional
District Judge reversed the decree and judgment dated 26.12.2003  passed by the
Principal Junior Civil Judge, Nandyal in O.S.No.154 of 1998.

        S.A.No.369 of 2006 is filed against the decree and judgment dated
02.01.2006 passed in A.S.No.6 of 2004 by the V Additional District Judge, (Fast
Tract Court), Kurnool at Nandyal whereby and whereunder the learned V Additional
District Judge reversed the decree and judgment dated 26.12.2003 passed by the
Principal Junior Civil Judge, Nandyal in O.S.No.136 of 1998.
        These two appeals are between the same parties. The subject matter of
dispute being the same and the substantial questions of law that arise for
consideration in these second appeals being the same, both these appeals are
disposed of by the following common judgment.
        I have heard Sri K.Rathangapani Reddy, learned counsel appearing for the
appellants in both the appeals and Sri G.Ramachandra Reddy, learned counsel
appearing for the respondents in both the appeals.
        O.S.No.136 of 1998 is filed for the relief of permanent injunction in
respect of the land of an extent of Ac.1.52 cents in Survey No.195 of Peda
Davalam Village, Bandi Atmakur Mandal, locally known as Vegula chenu,
hereinafter will be referred to as 'the schedule mentioned land', against the
defendants 1, 2 and 4 and subsequently, he filed O.S.No.154 of 1998 seeking the
relief of specific performance of agreement to sell dated 30.07.1985 against the
defendants 1 to 4.
        The learned trial Court tried both the suits jointly, recorded evidence in
O.S.No.136 of 1998 and delivered common judgment referring the parties as
plaintiff and defendants, as arrayed in O.S.No.154 of 1998.  For the sake of
convenience, I would like to refer the parties in the same fashion.
        The brief facts relevant for considering the substantial questions of law
involved in these second appeals are stated as follows:
        The plaintiff purchased the schedule mentioned land under an agreement to
sell dated 30.07.1985 from the defendants 1 and 2, who executed the agreement to
sell in his favour by receiving the entire sale consideration on the same day.
The plaintiff was put in possession of the schedule mentioned land under Ex.A.1-
agreement to sell dated 30.07.1985.  According to the plaintiff, Sri Karimaddela
Sivalingam, 4th defendant, having colluded with the defendants 1 and 2 tried to
trespass in to the schedule mentioned land, then he filed O.S.No.136 of 1998
seeking the relief of permanent injunction against the defendants 1, 2 and 4.
Subsequently, he also filed O.S.No.154 of 1998 seeking specific performance of
contract in terms of Ex.A.1-agreement to sell, dated 30.07.1985 against the
defendants 1 to 4. Both the suits are based on Ex.A.1-agreement to sell, dated
30.07.1985 said to have been executed by the defendants 1 and 2.
        Before the trial Court, PWs.1   to 3 were examined and Exs.A.1 to 15 were
marked on behalf of the plaintiff.  Whereas, DWs.1 to 4 were examined and
Exs.B.1 to 19 were marked on behalf of the defendants.
        The learned Principal Junior Civil Judge, Nandyal, decreed both the suits
granting relief of specific performance in O.S.No.154 of 1998 and also granting
the relief of permanent injunction in O.S.No.136 of 1998 against the defendants.
In both the suits, the first defendant remained
ex parte. The learned trial Court basing on the evidence of PW.1-plaintiff,
PW.2-scribe of Ex.A.1-agreement to sell, dated 30.07.1985, PW.3-attestor of
Ex.A.1 held that Ex.A.1-agreement to sell, dated 30.07.1985 is proved by the
plaintiff and that the plaintiff was put in possession of the schedule mentioned
land under the said agreement by the defendants 1 and 2 after receiving entire
sale consideration.  The learned trial Court as well as the first appellate
Court, concurrently held that Ex.A.1-agreement to sell, dated 30.07.1985 is true
and valid.  The theory put-forth by the second defendant was rejected by both
the Courts below. Subsequently, the defendants 1 and 2 executed Ex.B.19-
registered sale deed, dated 30.03.1998 in favour of the 4th defendant in respect
of the suit land.  It was contended by the defendants before the trial Court
that Ex.B.3-legal notice dated 13.12.1993 sent by the defendants was received by
the plaintiff which is evident from Ex.B.5-acknowledgment and the plaintiff
filed the suit seeking the relief of specific performance i.e. O.S.No.154 of
1998 on 09.04.1998 i.e. after a period of 8 years and therefore, the suit is
barred by limitation by virtue of Article 54 of the Limitation Act.

        It was contended inter alia before the trial Court by the defendants that
in view of Ex.B.3-legal notice, dated 13.12.1993 issued by the second defendant
to the first defendant (brother of the second defendant), third defendant
(mother of the second defendant), Sugali Narayana and the plaintiff stating that
the first defendant having colluded with the plaintiff obtained the signatures
of the defendants on some blank papers on the pretext of executing lease deeds
in respect of their landlords, created some documents and alienated the property
to the plaintiff and therefore, the plaintiff had not obtained any sale deed
from the defendants 1 and 3 in respect of the schedule mentioned land.        
According to Article 54 of the Limitation Act, the suit for specific performance
of contract of sale has to be filed within three years from the date fixed for
performance of contract and if no such date is fixed, it shall be filed within
three years from the date when the plaintiff refused notice of specific
performance.
        The learned trial Court, however, took the view that there is no reference
in Ex.B.3-registered legal notice, dated 13.12.1993 about the Ex.A.1-agreement
to sell, dated 30.07.1985, the plaintiff came to know about the refusal of
performance only on 09.04.1998, when the written statement was filed by the
defendants 2 and 3 in O.S.No.136 of 1998 mentioning that they executed Ex.B.19-
sale deed in favour of the 4th defendant.  Limitation according to the learned
trial Court commences from 09.04.1998, but not from 15.12.1993 the date on which
Ex.B.3 -notice, dated 13.12.1993 was served on the plaintiff.
        As to this, it may be stated that though there is no reference to Ex.A.1-
agreement to sell, dated 30.07.1985 in Ex.B.3-legal notice sent by the second
defendant, he made his intention clear therein by stating that the plaintiff has
not obtained any registered sale deed from defendants 1 and 3 and they were
trying to make such alienation jeopardizing rights of the second defendant in
the schedule mentioned land.  From the contents of Ex.B.3-legal notice,
therefore, it is obvious that the second defendant communicated to the plaintiff
in vivid terms that he is not going to join defendants 1 and 3 in executing
registered sale deed in favour of the plaintiff.  From this, the plaintiff, who
was in possession of Ex.A.1-agreement to sell, must have understood that the
specific performance of contract contained in the said agreement was refused by
the second defendant.  The trial Court, therefore, went wrong in arriving at the
finding that the limitation for specific performance of contract under Ex.A.1-
agreement to sell commences from 09.04.1998 when the plaintiff had knowledge
about execution of Ex.B.19-sale deed by the defendants 2 and 3 in favour of the
4th defendant and not from 15.12.1993, the date on which Ex.B.3 legal notice
dated 13.12.1993 was received by the plaintiff.
        One of the substantial questions of law raised by the plaintiff in these
appeals is the decision of the first appellate court that the cause of action in
the suit for perpetual injunction as well as in the suit for specific
performance of agreement to sell is one and the same and on failure by the
plaintiff to include the relief of specific performance in the first suit for
perpetual injunction filed by him debars him from filing the subsequent suit for
specific performance is contrary to the settled principles of law and the same
is liable to be set aside in these second appeals.
As to this contention, I would like to emphasize that the suit for perpetual
injunction was filed when there was an attempt by the defendants to trespass in
to the schedule mentioned land, whereas the suit for specific performance was
filed by the plaintiff to get a regular sale deed executed by the defendants in
terms of Ex.A.1-agreement to sell dated 30.07.1985.  The cause of actions in
both the suits is different for which separate suits may be brought by the
plaintiff.  The learned trial Court was right in holding that since both the
suits are based on different causes of action, the suit for specific performance
is not barred under Order 2 Rule 2(3) of C.P.C.  The finding, therefore recorded
by the learned first appellate Court according to which it reversed the finding
of the trial Court holding that the suit for specific performance is barred
under Order 2 Rule 2 C.P.C. being contrary to the provisions of Order 2 Rule 2
C.P.C. is set aside in these second appeals.  However, it does not change the
result of the suit since this Court upheld the finding of the first appellate
Court that the suit for specific performance of agreement to sell in terms of
Ex.A.1 filed by the plaintiff is barred by limitation.
        Thus, the substantial question of law raised by the plaintiff in the
appeals that the decision rendered by the first appellate Court reversing the
finding of the trial Court and holding that the suit is barred by limitation is
contrary to law and also to the material evidence on record has absolutely no
foundation. This Court, therefore, affirms the finding of the first appellate
Court that the suit for specific performance of agreement to sell filed by the
plaintiff is barred by limitation and answers the said point against the
plaintiff.
        Another substantial question of law which was raised by the plaintiff for
consideration in the second appeals is that the first appellate Court having
found that the plaintiff has been in possession of the schedule mentioned land
ever since the date of Ex.A.1-agreement to sell having taken possession of the
same under the said agreement, he is not entitled for the relief of permanent
injunction since the suit for specific performance of contract is barred by
limitation, is contrary to the provisions envisaged under Section 53-A of the
Transfer of Property Act, the same being wholly erroneous, is liable to be set
aside in these second appeals and O.S.No.136 of 1998 filed by the plaintiff for
the relief of permanent injunction has to be decreed by setting aside the
finding of the first appellate Court.
A combined reading of Section 19 of the Specific Relief Act and Section 53-A of
the Transfer of Property Act makes it clear that the rights of a subsequent
transferee for consideration, who has no notice of the earlier contract are not
affected in an action brought by a person, who was put possession of immoveable
property under an earlier written contract.

        In the instant case, it is to be seen that whether the 4th defendant is a
bona fide purchaser for value without notice of the earlier contract of sale
i.e. Ex.A.1-agreement to sell, dated 30.07.1985.  The parties to the suit i.e.
plaintiff as well as the defendants are residents of one and the same village.
From various documents filed by the plaintiff, such as, Exs.A2 to A.4-land
revenue receipts, Exs.A.5 and A.6 pattedar passbook and the title deed, Exs.A.8
to A.14-certified copies of extracts of adangal clearly indicate that the
plaintiff has been in possession of the schedule mentioned land.  The learned
first appellate Court also concurred with the findings of the learned trial
Court on this aspect and held that the plaintiff having obtained the schedule
mentioned land under Ex.A.1-agreement to sell has been in possession and
enjoyment of the same and that there was no iota of documentary evidence adduced
by the defendants to show that subsequent to Ex.A.1-agreement to sell either
defendants 1 to 3 or defendant No.4 who is the subsequent purchaser are in
possession of the schedule mentioned land.  Considering the long uninterrupted
possession of the plaintiff over the schedule mentioned land and the fact that
the plaintiff as well as the 4th defendant are residents of one and the same
village and also the fact that all the revenue records in respect of the
schedule mentioned land are maintained in the name of the plaintiff, the learned
first appellate Court recorded a positive finding that the 4th defendant must
have been aware of Ex.A.1-agreement to sell and the possession of the plaintiff
in pursuance thereof and that he cannot plead ignorance of the earlier
transaction.  The learned first appellate Court further emphasized that any
little attempt on the part of the 4th defendant would have revealed about the
earlier transaction and the maintenance of all relevant records in the name of
the plaintiff in respect of the suit land.  Therefore, the learned first
appellate Court recorded categorical finding that the 4th defendant is not a
bona fide purchaser for value without notice of the earlier Ex.A.1-agreement to
sell executed by defendants 1 and 2 in favour of the plaintiff and putting him
in possession of the schedule mentioned land under the said agreement.
       
Having recorded a finding that the plaintiff is not a bona fide purchaser for
value without notice of the earlier contract of sale and that the plaintiff is
in possession of the schedule mentioned land having been put in possession of
the same by the defendants 1 and 2 under Ex.A.1 agreement to sell misdirected
itself in holding that since the suit for specific performance of contract of
sale filed by the plaintiff is barred by limitation, he is not entitled for the
decree of permanent injunction.  The learned first appellate Court was also
under the erroneous impression that a person in possession having obtained the
same under a valid written contract of sale can protect his possession having
recourse to the doctrine of part performance of contract embodied in Section 53-
A of the Transfer of Property Act, but cannot, as the plaintiff file a suit for
permanent injunction.

        The view taken by the learned first appellate Court is contrary to the
settled legal position in relation to the doctrine of part performance under
Section 53-A of the Transfer of Property Act.  It has been laid down in large
number of decisions that even if the plaintiff's remedy for specific performance
is barred by limitation, he can still has a right to invoke the doctrine of part
performance envisaged under Section 53-A of the Transfer of Property Act and
protect his possession even by instituting a suit seeking relief of perpetual
injunction.

       
It is true that the doctrine does not confer any title on the person who took
possession of the property in part performance of a written contract of sale,
but it affords protection to the person against the transferor or any person
claiming under him.  In the instant case, admittedly, the plaintiff obtained
possession of the schedule mentioned land in part performance of Ex.A.1-
agreement to sell, dated 30.7.1985.  Merely because the suit for specific
performance of contract is barred by limitation, it cannot be said that he has
not been ready and willing to perform his part of contract.  The very fact that
he paid the entire sale consideration indicates that there was nothing remained
to be performed on his part.  The plaintiff has not only a right to defend his
possession in an action brought by the transferor or any person claiming under
him, he can also institute a suit for injunction for the purpose of protecting
his possession.  The trial court, therefore, obviously in error in holding that
since the relief of specific performance of contract is not available to the
plaintiff as it was barred by time, he is not entitled to protect his possession
by filing a suit for permanent injunction against his transferors and the 4th
defendant, who subsequently obtained ExB.19 sale deed from the defendants 2 and
3.   Both the Courts have found concurrently that the 4th defendant is not a
bona fide purchaser for value, without notice of Ex.A.1-agreement to sell.  If
that is so, the plaintiff can enforce his defence available to him under Section
53-A of the Transfer of Property Act against his transferors as well as against
the defendant No.4, who obtained the registered sale deed -Ex.B.19 from the
defendants 2 and 3 and claiming rights through them.  The defendants, therefore,
in the circumstances, indicated hereinabove cannot resist the suit of permanent
injunction filed by the plaintiff and the plaintiff is certainly entitled for a
decree of permanent injunction against the defendants, despite the fact that the
suit for specific performance is dismissed being barred by limitation.  The
learned first appellate Court went wrong on this aspect in reversing the decree
and judgment passed by the learned trial Court in favour of the plaintiff
granting perpetual injunction against the defendants.  This is a manifest error
of law committed by the first appellate Court, which is in the nature of
substantially affecting rights of the plaintiff to protect his possession and
therefore, it raises a substantial question of law in the second appeal.
       
For the foregoing reasons, the decree and judgment dated 02.01.2006 passed by
the V Additional District Judge (Fast Tract Court) Kurnool at Nandyal in
A.S.No.7 of 2004 is confirmed and the decree and judgment dated 02.01.2006
passed by the V Additional District Judge (Fast Tract Court) Kurnool at Nandyal
in A.S.No.6 of 2004 is set aside affirming the decree and judgment dated
26.12.2003 passed by the Principal Junior Civil Judge, Nandyal granting
perpetual injunction in favour of the plaintiff.
S.A.No.368 of 2006 fails and the same is dismissed. S.A.No.369 of 2006, however,
succeeds and the same is allowed.  There shall be no order as to costs.

Santosh Jagwayan (PW.13) lodged an FIR on 17.12.1996 at 8.30 A.M., that in the intervening night between 16th and 17th December, 1996 on hearing the noise, he sent his Chowkidar Gopal Nepali (deceased) to the roof of his house. Gopal Nepali went upstairs and opened the gate of the roof and found that 8 to 10 accused persons were trying to enter into the house by breaking upon the door of the roof. They immediately fired shot at Gopal Nepali (deceased) and entered into the house. The accused persons locked Shashi Devi (PW.12) wife of complainant, Preeti (PW.14) and Sandhya (PW.15), his daughters, in the bathroom and started looting the moveable properties. In the meanwhile, his neighbours raised their voice. Thus, the accused immediately fired a shot at Mrs. Anita Yadav, as a result of which, she died on the spot. Kripa Dayal Yadav (PW.2), husband of Anita Yadav (deceased) caught hold of one of the accused but he was beaten with the butt of the gun by the other accused persons and they got the accused released from his clutches. The accused decamped with cash, jewellery and silver wares etc. B. On the basis of the said complaint, an FIR No. 240 of 1996 (Ex.P-30) was registered under Sections 395, 396, 397 and 398 IPC and investigation ensued. The dead bodies of Gopal Nepali and Anita 2 the sole question remains to be decided whether adverse inference could be drawn against the accused merely on the basis of recoveries made on their disclosure statements.

                                                                  REPORTABLE


                 IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION


                  CRIMINAL APPEAL NO. 937 of 2005




State of Rajasthan                                                         ...Appellant


                                       Versus


Talevar & Anr.                                                              ...Respondents


                                  J U D G M E N T


Dr. B.S. CHAUHAN, J.




1.      This appeal has been preferred by the State of Rajasthan against


the judgment and order dated 27.10.2004 passed by the High Court of


Judicature for Rajasthan, Jaipur Bench, in Criminal Appeal No. 1579


of 2002 acquitting the respondents, setting aside their conviction and


the sentence passed by Additional District and Sessions Judge, (Fast


Track), Laxmangarh, Alwar, dated 2.11.2002 in Sessions Case No. 4


of   2002   (14/2000)   for   the   offences   punishable   under   Sections   395,


396   and   397   of   the   Indian   Penal   Code,   1860   (hereinafter   called   the


IPC).




2.      The   facts   and   circumstances   giving   rise   to   this   case   are   as


under:


A.     Santosh   Jagwayan   (PW.13)   lodged   an   FIR   on   17.12.1996   at


8.30   A.M.,   that   in   the   intervening   night   between   16th  and   17th


December,  1996 on hearing the noise, he sent his Chowkidar Gopal


Nepali   (deceased)   to   the   roof   of   his   house.     Gopal   Nepali   went


upstairs and opened the gate of the roof and found that 8 to 10 accused


persons were trying to enter into the house by breaking upon the door


of the roof.   They immediately fired shot at Gopal Nepali (deceased)


and entered into the house.  The accused persons locked Shashi Devi


(PW.12) wife of complainant, Preeti (PW.14) and Sandhya (PW.15),


his   daughters,   in   the   bathroom   and   started   looting   the   moveable


properties.  In the meanwhile, his neighbours raised their voice.  Thus,


the accused immediately fired a shot at Mrs. Anita Yadav, as a result


of which, she died on the spot.  Kripa Dayal Yadav (PW.2), husband


of Anita Yadav (deceased) caught   hold of one of the accused but he


was beaten with the butt of the gun by the other accused persons and


they   got   the   accused   released   from   his   clutches.   The   accused


decamped with cash, jewellery and silver wares etc.




B.     On   the   basis   of   the   said   complaint,   an   FIR   No.   240   of   1996


(Ex.P-30) was registered under Sections 395, 396, 397 and 398 IPC


and investigation ensued.  The dead bodies of Gopal Nepali and Anita





                                                                                      2


Yadav were recovered and sent for post-mortem examination.  Kuniya


-   accused/respondent   was   arrested   on   24.12.1996.   He   made   a


disclosure statement (Ex.P-76) on 29.12.1996 on the basis of which a


silver   glass   and   one   thousand   rupees   were   recovered   vide   recovery


memo   (Ex.P-53).   Further,   on   his   disclosure   statement,     a   scooter


bearing   No.   RJ-05-0678   was   recovered   vide   recovery   memo   (Ex.P-


52) on 2.1.1997.




C.     Another   accused   Talevar   -   respondent,   was   arrested   on


19.1.1997   and   on   his   disclosure   statement   made   on   26.1.1997,   two


thousand rupees, a silver key ring and a key of Ambassador car was


recovered vide seizure memo (Ex.P-45).




D.     Some   more   recoveries   were   made   from   the   other   accused


persons.   After   completing   the   investigation   chargesheet   was   filed


against   9   accused   persons   including   the   two   respondents.   As   all   of


them   pleaded   not   guilty,   they   were   put   to   trial   for   the   offences


punishable under Sections 395, 396 and 398 IPC.




E.         In   the   Sessions   trial   prosecution   examined   34   witnesses   in


support of its case. The ornaments and stolen articles were identified


by   Shashi  Devi  (PW.12)   and  Santosh  Jagwayan  (PW.13).    The  trial





                                                                                   3


court  vide  judgment  and  order  dated  2.11.2002  convicted  8 accused


including   the   two   respondents.   One   accused   named   Ram   Krishan,


died during the trial.  All of them stood convicted under the provisions


of   Sections   395,   396   and   397   IPC.     All   the   accused   were   awarded


punishment to undergo life imprisonment and a fine of Rs. 1,000/- and


in default of payment of fine, to further undergo six months rigorous


imprisonment under Section 396 IPC. All of them were convicted for


the   offence   punishable   under   Section   397   IPC   and   a   sentence   to


undergo rigorous imprisonment for seven years and a fine of Rs.500/-


and   in   default   of   payment   of   fine,   to   further   undergo   three   months


rigorous   imprisonment.     They   were   further   convicted   under   Section


395   IPC,   awarded   life   imprisonment   and   fine   of   Rs.   1,000/-   and   in


default   of   payment   of   fine,   to   further   undergo   six   months   rigorous


imprisonment.     Accused   namely,   Ghurelal,   Chunchu   @   Bhagwan


Singh, Kallu, Rajpal and Samay Singh were further convicted under


Sections 3/25 and 3/27 of the Arms Act and sentence was awarded to


undergo   three   years   rigorous   imprisonment   and   a   fine   of   Rs.   500/-


each of them, in default of payment of fine, to further undergo three


months rigorous imprisonment.





                                                                                     4


F.      Being aggrieved by the said decision, all the accused including


the   two   respondents   preferred   Criminal   Appeal   No.   1579   of   2002,


which has been decided by the High Court vide judgment and order


dated   27.10.2004   acquitting   the   two   respondents/accused   though


maintaining the conviction and sentence in respect of other accused.


Hence, this appeal by the State against their acquittal.




3.      Dr. Manish  Singhvi, learned  Additional  Advocate  General  for


the   State   of   Rajasthan,   has   submitted   that   recovery   of   some   of   the


looted   property   had   been   made   on   the   basis   of   the   disclosure


statements   made   by   the   said   respondents.   The   law   provides   for   a


presumption that they had participated in the crime and, therefore, the


High   Court   has   wrongly   acquitted   the   said   accused   and   thus,   the


appeal deserves to be allowed.




4.      On the contrary, Shri Altaf Hussain, learned counsel appearing


for   the   said   two   accused,   has   vehemently   opposed   the   appeal


contending   that   mere   recovery   of   looted   property   on   the   disclosure


statement of the accused, is not enough to bring home the charges of


offence of loot or dacoity,  when the recovery is made after expiry of


a considerable period from the date of incident and particularly when


the   nature   of   the   looted   property   is   such   which   can   change   hands




                                                                                     5


easily.  Thus, no inference can be drawn against the respondents. The


order of acquittal made by the High Court has been passed on proper


appreciation   of facts   and  application  of  law.  The  appeal   lacks   merit


and is liable to be dismissed.


5.        We have considered the rival submissions made by the learned


counsel for the parties and perused the record.




6.      Admitted facts remained so far as the two respondents/accused


are   concerned,   that   no   test   identification   parade   was   held   at   all.


Further none of the eye witnesses, particularly, Shashi Devi (PW.12),


Santosh   Jagwayan   (PW.13),   Kripa   Dayal   Yadav   (PW.2),   Preeti


(PW.14)   and   Sandhya   (PW.15),   identified   either   of   the   said


respondents   in   the   court.     Therefore,   there   is   no   evidence   so   far   as


their identification is concerned.




7.      Thus, the sole question remains to be decided whether adverse


inference could be drawn against the accused merely on the basis of


recoveries made on their disclosure statements.




7.1.       In  Gulab   Chand   v.   State   of   M.P.,   AIR   1995   SC   1598,   this


Court   upheld   the   conviction   for   committing   dacoity   on   the   basis   of


recovery   of   ornaments   of   the   deceased   from   the   possession   of   the





                                                                                        6


person   accused   of   robbery   and   murder  immediately  after   the


occurrence.




7.2.         In  Geejaganda Somaiah  v. State of Karnataka, AIR 2007


SC 1355,  this Court relied on the judgment in Gulab Chand (supra)


and   observed   that     simply   on   the   recovery   of   stolen   articles,   no


inference   can   be   drawn   that   a   person   in   possession   of   the   stolen


articles is guilty of the offence of murder and robbery. But culpability


for the aforesaid offences will depend on the facts and circumstances


of the case and the nature of evidence adduced.




        It has been indicated by this Court in Sanwat Khan v. State of


Rajasthan, AIR 1956 SC 54,  that no hard and fast rule can be laid


down   as   to   what   inference   should   be   drawn   from   certain


circumstances.




7.3.    In  Tulsiram   Kanu   v.   State,   AIR   1954   SC   1,  this   Court   has


indicated   that   the   presumption   permitted   to   be   drawn   under   Section


114, Illustration (a) of the Evidence Act 1872  has to be drawn under


the  'important   time   factor'.  If   the   ornaments   in   possession   of   the


deceased are found in possession of a person soon after the murder,


a   presumption   of   guilt   may   be   permitted.   But   if   a   long   period   has





                                                                                      7


expired   in   the   interval,   the   presumption   cannot   be   drawn   having


regard to the circumstances of the case.




7.4.     In Earabhadrappa v. State of Karnataka AIR 1983 SC 446,


this Court held that the nature of the presumption under Illustration (a)


of Section 114 of the Evidence Act must depend upon the nature of


evidence adduced. No fixed time-limit can be laid down to determine


whether possession is recent or otherwise. Each case must be judged


on its own facts. The question as to what amounts to recent possession


sufficient to justify the presumption of guilt varies according "as the


stolen article is or is not calculated to pass readily from hand to hand".


If the stolen articles were such as were not likely to pass readily from


hand to hand, the period of one year that elapsed could not be said to


be   too   long   particularly   when   the   appellant   had   been   absconding


during that period.




7.5.   Following such a reasoning, in Sanjay @ Kaka etc. etc. v. The


State   (NCT   of   Delhi),  AIR   2001   SC   979,  this   Court   upheld   the


conviction by the trial court since disclosure statements were made by


the accused persons on the next day of the commission of the offence


and the property of the deceased was recovered at their instance from


the places where they had kept such properties, on the same day. The





                                                                               8


Court   found   that  the   trial   Court   was   justified   in   holding   that   the


disclosure statements of the accused persons and huge recoveries from


them at their instance by itself was   a sufficient circumstance on the


very   next   day   of   the   incident   which   clearly   went   to   show   that   the


accused persons had joined hands to commit the offence of robbery.


Therefore, recent and unexplained possession of stolen properties will


be taken to be presumptive evidence of the charge of murder as well.




7.6.        In  Ronny  Alias   Ronald   James   Alwaris  &   Ors.   v.   State   of


Maharashtra, AIR 1998 SC 1251,  this Court held that apropos the


recovery of articles belonging to the family of the deceased from the


possession of the appellants soon after the robbery and the murder of


the   deceased   remained   unexplained   by   the   accused,   and   so   the


presumption under Illustration (a) of Section 114 of the Evidence Act


would be attracted :




     "It needs no discussion to conclude that the murder and the

     robbery   of   the   articles   were   found   to   be   part   of   the   same

     transaction.   The   irresistible   conclusion   would   therefore,   be

     that the appellants and no one else had committed the three

     murders and the robbery."


(See also:  Baijur v. State of Madhya Pradesh, AIR 1978 SC 522;

and   Mukund  alias   Kundu   Mishra  &   Anr.   v.   State   of   Madhya

Pradesh, AIR 1997 SC 2622).





                                                                                         9


7.7.     Thus, the law on this issue can be summarized to the effect that


where   only   evidence   against   the   accused   is   recovery   of   stolen


properties, then although the circumstances may indicate that the theft


and murder might have been committed at the same time, it is not safe


to   draw   an   inference   that   the   person   in   possession   of   the   stolen


property had committed the murder. It also depends on the nature of


the property so recovered, whether it was likely to pass readily from


hand to hand. Suspicion should not take the place of proof.




8.     In the instant case, accused Kuniya was arrested on 24.12.1996


and a silver glass and one thousand rupees were alleged to have been


recovered   on   his   disclosure   statement   on   29.12.1996.   Again   on


disclosure   statement   dated   2.1.1997,   a   scooter   alleged   to   have   been


used   in   the   dacoity,   was   recovered.     Similarly,   another   accused


Talevar was arrested on 19.1.1997 and on his disclosure statement on


26.1.1997,   two   thousand   rupees,   a   silver   key   ring   and   a   key   of


Ambassador   car   alleged   to   have   been   used   in   the   crime   were


recovered.   Thus,   it   is   evident   that   recovery   on   the   disclosure


statements   of   either   of   the   respondents/accused   persons   was   not   in


close proximity of time from the date of incident.  More so, recovery


is either of cash, small things or vehicles which can be passed from





                                                                                  10


one person to another without any difficulty.  In such a fact situation,


we   reach   the   inescapable   conclusion   that   no   presumption   can   be


drawn   against   the   said   two   respondents/accused   under   Section   114


Illustration   (a)   of   the   Evidence   Act.   No   adverse   inference   can   be


drawn on the basis of recoveries made on their disclosure statements


to connect them with the commission of the crime.




9.     The  instant   appeal  has   been  prepared   by   the  State  against   the


judgment and order of acquittal of the respondents by the High Court.


The law on the issue is settled to the effect that only in exceptional


cases   where   there   are   compelling   circumstances   and   the   judgment


under appeal is found to be perverse, the appellate court can interfere


with the  order   of  acquittal.  The   appellate  court   should  bear  in mind


the presumption of innocence of the accused and further that the trial


Court's   acquittal   bolsters   the   presumption   of   his   innocence.


Interference   in   a   routine   manner   where   the   other   view   is   possible


should be avoided, unless there are good reasons for interference.


(See : Brahm Swaroop & Anr. v. State of  U.P., AIR 2011 SC 280;

V.S.   Achuthanandan   v.   R.   Balakrishna   Pillai   &   Ors.,   (2011)   3

SCC 317; and Rukia Begum & Ors. v. State of Karnataka, (2011)

4 SCC 779).





                                                                                 11


      10.       In   view   of   the   above,   we   do   not   find   any   reason   to   interfere


      with   the   well   reasoned   judgment   and   order   of   the   High   Court


      acquitting   the   said   respondents.     The   appeal   lacks   merit   and   is


      accordingly dismissed.


                                                                       ....................................

      J.

                                                               (Dr. B.S. CHAUHAN)




                                                                      .....................................J.

                                                               (SWATANTER KUMAR)

      New Delhi,            

      June 17, 2011





 





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