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