Ramrameshwari
Devi & ors v. Nirmala Devi & ors
Full Judgment Click Here
Tags
: - Section 10 CPC; framing of issues; O.7, R.11-B/ O.20, R.5/ O.14,
R.2; Transfer application; delay vis-a-vis justice delivery system;
ad-interim exparte injunction; purpose of filing of brief synopsis;
abuse of judicial system; duty of courts when judicial system is
abused; duty of courts while framing issues; duty of court while
granting interim injunction or stay order; Section 340 (3)(b) Cr.PC;
Chapter XXVI Cr.PC; perjury; principle of restitution; SC guidelines
to minimize delays in disposal of civil litigation; SC direction on
disposal of cases in civil matter; uncalled for litigation;
imposition of realistic costs; awarding realistic and actual mesne
profits-- imposing costs or ordering prosecution; perjury; Chapter
XXVI of the Code of Criminal Procedure; duties of the Judges dealing
with Civil cases; forged and fabricated documents; maintaining purity
and sanctity of judicial proceedings; granting mesne profits;
guidelines of SC for speedy disposal of Civil cases;
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.
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.
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.
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 courts by filing wrong and incorrect
particulars (the list of dates and events) must be dealt with heavy
hands.
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.
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.
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 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.
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.
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.
Procrastinating
litigation is common place because, in practice, the courts are
reluctant to order restitution and actual cost incurred by the other
side.
Profit
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 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.
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 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 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 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 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."
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.
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 Code. 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.
- 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.
- 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 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.
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.
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.
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