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2012 DIGILAW 390 (HP)

Mool Raj v. Govind Singh Pathania

2012-07-16

DEV DARSHAN SUD

body2012
JUDGMENT : Dev Darshan Sud, J.(Oral) The petitioner is the defendant before the learned trial Court in the suit instituted by the respondent herein to the effect that he is the owner in possession of three double storeyed shops having concrete slabs etc. comprised in Khata No. 22 min, Khatoni No. 53 min-54-55-56-57-58-59-60-61-61-62-63-64-72-73- 76-77 Khasra No. 313/59/4/2 measuring 0-5 Marlas etc. adjoining the National Highway. 2. The pleadings are far from anything what is required in a case. It is pleaded that two judgments of this Court passed in RSA No. 80/94 decided on 15.11.1996 and RSA No. 309/99 decided on 22.4.2010 do not pertain to the shops of the plaintiff falling in Khasra No. 313/59/4/2 and the entries made during the settlement with respect to the shops are contrary to the revenue record and are wrong, inoperative against the interest of the plaintiff and subsequent jamabandies from 1991 upto 2007 are null and void for the reason that order in correction application No. (16)6/90/S.O. dated 01.08.1990 qua the said shops passed by the Settlement Collector, Kangra at Dharamshala has been ignored by this Court. Two judgments of this Court rendered in RSA No. 80 of 1994 titled Mool Raj v. Govind Ram and others on 15th November, 1996 and RSA No. 309 of 1999 titled Manohar Lal Khullar and another v. Mool Raj decided on 22.4.2010 do not decide the controversy according to correct facts. 3. The petitioner who is the defendant pleads that RSA No. 80 of 1994 titled Mool Raj v. Govind Singh and others was instituted in this Court. One Manohar Lal Khullar was already a tenant in the property in dispute at the time of its sale to the petitioner. The petitioner instituted a petition for eviction of this tenant wherein the present respondent-plaintiff before the learned trial Court was also a party. The suit was resisted by the tenant on the ground that he had become owner of the suit property by way of adverse possession. The stand of the plaintiff-respondent herein was that though the constructed shops was sold to the petitioner herein but by order dated 1.8.1990 passed by the Settlement Collector at Dharamshala it was held that Khasra No. 275 was outside the area sold to the petitioner. The stand of the plaintiff-respondent herein was that though the constructed shops was sold to the petitioner herein but by order dated 1.8.1990 passed by the Settlement Collector at Dharamshala it was held that Khasra No. 275 was outside the area sold to the petitioner. In RSA No. 80 of 1994 this Court noted that the appellant therein was aggrieved by the judgment and decree passed by the learned District Judge whereby the appeal of the defendant therein was accepted and the judgment and decree passed by the learned Sub Judge 1st Class, II, Nurpur District Kangra was set aside. The suit of the plaintiff was decreed by the learned trial Court in the following terms: "I hereby pass a decree for permanent injunction, restraining the defendants permanently from raising any construction over upper portion or the shop situating in Khasra No. after settlement 275, measuring 0-00-21 HM (prior to settlement Khasra No. 313/59/4/1/) comprised in Khata No. 32 min, Khatauni No. 67 min, situating in Tikka and Mauza Jasuur, Tehsil Nurpur, District Kangra. I further pass a decree for mandatory injunction and against the defendants to the effect that any construction made on the upper portion of the shop in question, be demolished. However, I leave the parties to bear their own costs." This decree was upheld by this Court. 4. Another appeal titled Manohar Lal Khullar and another v. Mool Raj, being RSA No. 309 of 1999 was filed in this Court on the pleading that Mool Raj, plaintiff in the suit, had filed a suit for ejectment of shop comprised in Khasra No. 275 which was earlier Khasra No. 313/59/4/1 measuring 0-0-21 situated in Mohal and Mauza Jassur, Tehsil Nurpur, District Kangra HP. Appellant Manohar pleaded that he was tenant in the shop which was later on purchased by him from Harnam Singh etc. There were nine settled issues. Appellant Manohar pleaded that he was tenant in the shop which was later on purchased by him from Harnam Singh etc. There were nine settled issues. This Court, by its judgment dated 22nd April, 2010 noted the history of the previous litigation in RSA No. 80 of 1994 and inter-alia held that the plea of the plaintiff in the suit that he was in possession of excess of what had been purchased by him was incorrect on the pleading and evidence on record and further order dated 1.8.1990 of the Settlement Collector, Kangra which was exhibited as Ext.D43 was of no consequence as judgment in RSA No. 80 of 1994, rendered by this Court, finally settled the matter. The Court then proceeded to hold that: "Against the above factual background, there is no manner of doubt that the shop in question is under the tenancy of defendant Manohar Lal Khullar, which was earlier owned by Harnam Singh and later sold to the plaintiff, as held by the High Court in RSA No. 80 of 1994 and it is also not disputed that the judgment of the High Court in RSA aforesaid was not assailed before the apex Court." 5. A number of submissions have been raised by learned counsel appearing for the petitioner. He submits that the petitioner has already filed execution petition on the basis of judgment of RSA No. 309 of 1999. He submits that from 1987 onwards, respondent No. 1 is out and out to defeat the right of the petitioner in view of the judgments rendered in two appeals including Civil Revision No. 14 of 2000, titled Govind Singh v. Mool Raj. He submits that these judgments have attained finality. The petitioner is owner of shop situated in Khasra No. 275 measuring 0-0-21 (old Khasra Nos. 313/59/4/1) 32 min, Khatauni No. 67 min, situated in Tikka and Mauza Jassur, Tehsil Nurpur, District Kangra (HP). It is submitted that the pleadings of the plaintiff that revenue authorities are not bound by the civil court and in that event, the judgment of this Court in two Second Appeals has no effect, is nothing but an abuse to the process of law as also contempt of Court. It is submitted that the pleadings of the plaintiff that revenue authorities are not bound by the civil court and in that event, the judgment of this Court in two Second Appeals has no effect, is nothing but an abuse to the process of law as also contempt of Court. Learned counsel submits that the respondent was a clever person and time and again he is dragging the petitioner to Court to unsettle that which has attained finality in this Court and in these circumstances, it is not open to him to agitate and re-agitate the matter over and over again. 6. Submission made by learned counsel appearing for the respondent is that the claim/suit instituted by the respondent herein is independent of the judgments as aforesaid and allunde of those judgments, the claim of the respondent is in accordance with law. He submits that it is the right of every citizen to approach a Court of law for redressal of his grievance. The wide proposition as urged on behalf of the respondent cannot be accepted. Needless to say that access to justice has to be on the established principles of law and a litigant cannot misuse such a right in the name of his constitutional/statutory rights. A litigant cannot be permitted to agitate the same matter repeatedly or institute any action under the pretext of vindication of rights. Exemplary cost should and ought to be imposed on such a litigant. 7. From the narration of facts herein, it is but obvious that (a) the parties were agitating before this Court time and again. The judgment in these two cases being RSA Nos. 80 of 1994, titled Mool Raj v. Govind Singh and others and RSA No. 309 of 1999 titled Manohar Lal Khullar and another v. Mool Raj have attained finality and cannot be agitated and re-agitated over and over again. (b) any order passed by the revenue authorities cannot be superior to that passed by this Court. It would be illegal to grant primacy to the orders passed by the revenue authorities over the judgments passed by this Court. To urge such a proposition would be gross contempt of this Court. (c) manipulating the Court process for the purpose of gaining unfair advantage by suppressing material facts would again amount to gross contempt of Court. It would be illegal to grant primacy to the orders passed by the revenue authorities over the judgments passed by this Court. To urge such a proposition would be gross contempt of this Court. (c) manipulating the Court process for the purpose of gaining unfair advantage by suppressing material facts would again amount to gross contempt of Court. In addition, exemplary costs have to be imposed deterring such a party from approaching the Court again. The Courts are not helpless in dealing with the situations like this. 8. In Maria Margarida Sequeira Fernandes and Others v. Erasmo Jack De Sequeira (Dead) through LRs, (2012)5 SCC 370 , the Supreme Court held:- "81. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent. 82. This Court in a recent judgment in Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 aptly observed at page 266, para 43 that unless wrongdoers are denied profit from frivolous litigation, it would be difficult to prevent it. 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 time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimised if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pages 267-268, para 58 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases 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. The Court observed at pages 267-268, para 58 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases 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." (p.393) (emphasis supplied) Prima facie I am of the opinion that the precedent as laid down by the Supreme Court is applicable to the facts of the present case. 9. In these circumstances, I direct that (a) costs of Rs. 10,000/- be imposed upon the respondent which shall be payable by him to the petitioner; (b) that the learned trial Court will take up the matter for consideration as to whether any bona fide case is made out more so in view of two judgments of this Court. If the plaintiff seeks to circumscribe those judgments, the plaint deserves to be rejected under order 7 Rule 11 and exemplary costs be imposed upon the plaintiff (c) in case it is found that the plaintiff has resorted to suppressio veri suggestio falsi. In that event case of criminal contempt would be made out for obstructing the course of justice and manipulating the judicial process in view of two judgments as aforesaid. Petition stands disposed of.