CIVIL APPEAL 143 of 2009 on 31 December 2012

1. Smt.Prem Lata, wife of Sh.Vinod Kumar, Resident of 1372, Hanuman Gali, Gandhi Nagar, Delhi-110031. Gandhi Nagar, Delhi-110031.

…Respondent/DH.

2. Sh.Kamal Kishore Gupta.

3. Sh.Shyam Gupta.

4. Sh.Shiv Shankar Gupta.

All sons of late Sh.Sita Ram Gupta.

5. Smt. Saneh Rani Guputa, widow of late Sh.Sita Ram Gupta, R/o 34/1, Jutogh Cantt, Shimla-8. Gupta, R/o 34/1, Jutogh Cantt, Shimla-8.

6. Smt. Savitary widow of late Sh.Niranjan Dass Gupta.

7. Sh.Nanak Chand S/o late Sh. Niranjan Dass Gupta.

8. Smt.Pushpa Devi daughter of late Sh.Niranjan Dass.

9. Smt.Pooja Devi D/o late Sh.Niranjan Dass Gupta.

10. Sh.Ramesh Aggarwal S/o late Sh.Niranjan Dass Gupta.

All residents of 56/1, Jutogh Cantt, Shimla-8, Tehsil and District Shimla, H.P. 8, Tehsil and District Shimla, H.P.

…Respondents/JDs.

Coram:

Hon’ble Mr. Justice Dev Darshan Sud, Judge.

Whether approved for reporting1?.yes.

For the appellant: Mr.G.D.Verma, Sr. Advocate with Mr. B.C.Verma, Advocate.

For respondent-1. Mr. K.D.Sood, Sr. Advocate with Mr. Naresh Sharma, Advocate.

Dev Darshan Sud,J (Oral).

This appeal is being disposed of at the admission stage itself. The appellant challenges the order passed by the learned Civil Judge, Jr. Division, Court No.3, Shimla dismissing the application under Order 21 Rules 97 and 101 of the Code of Civil Procedure filed on behalf of the objector-Dhana Lal Gupta (petitioner herein). The Court holds that after considering the case of the parties and going through the record, the objector has no locus standi to raise any objection with regard to the identity of the suit premises which is clearly defined in the decree and judgment passed by the Court and confirmed by the learned appellate Court. The Court also holds that the objection petition is barred by the principle of lis pendens under Section 52 of Transfer of Property Act.

2. What has been submitted before me is that it was not open to the learned trial Court to have dismissed the objection petition summarily without framing an issue. Mr. G.D.Verma, learned senior counsel for the petitioner relied upon the Division Bench judgment of this Court in Rajeev Dutta and others Vs. Punjab Wakf Board and another, 2002 (3) Shim.L.C. 315. This Court, while following the judgment of the Supreme Court in Silverline Forum Pvt. Ltd.

Vs. Rajiv Trust and another, (1998) 3 SCC 723 and Shreenath and another Vs. Rajesh and others, AIR 1998 S.C. 1827, holds:

“16. It is evident from the above that the provisions of Rule 101 are mandatory and provides for inquiry into the question of right, title and interest raised therein and ambit and scope of such inquiry will depend on the facts and circumstances of each case i.e in a case where the question(s) raised can be decided on the basis of admitted and undisputed facts a comprehensive inquiry may not be necessary but in a case where contentions pleas of facts are raised, the Executing Court is bound to hold a detailed inquiry and permit the parties to lead evidence to prove their rival pleas based on facts.” (P.320)

3. It is also submitted that this principle of law has been followed by this Court in M/s Anupam Coffee House Kandaghat and another, 2004 (2) Shim.L.C. 367. Learned counsel for the respondents submits that such a course is not required to be followed by the Court on the facts of the present case as the documentary evidence on record is absolutely clear that the objections had been raised merely as a ruse to delay the execution of the decree.

4. It has also been brought to my notice that an application for correction/amendment of the decree has been filed before the learned trial Court by the respondent-decree holder. I cannot accept this proposition as urged by the learned counsel for the appellant and in every case issue is required to be framed. In any event, taking into consideration the ratio of the judgment in Rajiv Dutta’s case supra, it will be in the fitness of things if the case is remanded to the learned Executing Court with these directions that both the objections and the application for corrections shall be taken together for decision afresh in accordance with law.

5. On the question raised by the learned counsel for the respondent that the judgment debtor deliberately seeks to avoid the execution of decree, all that I need say is that it has been settled by the Supreme Court in a number of decisions that a decree holder cannot be deprived of the fruits of the decree and that frivolous litigation/abuse of the process of law needs to be curbed with heavy exemplary costs.

6. In Ravinder Kaur vs. Ashok Kumar and

Another (2003)8 SCC 289, considering the provision of Section 47, Order 21 Rule 58 the Supreme Court held:- “22. … … … … … … … … …Therefore, raising a dispute in regard to the description or identity of the suit schedule property or a dispute in regard to the boundary of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of court. Courtsof law shouldbecareful enough toseethrough such diabolical plansof thejudgmentdebtorstodenythedecree holdersthe fruitsof thedecreeobtainedbythem. Thistypeof errorson thepartof thejudicial forumsonlyencouragefrivolousandcantankerous litigationscausinglawsdelayandbriningbad nametothejudicial system.”

(p.295)

(emphasis supplied)

7. In Maria Margarida Sequeira Fernandes and Others vs. Erasmo Jack De Sequeira (Dead) through LRs, (2012)5 SCC 370, the Supreme Court held:- 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 minimized 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 thatunless

incentiveor motive for uncalled

for litigation. It isa matter

of common experiencethat

Court'sotherwisescarce

time isconsumedor moreappropriately, wasted in a largenumber of uncalled for cases.In this veryjudgment,theCourt (emphasis supplied)

8. In A.Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam and others, (2012) 6 SCC 430, the Supreme Court held:

“FALSE AND IRRELEVANT PLEAS:

42. 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….

43.2. 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.

43.3. 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.

43.4. 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.

43.5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process”.

(P.458-459)

9. In case the trial Court comes to the conclusion that the process of the Court is being abused, there is no doubt in my mind that heavy exemplary cost will be imposed upon the parties, so resorting to it.

10. Petition is disposed of. Record of the learned trial Court be sent back forthwith. It is directed that the entire proceedings be completed on or before 31[st] May, 2013. Parties are directed to appear before the learned trial Court on 29[th]

April, 2013.

(Dev Darshan Sud), Judge.

December 31,2012(R)