Swaran Kumari vs Santosh Sandhu Etc.
1991 Latest Caselaw 356 Del

JUDGMENT

R.L. Gupta, J.

(1) This application has been moved on behalf of deft. 2 and 3 u/S. 151 of Civil Procedure Code . alleging that on 8.2.91, Sh. Arun Mohan, Advocate for the non-applicant/plaintiff stated before this Court that he gave up his claim in suit against deft. 2 and 3 and case should be listed early. On this statement the Court was pleased to pronounce orders that suit against deft. 2 and 3 shall be dismissed and their counsel may not appear further in the suit. Learned counsel for deft. 2 and 3 also intimated this fact to them by a letter of the same date. Therefore, the prayer is that judgment announced orally on 8.2.91 may be recorded in writing.

(2) In reply, it is alleged that this application is an unfortunate tactic in a litigation where tactics have successfully delayed its disposal. The background of the litigation is that suit for possession was filed in 1976. In the joint W/S of all the defts. including deft. 2 and 3 claim of the plaintiff for possession was resisted. After completion of pleadings in 1977, the defts. realised that the suit is bound to be decreed and that the decree will carry with it the liability of mesne profits. Therefore, deft. 2 and 3 thought that to defeat the claim of the plaintiff and keeping in view that deft. 1 i.e. their mother did not have nor was likely to have any means of satisfying the decree, they should amend their W/S so that they could continue the fight in her name and at the same time derive for themselves an argument with regard to the claim for mesne profits. The matter then dragged on for 8 years and in 1985 Hon'ble Supreme Court directed the disposal of the matter early and, if possible, within six months. Defts. however, were successful in delaying the matter and evidence could be completed only in August, 1985. Thereafter the matter has been lingering on for arguments On 8.2.91, plaintiff's counsel pointed out how this litigation had been delayed and injury was being caused for which there would be no recompense. Therefore, this Court agreed to take up the matter on day to day basis. It was true that counsel for the plaintiff had said that if the suit could be decided and judgment given within 2 weeks from that date, the plaintiff may not press her claim against deft. 2 and 3 and at least she will have the possession in her lifetime. Upon that submission, the Court observed that it was not possible to tie down the court in this regard and thereafter plaintiff's counsel said that the matter may be decided at the earliest according to law. On merits the allegations made in the application were denied.

(3) I have beared arguments advanced by learned counsel for the parties. Learned counsel for the plaintiff had made a statement as given in the reply and not as given in the application.

(4) Even if it be believed that the Court remarked that the suit shall be dismissed against deft. 2 and 3, can it be said by any stretch of imagination that it amounts to a judgment in favor of defts. 2 and 3. I have neither come across any judicial precedent, nor my attention has been drawn to any, that any Court is empowered to say that it shall dispose off a particular matter in future in a particular manner. Something which was said on behalf of the plaintiff in a very innocuous manner, and some remarks made by the Court in the same manner, at a time when even the process of arguments had not seriously begun and when learned counsel for the plaintiff on account of the protraction of the proceedings and frustration of the plaintiff based in U.S A. in not being able to procure speedy justice, is being blown out of all proportions. It has also to be brought on record that at that time learned counsel for defts. 2 and 3 had drawn the attention of the Court only to their preliminary objection in the amended W/S to the effect that they did not claim any right in the suit property. He did not draw the attention of the Court to other pleas of applicants which have been specifically reproduced in the main judgment and on account of which a decree for possession/mesne profits etc. is also being passed against them in view of the judgment of the Hon'ble Supreme Court in Lucy Kochuvareed vs. P. Mariappa Gounder Air 1979 Sc 1214. The plea that since there was no issue between the parties qua defts. 2 and 3 and so no decree can be passed against them has also no merit. Reason is that all pleas raised by defts. 2 and 3 are in support of the claims of deft. 1 who is their mother. Only the last issue about relief is in general terms. It is, "To what damages, if any, the plaintiff is entitled to ?" The frame of issue itself suggests that it is not restricted to grant of relief against deft. 1 only. Therefore, there could be no bar for the Court to grant relief against defts. 2 and 3 if it is of the view that it must grant relief against them in view of the impression created upon its mind from the totality of their pleadings. It is also to be brought on record with pain that during the course of hearing on this application, in reply to the argument of the learned counsel for the plaintiff how miserable the plaintiff felt apprehending because of old age and pendency of suit for 15 years that she may not be able to reap the fruits of a decree, if ultimately passed, it was said that she should remember that the matter will not be disposed off from Hon'ble the Supreme Court at least for another 12 years and, therefore, she should forget if at all she will be able to reap the fruits of a decree if any is simply unfortunate. Such submissions at bar, to say the least, are not in good taste and simply amount to ridiculing the entire judicial system. My most humble prayer to Hon'ble members of the bar is not to say such things to rake up the wounds in the hearts of the litigants.