Sh.Gopal Kishan & Anr. vs Smt.Nirmala Devi (Since ...
2009 Latest Caselaw 1126 Del

*      HIGH COURT OF DELHI : NEW DELHI

    RFA App. No.264/1996 and CM No.8172/2005

%            Judgment reserved on: 23rd March, 2009

             Judgment delivered on: 2nd April, 2009

1. Sh. Gopal Kishan

2. Shri Sat Pal

    Both sons of late Sh. Jodha Ram,
    R/o. 80/36-A, Malviya Nagar,
    New Delhi.                            ....Appellants
                      Through: Mr. Rajan Sabharwal
                                with Mr. S.K. Bhaduri
                                and Ms. Seema
                                Bhaduriya, Advs.

                      Versus

Smt. Nirmala Devi (Since deceased)
Through legal representatives.

1) Sh. Subhash Chand Dua
   S/o. Late Pratap Chand,
   R/o. C-106, Shivalik,
   Near Malviya Nagar,
   New Delhi-110017.

ii) Mrs. Geeta Rani
    D/o. Late Pratap Chand,
    R/o. C-106, Shivalik,
    Near Malviya Nagar,
    New Delhi-110017.

iii) Mrs. Kavita Rani
     D/o. Late Pratap Chand,
     R/o. C-106, Shivalik,

MAC App.No.264/1996                          Page 1 of 32
       Near Malviya Nagar,
      New Delhi-110017.                      Respondents.

                       Through: Mr. V.B. Andley, Sr. Adv.
                                with Mr. Rajinder
                                Mathur and Ms. Anu,
                                Advs.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Yes

2. To be referred to Reporter or not?                     Yes

3. Whether the judgment should be reported
   in the Digest?                                         Yes

V.B.Gupta, J.

Appellants have filed this appeal against the

judgment dated 5th January, 1996 passed by Additional

District Judge, Delhi, vide which suit for possession

filed by Smt. Nirmala Devi (Since Deceased) was

decreed.

2. The brief facts of this case are that in the year

1970, Smt. Nirmala Devi (since deceased), filed a suit

for mandatory injunction against the present

appellants as well as other four persons.

3. During the course of the trial, Smt. Nirmala Devi

filed an application under Order 6 Rule 17 of the Code

of Civil Procedure (for short as „Code‟) for amendment

of the plaint as the suit was sought to be amended

from mandatory injunction into a suit for possession

and mesne profits. The Civil Judge dismissed that

application on 31st August, 1976, but review petition

filed against that order was allowed on 28th October,

1976. Thereafter, appeal was filed against order dated

28th October, 1978 and that appeal was allowed on 30th

November, 1978, whereby the review petition was

dismissed.

4. Smt. Nirmala Devi thereafter, filed a revision

petition before this Court which was allowed on 29th

January, 1982 and Smt. Nirmala Devi was permitted to

amend her plaint. Accordingly, amended petition was

filed on 30th June, 1982 and the amended suit was for

possession and mesne profits.

5. During the pendency of the present appeal, on

17th September, 2002, Smt. Nirmala Devi died and

application for bringing her LR‟s on record was filed.

6. Vide order dated 4th August, 2003, application for

substitution for bringing LR‟s of Nirmala Devi was

allowed and her LR‟s were brought on record and

amended memo of the parties was filed.

7. Smt. Nirmala Devi was widow of one Late Sh.

Pratap Chand, while the present appellants are

brothers of Late Sh. Pratap Chand. House No.36 A

and B, Block No.80, Malviya Nagar, New Delhi was

allotted to Smt. Nirmala Devi on certain terms

including payment of monthly rent at Rs.20. In terms

of the allotment order, she had been paying rent in her

own name and from her own funds. On 28th May,

1968, the President of India executed registered lease

deed in her favour. Thus she became the lessee and

owner of the suit property.

8. As the parties were closely related to each other

and on account of difficulties of the appellants, Smt.

Nirmala Devi allowed appellants to occupy the portion

of suit property consisting of two rooms with

permission to use the open space and backyard as

licensee under her, free of license fee.

9. It was alleged that later on, appellants started

harassing her and in order to pressurize her, they filed

a suit for injunction restraining her from evicting them

from the aforesaid property.

10. Since appellants were harassing her, she revoked

the license of the appellants and served legal notice

dated 23rd April, 1970 asking them to vacate the

premises within fifteen days. The appellants failed to

comply with the directions of the notice and in spite of

revocation of the license, did not vacate the suit

premises and thus they became unauthorized

occupants.

11. Smt. Nirmala Devi also claimed mesne profits

from the appellants for wrongful use and occupation of

the suit property, claiming a sum of Rs.4,500/- for

three years immediately preceding the filing of this

suit. However, on 29th January, 1984, she gave up her

claim for damages and mesne profits.

12. The appellants in their written statement took up

the defence that they were the co-owners and co-

sharers along with Smt. Nirmala Devi to the extent of

2/3rd share in the house and as such the present suit

does not lie. They are in possession of the same since

1951, as admitted by Smt. Nirmala Devi herself in her

statement filed in the Ministry of Rehabilitation dated

14th December, 1951. Appellants also took an

alternative plea that they became the owners of the

property by adverse possession since they are in

continuous, open and hostile possession of the

property for over 30 years and as such the suit for

possession does not lie.

13. It was denied by the appellants that they were the

licensee in the suit property. This property was jointly

allotted by the Ministry of Rehabilitation to all the

members of the Joint Hindu Family. The rent of this

property was being paid by them, as well as Smt.

Nirmala Devi, from the joint funds. This allotment was

also made to all the members of joint family in lieu of

their occupation of quarter No.647, Ali Ganj, Lodhi

Road, New Delhi. Smt. Nirmala Devi had no locus

standi to file this suit.

14. On 18th July, 1984, the trial court framed the

following issues;

"1. Whether the suit is property valued for the purposes of court fees and jurisdiction? OPP

2. Whether the plaintiff has locus standi to institute the present suit? OPP.

3. Whether the plaintiff allowed the defendants No.1 & 2 to occupy the suit property referred to in para 5 of the plaint in the manner mentioned therein? OPP.

4. Whether the defendants No.1 & 2 are co- owner and co-sharers with the plaintiff as alleged in the written statement? OPD.

5. Whether the defendants No.1 & 2 have become owner by adverse possession? OPD.

6. Whether the suit is barred by time? OPD.

7. Whether the suit is barred by Principal of estoppal and resjudicata? OPD.

8. Is the plaintiff entitled to recover possession of the suit property from the defendants? OPD.

9. Whether the plaintiff is entitled to damages for use and occupation? If so, at what rate and to what amount? OPP.

10. Relief."

15. On 13th November, 1984, Nirmala Devi filed an

application under Section 151 of the Code stating that

the appellants had earlier filed suit No.960/1969 for

perpetual injunction restraining her and others from

interfering in the possession of the suit property which

was in occupation of the appellants. That suit was

dismissed by the trial court on 10th April, 1978 by the

Court of Sh. T.D. Keshav, Civil Judge, Delhi. The

aforesaid judgment was confirmed in appeal by

judgment dated 21st July, 1984 of Sh. S.N. Kapoor,

Additional District Judge. Thereafter, second appeal

was preferred in this Court, which was also dismissed

on 29th January, 1987.

16. It was also stated in that application that issues

framed in the present suit are the same as those

framed and decided in the earlier suit, that is, suit

No.960/1969 and judgment dated 10th April, 1978 has

become final between the parties and operates as res

judicata. In view of the aforesaid position, the suit of

Smt. Nirmala Devi was liable to be decreed.

17. That application was contested by present

appellants. They did not dispute the filing of the

earlier suit and its dismissal. However, they took the

plea that issues in two suits i.e. suit No.960/1969 and

the present suit, i.e. suit No.610/1970, are not the

same.

18. On 25th August, 1987, it was agreed between the

parties, that issue No.1 (suit No.610/1970) which was

regarding the valuation of the suit, should be treated

as a preliminary issue.

19. Thereafter, parties led evidence on this issue. On

4th November, 1993, counsel for Smt. Nirmala Devi

gave a statement that her suit be valued for purpose

of court fee and jurisdiction at Rs.2 lacs and she be

permitted to make up the deficiency in the court fee.

Accordingly, she was directed to file the amended

plaint and make up the deficiency in the court fee.

20. On 22nd November, 1993, it was recorded that in

view of the amended plaint, wherein the suit has been

valued at Rs.2 lacs for the purpose of court fee and

jurisdiction, as such it is beyond the pecuniary

jurisdiction of the civil court and the suit was

accordingly transferred to a court of competent

jurisdiction.

21. The appellants herein, preferred a Revision

Petition against order dated 22nd November, 1993

passed by Additional Senior Sub-Judge, and order

dated 23rd November, 1993 of District and Sessions

Judge. That revision petition was dismissed on 7th July,

1994 by Mohd. Shamim, J. Thereafter on 20th January,

1995, counsel for Smt. Nirmala Devi gave a statement

wherein the relief of damages for the period prior to

the filing of the suit was given upon. This is how this

appeal is before this Court.

22. It is contended by learned counsel for the

appellants that the possession of disputed premises

was taken by the appellants and Smt. Nirmala Devi in

1951 and Smt. Nirmala Devi, filed the suit after more

than 12 years. As the appellants had been enjoying the

premises without any interference from Smt. Nirmala

Devi for more than 12 years thus, they became the

owners of the said premises on the ground of adverse

possession.

23. It is further contended that Smt. Nirmala Devi

had neither placed nor proved any document on record

to show that she was having exclusive right in the suit

property. Both the parties were living together as a

Joint Hindu Family and the entire consideration of the

suit property was paid from Joint Hindu Family funds.

24. Another contention is that there was no similarity

either in the nature or the course of the issues of both

the suits which were different and separate in nature.

Smt. Nirmala Devi had miserably failed to show that

she had spent any money for the purchase of the

property as the property was purchased from the funds

of the Joint Hindu Family and thus it acquires the

nature and character of Joint Hindu Family property

and as such the impugned judgment liable to be set

aside.

25. Appellants during the course of the present

appeal, filed an application under Order 41 Rule 27

Code of Civil Procedure seeking permission to place

additional evidence before this Court being

Questionnaire (Appendix-D), letter dated 27th August,

1954 issued by the Regional Settlement Commissioner

to Sh. Jodha Ram, Affidavit dated 20th October, 1953 of

Sh. Jodha Ram.

26. It is contended by learned counsel for the

appellant that these documents pertain to the year

1951-54 and being official records, there is no doubt

regarding the authencity of the same as the same are

in the custody of the Government authorities. These

documents are relevant and necessary for proper

disposal of this appeal. These documents were not in

the custody of the appellant and could not be produced

earlier in spite of due diligence.

27. Learned counsel for the appellants in support of

application for additional evidence, relied upon

following judgments;

(i) Hanuman Giri v. Bhure Lal 61

DLT 705.

         (ii)    Akesh    Kumar      Jain   &    Anr.     v.
Harmeet
                Singh Bakshi & Anr. 92 (2001) DLT

                (DB).

(iii) Jas Rath v. UOI 130 (2006) DLT

(DB).

(iv) M/s. Eastern Equipment & Sales Ltd. v.

ING, Yash Kumar Khanna A.I.R. 2008 SC 2360.

28. On the other hand, it has been contended by

learned counsel for the respondents that issues framed

in both the suits were common and Smt. Nirmala Devi

was the exclusive owner of the property in question in

which the present appellants were residing as her

licensee.

29. The issue of ownership has already been decided

in the earlier suit and moreover the appellants are

taking contradictory plea, as on the one hand they

state that they are the co-owners and co-sharers of the

property in question while, on the other hand they are

taking the plea that they have become owners by

adverse possession.

30. Regarding application for additional evidence, it

is contended by the learned counsel for the

respondents that the documents now sought to be

produced by the appellants have already been the

subject matter of the litigation inter-se the parties and

these documents were within the knowledge of the

appellants. Now at this stage, the appellants cannot

be permitted to file these documents.

31. The present appellants had earlier filed suit

(No.960/1969) against the respondents for permanent

injunction. That suit was decided in the favour of Smt.

Nirmala Devi and Others. Shri T.D.Keshav, Civil Judge

in that case framed the following issues:

1. Whether the plaintiffs have 2/3rd share in the suit property?

2. Whether the plaintiffs have acquired title by adverse possession to the extent of 2/3rd share in the suit property?

3. Whether the plaintiffs were licencee under defendant No. 2?

4.Whether the plaintiffs are entitled to injunction as prayed for?

5. Relief.

32. The court on issue No.1 above, held;

"From the above discussion I come to the conclusion that plaintiffs have failed to prove this issue and since the house No. 80/36-A, Malviya Nagar, New Delhi exclusively owned by Nirmala Devi and she has paid full price of that house from out of her own income and from out of 1/3rd share of the claim which fell due to her on account of death of her husband and thus the plaintiffs are not entitled to for 2/3rd share in the suit property as claimed by them."

33. As regard issue no 2 and 3, Sh. T.D. Keshav, Civil

Judge held;

"As already stated above, the plaintiffs have not brought any evidence on record to prove that they are in adverse possession of the house, rather their case throughout was that they are occupying the house as members of the joint Hindu Family having their head as Smt. Nirmala Devi and now the arguments of the counsel for the plaintiffs that they claim adverse possession in the said house is also not acceptable to me when there is no material on record to prove the arguments of the counsel for the plaintiffs. Thus I come to the conclusion that plaintiffs were occupying the house in question as licencee and as such they have not acquired any title by adverse possession to the extent of 2/3rd share in the said property."

34. The appellants appeal was also dismissed up to

Supreme Court, against the judgment dated 10th April,

1978 passed by Sh. T.D. Keshav, Civil Judge.

35. Now the question which arises for consideration

is whether the earlier suit which was decided in favour

of Smt. Nirmala Devi by Shri T.D.Keshav, Civil Judge,

operates as res-judicata or not. Issues regarding

ownership and license that were framed in the present

suit as well as in the earlier suit for perpertual

injunction, are same. The relevant issues of present

suit (No.610/1970) read as under;

"3. Whether the plaintiff allowed the defendants No.1 and 2 to occupy the suit property referred to in para 5 of the plaint in the manner mentioned therein?

4. Whether the defendants No.1 and 2 are co-owner and co-sharers with the plaintiff as alleged in the written statement?

5. Whether the defendant No.1 and 2 have become owner by adverse possession?"

36. The learned Trial Court in suit filed for

possession and mesne profits (suit No.610/1970) held;

"I have perused the certified copy of the judgment and decree dated 10.4.78 delivered by Shri T.D.Keshav in suit No. 960 of 1969. It has been conclusively held in the said case that Smt. Nirmala Devi has established her title to the suit property and she is the owner of the suit property. It is further held that Shri Gopal Krishan

and Satpal are not co-sharers/co- owners in the suit property. It has been held that they are only licencees in the suit property of Smt. Nirmala Devi and they have failed to establish that they have become owners by adverse possession of the suit property. These findings are categorically given in the said judgment and decree.

Issue No.2 to 5 and issue No.8 in the present suit are clearly covered by the aforestated findings of Shri T.D.Keshav in the Judgment and decree dated 10.4.78 in suit No. 960/69. The present suit has been filed for possession and mesne profits Smt. Nirmala Devi has been held to be the owners of the suit property as such she has the locus standi to institute the present suit. It has already been held that Shri Gopal Krishan and Satpal were only licencees of Smt. Nirmala Devi and they are neither the co-owners not the co-sharers of suit property with Smt. Nirmala Devi. It has also been held that Shri Gopal Krishan and Satpal have not acquired any title to the suit property by adverse possession. The plaintiff Smt. Nirmala Devi has revoked the licence of Shri Gopal Krishan and Shri Sat

Pal who have thereof become illegal occupation in the suit property. In these circumstances the plaintiff is clearly entitled to the possession of the suit property from the defendants."

37. Section 11 of the Code reads as under:

"11. Res judicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I-III xxx xxx xxx

Explanation IV- Any matter which might and ought to have been made ground defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V-VIII xxx xxx xxx"

38. Supreme Court in Deva Ram and another v.

Ishwar Chand and another, in AIR 1996 SC 378

held;

"Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence "Interest reipublicaeut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the Court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised."

39. In Ramdhar Shrivas v. Bhagwandas, (2005)

13 SCC 1, the Supreme Court held:

"The expression 'matter in issue' under Section 11 of the Code of Civil Procedure, 1908 connotes matter directly and substantially in issue actually or constructively. A matter is actually in issue when it is in issue directly and substantially and a competent court decides it on merits.

A matter is constructively in issue when it 'might and ought' to have been made a ground of defence or attack in the former suit. Explanation IV to Section 11 of the Code by a deeming provision lays down that any matter which 'might and ought' to have been made a ground of defence or attack in the former suit, but which has not been made a ground of defence or attack, shall be deemed to have been a matter directly and substantially in issue in such suit.

The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter had been actually controverted and decided. The object of Explanation IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence in one and the same suit."

40. In the light of above decisions of the Supreme

Court, it is to be seen as to whether the present suit is

barred by principles of Res Judicata or not.

41. Learned counsel for appellants after taking

through the issues and findings recorded by the trial

court in the former suit filed for perpetual injunction,

contended that question of ownership of the suit

property was neither expressly nor substantially

involved in the said suit and therefore the judgment

cannot operate as res judicata in the subsequent suit.

42. There is no dispute about the fact that the

judgment and decree dated 10.4.78 in suit

No.960/1969 has now become final between the

parties and it has been confirmed in appeal by the

judgment and decree dated 21.7.1986 by Shri. S.N.

Kapoor, Addl. District Judge. The second appeal filed

by the present appellants was also dismissed by this

Court on 28.1.1987 as also the Special leave petition

dismissed by Supreme Court on 8.8.1994.

43. In (suit No.960/1969) the issues which arose for

consideration were as to whether the plaintiffs therein

i.e. Sh. Gopal Krishan and Shri Satpal, who are

defendant Nos. 1 and 2 in (suit No.610/1970), have a

2/3rd share in the suit property i.e. House No.80/36-A,

Malviya Nagar, New Delhi. Further issues in (suit

No.960/1969), were as to whether Sh. Gopal Krishan

and Shri Satpal, have acquired any title in the suit

property by adverse possession or whether they were

merely licencees of Smt. Nirmala Devi.

44. The learned Civil Judge Shri. T.D. Keshav, while

dealing with these issues categorically held;

"Shri. Gopal Krishan and Shri Satpal have failed to prove that the suit property had been allotted as a Joint Family property or that they have 2/3rd share in the said property as alleged by them".

He further held;

"Shri. Gopal Krishan and Shri. Satpal are not entitled for any share in the suit property which is exclusively owned by Smt. Nirmala Devi i.e. the present plaintiff."

That court also concluded that;

"Gopal Krishan and Shri. Satpal have not acquired any title in the suit property by way of adverse possession and they are only licencees of Smt. Nirmala Devi."

45. Thus the suit for injunction of Shri. Gopal Krishan

and Shri. Satpal was accordingly dismissed.

46. In (suit No.610/1970), the issues which arose for

consideration are;

(i) whether Smt. Nirmala Devi had locus standi to

present the suit;

(ii) whether Shri. Gopal Krishan and Shri Satpal

(appellants Nos. 1 and 2) are licencees in the suit

property;

(iii) whether they are co-owners/co-sharers with

Smt. Nirmala Devi; and

(iv) whether they have become owners in the suit

property by adverse possession.

47. All these issues have been entailed as issues no.2

to 5 in (suit No.610/1970).

48. The appellants in their written statement had

taken the defence that;

"(i) they are the co-owners and co- sharers along with Smt. Nirmala Devi to the extent of 2/3rd share in the house,

(ii) they are in possession of the property since 1951, and

(iii) the appellants took alternative plea that they had become owner of the property by adverse possession, since they are in the continuous possession of the property for over 30 years."

49. In grounds of appeal filed by the appellants, plea

of co-owner and co-sharer along with Smt. Nirmala

Devi to the extent of 2/3rd share in the house has not

been taken.

50. On the other hand, the plea taken by the

appellants is that the parties are close relatives and

had been living together as a Joint Hindu Family and

the entire consideration of the suit property was paid

from the Joint Hindu Family funds.

51. In (suit No.610/1970) on the issues framed, the

trial court held that, these issues have conclusively

being determined and are covered by the findings

given in the judgment and decree dated 10th April,

1978 in suit No.960/1969.

52. Since the issues in suit No.960/1969 and suit

No.610/1970 are directly and substantially same,

under these circumstances the issues which were

decided in favour of Smt. Nirmala Devi by Sh. T.D.

Keshav, Civil Judge, in suit No.960/1969 operates as

res judicata qua suit No.610/1970 and as such I do not

find any infirmity or ambiguity in the impugned

judgment. The present appeal is thus liable to be

dismissed with costs.

CM No.8172/2005

53. By way of the present application, appellants seek

to place and prove on record certain documents issued

by Regional Settlement Commissioner, Jaisalmer

House.

54. In Para 11 of the appeal, it is stated;

"That the petitioner No.1 on 21.3.1994 made an application to the settlement

officer (Record) Jaisalmer House, New Delhi requesting for inspection of the records of the petitioner‟s compensation and settlement. That vide letter dated 31st March, 1994 the settlement officer, gave certified copies of the documents required by the petitioners. It is submitted that the documents clearly show that the said house was allotted to the respondent and appellants herein in their equal share".

55. As per these averments, appellants received

certified copies of the documents, as required by them.

Moreover, as per letter dated 31st March, 1994 of the

Settlement Officer, appellant No.1, (Gopal Krishan)

received certified copies of the documents. Relevant

portion of this letter reads as under;

1. Letter No.D/35/U/(CC)/1314/IV (NT)/17408 dt. 27.8.54.

2. Questionaire by Sh. Jodha Ram dt. 1.2.

3. Statement of Sh. Jodha Ram dt. 3.2.59.

4. Questionaire of Sh. Gopal Krishan dt. 11.4.67.

5. Affidavit of Shri Gopal Krishan dt.11.4.67.

6. Questionaire of Sh. Satpal dt. 11.4.67.

7. Affidavit of Sh. Satpal dt.11.4.67. From CAF No.D/1314/IV (NT).

56. Thus, as per appellants own case, they had

received the documents as early as 1994, which they

now want to prove. The present application was filed

in the year 2005, but there is no explanation as to why

there is such long delay in filing this application when,

admittedly these documents were in possession and

custody of the appellants.

57. There is no dispute about the principle of law laid

down in the various judgments cited by learned

counsel for the appellants but keeping in view the facts

and circumstances of the present case, when there is

delay of more than eleven years in filing the present

application, no ground is made out for allowing this

application.

58. In view of the above discussions, the present

appeal as well as application for additional evidence

are not maintainable and same are dismissed with

costs throughout.

59. It is well-settled that when litigation has been

needlessly protracted by an unsuccessful litigant, he

should be burdened with heavy costs. The general rule

is that the successful party is entitled to costs, unless

he is guilty of misconduct, negligence or omission.

60. The litigation started between the parties in the

year 1969 and appellants lost the battle up to the

Supreme Court. When Smt. Nirmala Devi (since

deceased) sought to have fruits of the possession of the

property owned by her, she could not get its

possession in her lifetime. It is most unfortunate that

the owner of the property could not enjoy the benefit

of her own property in her lifetime and even after her

death, the appellants, though closely related to Smt.

Nirmala, Devi did not have the basic courtesy to vacate

the property, owned by her.

61. The appellants had been fighting this litigation

having no legal rights at all and dragged Smt. Nirmala

Devi (since deceased) up to Supreme Court.

62. With regard to imposition of costs, in Salem

Advocate Bar Association, Tamil Nadu v. Union of

India AIR 2005 SC 3353, Supreme Court held that;

"Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs as awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs as awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court-fee, lawyer‟s fee, typing and other cost in relation to the litigation".

63. Under these circumstances, the appellants are

directed to pay Rs. 50,000/- (Rupees Fifty Thousand) as

costs to the respondents. The costs shall be paid to the

respondents or deposited in the trial/executing court,

within one month from today.

64. Since, the appellants are in unauthorized

possession of the property in question, being licensee

and their license having come to an end, in the year

1970, they are directed to vacate the premises in

question and hand over the possession to the

respondents, within one month from today, failing

which they shall be liable to pay occupation charges @

Rs.5,000/- per month, till the date they vacate the

premises in question. Occupation charges are

assessed keeping in view the fact that the property is

situated in posh locality of South Delhi.

65. In case, the appellants fail to comply with the

above directions, the executing court shall execute the

decree and for that purpose it shall provide necessary

police aid to the respondents.

66. Trial court record be sent back forthwith.

2nd April, 2009                   V.B.GUPTA, J.
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