Mr. Love Jain & Anr. vs Sh. Manak Chand Jain
2010 Latest Caselaw 4823 Del

*            HIGH COURT OF DELHI : NEW DELHI

             CM (M)No. 1267/2010 & CM No. 18108/2010

%      Judgment reserved on: 05th October, 2010

       Judgment delivered on: 19th October, 2010

    1. Mr. Love Jain
       S/o Late Sh. Babu Ram Jain.

    2. Shri Anil Jain,
       S/o Late Sh. Babu Ram Jain.

       Both at:
       Shop No. 1168/8, Kucha Mahajani,
       Chandni Chowk,
       Delhi-110 006
                                                   ....Petitioners

                         Through:    Mr. Harish Malhotra, Sr. Adv.
                                     with Mr. Vikas Goyal and Mr.
                                     Kumar Mukesh, Advocates.
                   Versus

       Sh. Manak Chand Jain,
       S/o Late Sh. Babu Ram Jain,
       R/o 209, 1st Floor,
       Vivekanand Puri,
       Delhi-110005.

                                                     ....Respondent

                         Through:    Nemo.

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

CM (M) 1267/2010                                    Page 1 of 12
 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.

Present petition under Article 227 of the Constitution of India

has been filed by petitioners against impugned order dated 10th

September, 2010 passed by Civil Judge, Delhi, vide which objections

under Section 47 read with Order 21 of the Code of Civil Procedure

(for short as „Code‟) filed by the petitioners were dismissed.

2. Brief fact which emerges from record are that, petitioners as

well as respondent are real brothers and were partner in M/s Jain

Jewellers at Shop No. 1168/8, Kucha Mahajani, Chandni Chowk,

Delhi-110006. Since certain disputes arose between them, respondent

filed a petition before this Court for appointment of an Arbitrator. Sh.

A. K. Sikri. J, appointed Ms. Avnish Ahlawat, Advocate, as Sole

Arbitrator. The Arbitrator, passed an award on 4th May, 2009 which

was later on modified on 21st May, 2009.

3. Petitioners filed objections against the award, which were

dismissed by S. N. Dhingra. J, vide order dated 7th September, 2009.

Thereafter, petitioners preferred an appeal before Division Bench of

this Court, which was also dismissed. Subsequently, Special Leave

Petition filed by the petitioners was also dismissed by the Apex Court.

4. Respondent also filed objections against the award specifically

taking objections regarding claim of possession of property in

question. These objections were dismissed by Sh. Rajiv Sahai Endlaw.

J, vide order dated 24th August, 2009. Respondent filed an appeal

against that order and his objections were remanded back for

adjudication and appeal is still pending and is fixed for 22nd

November, 2010.

5. Now respondent has filed execution petition before the Senior

Civil Judge in which petitioners filed objections under Section 47 of

the Code.

6. It is contended by learned counsel for the petitioners that

executing court has no pecuniary and territorial jurisdiction to

entertain the execution petition, since Arbitrator was appointed by this

Court and the decree holder earlier filed a suit for possession of the

same property before the District Judge. The executing court has

acted in haste without waiting for the outcome of appeal/objections

pending before this Court. Hence, impugned order is liable to be set

aside.

7. Present petition has been filed under Article 227 of the

Constitution of India. It is well settled that jurisdiction of this Court

under this Article is limited.

8. Article 227 of The Constitution of India reads as under;

"227. Power of superintendence over all courts by the High Court- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provisions, the High Court may-

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein;

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed forces."

9. In Waryam Singh and another Vs. Amarnath and another,

AIR 1954, SC 215, the court observed;

"This power of superintendence conferred by Article 227 is, as pointed out by Harries, C. J., in -„Dalmia Jain Airways Ltd. V. Sukumar Mukherjee‟, AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."

10. In Mohammed Yusuf Vs. Faij Mohammad and Ors., 2009 (1)

SCALE71, Supreme Court held;

"The jurisdiction of the High Court under Article 226 & 227 of the Constitution is limited. It could have set aside the orders passed by the Learned trial court and Revisional Court only on limited ground, namely, illegality, irrationality and procedural impropriety".

11. In State of West Bengal and Ors. Vs. Samar Kumar Sarkar,

JT 2009 (11) SC 258 Supreme Court held;

„10. Under Article 227, the High Court has been given power of superintendence both in judicial as

well as administrative matters over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. It is in order to indicate the plentitude of the power conferred upon the High Court with respect to Courts and the Tribunals of every kind that the Constitution conferred the power of superintendence on the High Court. The power of superintendence conferred upon the High Court is not as extensive as the power conferred upon it by Article 226 of the Constitution. Thus, ordinarily it will be open to the High Court, in exercise of the power of superintendence only to consider whether there is an error of jurisdiction in the decision of the Court or the Tribunal subject to its superintendence.

12. In Bathutmal Raichand Oswal Vs. Laxmibai R. Tarta (AIR1975SC1297) this Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. High Court‟s function is limited to see that the subordinate court or Tribunal functioned within the limits of its authority. The Court further said that the jurisdiction under Article 227 could not be exercised as the cloak of an appeal in disguise.‟

12. In Laxmikant Revchand Bhojwani and Anr. Vs. Pratapsing

Mohansing Pardeshi Deceased through his Heirs and Legal

representatives, JT 1995(7)SC400, Apex Court observed;

"The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of

fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes."

13. In light of principles laid down in the above decisions, it is to be

seen as to whether this petition under Article 227 of the Constitution

of India, against impugned orders is maintainable or not.

14. It is an admitted fact that disputes arose between the parties and

the matter was referred to the Arbitrator. Respondent herein, was the

claimant before the Arbitrator, whereas present petitioners were

respondents before him.

15. Claim 3 of the respondent before the Arbitrator read as under;

"Pass an Award/decree for possession in favour of the claimant against the Respondents in respect of suit premises bearing no. 1168/8, Kucha Mahajani, Chandni Chowk, Delhi-110006 as shown red in the Site Plan attached with the claim petition".

16. Arbitrator‟s findings regarding this claim, read as under;

"There being no other evidence on record to prove contrary it is held that the complainant is the owner of the property in dispute and is entitled for the possession of the same having sought possession vide notice dated 14th November, 2006 with effect from 30th November, 2006. Claim for possession of the shop is decided in favour of the claimant."

17. Admittedly, petitioners filed their objections against the award

which were dismissed right up to the Apex Court.

18. Now, when respondent filed execution petition before the trial

court, petitioners filed objections under Section 47 of the Code on the

ground that no order/award for possession of shop no. 1168/8, Kucha

Majahani, Chandni Chowk, Delhi was passed and nor it could be

passed since no site plan of the said property was filed in the

arbitration proceedings and the trial court has no pecuniary

jurisdiction to deal with the execution petition.

19. Trial court, while dismissing the objections of the petitioners

vide impugned order held;

"It is an admitted fact that the objections of the JDs against the present arbitration award has been dismissed upto the highest court of this land. DH has challenged the present award only in respect of rate/quantum of mesne profits/damages. However, right to possess the suit property has been conclusively determined in favour of DH and the same is not in issue before the Hon‟ble Appellate Court."

Trial court further held;

"Therefore, appeal pending u/s 37 of Arbitration & Conciliation Act, 1996 is not a hindrance in proceedings with execution petition unless it has been stayed by the Hon‟ble Appellate Court. It is

an admitted fact that no stay is in operation in respect of present arbitration award. Besides that, in view of the above discussion, right to possess the suit property has already been conclusively determined. In the present award, the learned Arbitrator has allowed the claim of possession of the suit property in addition to mesne profit/damages. The appeal u/s 37 of the Arbitration & Conciliation Act, 1996 is filed by the DH in respect of quantum/rate of mesne profit and so the execution in respect of mesne profit shall be carried out after the disposal of appeal u/s 37 of Arbitration & Conciliation Act, 1996. But, at present there is no issue pending before any court, between the parties in respect of the possession of the suit property. Accordingly, there is no hindrance or impediment in executing the present award in respect of the possession of the suit property. Hence, objections of the present execution petition filed by the JDs are baseless and accordingly the said objections are dismissed."

20. Since, no issue is pending before any Court between the parties

in respect of the possession of the suit property, as such there is no

impediment in executing the award passed by the Arbitrator in

respect of possession of the suit property. Moreover, the award of

Arbitrator has been upheld right up to the Apex Court. Thus, the

court below, rightly dismissed the objections of the petitioners under

Section 47 of the Code.

21. In Sardar Estates Vs. Atma ram Properties (P) Ltd. 2009

Rajdhani Law Reporter 338 (SC), the Supreme Court observed;

"7. It is evident that frivolous objections have been filed in the execution case which is an abuse of the process of the Court and a flagrant violation of the eviction decree against the appellant against which Appeals had been rejected and even SLP in this Court was dismissed.

8. It is evident that after the first round of litigation was over the tenant started a second round of litigation on frivolous grounds which was a flagrant abuse of the Court. This is a practice which has become widespread, and which the Court cannot approve off, otherwise no judgment will ever attain finality."

22. In Ravinder Kaur vs. Ashok Kumar, AIR 2004 SC 904, the

Supreme Court Observed;

"Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law‟s delay and bringing bad name to the judicial system."

23. It is well settled that frivolous litigation clogs the wheels of

justice making it difficult for courts to provide easy and speedy justice

to genuine litigants. It has also been observed in large number of

cases that meritless litigation should be dealt with heavy hands. Any

litigant who indulges in mindless litigation and unnecessarily waste

the precious time of the Courts should not be spared. He must pay

heavy costs for wasting time of the Court.

24. In the present case, petitioners having lost up to Supreme Court,

now in the second round of litigation have filed frivolous objections

just to deny the fruits of award which was made in favour of the

respondent.

25. Present petition under Article 227 of the Constitution of India is

nothing but gross abuse of process of law. A strong message is

required to be sent to those litigants who are in the habit of filing

bogus and frivolous objections in the execution proceedings and

thereby deprive the decree holder fruits of the award passed in its

favour.

26. Since, there is no illegality, infirmity or error in the impugned

order passed by the trial court, the present petition being most bogus

and frivolous one having no legal force, is hereby dismissed with costs

of Rs.50,000/- (Rupees Fifty Thousand only).

27. Out of this cost of Rs.50,000/-, petitioners shall pay Rs.25,000/-

(Rupees Twenty Five thousand only) to Sh. Manak Chand Jain,

(Respondent) by way of demand draft in his favour. Balance amount

of the cost shall be deposited by way of cross-cheque in the name of

Registrar General of this Court. These costs be deposited within a

period of four weeks from today.

28. After deposit of the costs by the petitioners, the respondent

should be paid the same, only after expiry of the period of

appeal/revision preferred, if any.

CM No. 18108/2010

29. Dismissed.

30. List for compliance on 22nd November, 2010.

October 19, 2010                             V.B.GUPTA, J.
ab