Himachal Pradesh High Court
Civil Writ Petition No. 244/2017 vs It Is The Bounden Duty And ... on 12 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 12th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 244/2017
BETWEEN:
DEV SINGH NEGI, S/O RAMESH CHAND,
LITTLE ANGELS PUBLIC SCHOOL, RECKONG PEO,
TOP FLOOR, KUMAR BUILDING, OPPOSITE H.P.
STATE COOPERATIVE BANK EXTENSION COUNTER
SUBZI MOHALLA, RECKONG PEO, TEHSIL KALPA,
DISTRICT KINNAUR, H.P. ....PETITIONER
(BY SH. C.D. NEGI, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH THROUGH
PRINCIPAL SECRETARY (REVENUE)
TO THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA171002.
2. DIVISIONAL COMMISSIONER, SHIMLA DIVISION,
SHIMLA171002.
3. DISTRICT COLLECTOR, KINNAUR AT RECKONG PEO,
DISTRICT KINNAUR.
4. A.C. TO D.C., ADHOC ZILA SAINIK BOARD,
KINNAUR DISTRICT AT RECKONG PEO, H.P.
5. COLLECTOR, SUB DIVISION KALPA AT RECKONG PEO,
TEHSIL KALPA, DISTRICT KINNAUR, H.P.
...RESPONDENTS
(SH. ASHOK SHARMA, A.G. WITH SH. RAJINDER DOGRA,
SR. ADDL. A.G., SH. VINOD THAKUR, SH. HEMANSHU
MISRA, SH. SHIV PAL MANHANS, ADDL. A.GS., AND SH.
BHUPINDER THAKUR, DY. AG. FOR R1 TO R5.
SH. N. K. THAKUR, SR. ADVOCATE WITH MR. KARAN VEER
SNIGH, ADVOCATE, FOR THE APPLICANT IN CMP NO.
820/2021)
::: Downloaded on - 31/01/2022 22:52:23 :::CIS
2
This petition coming on for orders this day, Hon'ble Mr.
Justice Tarlok Singh Chauhan passed the following:
ORDER
.
The instant petition has been filed for the grant of
following substantive reliefs:
"(i) that impugned order dated 21.1.2017 (Annexure P5) passed
by the Divisional Commissioner, Shimla Division, in Appeal
No.167/2015, whereby the appeal preferred by the petitioner
against the order dated 3.8.2015 (Annexure P4) passed by
Collector, Sub Division Kalpa at Reckong Peo, Tehsil Kalpa,
District Kinnaur, H.P. under H.P. Public Premises & Land
(Eviction & Rent Recovery) Act, 1971 in Case No.SDK01/2015
has been dismissed, may kindly be quashed and set aside by
issuing writ of certiorari and justice may be done.
(ii) that the respondent may kindly be directed not to evict the
petitioner from the premises in question, by issuing writ of
mandamus.
2 It is averred by the petitioner that the Sainik Rest
House near Bus Stand Reckong Peo, constructed over land
comprised in Khasra Nos. 603, 604 area measuring 00945
hectares, had been taken on rent by him for running a school in
the name and style of "Little Angels Public School". The petitioner
had been continuously paying rent to the Sainik Board and
despite this, respondents No. 3 and 4 kept on unnecessary
harassing the petitioner and threatened him to evict from the
premises in question forcibly.
3. The petitioner was served with a notice dated
25.3.2015 under the H.P. Public Premises & Land (Eviction &
Rent Recovery) Act, 1971 by the Collectorrespondent No.5. He
.
filed the reply to the notice, thereafter, he did not turn up.
Eventually, eviction order was passed against the petitioner and
even the appeal filed by the petitioner came to be dismissed by
the appellate authority on 21.1.2017.
4. The only ground on which the petitioner has assailed
the orders passed by the authorities below is that he is the
tenant in the premises in question and has been paying rent
regularly and, therefore, he could not have been ordered to be
evicted by treating him like a "trespasser".
5 The respondentsState have contested the petition by
filing reply, wherein it is stated that the premises were not rented
out to the petitioner, but were rented out to one Sh. Manjeet
Singh, Secretary Surya Karan Education Society, Subzi Mohalla,
Reckong Peo to run the school in question by the Deputy
CommissionercumPresident Adhoc Zila Sainik Board, Reckong
Peo against rent agreement for one year w.e.f. 1.4.2012 to
31.3.2013 on monthly rent of Rs.8100/ subject to fulfillment of
conditions. The Deputy Director, Sainik Welfare Shimla and
Kinnaur vide letter dated 4th April, 2012 requested that no
portion of Sainik Rest House be rented out further as that rent
agreement of Sainik Rest House stood expired on 31.3.2013.
Respondent No.4AC to DC Adhoc Zila Sainik Board Kinnaur vide
office letter dated 21.3.2013 issued the notice to Manjeet Singh
.
Secretary Surya Karan Education Society to vacate the
accommodation rented out to him and hand over the possession
by 1.4.2013, but no response was received from the lessee.
Respondent No.4 again issued the notice to Manjeet Singh to
vacate the accommodation and to clear rent liabilities, however
Manjeet Singh requested the Deputy Commissioner, Kinnaur to
extend the rent agreement for further period and if extension is
not possible, he is ready to vacate the property in question.
6 Respondent No.4 issued notice to the petitioner to
clear the rent liabilities and to hand over the possession by
31.1.2014, however, the petitioner did not vacate the premises in
question. Therefore, the petitioner is in unauthorized possession
of property in question from the expiry of rental agreement on
31.3.2013, which was not executed with the petitioner.
7 At this stage, it would also be necessary to refer to
CMP No. 820/2021, which has been filed by the Exservices
League, Kinnaur, through its General Secretary, for
impleadment. It has been averred in the application that the
property in question was constructed by the administration of
Zila Sainik Board as Rest House for the facility of serving and ex
servicemen of Army and other paramilitary services. The same
was given on lease to the petitioner for one year and thereafter,
.
the petitioner is in unauthorized possession of the same as the
same was never renewed.
8 We have heard the learned counsel for the parties and
have also gone through the material placed on record.
9 As mentioned above, the petitioner has not been able
to establish any right over the property in dispute as records
clearly establish that the same was given to him only for one
year.
10 What is more surprising is that despite being in
possession of the premises, the petitioner has not even bothered
to pay the rent despite protection granted by this Court qua his
dispossession vide order dated 3.2.2017.
11 Since the petitioner is in possession of the property,
we are clearly of the view that he has filed frivolous litigation to
prolong his possession and the same is a calculated venture
involving no risk situation.
12 After all, one has only to engage professionals to
prolong litigation so as to deprive the rights of the parties and
enjoy the fruits of illegalities. It is on account of such frivolous
litigation that the court dockets are overflowing. Here it is apt to
reproduce the observations made by the Hon'ble Supreme Court
in paras 174, 175 and 197 of the judgment in Indian Council
for EnviroLegal Action vs. Union of India and others, 2011
.
8 SCC 161, which are as under:
"174. In Padmawati vs Harijan Sewak Sangh, 2008 154 DLT
411 decided by the Delhi high Court on 6.11.2008, the court held
as under: (DLT p.413, para 6)
"6. The case at hand shows that frivolous defences and
frivolous litigation is a calculated venture involving no
risks situation. You have only to engage professionals
to prolong the litigation so as to deprive the rights of a
person and enjoy the fruits of illegalities. I consider that
in such cases where Court finds that using the Courts
as a tool, a litigant has perpetuated illegalities or has
perpetuated an illegal possession, the Court must
impose costs on such litigants which should be equal to
the benefits derived by the litigant and harm and
deprivation suffered by the rightful person so as to
check the frivolous litigation and prevent the people
from reaping a rich harvest of illegal acts through the
Court. One of the aims of every judicial system has to
be to discourage unjust enrichment using Courts as a
tool. The costs imposed by the Courts must in all cases
should be the real costs equal to deprivation suffered
by the rightful person."
We approve the findings of the High Court of Delhi in the
aforementioned case.
175. The Court also stated: (Padmawati case, DLT pp.
414 15, para 9)
"Before parting with this case, we consider it necessary
to observe that one of the main reasons for overflowing
of court dockets is the frivolous litigation in which the
Courts are engaged by the litigants and which is
dragged as long as possible. Even if these litigants
ultimately loose the lis, they become the real victors and
have the last laugh. This class of people who perpetuate
illegal acts by obtaining stays and injunctions from the
Courts must be made to pay the sufferer not only the
entire illegal gains made by them as costs to the person
deprived of his right and also must be burdened with
exemplary costs. Faith of people in judiciary can only
be sustained if the persons on the right side of the law
do not feel that even if they keep fighting for justice in
the Court and ultimately win, they would turn out to be
a fool since winning a case after 20 or 30 years would
make wrongdoer as real gainer, who had reaped the
benefits for all those years. Thus, it becomes the duty of
.
the Courts to see that such wrongdoers are discouraged
at every step and even if they succeed in prolonging the
litigation due to their money power, ultimately they must
suffer the costs of all these years long litigation. Despite
settled legal positions, the obvious wrong doers, use one
after another tier of judicial review mechanism as a
gamble, knowing fully well that dice is always loaded in
their favour, since even if they lose, the time gained is
the real gain. This situation must be redeemed by the
Courts."
197. The other aspect which has been dealt with in great details
is to neutralize any unjust enrichment and undeserved gain
made by the litigants. While adjudicating, the courts must keep
the following principles in view.
1. It is the bounden duty and obligation of the court to
neutralize any unjust enrichment and undeserved gain
made by any party by invoking the jurisdiction of the
court.
2. When a party applies and gets a stay or injunction
from the court, it is always at the risk and
responsibility of the party applying. An order of stay
cannot be presumed to be conferment of additional
right upon the litigating party.
3. Unscrupulous litigants be prevented from taking
undue advantage by invoking jurisdiction of the Court.
4. A person in wrongful possession should not only be
removed from that place as early as possible but be
compelled to pay for wrongful use of that premises
fine,penalty and costs. Any leniency would seriously
affect the credibility of the judicial system.
5. No litigant can derive benefit from the mere
pendency of a case in a court of law.
6. A party cannot be allowed to take any benefit of his
own wrongs.
7. Litigation should not be permitted to turn into a
fruitful industry so that the unscrupulous litigants are
encouraged to invoke the jurisdiction of the court.
8. The institution of litigation cannot be permitted to
confer any advantage on a party by delayed action of
courts."
13 It is because of such false and incoherent pleas by the
parties due to which the judicial system in the country is
chocked and such litigants consuming courts time for a wrong
.
cause. Efforts are made by the parties to steal a march over their
rivals by resorting to false and incoherent statements made
before the Court. This clearly is the abuse of the process of the
Court as the intent of the petitioner is to deceive and mislead the
Court that too by taking shelter of falsehood, misrepresentation
and suppression facts in the court proceedings. Materialism,
opportunism and malicious intent have overshadowed the old
ethos of litigative values for small gains. This Court is required to
maintain strictness, vigilance over the abuse of the process of the
Court and curb such tendencies with iron hands.
14 In Maria Margarida Sequeria Fernandes v.
Erasmo Jack de Sequeria, (2012) 5 SCC 370, the Hon'ble
Supreme Court held that false claims and defences are serious
problems with the litigation. The Hon'ble Supreme Court held as
under:
"False claims and false defences
84. 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
minimized to a large extent."
.
15 In Dalip Singh v. State of U.P., (2010) 2 SCC 114,
the Hon'ble Supreme Court observed that a new creed of litigants
have cropped up in the last 40 years who do not have any respect
for truth and shamelessly resort to falsehood and unethical
means for achieving their goals. The observations of the Supreme
Court are as under:
"1. For many centuries, Indian society cherished two basic values
of life i.e., 'Satya' (truth) and 'Ahimsa' (nonviolence). Mahavir,
Gautam Buddha and Mahatma Gandhi guided the people to
ingrain these values in their daily life. Truth constituted an
integral part of the justicedelivery system which was in vogue in
the preIndependence era and the people used to feel proud to tell
truth in the courts irrespective of the consequences. However,
postIndependence period has seen drastic changes in our value
system. The materialism has over shadowed the old ethos and
the quest for personal gain has become so intense that those
involved in litigation do not hesitate to take shelter of falsehood,
misrepresentation and suppression of facts in the court
proceedings.
2. In last 40 years, a new creed of litigants has cropped up.
Those who belong to this creed do not have any respect for truth.
They shamelessly resort to falsehood and unethical means for
achieving their goals. In order to meet the challenge posed by this
new creed of litigants, the courts have, from time to time, evolved
new rules and it is now well established that a litigant, who
attempts to pollute the stream of justice or who touches the pure
fountain of justice with tainted hands, is not entitled to any relief,
interim or final."
16 In Satyender Singh Vs. Gulab Singh, 2012 (129)
.
DRJ, 128, the Division Bench of Delhi High Court following Dalip
Singh v. State of U.P. (supra) observed that the Courts are flooded
with litigation with false and incoherent pleas and tainted
evidence led by the parties due to which the judicial system in the
country is choked and such litigants are consuming Courts ‟ time
for a wrong cause." The observations of the Court are as under:
"2. As rightly observed by the Supreme Court, Satya is a basic
value of life which was required to be followed by everybody and
is recognized since many centuries. In spite of caution, courts are
continued to be flooded with litigation with false and incoherent
pleas and tainted evidence led by the parties. The judicial
system in the country is choked and such litigants are
consuming courts„ time for a wrong cause. Efforts are made by
the parties to steal a march over their rivals by resorting to false
and incoherent statements made before the Court. Indeed, it is a
nightmare faced by a Trier of Facts; required to stitch a garment,
when confronted with a fabric where the weft, shuttling back
and forth across the warp in weaving, is nothing but lies. As the
threads of the weft fall, the yarn of the warp also collapses; and
there is no fabric left."
17 The ThreeJudge Bench of Hon'ble Supreme Court in
Dnyandeo Sabaji Naik & ors. Versus Pradnya Prakash
Khadekar & ors., (2017) 5 SCC 496 observed as under:
13. This Court must view with disfavour any attempt by a
litigant to abuse the process. The sanctity of the judicial process
will be seriously eroded if such attempts are not dealt with
firmly. A litigant who takes liberties with the truth or with the
.
procedures of the Court should be left in no doubt about the
consequences to follow. Others should not venture along the
same path in the hope or on a misplaced expectation of judicial
leniency. Exemplary costs are inevitable, and even necessary, in
order to ensure that in litigation, as in the law which is practised
in our country, there is no premium on the truth.
14. Courts across the legal system this Court not being an
exception - are choked with litigation. Frivolous and groundless
filings constitute a serious menace to the administration of
justice. They consume time and clog the infrastructure.
Productive resources which should be deployed in the handling
of genuine causes are dissipated in attending to cases filed only
to benefit from delay, by prolonging dead issues and pursuing
worthless causes. No litigant can have a vested interest in delay.
Unfortunately, as the present case exemplifies, the process of
dispensing justice is misused by the unscrupulous to the
detriment of the legitimate. The present case is an illustration of
how a simple issue has occupied the time of the courts and of
how successive applications have been filed to prolong the
inevitable. The person in whose favour the balance of justice lies
has in the process been left in the lurch by repeated attempts to
revive a stale issue. This tendency can be curbed only if courts
across the system adopt an institutional approach which
penalizes such behavior. Liberal access to justice does not mean
access to chaos and indiscipline. A strong message must be
conveyed that courts of justice will not be allowed to be
disrupted by litigative strategies designed to profit from the
delays of the law. Unless remedial action is taken by all courts
here and now our society will breed a legal culture based on
evasion instead of abidance. It is the duty of every court to firmly
deal with such situations. The imposition of exemplary costs is a
necessary instrument which has to be deployed to weed out, as
well as to prevent the filing of frivolous cases. It is only then that
the courts can set apart time to resolve genuine causes and
.
answer the concerns of those who are in need of justice.
Imposition of real time costs is also necessary to ensure that
access to courts is available to citizens with genuine grievances.
Otherwise, the doors would be shut to legitimate causes simply
by the weight of undeserving cases which flood the system. Such
a situation cannot be allowed to come to pass. Hence it is not
merely a matter of discretion but a duty and obligation cast upon
all courts to ensure that the legal system is not exploited by
those who use the forms of the law to defeat or delay justice. We
commend all courts to deal with frivolous filings in the same
manner.
18 These observations have thereafter been reiterated
and relied by Hon'ble Supreme Court in Rashid Khan Pathan
& in the matter of: In Re: Vijay Kurle & Or., AIR 2020 SC
4070.
19 In Indore Development Authority Versus Manohar
Lal & ors. (2020) 8 SCC 129, a Constitution Bench of Hon'ble
Supreme Court, while dealing with frivolous litigations and
principle of restitution, has observed as under:
"In re: Principle of restitution
332. The principle of restitution is founded on the ideal of doing
complete justice at the end of litigation, and parties have to be
placed in the same position but for the litigation and interim
order, if any, passed in the matter. In South Eastern Coalfields
Ltd. v. State of M.P. & Ors. (2003) 8 SCC 648, it was held that no
party could take advantage of litigation. It has to disgorge the
advantage gained due to delay in case lis is lost. The interim
order passed by the court merges into a final decision. The
.
validity of an interim order, passed in favour of a party, stands
reversed in the event of a final order going against the party
successful at the interim stage. Section 144 of the Code of Civil
Procedure is not the fountain source of restitution. It is rather a
statutory recognition of the rule of justice, equity and fair play.
The court has inherent jurisdiction to order restitution so as to do
complete justice. This is also on the principle that a wrong order
should not be perpetuated by keeping it alive and respecting it.
In exercise of such power, the courts have applied the principle of
restitution to myriad situations not falling within the terms of
section 144 CPC. What attracts applicability of restitution is not
the act of the court being wrongful or mistake or an error
committed by the court; the test is whether, on account of an act
of the party persuading the court to pass an order held at the
end as not sustainable, resulting in one party gaining an
advantage which it would not have otherwise earned, or the
other party having suffered an impoverishment, restitution has to
be made. Litigation cannot be permitted to be a productive
industry. Litigation cannot be reduced to gaming where there is
an element of chance in every case. If the concept of restitution is
excluded from application to interim orders, then the litigant
would stand to gain by swallowing the benefits yielding out of
the interim order. This Court observed in South Eastern Coal
Field (supra) thus:
"26. In our opinion, the principle of restitution takes
care of this submission. The word "restitution" in its
etymological sense means restoring to a party on the
modification, variation or reversal of a decree or
order, what has been lost to him in execution of
decree or order of the court or in direct consequence
of a decree or order (see Zafar Khan v. Board of
Revenue, U.P., 1984 Supp SCC 505) In law, the term
"restitution" is used in three senses: (i) return or
restoration of some specific thing to its rightful owner
or status; (ii) compensation for benefits derived from
a wrong done to another; and (iii) compensation or
reparation for the loss caused to another. (See
Black's Law Dictionary, 7th Edn., p. 1315). The Law
.
of Contracts by John D. Calamari & Joseph M. Perillo
has been quoted by Black to say that "restitution" is
an ambiguous term, sometimes referring to the
disgorging of something which has been taken and
at times referring to compensation for the injury
done:
"Often, the result under either meaning of the term
would be the same. ... Unjust impoverishment, as
well as unjust enrichment, is a ground for restitution.
If the defendant is guilty of a nontortious
misrepresentation, the measure of recovery is not
rigid but, as in other cases of restitution, such factors
as relative fault, the agreedupon risks, and the
fairness of alternative risk allocations not agreed
upon and not attributable to the fault of either party
need to be weighed."
The principle of restitution has been statutorily
recognized in Section 144 of the Code of Civil
Procedure, 1908. Section 144 CPC speaks not only of
a decree being varied, reversed, set aside or
modified but also includes an order on a par with a
decree. The scope of the provision is wide enough so
as to include therein almost all the kinds of variation,
reversal, setting aside or modification of a decree or
order. The interim order passed by the court merges
into a final decision. The validity of an interim order,
passed in favor of a party, stands reversed in the
event of a final decision going against the party
successful at the interim stage. xxx
27. x x x This is also on the principle that a wrong
order should not be perpetuated by keeping it alive
and respecting it (A. Arunagiri Nadar v. S.P.
Rathinasami, (1971) 1 MLJ 220). In the exercise of
such inherent power, the courts have applied the
principles of restitution to myriad situations not
strictly falling within the terms of Section 144.
28. That no one shall suffer by an act of the court is
not a rule confined to an erroneous act of the court;
the "act of the court" embraces within its sweep all
such acts as to which the court may form an opinion
in any legal proceedings that the court would not
have so acted had it been correctly apprised of the
facts and the law. x x x the concept of restitution is
excluded from application to interim orders, then the
litigant would stand to gain by swallowing the
benefits yielding out of the interim order even though
the battle has been lost at the end. This cannot be
.
countenanced. We are, therefore, of the opinion that
the successful party finally held entitled to a relief
assessable in terms of money at the end of the
litigation, is entitled to be compensated by award of
interest at a suitable reasonable rate for the period
for which the interim order of the court withholding
the release of money had remained in operation."
(emphasis supplied)
336. In State of Gujarat & Ors. v. Essar Oil Ltd. & Anr (2012) 3
SCC 522, it was observed that the principle of restitution is a
remedy against unjust enrichment or unjust benefit. The Court
observed:
"61. The concept of restitution is virtually a common
law principle, and it is a remedy against unjust
enrichment or unjust benefit. The core of the concept
lies in the conscience of the court, which prevents a
party from retaining money or some benefit derived
from another, which it has received by way of an
erroneous decree of the court. Such remedy in
English Law is generally different from a remedy in
contract or in tort and falls 223 (2012) 3 SCC 522
within the third category of common law remedy,
which is called quasicontract or restitution.
62. If we analyze the concept of restitution, one thing
emerges clearly that the obligation to restitute lies on
the person or the authority that has received unjust
enrichment or unjust benefit (see Halsbury's Laws of
England, 4th Edn., Vol. 9, p. 434)."
337. In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu
Madalaya Nandhavana Paripalanai Sangam (2012) 6 SCC 430
it was stated that restitutionary jurisdiction is inherent in every
court, to neutralize the advantage of litigation. A person on the
right side of the law should not be deprived, on account of the
effects of litigation; the wrongful gain of frivolous litigation has to
be eliminated if the faith of people in the judiciary has to be
sustained. The Court observed:
"37. This Court, in another important case in Indian
Council for EnviroLegal Action v. Union of India (of
.
which one of us, Dr. Bhandari, J. was the author of
the judgment) had an occasion to deal with the
concept of restitution. The relevant paragraphs of
that judgment dealing with relevant judgments are
reproduced hereunder: (SCC pp. 23841 & 24346,
paras 17076, 18388 & 19093) "
170. x x x
171. In Ram Krishna Verma v. the State of U.P. this
Court observed as under: (SCC p. 630, para 16) '16.
The 50 operators, including the appellants/private
operators, have been running their stage carriages
by blatant abuse of the process of the court by
delaying the hearing as directed in Jeewan Nath
Wahal's case and the High Court earlier thereto. As a
fact, on the expiry of the initial period of the grant
after 2991959, they lost the right to obtain renewal
or to ply their vehicles, as this Court declared the
scheme to be operative.
However, by sheer abuse of the process of law, they
are continuing to ply their vehicles pending the
hearing of the objections. This Court in Grindlays
Bank Ltd. v. ITO held that the High Court, while
exercising its power under Article 226, the interest of
justice requires that any undeserved or unfair
advantage gained by a party invoking the
jurisdiction of the court must be neutralized. It was
further held that the institution of the litigation by it
should not be permitted to confer an unfair
advantage on the party responsible for it. In the light
of that law 224 (2012) 6 SCC 430 and in view of the
power under Article 142(1) of the Constitution this
Court, while exercising its jurisdiction would do
complete justice and neutralize the unfair advantage
gained by the 50 operators including the appellants
in dragging the litigation to run the stage carriages
on the approved route or area or portion thereof and
forfeited their right to hearing of the objections filed
by them to the draft scheme dated 2621959.'
172. This Court in Kavita Trehan v. Balsara Hygiene
Products Ltd. observed as under: (SCC p. 391, para
22) '22. The jurisdiction to make restitution is
inherent in every court and will be exercised
whenever the justice of the case demands. It will be
exercised under inherent powers, where the case did
not strictly fall within the ambit of Section 144.
Section 144 opens with the words:
.
"144. Application for restitution.--(1) Where and
insofar as a decree or an order is varied or reversed
in any appeal, revision or other proceeding or is set
aside or modified in any suit instituted for the
purpose ...." The instant case may not strictly fall
within the terms of Section 144, but the aggrieved
party in such a case can appeal to the larger and
general powers of restitution inherent in every court.'
173. This Court in Marshall Sons & Co. (I) Ltd. v.
Sahi Oretrans (P) Ltd. observed as under: (SCC pp.
32627, para 4) '4. From the narration of the facts,
though it appears to us, prima facie, that a decree in
favor of the appellant is not being executed for some
reason or the other, we do not think it proper at this
stage to direct the respondent to deliver the
possession to the appellant since the suit filed by the
respondent is still pending. It is true that proceedings
are dragged on for a long time on one count or the
other and, on occasion, become highly technical
accompanied by unending prolixity at every stage,
providing a legal trap to the unwary. Because of the
delay, unscrupulous parties to the proceedings take
undue advantage, and the person who is in wrongful
possession draws delight in delay in disposal of the
cases by taking undue advantage of procedural
complications. It is also a known fact that after
obtaining a decree for possession of the immovable
property, its execution takes a long time. In such a
situation, for protecting the interest of the judgment
creditor, it is necessary to pass appropriate orders so
that reasonable mesne profit which may be
equivalent to the market rent is paid by a person
who is holding over the property. Inappropriate
cases, the court may appoint a Receiver and direct
the person who is holding over the property to act as
an agent of the [Receiver with a direction to deposit
the royalty amount fixed by the] Receiver or pass
such other order which may meet the interest of
justice. This may prevent further injury to the
plaintiff in whose favor the decree is passed and to
protect the property, including further alienation.'
174. In Padmawati v. Harijan Sewak Sangh decided
by the Delhi High Court on 6112008, the Court held
as under: (DLT p. 413, para 6) '6. The case at hand
shows that frivolous defenses and frivolous litigation
is a calculated venture involving no risks situation.
You have only to engage professionals to prolong the
litigation so as to deprive the rights of a person and
enjoy the fruits of illegalities. I consider that in such
cases where the court finds that using the courts as
.
a tool, a litigant has perpetuated illegalities or has
perpetuated an illegal possession, the court must
impose costs on such litigants which should be equal
to the benefits derived by the litigant and harm and
deprivation suffered by the rightful person so as to
check the frivolous litigation and prevent the people
from reaping a rich harvest of illegal acts through the
courts. One of the aims of every judicial system has
to be to discourage unjust enrichment using courts as
a tool. The costs imposed by the courts must in all
cases should be the real costs equal to deprivation
suffered by the rightful person.' We approve the
findings of the High Court of Delhi in the case
mentioned above.
175. The High Court also stated: (Padmawati case,
DLT pp. 41415, para 9) '9. Before parting with this
case, we consider it necessary to observe that one of
the [main] reasons for overflowing of court dockets is
the frivolous litigation in which the courts are
engaged by the litigants and which is dragged on for
as long as possible. Even if these litigants ultimately
lose the lis, they become the real victors and have
the last laugh. This class of people who perpetuate
illegal acts by obtaining stays and injunctions from
the courts must be made to pay the sufferer not only
the entire illegal gains made by them as costs to the
person deprived of his right but also must be
burdened with exemplary costs. The faith of people
in judiciary can only be sustained if the persons on
the right side of the law do not feel that even if they
keep fighting for justice in the court and ultimately
win, they would turn out to be a fool since winning a
case after 20 or 30 years would make the wrongdoer
as real gainer, who had reaped the benefits for all
those years. Thus, it becomes the duty of the courts
to see that such wrongdoers are discouraged at
every step, and even if they succeed in prolonging
the litigation due to their money power, ultimately,
they must suffer the costs of all these years' long
litigation. Despite the settled legal positions, the
obvious wrongdoers, use one after another tier of
judicial review mechanism as a gamble, knowing
fully well that dice is always loaded in their favour
since even if they lose, the time gained is the real
gain. This situation must be redeemed by the courts.'
176. Against this judgment of the Delhi High Court,
Special Leave to Appeal (Civil) No. 29197 of 2008
was preferred to this Court. The Court passed the
.
following order: (SCC p. 460, para 1) '1. We have
heard the learned counsel appearing for the parties.
We find no ground to interfere with the well
considered judgment passed by the High Court. The
special leave petition is, accordingly, dismissed.'
* * *
183. In Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans
(P) Ltd. this Court in para 4 of the judgment observed
as under: (SCC pp. 32627) '4. ... It is true that
proceedings are dragged on for a long time on one
count or the other and, on occasion, become highly
technical accompanied by unending prolixity at every
stage, providing a legal trap to the unwary. Because
of the delay, unscrupulous parties to the proceedings
take undue advantage, and a person who is in
wrongful possession draws delight in delay in
disposal of the cases by taking undue advantage of
procedural complications. It is also a known fact that
after obtaining a decree for possession of immovable
property, its execution takes a long time. In such a
situation, for protecting the interest of the judgment
creditor, it is necessary to pass appropriate orders so
that reasonable mesne profit which may be
equivalent to the market rent is paid by a person
who is holding over the property. In appropriate
cases, the court may appoint a Receiver and direct
the person who is holding over the property to act as
an agent of the Receiver with a direction to deposit
the royalty amount fixed by the Receiver or pass
such other order which may meet the interest of
justice. This may prevent further injury to the
plaintiff in whose favour the decree is passed and to
protect the property, including further alienation.'
184. In Ouseph Mathai v. M. Abdul Khadir, this
Court reiterated the legal position that: (SCC p. 328,
para 13) '13. ... [the] stay granted by the court does
not confer a right upon a party and it is granted
always subject to the final result of the matter in the
court and at the risks and costs of the party
obtaining the stay. After the dismissal of the lis, the
party concerned is relegated to the position which
existed prior to the filing of the petition in the court
which had granted the stay. Grant of stay does not
automatically amount to extension of a statutory
protection."
There are other decisions as well, which iterate and apply the
.
same principle.
338. A wrongdoer or in the present context, a litigant who
takes his chances, cannot be permitted to gain by delaying
tactics. It is the duty of the judicial system to discourage undue
enrichment or drawing of undue advantage, by using the court
as a tool. In Kalabharati Advertising v. Hemant Vimalnath
Narichania,(2010) 9 SCC 437 it was observed that courts
should be careful in neutralizing the effect of consequential
orders passed pursuant to interim orders. Such directions are
necessary to check the rising trend among the litigants to
secure reliefs as an interim measure and avoid adjudication of
the case on merits. Thus, the restitutionary principle recognizes
and gives shape to the idea that advantages secured by a
litigant, on account of orders of court, at his behest, should not
be perpetuated; this would encourage the prolific or serial
litigant, to approach courts time and again and defeat rights of
others including undermining of public purposes underlying
acquisition proceedings. A different approach would mean that,
for instance, where two landowners (sought to be displaced
from their lands by the same notification) are awarded
compensation, of whom one allows the issue to attain finality
and moves on, the other obdurately seeks to stall the public
purpose underlying the acquisition, by filing one or series of
litigation, during the pendency of which interim orders might
inure and bind the parties, the latter would profit and be
rewarded, with the deemed lapse condition under Section 24
(2). Such a consequence, in the opinion of this Court, was never
intended by Parliament; furthermore, the restitutionary principle
requires that the advantage gained by the litigant should be
suitably offset, in favour of the other party.
336. In Krishnaswamy S. Pd. v. Union of India (2006) 3 SCC
286, it was observed that an unintentional mistake of the Court,
which may prejudice the cause of any party, must and alone
could be rectified. Thus, in our opinion, the period for which the
.
interim order has operated under Section 24 has to be excluded
for counting the period of 5 years under Section 24(2) for the
various reasons mentioned above.
20 To say the least, the instant petition is nothing but a
gross abuse of the process of law. We could have imposed heavy
costs, but that, in the given facts and circumstances, would not
serve any purpose. Therefore, while dismissing
r the instant
petition, we direct the petitioner to vacate the premises in
question by 31.8.2021 at 1.00 P.M., failing which respondent
No.4 shall take forcible possession of the same with assistance of
the District Administration and Police. However, it is made clear
that it shall always be open to the respondents to claim not only
use and occupation charges, but also damages from the
petitioner in accordance with law.
21 Pending application(s), if any, also stands dismissed.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
12.8.2021 Judge
(pankaj)
