Ginni Devi @ Urmila Devi vs Smt. Uma Devi
2022 Latest Caselaw 1150 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    S.A. No. 199 of 2012

Ginni Devi @ Urmila Devi
w/o Sri Dinesh Prasad Sinha
D/o Late Bijay Kumar Lal,
Dangalpara, Dumka                               ....   ....     Appellant
                              Versus
1. Smt. Uma Devi w/o Anirudh Prasad
2. Pankaj Kumar Sinha s/o Anirudh Prasad ....          ....   Respondents 1st Set

3.    Smt. Sulochana Devi w/o late Bijay Kumar Lal
4.    Deepak Kumar Sinha s/o Late Bijay Kumar Lal
5.    Srikant Sinha s/o Late Bijay Kumar Lal
6.    Soni Kumari D/o Late Bijay Kumar Lal
7.    Bina Kumari @ Chhoti Kumari
      D/o Late Bijay Kumar Lal                 ....  ....  Respondents 2nd Set
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant : Mr. Amar Kumar Sinha, Advocate Mr. Sandeep Kumar Verma, Advocate Ms. Bakshi Vibha, Advocate For Respondent No. 1 & 2 : Mr. Rajiv Sinha, Advocate Mr. B.K.Prasad, Advocate Ms. Shreesha Sinha, Advocate Mr. Niraj Kumar, Advocates

For Respondents Nos. 3-7 : Mr. Indrajit Sinha, Advocate Mr. Amitabh Prasad, Advocate

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Oral Order 31/ Dated : 24.03.2022

1. The plaintiff is in appeal before this Court against the judgment of affirmance passed in Title Appeal No. 14 of 2011,by which the decree of dismissal of suit passed by the Subordinate Judge-III, Jamtara in Title (P) Suit No. 50 of 2004, has been affirmed.

2. For convenience the parties shall be referred by their original placement in the suit and will include their legal representatives.

3. The plaintiff brought the suit for partition of her 1/7th share in the suit properties and for a declaration that earlier Title (P) Suit bearing No. 74 of 1986 and all such decrees and judgments arising from it be declared null and void. A further prayer has been made for declaring that the adoption deed no.196 dated 7.5.1985 executed by defendant no.1 and defendant no.2 in favour of Pankaj Kumar Sinha was

fraudulent void and illegal.

4. The case of the plaintiff is that Thakur Lal was the common ancestor of the parties who died before the last survey settlement leaving behind his three surviving sons namely (1) Balram Lal @ Balai Lal @ Balram @ Ballai Lal (2) Shyam Prasad Lal @ Shyamchandra @ Shyam Prasad and (3) Ram Prasad Lal @ Ram Prasad. The eldest son of Thakur Lal, the common ancestor of the parties, namely Nanhku Lal @ Nakul Lal died prior to the survey and settlement operation held between 1908- 1912, so the name of his widow Sanjho Debi @ Sanjho Kumari was added who had only limited right who died sometimes in the year 1935.

5. Lands mentioned in Schedule-B which comprised an area of 9.30 acres, spread over total 15 plots which were also recorded in the joint names of all the four sons of Late Thakur Lal and the name of Sanjho Devi also appeared in the Khatian as widow of Late Nanhku Lal @ Nakul Lal who was not survived by any son and who was maintained by the joint family. She later on died in jointness and after her death the joint property merged with other sons of Thakur Lal.

6. The further case of the appellant is that the Shyam Prasad Lal died in 1950 issueless and his interest devolved on his surviving brothers. Ram Prasad Lal died in or about 1951 leaving behind his only son Kartik Lal and thus the whole property as mentioned in Schedule-A and Schedule- B of the plaint of Title (P) Suit No. 50 /2004 devolved upon Kartik Lal exclusively who became the sole and absolute owner of the suit property. Kartik Lal died in 1947 and was survived by his widow, Ahilya Devi whose son was Bijay Kumar Lal and daughter was Smt. Uma Devi. Ahilya Devi died in 1988. Bijay Kumar Lal died in 1988 and was survived by his widow, Solochna Devi and two sons namely (1) Dipak Kumar Sinha @ Deepak Sinha and (2) Srikant Sinha and three daughters, namely (1) Soni Kumari, (2) Ginni Kumari @ Urmila Devi and (3) Choti Kumari @ Bina Kumari and at the time of demise of Bijay Kumar Lal all his sons and daughters were minors at the time of death of Bijay kumar Lal. Ginni kumari attained her majority in 1998, and after marriage was living at Dumka.

7. During the pendency of the earlier Title Suit no. 74 of 1986 her father

had died and without notice Sulochana Devi and her three daughters were substituted. The suit was decreed without their knowledge and share was awarded wrongly in favour of Srimati Devi and Uma Devi.

8. Defendants no.1 and 2 are the main contesting defendants in their joint written statement have contested the suit of the plaintiff on the ground that in the earlier title suit no.74 of 1986 the plaintiff was duly represented by her mother and natural guardian Sulochana Devi (D3). After losing the suit, the plaintiff through her mother filed title appeal no.2 of 1996 which was dismissed and thereafter SA no. 34 of 1999 was also dismissed vide order dated 6.9.2002. It is not true that the plaintiff had no knowledge of the judgment of the trial court as she was a party to the earlier suit and appeals. After losing the earlier suit the present round of litigation has been initiated by Sulochana Devi (D3) by setting up the plaintiff who is her daughter. It is also averred that the genealogy given in the plaint is incomplete and misleading. After the death of Thakur Lal the suit properties devolved on his three sons. Sanjho Kumari did not inherit a limited estate but became an absolute owner of her share. Shyamachandra Lal died in 1950 issueless leaving behind his widow Prabhawati Devi who succeeded to his interest in the suit properties. Ramprasad Lal died in October, 1956 leaving behind Ahilya Devi, the widow of his pre-deceased son Kartik Lal as well as one son Bijay Lal and daughter Uma Devi of his predeceased son Kartik Lal. Balram Lal died in 1962 without any issue and Sanjho Kumari died in 1961 leaving her only daughter Srimati Devi as her sole heir and successor. Ahilya Devi died on 19.4.1985 leaving behind her son Bijay Lal and Uma Devi as her next heir and successor. Plaintiff Ginni Devi was born in November 1982 and she attained maturity in November 2000.

9. Defendants no. 3 is the mother, defendant nos. 4 , 5 are the brothers and defendant nos. 6 and 7 are her sisters and they have supported the plaintiff's case in written statement.

10. On the basis of the pleadings of the parties the following issues were framed by the trial court:

(i) Whether the suit is maintainable?

(ii) Whether the plaintiff has any valid cause of action for the suit?

(iii) Whether the suit is barred by res judicata?

(iv) Whether the suit is barred by the law of limitation?

(v) Whether the plaintiff is entitled to the relief as claimed by her?

11. The learned trial Court dismissed the suit on the ground that the suit was barred by res judicata. In the earlier suit and title appeal the plaintiff was impleaded and was represented by her mother. All the five minor substituted brothers and sisters were represented by their mother as natural guardian. The learned trial Court took note of the vakalatnama (exhibit B) which was signed by the plaintiff in T A no./96 on or before 19.1.96. From this it was evident that plaintiff was fully aware of the earlier suits and appeal. In this way the plaintiff was properly represented in the earlier suit and appeal. Under order 32 Rule 3(4), the natural guardian of a minor was her father or mother. Under order 32 Rule 3A C.P.C. an order cannot be set aside merely because the minor was not properly represented. No evidence had been led to show that the interest of the minor was in conflict with the interest of her mother the plaintiff in the case the plaintiff was married in the year 2002 and before that she was living with her mother. Learned Court below also held that the suit was barred by limitation under section 6 of the Limitation act.

12. The first court of appeal dismissed the appeal and affirmed the judgment of the trial court. In the earlier suit the mother and natural guardian of plaintiff was her legal guardian who properly represented the interest of the minor. There was nothing on record to even remotely suggest that the interest of her mother was adverse to that of the plaintiff. Exts. E, E/1, F/1, G and H go to show that the suit and appeal was pursued by her mother upto the Hon'ble Apex Court without success. Although the plaintiff attained majority in 1998 and the second appeal was filed in 1999, in which she was an appellant, but she did not raise a plea for appointment of guardian. Further in the SLP before the Apex Court she was a petitioner, but she did not raise this plea. Thus the suit was clearly barred by res judicata. The appellate Court also concurred with the finding on the present suit being barred by Section 6 of the limitation Act.

13. In the earlier suit the matter directly and substantially in issue was that

in the present suit. The plaintiff was very much a party in the earlier suit and was duly represented by her mother. During the pendency of the first appeal she attained majority, but she never raised the plea of minority at that or subsequent stage. Law on the point is clear under Order 32 Rule 3A of CPC that even if the interest of the plaintiff was adverse to that of the minor the decree shall not be set aside unless it caused prejudice to the minor. The earlier suit being in the nature of partition suit the question of adversarial interest of the mother to the plaintiff did not arise. There is no pleading or evidence to raise the plea of adverse interest or prejudice to the plaintiff.

14. She attained majority in 1998 and thereafter she elected to continue with the legal proceedings which reached its finality after dismissal of the S.L.P. by Hon'ble the Apex Court. After losing the legal battle the plaintiff initiated a fresh bout of litigation by filing the present suit on a frivolous ground that she was a minor in the earlier suit which has been rightly dismissed by the trial Court, in first appeal after assigning cogent reasons for it. The Judgment and decree of the Court below is affirmed.

15. Before parting it is necessary to take note of the nature of frivolous litigation that has occupied valuable Court time from the trial Court upto this Court. The present suit is a classic example of abuse of judicial process and it is a glaring example of frivolous litigations that clog the arteries of the judicial administration leading to delays and wastage of Court hours at different stages. The Courts are public institutions run by public money and no one has right to unlimited draught on the Court hours without having a bonafide case for adjudication. Litigation cannot be made a tool for unjust enrichment by procrastinating execution of decree in a suit which had attained its finality. Here the plaintiff was a party in the earlier suit and appeals, yet the present round of litigation was initiated without any sound basis.

16. It was also the duty of the lawyer representing the plaintiff/appellant to have apprised the correct position to the court below and not proceed with the frivolous proceeding and to have been circumspect in preferring the second appeal before this Court. There has been considerable waste of Court resources in adjudicating over this

unmerited suit and appeal.

17. On this suit the court fees of Rs250 was paid in the trial Court. In the 1st appeal Rs 3450 was paid and in the 2nd appeal Rs 2760 was paid. The value of the Court time, pubic money wasted as a result of this litigation as per rough guess will be in lakhs.

18. It shall be worthwhile to refer to some of the judicial observations and order of different High Courts to see how the issue of frivolous and unmerited litigation has been dealt with.

Bibi Basil Vs Johnson Kuriakose 2019 SCC On Line 367 "The petitioner has to pay exemplary costs for wasting judicial time on frivolous and vexatious contentions. Therefore, this Court finds that the petitioner is liable to pay exemplary costs to the Kerala State Legal Services Authority (KELSA) constituted under the provisions of the Legal Services Authorities Act, 1987, which renders great services to humanity by conducting adalaths, legal literacy classes and free legal aid. As per Government Order No. G.O. (Ms.) No. 107/2011/RD dated 26.02.2011 issued by the Revenue (H) Department of Government of Kerala by invoking Section 71 of the Kerala Revenue Recovery Act, 1968, KELSA, Kochi has been declared, in the public interest, as an institution to which the provisions of the Revenue Recovery Act should be extended. Considering all these aspects, following directions are issued.

In the result, the review petition is found to be not maintainable on facts and law and hence it is dismissed. All the interlocutory applications pending are also dismissed. The petitioner shall pay a sum of Rs.50,000/- (Rupees fifty thousand only) as exemplary costs to the KELSA, Kochi within a period of two weeks. Registrar (Judicial) shall furnish forthwith a copy of this order to the Member Secretary, KELSA. If the amount is not paid within the said time, the Member Secretary, KELSA shall forward a copy of this order to the District Collector, Ernakulam and he shall take all steps forthwith to recover the amount under the Kerala Revenue Recovery Act, 1968 and shall remit the amount to KELSA without any delay"

Samir Jasusja Vs M/s Assotech Realty Private Ltd. & Ors. CS (OS) 2229/2009

"In my view, it is high time that the parties should be made accountable for the unnecessary waste of time of the Court, and so as to instil a sense of responsibility and accountability in the parties and their respective counsels, in my view, imposition of costs on the concerned party would not only serve as a deterrent but also appropriately penalize the party wasting the valuable time of the court which is, as its burdened with large number of pending cases".

Neety Gupta Vs Usha Gupta 2019 Online Del 10038

"The counsel for the applicant/plaintiff obviously has not done any homework before moving the application and which has led to considerable time being wasted not only in reading the file beforehand but also in dealing with the application, wasting Court hours.

Thus, the application is dismissed with costs of Rs. 20,000/- to be deposited by the applicant/plaintiff with the Delhi High Court Advocates Welfare Trust, as a pre-condition for seeking mesne profits".

In the result, the appeal being devoid of any merit is dismissed with cost at the admission stage itself.

The appellant is directed to pay Rs.20,000 to the Jharkhand State Legal Services Authority within a month of this order. The appellant shall also pay Rs.20,000/- to defendants as the cost assessed from the suit to the present appeal. Joint Registrar (Judicial) shall furnish forthwith a copy of this order to the Member Secretary, JHALSA. If the amount is not paid within the said time, the Member Secretary, JHALSA shall take appropriate steps for realization of the amount from the plaintiff/appellant Ginni Devi @ Urmila Devi.

(Gautam Kumar Choudhary, J.)

AFR / Anit