Sri S Prasanna vs Smt Nanjamma
2021 Latest Caselaw 1429 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU       R
       DATED THIS THE 27TH DAY OF JANUARY, 2021

                       BEFORE

        THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

        WRIT PETITION NO.6464 OF 2017 (GM-CPC)

BETWEEN

SRI S PRASANNA,
S/O.LATE A.SRINIVASAN,
AGED ABOUT 53 YEARS,
WORKING AS PWD CONTRACTOR,
R/AT DOOR NO.1443,
P.C.EXTENSION,
KOLAR-563 101.
                                         ... PETITIONER
(BY SRI VIVEK REDDY, SR. ADVOCATE FOR
    SRI SUBBA REDDY K N, ADVOCATE)

AND

SMT NANJAMMA,
W/O.LATE RAMANNA,
AGED ABOUT 65 YEARS,
RESIDING AT NO.125, 6TH CROSS,
LOWER PALACE ORCHARDS,
BENGALURU-560 052.                      ... RESPONDENT

(BY SRI A.S.PONNANNA, SR.ADVOCATE FOR
SRI G A SRIKANTE GOWDA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO ALLOW
THIS W.P. AND QUASH THE IMPUGNED ORDER AND DECREE
DATED 15.02.2014 PASSED IN O.S.46/2012 BY THE
LEARNED 3RD ADDL. SR. CIVIL JUDGE, KOLAR VIDE ANNEX-
A AND B AND CONSEQUENTLY THE SUIT IN O.S.46/2012
MAY BE RESTORED BACK TO ITS FILE AND A DIRECTION
MAY BE ISSUED TO THE TRIAL COURT TO PROCEED WITH
THE SUIT ON MERITS FROM THE STAGE AT WHICH THE
MATTER WAS REFERRED TO LOK ADALATH AND ETC.

    THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY THROUGH PHYSICAL
HEARING, THE COURT MADE THE FOLLOWING:
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                              ORDER

Petitioner being the plaintiff in a Partition Suit in

O.S.No.46/2012 is knocking at the doors of Writ Court for

assailing the order dated 15.02.2014 a copy whereof is at

Annexure-A whereby suit has been decreed in terms of

compromise arrived at before the jurisdictional Lok Adalat.

2. After service of notice, the respondent having

entered appearance through her counsel, resists the writ

petition making submission in justification of the

impugned order. She has also filed a detailed Statement of

Objections in addition to the application seeking vacation

of the impugned order.

3. Having heard the learned counsel for the

parties and having perused the petition papers, this Court

with anguish declines to grant indulgence in the matter for

the reasons of unscrupulous conduct of the petitioner, the

receipt of Rs.30,00,000/- by the petitioner being the past

consideration and the alleged signing of the parties on the

record of the proceedings being insignificant; this is

discussed separately infra.

4. As to gross abuse of process of the court & commission of contempt:

The following chronology of events unmistakingly

makes out a classic case of militant abuse of judicial

process by the petitioner wherein the respondent, a

helpless widow has been subjected to continuous

harassment that too after she had paid a consideration of

Rs.30,00,000/- by a bank draft way back in the year 2012

when the property prices were in the shooting mood; the

act of the petitioner in filing suit after suit despite serial

settlements and receipt of money virtually amounts to

contempt of the court vide ADVOCATE GENERAL, STATE

OF BIHAR vs. M.P.KHAIR INDUSTRIES, (1980) 3 SCC

311.

(a) Petitioner's mother had filed a Partition Suit in

O.S.No.6089/1990 in which petitioner came on record as

one of the legal representatives of the deceased mother; the

said suit came to be dismissed in terms of compromise

dated 21.08.2013 wherein paragraph no.17 reads as

under:

"17. The plaintiffs are withdrawing all their allegations made by them and their mother Late.Smt.Iragamma in Suit bearing O.S.No.6089/1990 in the plaint against the defendants and the plaintiffs agree that the defendants, as per the Will dated 14.04.1988

executed by late Sri.A.Ramanna, are the absolute owners and they are in actual physical possession and enjoyment of all the suit schedule properties and other properties and apart from the defendants none others including the plaintiffs and their respective legal heirs and/or any other person/s on their behalf have absolutely no manner of right, title, interest, ownership and possession whatsoever to the suit schedule properties and Plaintiffs concede and agree that all the allegations made by the defendants in their written statement filed in the above suit are true and correct."

(b) After dismissal of the above suit, petitioner filed

another suit in O.S.No.218/2011 for the same relief and

that too came to be disposed off in terms of compromise

dated 10.01.2012 which mentioned about the Panch

Decision in the village as reflected in paragraph 3 of the

compromise petition which has the following text:

"3. Both the plaintiff and defendant agree to the decision of the panchayathdars, that the defendant is the absolute owner and in actual possession and enjoyment of the suit schedule properties and the plaintiff humbly submits and that the plaintiff concedes to all the allegations made by the defendant in her Written Statement filed on the file of this Hon'ble Court and the plaintiff further submits that he is withdrawing all the allegations made by him in his plaint filed on the file of this Hon'ble Court in the above suit."

(c) In fact, in the above suit in O.S.No.218/2011,

petitioner received then a huge sum of Rs.30,00,000/-

(Rupees Thirty Lakh) from the defendant vide Demand

Draft dated 09.01.2012 drawn on Syndicate Bank, Kolar

Branch, as the consideration for relinquishing all his rights

to & interest in the suit property; paragraph 4 of the

compromise petition being pertinent is reproduced below:

"4. That in view of the Compromise accepted and agreed to by both the parties, the plaintiff is taking a sum of Rupees Thirty Lakhs form the defendant by way of Demand Draft of Syndicate Bank, Kolar Branch, Kolar vide Demand Draft No.133537 dated 9.1.2012 and thereby he is relinquishing all his rights in favour of the defendant in the suit schedule properties."

(d) After the termination of the above suit in terms of

compromise, petitioner clandestinely got filed another

Partition Suit in O.S.No.19/2012 by his wife & two sons

which too came to be disposed off by the compromise

decree dated 15.02.2014 wherein, he being the 1st

defendant, has signed the compromise petition dated

8.1.2014; paras 19 & 20 therein read as under:

"19. The plaintiffs further concede, agree and declare that neither the Defendant No.2 herein, the plaintiffs herein nor their legal heirs or any person/s claiming through or under them shall not file any further suit, claim or proceedings before any Court of Law against the Defendant No.1 and Dr.Pallavi.V.R. in respect of the Suit Schedule Properties and any other Properties possessed and owned by the Defendant No.1 herein and Dr.Pallavi.V.R. The Plaintiffs further agree that the Defendant No.2 and the Plaintiffs herein shall not hinder peaceful possession and enjoyment of the Suit Schedule

Properties and any other Properties possessed and owned by the Defendant and Dr.Pallavi.V.R.

20. The Plaintiffs are withdrawing all their allegations made by them in the plaint against the defendant No.1 and the plaintiff agrees that the defendant No.1 and Dr.Pallavi.V.R as per the Will dated 14.04.1988 executed by late Sri.A.Ramanna, are the absolute owners and they are in actual physical possession and enjoyment of all the suit schedule properties and other properties and apart from the defendant No.1 and Dr.Pallavi.V.R none others including the plaintiffs and Defendant No.2 or their legal heirs and/or any other person/s on their behalf have absolutely no manner of right, title, interest, ownership and possession whatsoever to the suit schedule properties and the Plaintiffs concede and agree that all the allegations made by the defendant No.1 in her written statement filed in the above suit are true and correct."

(e) Matter did not end there too; the relentless

petitioner filed one more Partition Suit in O.S.No.46/2012

which again came to be disposed off in terms of

compromise petition dated 15.2.2014 wherein paras 17 &

18 read as under:

"17. The plaintiff further concedes, agrees and declares that he himself or his legal heirs or any person/s claiming through or under him shall not file any further suit, claim or proceedings before any Court of Law against the Defendant and Dr.Pallavi.V.R in respect of the Suit Schedule Properties and any other Properties possessed and owned by the Defendant and Dr.Pallavi.V.R; the Plaintiff further agrees that he shall not hinder peaceful possession and enjoyment of the Suit Schedule

Properties and any other Properties possessed and owned by the Defendant and Dr.Pallavi.V.R.

18. The plaintiff is withdrawing all his allegations made by him in the plaint against the defendant and the plaintiff agrees that the defendant and Dr.Pallavi.V.R. as per the Will dated 14.04.1988 executed by late Sri.A.Ramanna, are the absolute owners and they are in actual physical possession and enjoyment of all the suit schedule properties and other properties and apart from the defendant and Dr.Pallavi.V.R. none others including the plaintiff and his legal heirs and/or any other person/s on his behalf have absolutely no manner of right, title, interest, ownership and possession whatsoever to the suit schedule properties and Plaintiff concedes and agrees that all the allegations made by the defendant in her written statement filed in the above suit are true and correct."

5. As to what the Apex Court cautioned us in matters of abuse of process of court:

(a) A Three-Judge Bench of the Apex Court in

Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar,

(2017) 5 SCC 496 dealing with a case of abuse of process

of the court, 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. ... 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 penalises such behaviour. ... 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. ... We commend all courts to deal with frivolous filings in the same manner."

(b) The above observations have been stressed by

the Apex Court in a recent decision in RASHID KHAN

PATHAN vs. VIJAY KURLE & OTHERS, 2020 SCC Online

SC 711 wherein para 9 therein reads as under:

"9. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far-reaching adverse impact on the administration of justice".

6. As to past consideration Vs. nullum pactum:

The vehement contention of learned counsel for the

petitioner that a compromise decree is founded on a

contract and therefore the same is voidable on the ground

of nullum pactum, is legally untenable and factually

incorrect; such a contention does not avail to a proven

unscrupulous litigant who grossly abuses the judicial

process; true it is that a compromise decree is a contract

between the parties sanctified by the seal of court

superadded and that it may be voided normally on the

grounds on which an ordinary contract can be; however,

admittedly petitioner has received a huge sum of

Rs.30,00,000/- way back in the year 2012 as the

consideration for the settlement of the lis in the suit; this

payment constitutes a past consideration recognized by

law inasmuch as section 2(d) of Indian Contract Act, 1872,

which defines 'consideration' employs the expression 'has

done or abstained from doing'; Jurists of yester century

Pollock & Mulla in their commentary on "Indian Contract

& Specific Relief Acts", 9th Edn. Tripathi at p.40-41 support

this view; this view is bit in variance with English law of

contract is irrelevant, is true but irrelevant.

7. As to parties signing the proceedings sheet of the court and its effect on the settlement:

The last contention of learned counsel for petitioner

that parties could not have signed the order sheet before

the Lok Adalat and such signing per se voids the

settlement which may be otherwise valid & binding, cannot

again be countenanced; such a contention is not

supported by the decision of a Co-ordinate Bench of this

court in MAHADEVI AND ANOTHER VS. KENCHAVVA

AND ANOTHER, ILR 2014 KAR 1819 which is heavily

relied upon by the counsel; parties after reporting

settlement at times are asked to sign the proceedings sheet

and they do it in usual course; that ordinarily cannot be a

ground per se for doubting the bonafide of the

compromise; even otherwise as already mentioned above

an unscrupulous litigant cannot seek refuge under such a

leaking umbrella by quoting some general norms which

admit several exceptions, into one of which argued case of

the petitioner fits.

8. As to kind & quantum of the costs:

(a) The Canadian Court of Appeal speaking through

McQuaid, J., in JOHNSTONE vs. THE LAW SOCIETY Of

PRINCE EDWARD ISLAND, 2 PEIR B-28 (1988) described

costs as the sum of money which the court orders one

party to pay another party in an action as compensation

for the expense of litigation incurred; Justice Bowen in

COPPER vs. SMITH, (1884) 26 ChD 700 said: "I have found

in my experience that there is one panacea which heals

every soul in litigation and that is costs ..."; the award of

costs is generally not considered to be a penalty but a

method used to reimburse the other party the expenses of

litigation and is on the principle of indemnification; the

rule 'costs follow the event' means that courts usually

direct the looser of the legal battle to pay the victorious

party the costs thereof, of course in its discretion; all this

is a general norm that obtains in the realm of litigations.

(b) The costs imposed on an unscrupulous litigant

for indulging in frivolous or vexatious litigation stand on a

very different footing; the Apex Court in

RAMRAMESHWARI DEVI vs. NIRMALA DEVI, (2011) 8

SCC 249 at paras 54 & 55 observed as under:

"While imposing costs, the court has to take into consideration pragmatic realities and be realistic as to what the defendants or the respondents had to actually incur in contesting the litigation before different courts. The court has to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and fling of the counter-affidavit, miscellaneous charges towards typing, photocopying, court fee, etc. The other factor is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years."

(c) In ASHOK KUMAR MITTAL vs. RAM KUMAR

GUPTA, (2009) 2 SCC 656 the Hon'ble Supreme Court

expressed its anguish observing "...the present system of

levying meager costs in civil matters (or no costs in some

matters), no doubt, is wholly unsatisfactory and does not

act as a deterrent to vexatious or luxury litigation borne out

of ego or greed, or resorted to as a buying-time tactic. More

realistic approach relating to costs may be the need of the

hour"; in VINOD SETH vs. DEVINDER BAJAJ, (2010) 8

SCC 1, the court emphasized that, the imposition of costs

should act as a deterrent to vexatious, frivolous and

speculative litigations or defenses and that the spectre of

being made liable to pay actual cost should be such, as to

make every litigant think twice before putting forth a

vexatious, frivolous or speculative claim or defence.

(d) Keeping the above principles in mind, exemplary

cum penal costs merits to be levied on the petitioner who

has harassed the respondent-widow for more than two

decades by launching an avalanche of litigations, serially;

what bewilders this court is the incongruous conduct of

the petitioner in instituting suit after suit, despite each

being settled by compromise decree leading to the

institution of the next one, and despite receiving a huge

sum of Rs.30,00,000/- (thirty lakh rupees) in 2012; force,

fraud & greed appear to be in his bone, blood & flesh;

persons polluting the stream of justice deserve no mercy

whatsoever and therefore heavy costs need to be extracted

from him for being paid to the victim-respondent; only that

gives her some solace and feeling that ultimately justice

triumphs, in courts, although in a meandering way; regard

being had to all relevant circumstances, this Court is of a

considered opinion that 1/6th of the amount which the

petitioner had received from the respondent eight years ago

should be the penal cum exemplary costs; that works out

to be Rs.5,00,000/- (five lakh rupees) only.

In the above circumstances, this Writ Petition being

militantly devoid of merits, is liable to be dismissed and

accordingly it is, with a penal and exemplary cost of

Rs.5,00,000/- (Rupees Five Lakh) only; the petitioner shall

pay the same to the respondent within eight weeks.

It is open to the respondent to institute contempt

proceedings for enforcing the order for costs or to levy

execution in the jurisdictional court below, as if this

judgment is a decree for all practical purposes; the

execution proceedings, if filed by her, would be disposed off

within a period of three months with further costs as may

be quantified by the learned Judge of the Executing Court.

Sd/-

JUDGE

Bsv/