Punjab-Haryana High Court
Johny Mathew vs Sunil Panwar on 4 January, 2024
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C. R. No. 681 of 2017 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 681 of 2017
Pronounced On : January 04, 2024
Johny Mathew .... Petitioner
vs.
Sunil Panwar .... Respondent
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Petitioner in person.
Mr. Divanshu Jain, Advocate and
Mr. Prateek Sodhi, Advocate
for the respondent.
* * *
GURBIR SINGH, J. :
1. The prayer in the present Civil Revision filed under Article 227
of the Constitution of India is to impose exemplary cost under Section 35
and 35-A CPC for filing vexatious suit by the plaintiff/respondent, which
stands dismissed as withdrawn vide order dated 24.12.2015 passed by
learned Civil Judge (Junior Division), Gurgaon (for brevity - Trial Court)
and appeal against the said order was dismissed vide order dated 26.08.2016,
passed by learned Additional District Judge, Gurgaon (for brevity - Lower
Appellate Court).
2. The brief facts, as culled out from the paper book, are that the
plaintiff/respondent filed a suit for mandatory injunction and recovery of
mesne profit against the defendant/petitioner. At a later stage, he made
statement before the learned Trial Court that he did not wish to proceed
further with the suit but defendant/petitioner opposed the prayer for
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withdrawal of suit stating that his application dated 19.03.2015 for perjury
against the plaintiff/respondent was pending in the said suit. However, the
suit was dismissed as withdrawn vide order dated 24.12.2015 and it was held
by the learned Trial Court that since application of perjury is criminal in
nature, separate proceedings can be initiated by the defendant/petitioner in
the competent court of law.
3. Aggrieved by the aforesaid order dated 24.12.2015, the
defendant/petitioner preferred appeal praying that the learned Trial Court
should have imposed exemplary cost upon the plaintiff/respondent. The
learned Lower Appellate Court, while observing that the Trial Court was
having discretion in imposition of costs, dismissed the appeal filed by
defendant/petitioner, vide order dated 26.08.2016.
4. The defendant/petitioner, who has appeared in person, has
stated that plaintiff/respondent filed a suit for mandatory injunction against
him and his wife to hand over possession of House No.F-009, Block-A,
Executive Floors, Ist Floor, South City-II, Gurgaon (hereinafter referred to
as - house in question) and to pay a sum of Rs.3,40,000/- along with interest
on account of mesne profit for use and occupation of the house in question.
He contested the suit and denied the claim of the plaintiff/respondent. He
also filed an application for dismissal of suit with exemplary cost. On one
date, he did not appear and was proceeded ex-parte. He again moved
application for setting aside ex-parte order. On the very next date, without
even filing reply to the application for setting aside ex-parte order, the suit of
the plaintiff/respondent was dismissed as withdrawn on the basis of his
statement. He filed appeal and before the Lower Appellate Court, where it
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was clarified that he received notice from the District Magistrate for
delivering the possession of the house in question, only after filing of the
suit by the plaintiff/respondent. Thus, it is evident that the possession of the
house was never taken from him. It was further contended by him that all
the proceedings taken under the SARFAESI Act are illegal and a fraud has
been played upon him since the possession was never taken from him, so,
there was no question of mandatory injunction and payment of mesne
profits. Thus, the suit filed by the plaintiff/respondent was vexatious and
deserved dismissal with heavy costs. To add to his plight, the
plaintiff/respondent has further submitted that during this whole process of
litigation, he had to attend the hearings more than 40 times, had to file
written replies twice, had to spend various charges i.e.
copying/typing/stationery etc. So, the revision petition be allowed.
5. On the other hand, learned counsel appearing for
plaintiff/respondent, has submitted that the defendant/petitioner took loan
against the house in question by mortgaging the house. Since he failed to
repay the loan, symbolic possession of the house was taken by the Bank
under Section 13 of the SARFAESI Act. The defendant/petitioner filed
Scrutinization Application before the Debt Recovery Tribunal-I,
Chandigarh, which was dismissed vide order dated 08.11.2013. Several
rounds of litigation in the form of appeal/review/application etc. before the
learned Tribunal and this Court met the same fate as there was nothing in
accordance with law, but pressure tactics to misuse the process of law. It is
the further contention of the learned counsel for the plaintiff/respondent that
the defendant/petitioner is a habitual litigant. The litigation contains a very
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small aspect that the plaintiff/respondent purchased the house in question
from the Bank in open auction and he was delivered symbolic possession.
On that ground only, the present suit was filed. Further, when the learned
District Magistrate ordered on 09.06.2015 for delivery of possession, the
plaintiff/respondent preferred to withdraw the suit in order to avoid further
litigation. So, the plaintiff/respondent has committed nothing wrong, either
by filing the suit or by later withdrawing the same. As far as the question of
imposition of costs was concerned, it has been submitted that it is always the
discretion of concerned Court to impose or not to impose the costs. It has,
therefore, been prayed that revision petition deserves dismissal.
6. I have heard submissions made by the defendant/petitioner
himself and learned counsel for the plaintiff/respondent and have also
perused the record of the case.
7. Sub-Sections (1) and (2) of Section 35-A of the Civil Procedure
Code, which deal with the compensatory costs in respect of false, frivolous
or vexatious claim or defence, read as under :-
"35A. Compensatory costs in respect of false
or vexatious claims or defences -
(1) If in any suit or other proceedings
including an execution proceeding but (excluding
an appeal or a revision) any party objects to the
claim or defence on the ground that the claim or
defence or any part of it is, as against the objector,
false or vexatious to the knowledge of the party by
whom it has been put forward, and if thereafter, as
against the objector, such claim or defence is
disallowed, abandoned or withdrawn in whole or
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in part, the Court, (if it so thinks fit) may, after
recording its reasons for holding such claim or
defence to be false or vexatious, make an order for
the payment to the object or by the party by whom
such claim or defence has been put forward, of cost
by way of compensation.
(2) No Court shall make any such order
for the payment of an amount exceeding three
thousand rupees or exceeding the limits of its
pecuniary jurisdiction, whichever amount is less :
Provided that where the pecuniary limits of the
jurisdiction of any Court excercising the
jurisdiction of a Court of Small Causes under the
Provincial Small Cause Courts Act, 1887, or under
a corresponding law in force in any part of India to
which the said Act does not extend]] and not being
a Court constituted under such Act or law, are less
than two hundred and fifty rupees, the High Court
may empower such Court to award as costs under
this section any amount not exceeding two hundred
and fifty rupees and not exceeding those limits by
more than one hundred rupees :
Provided, further, that the High Court may limit
the amount which any Court or class of Courts is
empowered to award as costs under this Section."
7. Three conditions are to be satisfied before the Court proposes to
award costs :-
1. The claim or defence must be false or vexatious.
MONIKA 2. Objections must be taken that the claims or defence is
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false or vexatious to the knowledge of the party raising it.
3. Such claim or defence must have been disallowed or
withdrawn or abandoned in whole or in part.
8. The compensatory or exemplary costs under Section 35-A CPC
can be awarded by Trial Court. In the case in hand, objection was raised in
the written statement that the suit was false and vexatious. The suit was
withdrawn by the plaintiff/respondent and same was not decided on merits.
The discretion given to the Trial Court is to be exercised in accordance with
the law. It is judicial discretion. The Trial Court failed to pass any order
about payment of costs. Keeping in view the settled principles mentioned
above, the impugned order deserves to be set aside.
9. As a result, this revision petition is allowed. The order passed
by the learned Appellate Court is set aside. The learned Trial Court is
directed to pass order in accordance with law, whether petitioner/defendant
is entitled for costs. If so, to award costs accordingly.
10. Parties are directed to appear before the Trial Court on
30.01.2024.
11. The learned Trial Court shall not be influenced by any
observation made herein above while passing order as to costs.
12. Pending applications, if any, shall stand disposed of along with
this judgment.
January 04, 2024 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
