Supreme Court of India
A. SHANMUGAMversusARIYA KSHATRIYA RAJAKULA VAMSATHU MADALAYA NANDHAVANA PARIPALANAI SANGAM REPRESENTED BY ITS PRESIDENT ETC.
- Citation
- 2012 INSC 193
- Decided
- 27 April 2012
- Disposal
- Dismissed
- Bench
- DALVEER BHANDARI
Holding
A watchman or caretaker who occupies property solely by virtue of his employment cannot acquire any interest in the property, cannot claim adverse possession, and is not entitled to protection of possession by the court.
Summary
The appellant, a watchman employed by a religious society, sued for a permanent injunction claiming possession of the society's dharamshala, alleging adverse possession. The trial court dismissed the suit, the first appellate court reversed in his favour, but the High Court set aside that reversal. The Supreme Court held that a watchman or caretaker, even after long possession, cannot acquire any interest in the property and therefore cannot claim adverse possession or be protected by an injunction. The Court also condemned the appellant’s misuse of the judicial process, noting suppression of material facts and filing of irrelevant documents, and imposed nominal costs. The appeals were dismissed and the appellant was ordered to vacate the premises.
Issues considered
- Whether a watchman or caretaker can acquire title or right of possession by adverse possession
- Whether the appellant is entitled to a permanent injunction against the owner
- Whether the court should protect the possession of a person occupying property only as a servant
- Whether the appellant misused the judicial process by suppressing facts and filing false pleadings
- Whether realistic costs and restitution should be imposed on a litigant who abused the process
Legislation cited
- Civil Procedure Code (CPC)s. 144, s. 30
- CPC Order Xs. Rule 2
- Specific Relief Acts. 6
Subjects
adverse possessionwatchmanpossessionpermanent injunctionabuse of processcostsrestitutioncivil proceduretruth in pleadings
Judgment
[2012] 4 S.C.R. 74
A A. SHANMUGAM
v.
ARIYA KSHATRIYA RAJAKULA VAMSATHU MADALAYA
NANDHAVANA PARIPALANAI SANGAM REPRESENTED
BY ITS PRESIDENT ETC.
B (Civil Appeal Nos. 4012-13 of 2012)
APRIL 27, 2012
[DALVEER BHANDARI AND DIPAK MISARA, JJ.]
C Suit ·- Suit for permanent injunction - Claiming
possession of suit property - By the watchman who was
engaged for taking care of the suit property - Claimant taking
plea of adverse possession - Cross suit also by the owner of
the suit property- Original court deciding in favour of the owner
D - First appellate court deciding in favour of the claimant -
Second appeal decided against the claimant - On appeal,
held: Watchman, caretaker or a servant employed to look after
the property can never acquire interest in the property
irrespective of his long possession - Such person holds the
E property of the principal only on behalf of the principal -
Courts are not justified in protecting possession of such
person.
Administration of Justice - Abuse of process of law -
Watchman of suit property - Claiming possession of the
F property by filing suit - Held: The claimant is guilty of misuse
of process of law - It is example of delayed administration of
civil justice in the courts as the matter took 17 years to be
finally decided by High Court - The claimant is guilty of
suppressing material facts and introducing false pleas and
G irrelevant ·documents to mislead the court - Every litigant is
expected to state truth in its pleadings, affidavits and evidence
- Once the court discovers falsehood, concealment,
distortion, obstruction or confession in pleadings and
H 74
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 75
ITS PRESIDENT ETC.
documents, it should in addition to full restitution impose A
appropriate costs - It is obligation of the court to neutralize
unjust and undeserved advantage obtained by abusing the
judicial process - In the instant case ordinarily heavy cost
would have been imposed, but in view of the fact that the
claimant is a watchman, nominal cost of Rs. 25, 000 imposed B
- Costs.
Respondent-society was the owner of the suit
property which was a Dharmshala. Father of the appellant
was engaged as a watchman of the said Dharmshala on C
a monthly salary by the respondent-society and he lived
there with his family (including the appellant) in that
capacity.
Appellant filed a suit in the year 1994 for permanent
injunction against the respondent-society, alleging that D
the society tried to dispossess him. The suit was
dismissed. But the appeal against the same was allowe.d
decreeing the suit.
The cross suit of the respondent-society was E
decreed. The decree was reversed by first appellate court.
In second appeals, in both the suits, High Court set aside
the judgments of first appellate courts. Hence the present
appeals, by the appellant.
Dismissing the appeals, the Court F
HELD: 1.1 A well-reasoned judgment and a decree
passed by the trial court ought not to have been reversed
by the first appellate court. The appellant's father was
engaged as a Watchman on a monthly salary and in that G
capacity he was allowed to stay in the suit premises and
after his death his son (the appellant herein) continued
to serve the respondent-society as a watchman and was
allowed to live in the premises. The property is admittedly
owned by the respondent-society. [Para 19) [88-C-D] H
76 SUPREME COURT REPORTS (2012] 4 S.C.R.
A 1.2 The appellant has also failed to prove the adverse
possession of the suit property. Only by obtaining the
ration card and the house tax receipts, the appellant
cannot strengthen his claim of adverse possession. The
High Court was fully justified in reversing the judgment
B of the first appellate court and restoring the judgment of
the trial court. [Para 20] [88-E-F]
1.3 Watchman, caretaker or a servant employed to
look after the property can never acquire interest in the
property irrespective of his long possession. The
C watchman, caretaker or a servant is under an obligation
to hand over the possession forthwith on demand.
According to the principles of justice, equity and good
conscience, courts are not justified in protecting the
possession of a watchman, caretaker or servant who was
D only allowed to live into the premises to look after the
same. The watchman, caretaker or agent holds the
property of the principal only on behalf the principal. He
acquires no right or interest whatsoever in such property
irrespective of his long stay or possession. The
E protection of the court can be granted or extended to the
person who has valid subsisting rent agreement, lease
agreement or licence agreement in his favour. [Para 42]
[116-H; 117-A-D]
F 2.1 The present case demonstrates. widely prevalent
state of affairs where litigants raise disputes and cause
litigation and then obstruct the progress of the case only
because they stand to gain by doing so. It is a matter of
common experience that the Court's otherwise scarce
G resources are spent in dealing with non-deserving cases
and unfortunately those who were waiting in the queue
for justice in genuine cases usually suffer. This case is a
typical example of delayed administration of civil justice
in the courts. A small suit, where the appellant was
H directed to be evicted from the premises in 1994, took 17
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 77
ITS PRESIDENT ETC.
years, before the matter was decided by the High Court. A
Unscrupulous litigants are encouraged to file frivolous
cass to take undue advantage of the judicial system.
[Para 21] [88-G-H; 89-A]
2.2 The purity of pleadings is immensely important 8
and relevant. The pleadings need to be critically
examined by the judicial officers or judges both before
issuing the ad interim injunction and/or framing of issues.
The entire journey of a judge is to discern the truth from
the pleadings, documents and arguments of the parties. C
Truth is the basis of justice delivery system. [Paras 23 and
24] [93-E-F]
Maria Margarida Sequeria Fernandes and Ors. v.
··Erasmo Jack deSequeria (Dead) through L. Rs. (2012) 3
SCALE 550; Dalip Singh v. State of U.P. and Ors. (2010) 2 D
sec 114: 2009 (16) SCR 111 - relied on.
2.3 The pleadings are foundation of litigation but
sufficient attention is not paid to the pleadings and
documents by the judicial officers before dealing with the E
case. It is the bounden duty and obligation of the parties
to investigate and satisfy themselves as to the
correctness and the authenticity of the matter pleaded.
[Para 26] [101-B-C]
2.4 The pleadings must set-forth sufficient factual F
details to the extent that it reduces the ability to put
forward a false or exaggerated claim or defence. The
pleadings must inspire confidence and credibility. If false
averments, evasive denials or false denials are
introduced, then the Court must carefully look into it while G
deciding a case and insist that those who approach the
Court must approach it with clean hands. [Para 27] [101-
0]
2.5 It is imperative that judges must have complete H
78 SUPREME COURT REPORTS [2012] 4 S.C.R.
A grip of the facts before they start dealing with the case.
That would avoid unnecessary delay in disposal of the
cases. [Para 28] [101-E]
2.6 Ensuring discovery and production of
documents and a proper admission/denial is imperative
8
for deciding civil cases in a proper perspective. In
relevant cases, the courts should encourage
interrogatories to be administered. [Para 29] [101-F]
2.7 If issues are properly framed, the controversy in
C the case can be clearly focused and documents can be
properly appreciated in that light. The relevant evidence
can also be carefully examined. Careful framing of issues
also helps in proper examination and cross-examination
of witnesses and final arguments in the case. [Para 32]
D [102-G-H]
2.8 A large number of cases are filed on false claims
or evasive pleas are introduced by the defendant to
cause delay in the administration of justice and this can
E be sufficiently taken care of, if the courts adopt realistic
approach granting restitution. Unless wrongdoers are
denied profit or undue benefit from frivolous litigations,
it would be difficult to control frivolous and uncalled for
litigations. The courts have been very reluctant to grant
the actual or realistic costs. The cases need to be decided
F while keeping pragmatic relaties in view. It is to be
ensured that unscrupulous litigant is not permitted to
derive any benefit by abusing the judicial process. [Paras
34 and 35] [104-D-E; 105-C-D]
G Ramrameshwari Devi v. Nirmala Devi (2011) 8 SCC 249:
2011 (8) SCR 992 ; Indian Council for Enviro-Lega/ Action
v. Union of India and Ors. (2011) 8 SCC 161: 2011 (9 ) SCR
146 - relied on.
2.9 False averments of facts and untenable
H
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 79
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contentions are serious problems faced by the courts. A
The other problem is that litigants deliberately create
confusion by introducing irrelevant and minimally
relevant facts and documents. The court cannot reject
such claims, defences and pleas at the first look. It may
take quite sometime, at times years, before the court is B
able to see through, discern and reach to the truth. More
often than not, they appear attractive at first blush and
only on a deeper examination, the irrelevance and
hollowness of those pleadings and documents come to
light. [Para 37] [114-G-H; 115-A] C
2.10 The courts are usually short of time because of
huge pendency of cases and at times the courts arrive
at an erroneous conclusion because of false pleas,
claims, defences and irrelevant facts. A litigant could
deviate from the facts which are liable for all the D
conclusions. In the journey of discovering the truth, at
times, Supreme Court, on later stage, but once
discovered, it is the duty of the court to take appropriate
remedial and preventive steps so that no one should
derive benefits or advantages by abusing the process of E
law. The court must effectively discourage fraudulent and
dishonest litigants. [Para 38] [115-8-C]
2.11 It is the bounden duty of the Court to uphold the
truth and do justice. Every litigant is expected to state F
truth before the law court whether it is pleadings,
affidavits or evidence. Dishonest and unscrupulous
litigants have no place in law courts. The ultimate object
of the judicial proceedings is to discern the truth and do
justice. It is imperative that pleadings and all other G
presentations before the court should be truthful. [Para
42] [116-C-E]
2.12 Once the court discovers falsehood,
concealment, distortion, obstruction or confusion in
pleadings and documents, the court should in addition H
80 SUPREME COURT REPORTS [2012] 4 S.C.R.
A to full restitution impose appropriate costs. The court
must ensure that there is no incentive for wrong doer in
the temple of justice. Truth is the foundation of justice and
it has to be the common endeavour of all to uphold the
truth and no one should be permitted to pollute the
B stream of justice. It is the bounden obligation of the court
to neutralize any unjust and/or undeserved benefit or
advantage obtained by abusing the judicial process.
[Para 42) [116-E-G]
2.13 In the facts of the case, it is quite evident that
C the appellant is guilty of suppressing material facts and
introducing false pleas and irrelevant documents. The
appellant has also clouded the entire case with pleas
which have nothing to do with the main controversy
involved in the case. [Para 39) [115-D-E]
D
2.14 All documents filed by the appellant along with
the plaint have no relevance to the controversy involved
in the case. The documents have been filed to mislead
the court. The first appellate court has, in fact, got into
E the trap and was misled by the documents and reached
to an entirely erroneous finding that resulted in undue
delay of disposal of a small case for almost 17 years.
[Para 40) [115-F-G]
2.15 The appellant is also guilty of introducing
F untenable pleas. The plea of adverse possession which
has no foundation or basis in the facts and circumstances
of the case was introduced to gain undue benefit. The
court must be cautious in granting relief to a party guilty
of deliberately introducing irrelevant and untenable pleas
G responsible for creating unnecessary confusion by
introducing such documents and pleas. These factors
must be taken into consideration while granting relief
and/or imposing the costs. [Para 41) [115-H; 116-A-B]
H 3. In the instant case, the court would have ordinarily
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 81
ITS PRESIDENT ETC.
imposed heavy costs and would have ordered restitution A
but looking to the fact that the appellant is a watchman
and may not be able to bear the financial burden, the
appeals are dismissed with very nominal costs of Rs.
25,000/- to be paid within a period of two months and the
appellant is directed to vacate the premises within two B
months from the date of the judgment and handover
peaceful possession of the suit property to the
respondent-society. [Para 43) [117-E-F]
Alagi Alamelu Achi v. Ponniah Mudaliar AIR 1962 C
Madras 149 - referred to.
Case Law Reference:
AIR 1962 Madras 149 Referred to Para 13
(2012) 3 SCALE 550 Relied on Para 22 D
2009 (16) SCR 111 Relied on Para 24
2011 (8) SCR 992 Relied on Para 34
2011 (9) SCR 146 Relied on Para 36 E
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4012-13 Of 2012.
From the Judgment & Order dated 20.04.2011 of the High
Court of Judicature at Madras in S.A. Nos. 1973 of 2002 and F
869 of 2009.
V. Prabhakar, R. Chandrachud, Jyoti Prashar, S. Natesan,
Arul for the Appellant.
The Judgment of the Court was delivered by G
DALVEER BHANDARI, J. 1. Delay condoned.
2. Leave granted.
3. These two appeals arise out of cross suits filed before H
82 SUPREME COURT REPORTS [2012] 4 S.C.R.
A the High Court of Judicature at Madras in S.A. No. 1973 of 2002
and S.A. No. 869 of 2009 dated April 20, 2011. In both these
appeals, A. Shanmugam is the appellant and Ar1ya Kshatriya
Raja Kulavamsa Madalaya Nandhavana Paripalana Sangam
is the respondent which for convenience hereinafter is referred
B to as the 'Society'.
4. The property in question belonged to one, Muthu
Naicker, who dedicated the suit land for construction of a
Dharamshala. In the southern part of India, it is called as
'choultry'. A 'Dharamshala' is commonly known as 'a place
C where boarding facilities are provided either free of cost or at
a nominal cost'. In the instant case, a Dharamshala was to be
constructed for the benefit of the Ariya Kshatriya community.
The appellant's father, Appadurai Pillai was engaged as a
Watchman on a monthly salary by the respondent-Society to
D look after the Dharamshala and in that capacity lived in the
premises with his family including the appellant.
5. According to the appellant, in the year 1994, the
respondent-Society claiming to be the owner of the suit property
E tried to dispossess the appellant by force necessitating the
appellant to file a suit in O.S. No.1143 of 1994 on the file of
the Second Additional District Munsif, Tiruvannamalai praying
for issuance of permanent injunction against the respondent-
Society. The said suit was, however, dismissed. As against
F that, the appellant preferred an appeal in A.S. No.94 of 2001
on the file of the Additional District Judge, Tiruvannamalai and
the said appeal was allowed and consequently, the appellant's
suit was decreed. The respondent-Society preferred a Second
Appeal in S.A. No.1973 of 2002 before the High Court of
G Madras against the said judgment of the Additional District
Judge.
6. The respondent-Society during the pendency of Second
Appeal filed a suit in O.S. No.239 of 2003 before the Additional
Subordinate Judge, Tiruvannamalai praying for declaration of
H title and recovery of possession of the suit property comprised
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 83
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
in T.S. No.1646/1 of Tiruvannamalai Town having an extent of A
70 feet east to west and 30 feet north to south bearing Old
Door No.116 and New Door No.65. The said suit was decreed
as prayed for. Against that, the appellant preferred an appeal
in A.S. No.19 of 2008 on the file of the Additional District Judge,
Tiruvannamalai and the decision of the trial court was reversed B
in Appeal resulting in the dismissal of the suit filed by the
respondent-Society. Aggrieved against the appeal being
allowed and the suit being dismissed, the respondent-Society
preferred a Second Appeal in S.A. No.869 of 2009 before the
High Court of Madras. The learned Judge of the Madras High c
Court heard both the aforesaid Second Appeals together and
by a common judgment set aside the well-considered
judgments of the First Appellate Court. Aggrieved by the said
common impugned judgment, the appellant has preferred these
appeals by way of special leave.
D
7. It may be pertinent to mention that the appellant filed
Original Suit No.1143 of 1994 and also filed the following
documents :-
1. 20.11.1899 Certified copy of the registered E
agreement between Krishnasamy
Raju and others
2. Certified copy of the bye-law of the
plaintiff Sangam(respondent-Society
before us) F
3. Certified copy of Memorandum of
Association of plaintiff-Sangam
(respondent-Society before us)
G
4. Certified copy of Registration
Certificate
5. Certified copy of field Map Book
Plan
H
84 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 6. Certified copy of Town Survey Field
Register
7. Certified copy of Demand Register
Extent
B 8. Certified copy of Tax receipts (9)
9. Certified copy of Indemnity Card by
Munusamy\
10. Certified copy of Ration Card of
c Munusamy
11. Certified copy of account of plaintiff
Sangam (respondent-Society before
us)
D
12. Certified copy of photocopy of
Silesasanam
13. 14.5.29 Copy of application by the President
of plaintiff-Sangam to Municipal
E Chairman
14. 24.2.32 Copy of the application by the
President of plaintiff-Sangam to
Municipal Chairman
F
15. 17.8.2001 Certified copy of judgment in O.S.
No. 1143/94 of District Munsif Court,
liruvannamalai
16. 31.5.2002 Certified copy of judgment in A.S.
G No.94/2001 of Additional District
Judge, Tiruvannamalai
17. 2000-02 House Tax Receipt
18. 2001-02 House Tax Receipt
H
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 85
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
19. 2002-03 House Tax Receipt A
20. Xerox copy of the Minutes Book pages 13 to 19.
8. The trial court on the basis of the pleadings has framed
the following_issues:-
B
1. Whether the plaintiff has the right to possession and
enjoyment of the suit property?
2. Whetherthe plaintiff and his father have obtained
right of enjoyment through adverse enjoyment?
c
3. As per the averments on the defendant's side, is it
true that the plaintiffs father in the capacity of the
watchman of the suit property has been in enjoyment
of the suit property?
D
4. Whether the plaintiff is entitled to a relief of
permanent injunction as prayed for by him?
5. Other relief?
9. In Suit No. 239 of 2003 filed by the respondent-Society E
against the appellant seeking a decree for possession, the
following issues were framed:-
1. Whether the plaintiff Association is competent to file
this case?
F
2. Whether the plaint property belongs to the plaintiffs
club?
3. Is it right that the defendant's father Appadurai Pillai
in the capacity of a Watchman, has been G
maintaining the suit property?
4. When there is a Second Appeal pending before the
High Court in S.A. No.1923 of 2002 against the
judgment and decree of the Court of the District H
86 SUPREME COURT REPORTS [2012] 4 S.C.R.
A Munsif in O.S. No. 1143 of 1994 is sustainable.
5. Whether the defendant has acquired the right of
possession in the plaint property due to adverse
possession?
B 6. Whether this case has been procedurally evaluated
for the court fee and jurisdiction?
7. Is the Court competent to try this Court?
8. To what other relief is the plaintiff entitled to?
c
10. The trial court in Suit No.1143 of 1994 has held that
the appellant was in possession of the suit property in the
capacity of a Watchman. Regarding Issue No. 3, the trial court
has observed as under:
D
" ......... As per the July 1949 register Ex.05 it is
established that the plaintiff's father has been employed
as a watchman in the association. Further, it has already
been decided that the suit property belongs to the
defendants Association. Further it has also been decided
E
that apart from that the plaintiff's father has only been a
watchman to the suit property. Only source of the plaintiffs
father had been a watchman, he was permitted to stay in
a portion in the suit property only because of that he had
not instituted a case for the total extent 110 x 56 feet but
F only for the extent of 70 x 30 feet. He admits that the
remaining portion is in the possession of the association.
It is true that only for this reason the defendants association
has permitted that plaintiff and his family members to reside
in the suit property. It is evident that only in the status of a
G watchman that the plaintiff's father has been occupying a
portion in the suit survey number. This issue is decided
accordingly."
11. Regarding Issue No. 2 of adverse possession, the trial
H court found that the appellant's father was employed by the
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 87
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
respondent-Society as a Watchman on a petty monthly salary A
and in that capacity he was allowed to stay in the suit property.
The appellant did not acquire the suit property by adverse
possession and the issue was rightly decided against the
appellant by the trial court.
B
12. Regarding issue No. 4, the trial court found that the
appellant's father was residing in the suit premises as a
Watchman and after his death the appellant was also allowed
to continue to stay in the suit property as a Watchman.
13. The trial court relied on a judgment of the Madras High C
Court reported in Alagi Alame/u Achi v. Ponniah Mudaliar AIR
1962 Madras 149. The Court held that a person in wrongful
possession is not entitled to be protected against lawful owner
by an order of injunction.
D
14. The trial court also came to a definite conclusion that
the appellant has concealed certain vital facts and has not
approached the Court with clean hands and consequently, he
is not entitled to the grant of discretionary relief of injunction.
15. The First Appellate Court reversed the judgment of the E
trial court and held that the appellant was entitled to the relief
of injunction because of his long possession of the suit property.
The First Appellate Court also set aside the decree passed
by the trial court in O.S. No.239 of 2003.
F
16. The Suit No. 239 was decreed against the appellant.
Aggrieved by this, the appellant preferred First Appeal before
the District Judge which was allowed on 3rd April, 2009.
Aggrieved by this judgment, the respondent-Society filed a
Second Appeal before the High Court which was allowed. The G
High Court heard both the appeals filed by the respondent-
Society and the same were allowed by a common judgment
dated 20th April, 2011.
17. The High Court by a detailed reasoning, set aside the
H
88 SUPREME COURT REPORTS [2012] 4 S.C.R.
A judgment of the First Appellate Court and held that the First
Appellate Court was not justified in reversing the judgments
passed by the trial court in both the abovementioned suits, O.S.
No.1143 of 1994 and O.S. No.239 of 2003. The appellant,
aggrieved by the said judgment, has preferred these two
B appeals. We propose to decide both these appeals by this
common judgment.
18. We have heard the learned counsel for the appellant
at length.
C 19. In our considered view, a well-reasoned judgment and
a decree passed by the trial court ought not to have been
reversed by the First Appellate Court. It is reiterated that the
appellant's father was engaged as a Watchman on a monthly
salary and in that capacity he was allowed to stay in the suit
D premises and after his death his son (the appellant herein)
continued to serve the respondent-Society as a Watchman and
was allowed to live in the premises. The property is admittedly
owned by the respondent-Society.
E 20. The appellant has also failed to prove the adverse
possession of the suit property. Only by obtaining the ration
card and the house tax receipts, the appellant cannot strengthen
his claim of adverse possession. The High Court was fully
justified in reversing the judgment of the First Appellate Court
F and restoring the judgment of the trial court. In our considered
opinion, no interference is called for.
21. This case demonstrates widely prevalent state of affairs
where litigants raise disputes and cause litigation and then
obstruct the progress of the case only because they stand to
G gain by doing so. It is a matter of common experience that the
Court's otherwise scarce resources are spent in dealing with
non-deserving cases and unfortunately those who were waiting
in the queue for justice in genuine cases usually suffer. This
case is a typical example of delayed administration of civil
H justice in our Courts. A small suit, where the appellant was
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 89
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
directed to be evicted from the premises in 1994, took 17 year$ A
before the matter was decided by the High Court. Unscrupulous
litigants are encouraged to file frivolous cases to take undue
advantage of the judicial system.
22. The question often arises as to how we can solve this B
menace within the frame work of law. A serious endeavour has
been made as to how the present system can be improved to
a large extent. In the case of Maria Margarida Sequeria
Fernandes and Others v. Erasmo Jack de Sequeria (Dead)
through L. Rs. (2012) 3 SCALE 550 (of which one of us,
Bhandari, J. was the author of the judgment), this Court had laid
c
stress on purity of pleadings in civil cases. We deem it
appropriate to set out paras 61 to 79 of that judgment dealing
with broad guidelines provided by the Court which are equally
relevant in this case:-
D
"61. In civil cases, pleadings are extremely important for
ascertaining the title and possession of the property in
question.
62. Possession is an incidence of ownership and can be E
transferred by the owner of an immovable property to
another such as in a mortgage or lease. A licensee holds
possession on behalf of the owner.
63. Possession is important when there are no title
documents and other relevant records before the Court, F
but, once the documents and records of title come before
the Court, it is the title which has to be looked at first and
due weightage be given to it. Possession cannot be
considered in vacuum.
G
64. There is a presumption that possession of a person,
other than the owner, if at all it is to be called possession,
is permissive on behalf of the title-holder. Further,
possession of the past is one thing, and the right to remain
or continue in future is another thing. It is the latter which
H
90 SUPREME COURT REPORTS [2012] 4 S.C.R.
A is usually more in controversy than the former, and it is the
latter which has seen much abuse and misuse before the
Courts.
65. A suit can be filed by the title holder for recovery of
possession or it can be one for ejectment of an ex-lessee
8 or for mandatory injunction requiring a person to remove
himself or it can be a suit under Section 6 of the Specific
Relief Act to recover possession.
66. A title suit for possession has two parts - first,
c adjudication of title, and second, adjudication of
possession. If the title dispute is removed and the title is
established in one or the other, then, in effect, it becomes
a suit for ejectment where the defendant must plead and
prove why he must not be ejected.
D
67. In an action for recovery of possession of immovable
property, or for protecting possession thereof, upon the
legal title to the property being established, the
possession or occupation of the property by a person
other than the holder of the legal title will be presumed to
E have been under and in subordination to the legal title, and
it will be for the person resisting a claim for recovery of
possession or claiming a right to continue in possession,
to establish that he has such a right. To put it differently,
wherever pleadings and documents establish title to a
F particular property and possession is in question, it will
be for the person in possession to give sufficiently
detailed pleadings, particulars and documents to support
his claim in order to continue in possession.
G 68. In order to do justice, it is necessary to direct the
parties to give all details of pleadings with particulars.
Once the title is prima facie established, it is for the
person who is resisting the title holder's claim to
possession to plead with sufficient particularity on the
H basis of his claim to remain in possession and place
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 91
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
before the Court all such documents as in the ordinary A
course of human affairs are expected to be there. Only if
the pleadings are sufficient, would an issue be struck and
the matter sent to trial, where the onus will be on him to
prove the averred facts and documents.
B
69. The person averring a right to continue in possession
shall, as far as possible, give a detailed particularized
specific pleading along with documents to support his
claim and details of subsequent conduct which establish
his possession.
c
70. It would be imperative that one who claims possession
must give all such details as enumerated hereunder. They
are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property; D
(b) title of the property;
(c) who is in possession of the title documents
(d) identity of the claimant or claimants to possession;
E
(e) the date of entry into possessiolJ;
(f) how he came into possession - whether he
purchased the property or inherited or got the
same in gift or by any other method; F
(g) in case he purchased the property, what is the
consideration; if he has taken it on rent, how much
is the rent, license fee or lease amount;
(h) if taken on rent, license fee or lease - then insist G
on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or
otherwise living with him, in what capacity; as
family members, friends or servants etc.; H
92 SUPREME COURT REPORTS [2012] 4 S.C.R.
A (j) subsequent conduct, i.e., any event which might
have extinguished his entitlement to possession or
caused shift therein; and
(k) basis of his claim that not to deliver possession but
continue in possession.
B
71. Apart from these pleadings, the Court must insist on
documentary proof in support of the pleadings. All those
documents would be relevant which come into existence
after the transfer of title or possession or the encumbrance
c as is claimed. While dealing with the civil suits, at the
threshold, the Court must carefully and critically examine
pleadings and documents.
72. The Court will examine the pleadings for specificity as
D also the supporting material for sufficiency and then pass
appropriate orders.
73. Discovery and production of documents and answers
to interrogatories, together with an approach of considering
what in ordinary course of human affairs is more likely to
E have been the probability, will prevent many a false claims
or defences from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will
not raise an issue, and the Court can reject the claim or
F pass a decree on admission.
75. On vague pleadings, no issue arises. Only when he so
establishes, does the question of framing an issue arise.
Framing of issues is an extremely important stage in a civil
trial. Judges are expected to carefully examine the
G pleadings and documents before framing of issues in a
given case.
76. In pleadings, whenever a person claims right to
continue in possession of another property, it becomes
H necessary for him to plead with specificity about who was
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 93
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
the owner, on what date did he enter into possession, in A
what capacity and in what manner did he conduct his
relationship with the owner over the years till the date of
suit. He must also give details on what basis he is claiming
a right to continue in possession. Until the pleadings raise
a sufficient case, they will not constitute sufficient claim of B
defence.
77. xxxx xx xx xx xx
78. The Court must ensure that pleadings of a case must
contain sufficient particulars. Insistence on details reduces C
the ability to put forward a non-existent or false claim or
defence.
79. In dealing with a civil case, pleadings, title documents
and relevant records play a vital role and that would o
ordinarily decide the fate of the case."
23. We reiterate the immense importance and relevance
of purity of pleadings. The pleadings need to be critically
examined by the judicial officers or judges both before issuing
the ad interim injunction and/or framing of issues. E
ENTIRE JOURNEY OF A JUDGE IS TO DISCERN THE
TRUTH
24. The entire journey of a judge is to discern the truth from F
the pleadings, documents and arguments of the parties. Truth
is the basis of justice delivery system. This Court in Dalip Singh
v. State of U. P. and Others (2010) 2 SCC 114 observed that
truth constitutes an integral part of the justice delivery system
which was in vogue in pre-independence era and the people G
used to feel proud to tell truth in the courts irrespective of the
consequences. However, post-independence period has seen
drastic changes in our value system.
25. This Court in Maria Margarida Sequeria Fernandes
(supra) had an occasion to deal with the same aspect. H
94 SUPREME COURT REPORTS [2012] 4 S.C.R.
A According to us, observations in paragraphs 31 to 52 are
absolutely germane as these paragraphs deal with relevant
cases which have enormous bearing on the facts of this case,
so these paragraphs are reproduced hereunder:-
" 31. In this unfortunate litigation, the Court's serious
B
endeavour has to be to find out where in fact the truth lies.
The truth should be the guiding star in the entire judicial
process.
32. Truth alone has to be the foundation of justice. The
c entire judicial system has been created only to discern and
find out the real truth. Judges at all levels have to seriously
engage themselves in the journey of discovering the truth.
That is their mandate, obligation and bounden duty.
D 33. Justice system will acquire credibility only when people
will be convinced that justice is based on the foundation
of the truth.
34. In Mohan/al Shamji Soni v. Union of India 1991 Supp
(1) SCC 271, this Court observed that in such a situation
E a question that arises for consideration is whether the
presiding officer of a Court should simply sit as a mere
umpire at a contest between two parties and declare at
the end of the combat who has won and who has lost or
is there not any legal duty of his own, independent of the
F parties, to take an active role in the proceedings in finding
the truth and administering justice? It is a well accepted
and settled principle that a Court must discharge its
statutory functions-whether discretionary or obligatory-
according to law in dispensing justice because it is the
G duty of a Court not only to do justice but also to ensure that
justice is being done.
35. What people expect is that the Court should discharge
its obligation to find out where in fact th.e truth lies. Right
from inception of the judicial system it has been accepted
H
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 95
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
that discovery, vindication and establishment of truth are A
the main purposes underlying the existence of the courts
of justice.
36. In Ritesh Tewari and Another v. State of Uttar Pradesh
and Others (2010) 10 SCC 677 this Court reproduced
B
often quoted quotation which reads as under:
"Every trial is a voyage of discovery in which truth
is the quest"
37. This Court observed that the power is to be exercised c
with an object to subserve the cause of justice and public
interest and for getting the evidence in aid of a just
decision and to uphold the truth.
38. Lord Denning, in the case of Jones v. National Coal D
Board [1957] 2 QB 55 has observed that:
"In the system of trial that we evolved in this country,
the Judge sits to hear and determine the issues
raised by the parties, not to conduct an
investigation or examination on behalf of the society E
at large, as happens, we believe, in some foreign
countries."
39. Certainly, the above, is not true of the Indian Judicial
System. A judge in the Indian System has to be regarded
F
as failing to exercise his jurisdiction and thereby
discharging his judicial duty, if in the guise of remaining
neutral, he opts to remain passive to the proceedings
before him. He has to always keep in mind that "every trial
is a voyage of discovery in which truth is the quest". In G
order to bring on record the relevant fact, he has to play
an active role; no doubt within the bounds of the statutorily
defined procedural law.
40. Lord Denning further observed in the said case of
Jones (supra) that '"It's all very well to paint justice blind, H
96 SUPREME COURT REPORTS [2012] 4 S.C.R.
A but she does better without a bandage round her eyes.
She should be blind indeed to favour or prejudice, but clear
to see which way lies the truth ... "
41. World over, modern procedural Codes are increasingly
relying on full disclosure by the parties. Managerial powers
B
of the Judge are being deployed to ensure that the scope
of the factual controversy is minimized.
42. In civil cases, adherence to Section 30 CPC would
also help in ascertaining the truth. It seems that this
c provision which ought to be frequently used is rarely
pressed in service by our judicial officers and judges.
Section 30 CPC reads as under:-
30. Power to order discovery and the like. -
D Subject to such conditions and limitations as may
be prescribed, the Court may, at any time either of
its own motion or on the application of any party, -
(a) make such orders as may be necessary or
reasonable in all matters relating to the
E delivery and answering of interrogatories, the
admission of documents and facts, and the
discovery, inspection, production,
impounding and return of documents or other
material objects producible as evidence;
F
(b) issue summons to persons whose attendance
is required either to give evidence or to
produce documents or such other objects as
aforesaid;
G (c) order any fact to be proved by affidavit
43. "Satyameva Jayate" (Literally: "Truth Stands Invincible")
is a mantra from the ancient scripture Mundaka
Upanishad. Upon independence of India, it was adopted
H as the national motto of India. It is inscribed in Devanagari
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 97
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
script at the base of the national emblem. The meaning of A
full mantra is as follows:
"Truth alone triumphs; not falsehood. Through truth
the divine path is spread out by which the sages
whose desires have been completely fulfilled, reach B
where that supreme treasure of Truth resides."
44. Malimath Committee on Judicial Reforms heavily
relied on the fact that in discovering truth, the judges of all
Courts need to play an active role. The Committee
observed thus: C
2.2 .......... ln the adversarial system truth is
supposed to emerge from the respective versions
of the facts presented by the prosecution and the
defence before a neutral judge. The judge acts like o
an umpire to see whether the prosecution has been
able to prove the case beyond reasonable doubt.
The State discharges the obligation to protect life,
liberty and property of the citizens by taking suitable
preventive and punitive measures which also serve E
the object of preventing private retribution so
essential for maintenance of peace and law and
order in the society doubt and gives the benefit of
doubt to the accused. It is the parties that determine
the scope of dispute and decide largely,
F
autonomously and in a selective manner on the
evidence that they decide to present to the court.
The trial is oral, continuous and confrontational. The
parties use cross-examination of witnesses to
undermine the opposing case and to discover
information the other side has not brought out. The G
judge in his anxiety to maintain his position of
neutrality never takes any initiative to discover truth.
He does not correct the aberrations in the
investigation or in the matter of production of
evidence before court ........ " H
98 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 2.15 "The Adversarial System lacks dynamism
because it has no lofty ideal to inspire. It has not
been entrusted with a positive duty to discover truth
as in the Inquisitorial System. When the
investigation is perfunctory or ineffective, Judges
B seldom take any initiative to remedy the situation.
During the trial, the Judges do not bother if relevant
evidence is not produced and plays a passive role
as he has no duty to search for truth ..... "
2.16.9. Truth being the cherished ideal and ethos
c of India, pursuit of truth should be the guiding star
of the Criminal Justice System. For justice to be
done truth must prevail. It is truth that must protect
the innocent and it is truth that must be the basis to
punish the guilty. Truth is the very soul of justice.
D Therefore truth should become the ideal to inspire
the courts to pursue. This can be achieved by
statutorily mandating the courts to become active
seekers of truth. It is of seminal importance to inject
vitality into our system if we have to regain the lost
E confidence of the people. Concern for and duty to
seek truth should not become the limited concern
of the courts. It should become the paramount duty
of everyone to assist the court in its quest for truth.
F 45. In Chandra Shashi v. Anil Kumar Verma (1995) 1
sec 421 to enable the Courts to ward off unjustified
interference in their working, those who indulge in immoral
acts like perjury, pre-variation and motivated falsehoods
have to be appropriately dealt with, without which it would
not be possible for any Court to administer justice in the
G
true sense and to the satisfaction of those who approach
it in the hope that truth would ultimately prevail. People
would have faith in Courts when they would find that truth
alone triumphs in Courts.
H 46. Truth has been foundation of other judicial systems,
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 99
ITS PRESIDENT ETC. [DALVEER BHANDARI, J]
such as, the United States of America, the United Kingdom A
and other countries.
47. In James v. Giles et al. v. State of Maryland 386 U.S.
66 (1967) 87, S.Ct. 793, the US Supreme Court, in ruling
on the conduct of prosecution in suppressing evidence
8
favourable to the defendants and use of perjured testimony
held that such rules existed for a purpose as a necessary
component of the search for truth and justice that judges,
like prosecutors must undertake. It further held that the
State's obligation under the Due Process Clause "is not C
to convict, but to see that so far as possible, truth
emerges."
48. The obligation to pursue truth has been carried to
extremes. Thus, in United States v. J. Lee Havens 446
U.S. 620, 100 St.Ct.1912, it was held that the government D
may use illegally obtained evidence to impeach a
defendant's fraudulent statements during cross-
examination for the purpose of seeking justice, for the
purpose of "arriving at the truth, which is a fundamental
goal of our legal system". E
49. Justice Cardozo in his widely read and appreciated
book "The Nature of the Judicial Process" discusses the
role of the judges. The relevant part is reproduced as
under:-
F
"There has been a certain lack of candour," "in
much of the discussion of the theme [of judges'
humanity], or rather perhaps in the refusal to discuss
it, as if judges must lose respect and confidence
by the reminder that they are subject to human G
limitations." I do not doubt the grandeur of
conception which lifts them into the realm of pure
reason, above and beyond the sweep of perturbing
and deflecting forces. None the less, if there is
anything of reality in my analysis of the judicial H
100 SUPREME COURT REPORTS (2012] 4 S.C.R.
A process, they do not stand aloof on these chill and
distant heights; and we shall not help the cause of
truth by acting and speaking as if they do."
50. Aharon Barak, President of Israeli Supreme Court from
1995 to 2006 takes the position that:
8
"For issues in which stability is actually more
important than the substance of the solution - and
there are many such cases - I will join the majority,
without restating my dissent each time. Only when
c my dissenting opinion reflects an issue that is
central for me - that goes to the core of my role as
a judge - will I not capitulate, and will I continue to
restate my dissenting opinion: "Truth or stability -
truth is preferable".
D
"On the contrary, public confidence means ruling
according to the law and according to the judge's
conscience, whatever the attitude of the public may
be. Public confidence means giving expression to
history, not to hysteria. Public confidence is ensured
E
by the recognition that the judge is doing justice
within the framework of the law and its provisions.
Judges must act - inside and outside the court -
in a manner that preserves public confidence in
them. They must understand that judging is not
F merely a job but a way of life. It is a way of life that
does not include the pursuit of material wealth or
publicity; it is a way of life based on spiritual wealth;
it is a way of life that includes an objective and
impartial search for truth."
G
51. In the administration of justice, judges and lawyers play
equal roles. Like judges, lawyers also must ensure that truth
triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the
H
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 101
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
endeavour of all the judicial officers and judges to A
ascertain truth in every matter and no stone should be left
unturned in achieving this object. Courts must give greater
emphasis on the veracity of pleadings and documents in
order to ascertain the truth."
B
26. As stated in the preceding paragraphs, the pleadings
are foundation of litigation but experience reveals that sufficient
attention is not paid to the pleadings and documents by the
judicial officers before dealing with the case. It is the bounden
duty and obligation of the parties to investigate and satisfy C
themselves as to the correctness and the authenticity of the
matter pleaded.
27. The pleadings must set-forth sufficient factual details
to the extent that it reduces the ability to put forward a false or
exaggerated claim or defence. The pleadings must inspire D
confidence and credibility. If false averments, evasive denials
or false denials are introduced, then the Court must carefully
look into it while deciding a case and insist that those who
approach the Court must approach it with clean hands.
E
28. It is imperative that judges must have complete grip
of the facts before they start dealing with the case. That would
avoid unnecessary delay in disposal of the cases.
29. Ensuring discovery and production of documents and
a proper admission/denial is imperative for deciding civil cases F
in a proper perspective. In relevant cases, the Courts should
encourage interrogatories to be administered.
FRAMING OF ISSUES
G
30. Framing of issues is a very important stage of a civil
trial. It is imperative for a judge to critically examine the
pleadings of the parties before framing of issues. Rule 2 of
Order X CPC enables the Court, in its search for the truth, to
go to the core of the matter and narrow down, or even eliminate H
102 SUPREME COURT REPORTS [2012] 4 S.C.R.
A the controversy. Rule 2 of Order X reads as under:-
"2. Oral examination of party, or companion of party. - (1)
At the first hearing of the suit, the Court -
(a) shall, with a view to elucidating matters in
B controversy in the suit, examine orally such of the
parties to the suit appearing in person or present
in Court, as it deems fit; and
(b) may orally examine any person, able to answer any
c material question relating to the suit, by whom any
party appearing in person or present in Court or his
pleader is accompanied.
(2) xxx xxx xxx
D (3) xxx xxx xxx
31. It is a useful procedural device and must be regularly
pressed into service. As per Rule 2 (3) of Order X CPC,
the Court may if it thinks fit, put in the course of such
examination questions suggested by either party. Rule 2
E
(3) of Order X CPC reads as under:-
"2. (1) xxx xxx xxx
(2) xxx xxx xxx
F
(3) The Court may, if it thinks fit, put in the course of
an examination under this rule questions suggested by
either party."
32. If issues are properly framed, the controversy in the
G case can be clearly focused and documents can be properly
appreciated in that light. The relevant evidence can also be
carefully examined. Careful framing of issues also helps in
pr.aper examination and cross-examination of witnesses and
final arguments in the case.
H
A. SHANMUGAM v. ARIYA K.R.V.M.NP. SANGAM REP. BY 103
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
GRANT OR REFUSAL OF INJUNCTION A
33. In Maria Margarida Sequeria Fernandes (supra), this
Court examined the importance of grant or refusal of an
injunction in paras 86 to 89 which read as under:-
"86. Grant or refusal of an injunction in a civil suit is the B
most important stage in the civil trial. Due care, caution,
diligence and attention must be bestowed by the judicial
officers and judges while granting or refusing injunction. In
most cases, the fate of the case is decided by grant or
refusal of an injunction. Experience has shown that once C
an injunction is granted, getting it vacated would become
a nightmare for the defendant. In order to grant or refuse
injunction, the judicial officer or the judge must carefully
examine the entire pleadings and documents with utmost
care and seriousness. D
87. The safe and better course is to give short notice on
injunction application and pass an appropriate order after
hearing both the sides. In case of grave urgency, if it
becomes imperative to grant an ex-parte ad interim
E
injunction, it should be granted for a specified period, such
as, for two weeks. In those cases, the plaintiff will have no
inherent interest in delaying disposal of injunction
application after obtaining an ex-parte ad interim
injunction. The Court, in order to avoid abuse of the
process of law may also record in the injunction order that F
if the suit is eventually dismissed, the plaintiff undertakes
to pay restitution, actual or realistic costs. While passing
the order, the Court must take into consideration the
pragmatic realities and pass proper order for mesne
profits. The Court must make serious endeavour to ensure G
that even-handed justice is given to both the parties.
88. Ordinarily, three main principles govern the grant or
refusal of injunction.
H
104 SUPREME COURT REPORTS [2012] 4 S.C.R.
A (a) prima facie case;
(b) balance of convenience; and
(c) irreparable injury, which guide the Court in this
regard.
B
89. In the broad category of prima facie case, it is
imperative for the Court to carefully analyse the pleadings
and the documents on record and only on that basis the
Court must be governed by the prima facie case. In grant
c and refusal of injunction, pleadings and documents play
vital role."
RESTITUTION AND MESNE PROFITS
34. Experience reveals that a large number of cases are
D filed on false claims or evasive pleas are introduced by the
defendant to cause delay in the administration of justice and
this can be sufficiently taken care of if the Courts adopt realistic
approach granting restitution. This Court in the case of
Ramrameshwari Devi v. Nirmala Devi (2011) 8 SCC 249 (of
E which one of us, Bhandari, J. was the author of the judgment)
in paragraph 52 (C, D and G) of the judgment dealt with the
aspect of imposition of actual or realistic costs which are equally
relevant for this case reads as under:-
"C. Imposition of actual, realistic or proper costs and
F
or ordering prosecution would go a long way in
controlling the tendency of introducing false
pleadings and forged and fabricated documents by
the litigants. Imposition of heavy costs would also
control unnecessary adjournments by the parties. In
G appropriate cases the courts may consider
ordering prosecution otherwise it may not be
possible to maintain purity and sanctity of judicial
proceedings.
H D. The Court must adopt realistic and pragmatic
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 105
ITS PRESIDENT ETC. [DALVEER BHANDARI. J.]
approach in granting mesne profits. The Court must A
carefully keep in view the ground realities while
granting mesne profits.
G. The principle of restitution be fully applied in a
pragmatic manner in order to do real and 8
substantial justice."
35. Unless wrongdoers are denied profit or undue benefit
from frivolous litigations, it would be diificult to control frivolous
and uncalled for litigations. Experience also reveals that our
Courts have been very reluctant to grant the actual or realistic C
costs. We would like to explain this by giving this illustration.
When a litigant is compelled to spend Rs.1 lac on a frivolous
litigation there is hardly any justification in awarding Rs. 1,000/
- as costs unless there are special circumstances of that case.
We need to decide cases while keeping pragmatic realities in D
view. We have to ensure that unscrupulous litigant is not
permitted to derive any benefit by abusing the judicial process.
36. This Court in another important case in Indian Council
for Enviro-Legal Action v. Union of India and Others (2011) 8 E
sec 161 (of which one of us, 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:-
193. This Court in Grindlays Bank Limited v. Income Tax F
Officer, Calcutta (1980) 2 SCC 191 observed as under :-
"... When passing such orders the High Court draws
on its inherent power to make all such orders as are
necessary for doing complete justice between the G
parties. The interests of justice require that any
undeserved or unfair advantage gained by a party
invoking the jurisdiction of the court, by the mere
circumstance that it has initiated a proceeding in
the court, must be neutralised. The simple fact of H
106 SUPREME COURT REPORTS [2012) 4 S.C.R.
A the institution of litigation by itself should not be
permitted to confer an advantage on the party
responsible for it. ... "
194. In Ram Krishna Verma and Others v. State of UP.
and Others (1992) 2 SCC 620 this Court observed as
8
under:-
"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
c hearing as directed in Jeevan Nath Bah/'s case and the
High Court earlier thereto. As a fact, on the expiry of the
initial period of grant after Sept. 29, 1959 they lost the right
to obtain renewal or to ply their vehicles, as this Court
declared the scheme to be operative. However, by sheer
D abuse of the process of law they are continuing to ply their
vehicles pending hearing of the objections. This Court in
Grind/ays Bank Ltd. vs. Income-tax Officer - [1990) 2 SCC
191 held that the High Court while exercising its power
under Article 226 the interest of justice requires that any
E undeserved or unfair advantage gained by a party invoking
the jurisdiction of the court must be neutralised. 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 and in view of the
F power under Article 142(1) of the Constitution this Court,
while exercising its jurisdiction would do complete justice
and neutralise 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
G
objections filed by them to the draft scheme dated Feb.
26, 1959.... "
195. This Court in Kavita Trehan vs Ba/sara Hygiene
Products (1994) 5 SCC 380 observed as under:-
H
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 107
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
"The jurisdiction to make restitution is inherent in A
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 "Where and in so far as 8
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 C
case can appeal to the larger and general powers
of restitution inherent in every court."
196. This Court in Marshall Sons & Co. (/) Ltd. v. Sahi
Oretrans (P) Ltd. and Another (1999) 2 SCC 325
observed as under :- D
"From the narration of the facts, though it appears
to us, prima facie, that a decree in favour of the
appellant is not being executed for some reason or
the other, we do not think it proper at this stage to E
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 for a long time on one count or the other
and on occasion become highly technical
F
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 person who is in wrongful
possession draws delight in delay in disposal of the G
cases by taking undue advantage of procedural
complications. It is also known fact that after
obtaining a decree for possession of immovable
property, its execution takes long time. In such a
situation for protecting the interest of judgment
H
108 SUPREME COURT REPORTS [2012] 4 S.C.R.
A creditor, it is necessary to pass appropriate order
sci 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, Court may appoint Receiver and direct the
8 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 decree is passed and to protect
c the property including further alienation."
197. In Padmawati v. Harijan Sewak Sangh - CM (Main)
No.449 of 2002 decided by the Delhi high Court on
6.11.2008, the court held as under:-
D
'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
E
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
F
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
G 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."
H 198. We approve the findings of the High Court of Delhi
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 109
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
in the aforementioned case. A
199. The Court also stated "Before parting with this case,
we consider it necessary to observe that one of the main
reasons for over-flowing of court dockets is the frivolous
litigation in which the Courts are engaged by the litigants 8
and which is dragged as long as possible. Even if these
litigants ultimately loose the /is, 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 C
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 D
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 E
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 F
even if they lose, the time gained is the real gain. This
situation must be redeemed by the Courts".
200. Against this judgment, Special Leave to Appeal
(Civil) No 29197/2008 was preferred to this Court. The G
Court passed the following order:
"We have heard 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." H
110 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 208. In Marshall sons and Company {/) Limited v. Sahi
Oretrans (P) Limited and Another (1999) 2 SCC 325 this
Court in para 4 of the judgmerlt observed as under:
" ... It is true that proceedings are dragged for a long
time on one count or the other and, on occasion,
B
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
c 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
D 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
E 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
F may prevent further injury to the plaintiff in whose
favour the decree is passed and to protect the
property including further alienation .... "
209. In Ouseph Mathai and Others v. M. Abdul Khadir
(2002) 1 SCC 319 this Court reiterated the legal position
G
that 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 risk and costs
of the party obtaining the stay. After the dismissal, of the
/is, the party concerned is relegated to the position which
H
A. SHANMUGAM v. ARIYA K.R.V.M.N.P SANGAM REP. BY 111
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
existed prior to the filing of the petition in the Court which A
had granted the stay. Grant of stay does not automatically
amount to extension of a statutory protection.
210. This Court in South Eastern Coalfields Limited v.
State of M.P. and others (2003) 8 sec 648 on examining
8
the principle of restitution in para 26 of the judgment
observed as under:
"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 C
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, UP - (1984) Supp o
SCC 505) In law, the term "restitution" is used in
three senses: (1) 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 E
reparation for the loss caused to another."
211. The Court in para 28 of the aforesaid judgment very
carefully mentioned that the litigation should not turn into
a fruitful industry and observed as under:
F
" ......... Litigation may turn into a fruitful industry.
Though litigation is not gambling yet there is an
element of chance in every litigation. Unscrupulous
litigants may feel er.couraged to approach the
courts, persuading the court to pass interlocutory G
orders favourable to them by making out a prima
facie case when the issues are yet to be heard and
determined on merits and if the concept of
restitution is excluded from application to interim
orders, then the litigant would stand to gain by H
112 SUPREME COURT REPORTS [2012] 4 S.C.R.
A 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
8 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."
c . 212. The Court in the aforesaid judgment also observed
that once the doctrine of restitution is attracted, the interest
is often a normal relief given in restitution. Such interest is
not controlled by the provisions of the Interest Act of 1839
or 1978.
D
213. In a relatively recent judgment of this Court in
Amarjeet Singh and Others v. Devi Ratan and Others
(2010) 1 SCC 417 the Court in para 17 of the judgment
observed as under:
E
"No litigant can derive any benefit from mere
pendency of case in a court of law, as the interim
order always merges in the final order to be passed
in the case and if the writ petition is ultimately
dismissed, the interim order stands nullified
F
automatically. A party cannot be allowed to take any
benefit of its own wrongs by getting an interim order
and thereafter blame the court. The fact that the writ
is found, ultimately, devoid of any merit, shows that
a frivolous writ petition had been filed. The maxim
G actus curiae neminem gravabit, which means that
the act of the court shall prejudice no one, becomes
applicable in such a case. In such a fact situation
the court is under an obligation to undo the wrong
done to a party by the act of the court. Thus, any
H
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 113
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
undeserved or unfair advantage gained by a party A
invoking the jurisdiction of the court must be
neutralised, as the institution of litigation cannot be
permitted to confer any advantage on a suitor from
delayed action by the act of the court. . . . . .. "
B
215. In consonance with the concept of restitution, it was
observed that courts should be careful and pass an order
neutralizing the effect of all consequential orders passed
in pursuance of the interim orders passed by the court.
Such express directions may be necessary to check the C
rising trend among the litigants to secure the relief as an
interim measure and then avoid adjudication on merits.
216. In consonance with the principle of equity, justice and
good conscience judges should ensure that the legal
process is not abused by the litigants in any manner. The D
court should never permit a litigant to perpetuate illegality
by abusing the legal process. It is the bounden duty of the
court to ensure that dishonesty and any attempt to abuse
the legal process must be effectively curbed and the court
must ensure that there is no wrongful, unauthorized or E
unjust gain for anyone by the abuse of the process of the
court. One way to curb this tendency is to impose realistic
costs, which the respondent or the defendant has in fact
incurred in order to defend himself in the legal
proceedings. The courts would be fully justified even F
imposing punitive costs where legal process has been
abused. No one should be permitted to use the judicial
process for earning undeserved gains or unjust profits. The
court must effectively discourage fraudulent, unscrupulous
and dishonest litigation. G
217. The court's constant endeavour must be to ensure
that everyone gets just and fair treatment. The court while
rendering justice must adopt a pragmatic approach and
in appropriate cases realistic costs and compensation be
ordered in order to discourage dishonest litigation. The H
114 SUPREME COURT REPORTS [2012] 4 S.C.R.
A object and true meaning of the concept of restitution cannot
be achieved or accomplished unless the courts adopt a
pragmatic approach in dealing with the cases.
218. This Court in a very recent case Ramrameshwari
Devi and Others v. Nirmala Devi and Others 2011 (6)
B
Scale 677 had an occasion to deal with similar questions
of law regarding imposition of realistic costs and
restitution. One of us (Bhandari, J.) was the author of the
judgment. It was observed in that case as under:
c "While imposing costs we have to take into
consideration pragmatic realities and be realistic
what the defendants or the respondents had to
actually incur in contesting the litigation before
different courts. We have to also broadly take into
D consideration the prevalent fee structure of the
lawyers and other miscellaneous expenses which
have to be incurred towards drafting and filing of
the counter affidavit, miscellaneous charges
towards typing, photocopying, court fee etc.
E
The other factor which should not be forgotten while
imposing costs 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
F 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."
G 37. False averments of facts and untenable contentions
are serious problems faced by our courts. The other problem
is that litigants deliberately create confusion by introducing
irrelevant and minimally relevant facts and documents. The court
cannot reject such claims, defences and pleas at the first look.
H It may take quite sometime, at times years, before the court is
A. SHANMUGAM v. ARIYA K.R.VM.N.P. SANGAM REP. BY 115
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.]
able to see through, discern and reach to the truth. More often A
than not, they appear attractive at first blush and only on a
deeper examination the irrelevance and hollowness of those
pleadings and documents come to light.
38. Our courts are usually short of time because of huge
B
pendency of cases and at times the courts arrive at an
erroneous conclusion because of false pleas, claims, defences
and irrelevant facts. A litigant could deviate from the facts which
are liable for all the conclusions. In the journey of discovering
the truth, at times, this Court, on later stage, but once
discovered, it is the duty of the Court to take appropriate C
remedial and preventive steps so that no one should derive
benefits or advantages by abusing the process of law. The court
must effectively discourage fraudulent and dishonest litigants.
39. Now, when we revert to the facts of this case it D
becomes quite evident that the appellant is guilty of suppressing
material facts and introducing false pleas and irrelevant
documents. The appellant has also clouded the entire case with
pleas which have nothing to do with the main controversy
involved in the case. E
IRRELEVANT DOCUMENTS:
40. All documents filed by the appellant along with the
plaint have no relevance to the controversy involved in the case.
We have reproduced a list of the documents to demonstrate F
that these documents have been filed to mislead the Court. The
First Appellate Court has, in fact, got into the trap and was
misled by the documents and reached to an entirely erroneous
finding that resulted in undue delay of disposal of a small case
for almost 17 years. G
FALSE AND IRRELEVANT PLEAS:
41. The appellant is also guilty of introducing untenable
pleas. The plea of adverse possession which has no foundation
or basis in the facts and circumstances of the case was H
116 SUPREME COURT REPORTS [2012] 4 S.C.R.
A introduced to gain undue benefit. The Court must be cautious
in granting relief to a party guilty of deliberately introducing
irrelevant and untenable pleas responsible for creating
unnecessary confusion by introducing such documents and
pleas. These factors must be taken into consideration while
s granting relief and/or imposing the costs.
42. On the facts of the present case, following principles
emerge:
1. It is the bounden duty of the Court to uphold the truth
c and do justice.
2. Every litigant is expected to state truth before the
law court whether it is pleadings, affidavits or
evidence. Dishonest and unscrupulous litigants
D have no place in law courts.
3. The ultimate object of the judicial proceedings is to
discern the truth and do justice. It is imperative that
pleadings and all other presentations before the
court should be truthful.
E
4. Once the court discovers falsehood, concealment,
distortion, obstruction or confusion in pleadings and
documents, the court should in addition to full
restitution impose appropriate costs. The court
F must ensure that there is no incentive for wrong doer
in the temple of justice. Truth is the foundation of
justice and it has to be the common endeavour of
all to uphold the truth and no one should be
permitted to pollute the stream of justice.
G 5. It is the bounden obligation of the Court to neutralize
any unjust and/or undeserved benefit or advantage
obtained by abusing the judicial process.
6. Watchman, caretaker or a servant employed to
H look after the property can never acquire interest in
A. SHANMUGAM v. ARIYA K.R.V.M.N.P. SANGAM REP. BY 117
ITS PRESIDENT ETC. [DALVEER BHANDARI, J.)
the property irrespective of his long possession. A
The watchman, caretaker or a servant is under an
obligation to hand over the possession forthwith on
demand. According to the principles of justice,
equity ;:ind good conscience, Courts are not
justified in protecting the possession of a B
watchman, caretaker or servant who was only
allowed to live into the premises to look after the
same.
7. The watchman, caretaker or agent holds the
property of the principal only on behalf the principal. C
He acquires no right or interest whatsoever in such
property irrespective of his long stay or possession.
8. The protection of the Court can be granted or
extended to the person who has valid subsisting D
rent agreement, lease agreement or licence
agreement in his favour.
43. In the instant case, we would have ordinarily imposed
heavy costs and would have ordered restitution but looking to E
the fact that the appellant is a Watchman and may not be able
to bear the financial burden, we dismiss these appeals with
very nominal costs of Rs. 25,000/- to be paid within a period
of two months and direct the appellant to vacate the premises
within two months from today and handover peaceful
F
possession of the suit property to the respondent-Society. In
case, the appellant does not vacate the premises within two
months from today, the respondent-Society would be a liberty
to take police help and get the premises vacated.
44. Both the appeals are, accordingly dismissed, leaving G
the parties to bear their own costs.
K.K.T. Appeals dismissed.
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