12/11/2019 Ramrameshwari Devi & Ors vs Nirmala Devi & Ors on 4 July, 2011

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Supreme Court of India
Ramrameshwari Devi & Ors vs Nirmala Devi & Ors on 4 July, 2011
Author: ..........................J.
Bench: Dalveer Bhandari, Deepak Verma

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4912-4913 OF 2011

(Arising out of SLP(C) Nos. 3157-3158 of 2011)

Ramrameshwari Devi and Ors. ...Appellants

Versus

Nirmala Devi and Ors. ...Respondents

JUDGEMENT

Dalveer Bhandari, J.

1. Leave granted.

2. These appeals are directed against the judgment and order dated 01.09.2010 passed in Civil
Miscellaneous Petition (Main) No. 1084 of 2010 and the order dated 25.10.2010 passed in Review
Petition No. 429 of 2010 in Civil Miscellaneous Petition (Main) No. 1084 of 2010 by the High Court
of Delhi at New Delhi.

3. The apparent discernible question which requires adjudication in this case seems to be a trivial,
insignificant and small one regarding imposition of costs, but in fact, these appeals have raised several
important questions of law of great importance which we propose to deal in this judgment.

Looking to the importance of the matter we requested Dr. Arun Mohan, a distinguished senior advocate
to assist this court as an Amicus Curiae.

4. This is a classic example which abundantly depicts the picture of how the civil litigation moves in
our courts and how unscrupulous litigants (appellants in this case) can till eternity harass the
respondents and their children by abusing the judicial system.

5. The basic facts which are necessary to dispose of these appeals are recapitulated as under:-

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6. In the year 1952, almost about half a century ago, the government allotted a residential house
bearing nos. 61-62, I-Block, Lajpat Nagar-I, measuring 200 yards to Ram Parshad.

The Lease Deed was executed in his favour on 31.10.1964.

7. On humane considerations of shelter, Ram Parshad allowed his three younger brothers - Madan Lal,
Krishan Gopal and Manohar Lal to reside with him in the house. On 16.11.1977, these three younger
brothers filed a Civil Suit No.993 of 1977 in the High Court of Delhi claiming that this Lajpat Nagar
property belonged to a joint Hindu Family and sought partition of the property on that basis.

8. The suit was dismissed by a judgment dated 18.01.1982 by the learned Single Judge of the High
Court of Delhi. The appellants (younger brothers) of Ram Parshad, aggrieved by the said judgment
preferred a Regular First Appeal (Original Side) 4 of 1982 which was admitted to hearing on
09.03.1982.

During the pendency of the appeal, Ram Parshad on 15.01.1992 filed a suit against his three younger
brothers for mandatory injunction to remove them and for recovery of mesne profits. In 1984 Ram
Parshad sold western half (No.61) to an outsider. That matter is no longer in dispute.

9. The first appeal filed by the other three younger brothers of Ram Parshad against Ram Parshad was
dismissed on 09.11.2000. Against the concurrent findings of both of the judgments, the appellants filed
a Special Leave Petition No.3740 of 2001 in this court which was also dismissed on 16.03.2001.

10. In the suit filed by Ram Parshad (one of the respondents) (now deceased) against the appellants in
these appeals the following issues were framed:

1. Whether the suit is liable to be stayed under Section 10 CPC as alleged in para no.1 of
Preliminary Objection?

2. Whether defendants are licencees in the suit premises and if so whether the plaintiff is
entitled to recover possession of the same from them?

3. Whether suit of plaintiff is time barred?

4. Whether suit has been properly valued for the purpose of court fees and jurisdiction?

5. Whether the suit property is joint family property of parties?

6. Whether the plaintiff is entitled to mesne profits for use and occupation of the suit property by the
defendants and if so at what rate and for which period?

7. Whether defendants have become the owner of three-

fourth share of the suit property by adverse possession?

8. Relief.

and fixed the matter for evidence on 22.11.2004.

11. The defendants in the suit contended that inasmuch as Regular First Appeal (Original Side) 4 of
1982 was still pending, therefore, Ram Parshad's suit be stayed under section 10 of the Code of Civil
Procedure. Accepting the contention, on 20.07.1992, the 1992 suit was ordered to be stayed.

12. The Regular First Appeal was dismissed on 9.11.2000 and the Special leave petition against the
said appeal was also dismissed on 16.3.2001. Consequently, the suit filed by Ram Parshad for
mandatory injunction and for mesne profit stood revived on 05.12.2001.

13. In the first round of litigation from 16.11.1977 to 16.3.2001 it took about twenty four years and
thereafter it had taken 10 years from 16.3.2001. In the 1992 suit, the defendants (appellants herein)
sought amendment of the written statement which was refused on 28.07.2004. Against this order, a
Civil Miscellaneous (Main) 1153 of 2004 was filed in the High Court which was disposed of on
02.09.2004 with liberty to move an application before the trial court for framing an additional issue.
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The additional issue regarding the claim of adverse possession by the three younger brothers was
framed on 6.10.2004. The issue was whether the defendants have become the owner of three-fourth
share of the suit property by adverse possession and the case was fixed up for recording of the
evidence. According to the learned Amicus Curiae, the court before framing Issue Number 7 and
retaining the other issues, ought to have recorded the statement of defendants under Order 10 Rule 2 of
the Code of the Civil Procedure (for short, CPC) and then re-cast the issues as would have been
appropriate on the pleadings of the parties as they would survive after the decision in the previous
litigation.

14. According to the learned Amicus Curiae, the practice of mechanically framing the issues needs to
be discouraged.

Framing of issues is an important exercise. Utmost care and attention is required to be bestowed by the
judicial officers/judges at the time of framing of issues. According to Dr. Arun Mohan, twenty minutes
spent at that time would have saved several years in court proceedings.

15. In the suit, on 6.11.2004 the application seeking transfer of the suit from that court was filed which
was dismissed by the learned District Judge on 22.3.2005. The trial commenced on 22.11.2004,
adjournment was sought and was granted against costs. The plaintiffs' evidence was concluded on
10.2.2005.

16. On 28.5.2005 the defendants failed to produce the evidence and their evidence was closed. Against
that order, Civil Miscellaneous (Main) 1490 of 2005 was filed in the Delhi High Court. Stay was
granted on 15.7.2005 and the application was dismissed on 17.12.2007 with liberty to move an
application for taking on record further documents.

17. On 12.2.2008, an application under Order 18 Rule 17A of the CPC was moved. On `No Objection'
from the plaintiff, it was allowed on 31.7.2008 and the documents and affidavits were taken on record.
On 23.10.2009, the matter was fixed for evidence. The appellants filed an application under Order 7
Rule 11 (b) of the CPC for rejection of the 1992 plaint on the ground of not paying ad valorem court
fees on the market value of property and for under-valuation of relief. This application was dismissed
by the Civil Judge on 09.07.2010 by the following order :-

"M-61/2006 09.07.2010 Present : Ld. Counsel for plaintiff Ld. Counsel for defendant
Application under section 151 CPC is filed by defendant for treating Issue No.4 as
preliminary issue. It pertains to court fees and jurisdiction. It is pertinent to mention that
suit is at the stage of final arguments and both the parties have led the entire evidence. Ld.
Counsel for defendant submits that this application has been filed by the defendant in view
of the liberty granted to the defendant by the Hon'ble High Court vide order dated
26.4.2010 dismissing the Civil Revision Petition application no.76/10 as withdrawn
against the order dated 12.10.2006 passed by this court. It is pointed out to the counsel for
defendant that case is at the stage of final arguments and law enjoins upon the court to
return finding on all the issues. Counsel for the defendant filing this application seeks
disposal of the same. Perused the application and gone through record. Order 20 Rule 5
clearly states that court has to return finding on each issue. Even Order 14 Rule 2 CPC
states that the court has to pronounce the judgment on all issues notwithstanding that the
case may be disposed off on preliminary issue. Sub Rule 2 refers to the discretion given to
the court where the court may try issue relating to the jurisdiction of the court or the bar to
the suit created by any law for the time being in force as preliminary issue. It further relates
to disposal of the suit treating these points as preliminary issues and also relates to
deferring the settlement of other issues. But there is no such case. Entire evidence has been
led, the matter is at the stage of final arguments and the point raised does not relate to the
point pertaining to Sub Rule 2.

Neither it relates to bar created by any law nor the jurisdiction of the court to entertain the suit.

It is averments made in the plaint. Contention of the applicant for treating the issue as preliminary
issue is against the spirit of law as referred in Order 20 Rule 5 and Order 14 Rule 5 CPC. I do not see

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any merit in this application and the same is dismissed with the costs of Rs.2000/-.

To come up for payment of cost and final arguments.

Put up on 09.08.2010 (Vipin Kumar Rai) ACJ/ARC(W)"

18. Aggrieved by the order dated 23.10.2009, the defendants (appellants herein) preferred a Civil
Revision Petition No.76 of 2010 in the High Court of Delhi. At the preliminary hearing, the petition
was allowed to be withdrawn, leaving the trial court at liberty to consider the request of the appellants
to treat Issue Number 4 regarding court fee as a preliminary issue.

19. On 09.07.2010, the defendants filed an application before the Civil Judge for treating Issue Number
4 as a preliminary issue. This application was rejected by the Civil Court on 9.7.2010 with costs. The
matter is at the stage of final arguments before the trial court. At this stage, against the order of the
Civil Judge, on 7.8.2010, the appellants filed a petition being Civil Miscellaneous (Main) No.1084 of
2010 under Article 227 of the Constitution in the High Court which came up for preliminary hearing
on 26.8.2010. On 1.9.2010, the High Court dismissed the Civil Miscellaneous (Main) No.1084 of 2010
by a detailed judgment rendered at the preliminary hearing and imposed cost of Rs.75000/- to be
deposited with the Registrar General. Review Petition No. 429 of 2010 was filed which was dismissed
on 25.10.2010.

20. These appeals have been filed against the order imposing costs and dismissing the review petition.

21. The learned Single Judge observed that the present appellants belong to that category of litigants
whose only motive is to create obstacles during the course of trial and not to let the trial conclude.
Applications after applications are being filed by the appellants at every stage, even though orders of
the trial court are based on sound reasoning.

Moreover, the appellants have tried to mislead the court also by filing wrong synopsis and incorrect
dates of events.

22. The High Court further observed that the purpose of filing of brief synopsis with list of dates and
events is to give brief and correct summary of the case and not to mislead the court. Those litigants or
their advocates who mislead the courts by filing wrong and incorrect particulars (the list of dates and
events) must be dealt with heavy hands.

23. In the list of dates and events, it is stated that the respondents filed a suit for mandatory injunction
and recovery of Rs.36,000/- on 22nd September, 2003. In fact, as per typed copy of the plaint placed
on record, the suit was filed by the predecessor-in-interest of the respondents in 1992. Written
statement was filed by the predecessor-in-interest of the appellants in 1992. Thus, the appellants tried
to mislead the court by mentioning wrong date of 22nd September, 2003 as the date of filing.

24. The High Court has also dealt with number of judgments dealing with the power of the High Court
under Article 227 of the Constitution. According to the High Court, the suit was filed in the trial court
in 1992. The written statement was filed as far back on 15th April, 1992. On pleadings, Issue Number
4 was framed with regard to court fee and jurisdiction. The appellants never pressed that Issue Number
4 be treated as a preliminary issue. Both the parties led their respective evidence. When the suit was
fixed before the trial court for final arguments, application in question was filed. The appellants argued
that Issue Number 4 would also be determined along with other issues.

25. In the impugned judgment, it is also observed that it is revealed from the record that the appellants
have been moving one application after the other, though all were dismissed with costs.

26. It may be pertinent to mention that the appellants also moved transfer application apprehending
adverse order from the trial judge, which was also dismissed by the learned District Judge. This
conduct of the appellants demonstrates that they are determined not to allow the trial court to proceed
with the suit. They are creating all kinds of hurdles and obstacles at every stage of the proceedings.

27. The learned Single Judge observed that even according to Order 14 Rule 2 CPC the court has to
pronounce the judgment on all issues notwithstanding that the case may be disposed of on preliminary
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issue. Order 14 Rule 2 of the CPC is reads as under:

"ORDER XIV: SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON

ISSUES OF LAW OR ON ISSUES AGREED UPON.

... ... ...

... ... ...

2. Court to pronounce judgment on all issues: (1) Notwithstanding that a case may be
disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2),
pronounce judgment on all issues.

... ... ...

... ... ..."

28. Sub Rule 2 refers to the discretion given to the court where the court may try issue relating to the
jurisdiction of the court or the bar to the suit created by any law for the time being in force as
preliminary issue. It further relates to disposal of the suit treating these points as preliminary issues and
also relates to deferring the settlement of other issues, but there is no such case. The entire evidence
has been led, the matter is at the stage of final arguments and the point raised does not relate to the
point pertaining to Sub Rule 2. Neither it relates to bar created by any law nor the jurisdiction of the
court to entertain the suit. It is just an averment made in the plaint. Contention of the appellants for
treating the said issue as preliminary issue is against the spirit of law as referred in Order 20 Rule 5 and
Order 14 Rule 5 of the CPC. These observations of the courts below are correct and in pursuance of the
provisions of the Act. The High Court properly analysed the order of the trial court and observed as
under:-

"Looking from any angle, no illegality or infirmity can be found in the impugned order.
The only object of petitioners is just to delay the trial, which is pending for the last more
than 18 years. To a large extent, petitioners have been successful in delaying the judicial
proceedings by filing false, frivolous and bogus applications, one after the other. It is well
settled that frivolous litigation clogs the wheels of justice making it difficult for courts to
provide easy and speedy justice to the genuine litigations.

Dismissed List for compliance on 7th October, 2010."

29. We have carefully examined the impugned judgment of the High Court and also order dated
9.7.2010 passed by the learned Civil Judge, Delhi.

30. It is abundantly clear from the facts and circumstances of this case that the appellants have
seriously created obstacles at every stage during the course of trial and virtually prevented the court
from proceeding with the suit. This is a typical example of how an ordinary suit moves in our courts.

Some cantankerous and unscrupulous litigants on one ground or the other do not permit the courts to
proceed further in the matter.

31. The learned Amicus Curiae has taken great pains in giving details of how the case has proceeded in
the trial court by reproducing the entire court orders of 1992 suit. In order to properly comprehend the
functioning of the trial courts, while dealing with civil cases, we deem it appropriate to reproduce the
order sheets of 1992 suit. This is a typical example of how a usual civil trial proceeds in our courts.
The credibility of entire judiciary is at stake unless effective remedial steps are taken without further
loss of time. Though original litigation and the appeal which commenced from 1977 but in order to
avoid expanding the scope of these appeals, we are dealing only with the second litigation which
commenced in 1992. The order sheets of the suit of 1992 are reproduced as under :-

Proceedings of Suit - 1992 17.01.1992 Summons to Defendants on plaintiff and RC

28.02.1992 Fresh summons to Defendants 1 &

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2. Defendant No. 3 refused service. Proceeded ex-parte 30.03.1992 Time sought to file
Written Statement for all the Defendants. Allowed.

20.04.1992 Written Statement filed. Fixed on

30.04.1992 for replication,

admission/denial and framing of

issues.

01.05.1992 Plaintiff sought time to file

replication.

11.05.1992 Replication filed. Adjourned for

admission/ denial on joint request.

26.05.1992 No document for admission/denial.

Issues framed. Fixed for arguments

on 17.07.1992.

17.07.1992 Arguments heard on preliminary

issue.

20.07.1992 Suit stayed. Plaintiff granted liberty

to make application for revival after disposal of RFA (OS) 4/82.

01.06.2001 File sent to District Judge for transferring the case to proper court.

04.06.2001 District Judge marked to case to the court of Shri Naipal Singh, Additional District Judge.

02.07.2001 Presiding Officer is on vacation leave. Fixed for 03.07.2001.

03.07.2001 Miscellaneous application notice issued to the respondent. Main Suit 47/92 summoned.

23.08.2001 Suit file be summoned. Notice of application to Defendant on PF & RC.

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16.10.2001 Copy of application given to all the

Defendants. Adjourned for reply to

application and further proceedings.

05.12.2001 Suit has to proceed for the decision on merits.

28.02.2002 Application under Order 6 Rule 17 moved by Defendant for amendment of Written
Statement. Adjourned for reply and arguments on the application.

16.04.2002 As the value of the suit is below 3 lakhs, the suit transferred to the court of Civil Judge.

23.04.2002 Reply to application filed. Summons to Defendants other than Defendant No. 3.

21.08.2002 Counsel for the parties not present.

28.11.2002 Presiding Officer on leave.

07.12.2002 At joint request, adjourned. Last opportunity.

22.09.2003 None present. Adjourned for arguments on Order 6 Rule 17. File transferred to the court of
Shri Prashant Kumar, Civil Judge.

12.11.2003 Son of the Plaintiff stated that the Plaintiff has expired. Adjourned.

06.12.2003 Presiding Officer not available.

16.01.2004 Copy of application under Order 22

Rule 3 supplied. As requested,

adjourned.

16.02.2004 Reply not filed. Counsel for the

Defendant seeks time to file reply.

01.03.2004 Reply filed. Counsel for the

Defendant objected that the

addresses of Legal Representatives

are not correct.

24.03.2004 Application Order 22 Rule 3 is

allowed. Right to sue survives.

Order 6 Rule 17 pending for

disposal.

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27.04.2004 Arguments heard.

22.05.2004 Plaintiff wants to file written

submissions with regard to

clarification. Allowed.

03.07.2004 None for Defendants. Written

submissions filed by Plaintiff.

28.7.2004 Present none. Order 6 Rule 17

dismissed.

02.09.2004 None for Defendants. Fixed for PE

to 06.10.2004

28.09.2004 Defendant moved application Order

14 Rule 5. Notice issued.

06.10.2004 Issues reframed. Defendant sought

time to cross-examine PW.

22.11.2004 PW present. Defendant prayed for

adjournment. Defendant moved

application for transfer of the case.

Last opportunity for cross-

examination.

21.12.2004 PW present. Previous cost not

pressed for. PW sought time for

obtaining copies of documents.

10.02.2005 PW cross-examined. PE closed.

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15.03.2005 No DW present

19.04.2005 Affidavit of DW filed. However DW

stated that he is not feeling well.

Adjourned.

28.05.2004 Defendant stated that he does not

want to lead evidence. DE closed.

Fixed for final arguments.

15.07.2005 Stay by the High Court in CM (Main)

1490/2005.

18.07.2005 Counsel for the Defendant states

that the High Court has stayed the

matter. Directed to file the copy of

the order.

25.08.2005 No copy of the order is filed.

29.10.2005 Matter under stay by High Court.

30.01.2006 Fresh suit received by transfer.

Adjourned for proper orders.

02.05.2006 Notice to Defendants.

31.05.2006 Counsel for the Defendants served

but none appeared. Adjourned for

final arguments.

21.08.2006 File not traceable. Adjourned.

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09.12.2006 Present: Counsel for the plaintiff.

Adjourned for final arguments.

19.02.2007 Counsel for the plaintiff.

Proceedings stayed by the High

Court.

21.08.2007 Counsel for the Plaintiff. Matter

under stay by the High Court.

17.12.2007 CM (Main) 1490/2005 dismissed by

the High Court. Stay vacated.

10.1.2008Counsel for the Plaintiff. None for the

Defendant. Adjourned.

12.02.2008 Defendant filed application O18

R17A. Copy supplied. Adjourned

for reply and ar guments.

30.04.2008 Reply filed by the Plaintiff.

Application allowed to cost of

Rs.7,000/-, out of which Rs.1,000/-

to be deposited in Legal Aid.

Adjourned for DE.

31.07.2008 Defendant sought adjournment on

the ground that witness is not

feeling well.

29.9.2008 Plaintiff moved application Order 6

Rule 17. Copy supplied.

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23.12.2008 Reply filed. Come up for arguments

on the application.

21.5.2009 Part arguments heard.

22.07.2009 Plaintiff does not press for the

application. Dismissed. To come

up for DE.

05.10.2009 Defendants witness not present.

Application for exemption allowed.

Affidavit already filed.

23.10.2009 Application under Order 7 Rule 1

CPC filed. Dismissed. Affidavit of

Kishan Gopal tendered as DW1,

and he is cross-examined and

discharged. No other witness. DE

closed.

11.01.2010 Presiding Officer on leave.

23.03.2010 Defendant seeks adjournment on

the ground that main counsel not

available.

3.5.2010 Adjournment sought on behalf of

the parties.

26.5.2010 File not traceable.

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9.7.2010 Application under Section 151 CPC

for treating No. 4 as preliminary

issue. Dismissed with cost of

Rs.2,000/-

9.8.2010 Application for adjournment filed.

27.9.2010 Presiding Officer on leave.

23.10.2010 For final arguments.

18.12.2010 For final arguments.

22.1.2011 For final arguments.

5.2.2011 For final arguments.

26.2.2011 Sought adjournment on the ground

that the matter regarding cost is

pending in Hon'ble Supreme Court.

32. Dr. Arun Mohan, learned amicus curiae, has written an extremely useful, informative and unusual
book "Justice, Courts and Delays". This book also deals with the main causes of delay in the
administration of justice. He has also suggested some effective remedial measures. We would briefly
deal with the aspect of delay in disposal of civil cases and some remedial measures and suggestions to
improve the situation. According to our considered view, if these suggestions are implemented in
proper perspective, then the present justice delivery system of civil litigation would certainly improve
to a great extent.

33. According to the learned author, 90% of our court time and resources are consumed in attending to
uncalled for litigation, which is created only because our current procedures and practices hold out an
incentive for the wrong-

doer. Those involved receive less than full justice and there are many more in the country, in fact, a
greater number than those involved who suffer injustice because they have little access to justice, in
fact, lack of awareness and confidence in the justice system.

34. According to Dr. Mohan, in our legal system, uncalled for litigation gets encouragement because
our courts do not impose realistic costs. The parties raise unwarranted claims and defences and also
adopt obstructionist and delaying tactics because the courts do not impose actual or realistic costs.

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Ordinarily, the successful party usually remains uncompensated in our courts and that operates as the
main motivating factor for unscrupulous litigants. Unless the courts, by appropriate orders or directions
remove the cause for motivation or the incentives, uncalled for litigation will continue to accrue, and
there will be expansion and obstruction of the litigation. Court time and resources will be consumed
and justice will be both delayed and denied.

35. According to the learned author lesser the court's attention towards full restitution and realistic
costs, which translates as profit for the wrongdoer, the greater would be the generation of uncalled for
litigation and exercise of skills for achieving delays by impurity in presentation and deployment of
obstructive tactics.

36. According to him the cost (risk) - benefit ratio is directly dependent on what costs and penalties
will the court impose on him; and the benefit will come in as the other `succumbing' en route and or
leaving a profit for him, or even if it is a fight to the end, the court still leaving a profit with him as
unrestituted gains or unassessed short levied costs. Litigation perception of the probability of the other
party getting tired and succumbing to the delays and settling with him and the court ultimately
awarding what kind of restitution, costs and fines against him - paltry or realistic. This perception
ought to be the real risk evaluation.

37. According to the learned Amicus Curiae if the appellants had the apprehension of imposition of
realistic costs or restitution, then this litigation perhaps would not have been filed. According to him,
ideally, having lost up to the highest court (16.03.2001), the appellants (defendants in the suit) ought to
have vacated the premises and moved out on their own, but the appellants seem to have acted as most
parties do-calculate the cost (risk)-benefit ratio between surrendering on their own and continuing to
contest before the court.

Procrastinating litigation is common place because, in practice, the courts are reluctant to order
restitution and actual cost incurred by the other side.

Profits for the wrongdoer

38. According to the learned Amicus Curiae, every lease on its expiry, or a license on its revocation
cannot be converted itself into litigation. Unfortunately, our courts are flooded with these cases because
there is an inherent profit for the wrong-

doers in our system. It is a matter of common knowledge that domestic servants, gardeners, watchmen,
caretakers or security men employed in a premises, whose status is that of a licensee indiscriminately
file suits for injunction not to be dispossessed by making all kinds of averments and may be even filing
a forged document, and then demands a chunk of money for withdrawing the suit. It is happening
because it is the general impression that even if ultimately unauthorized person is thrown out of the
premises the court would not ordinarily punish the unauthorized person by awarding realistic and
actual mesne profits, imposing costs or ordering prosecution.

39. It is a matter of common knowledge that lakhs of flats and houses are kept locked for years,
particularly in big cities and metropolitan cities, because owners are not certain that even after expiry
of lease or licence period, the house, flat

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