IN THE COURT OF SHRI DHARMENDER RANA : ADDITIONAL SENIOR CIVIL JUDGE : JSCC : GUARDIAN JUDGE, KARKARDOOMA COURTS (EAST) Suit No. 318/11 Unique Case ID No. 02402C0323322011 [ENTITY] s/o Late Shri [ENTITY] r/o 139, Khureji Khas, Delhi110051. Plaintiff. VERSUS 1. M/s [ENTITY] A society registered under the Cooperative societies Act 1971 having its office at 85, Mausam Vihar, Delhi110051 Through its Hony. General Secretary. 2. [ENTITY] through its Chairman, Vikas Sadan, INA Colony, New Delhi. Defendants. Date of institution of the suit : 21.10.2011 Date on which order was reserved: 21.01.2015 Date of decision : 29.01.2015. SUIT FOR PERMANENT INJUNCTION. JUDGMENT
By way of the instant judgment I propose to dispose off a suit for permanent injunction.
2. Briefly stated, one Shri [ENTITY] s/o Late [ENTITY] was owner of property bearing khasra no. 35/8/2 admeasuring about 1 bigha 16 biswas. Upon the demise of Shri [ENTITY] the land was inherited by the father of the plaintiff namely Shri [ENTITY]. The abovesaid khasra came under the land acquisition proceedings and the land acquisition collector took possession of about 1 bigha 7 biswas, out of the abovesaid land, leaving behind 9 biswas of the land in possession of the father of the plaintiff. Shri [ENTITY] constructed a house upon the said 9 biswas of land (hereinafter referred to as suit property) and regularly paid house tax for the same to Municipal Corporation of Delhi. Subsequently on 19.08.1991 MCD served a notice for breaking of the abovesaid house and stopping any fresh construction upon the same. After the death of his father, the plaintiff came in possession of the suit property. It is alleged that the defendant no.1 and 2, acting in collusion, are trying to take forcible possession of the suit property. The plaintiff has now approached the court by filing the instant suit for permanent injunction seeking to protect his possession.
3. The claim of the plaintiff is contested by the defendants by filing separate written statements.
4. Defendant no.1 has averred that instant suit is barred under [SECTION] [ACT]. It is averred that initially father of plaintiff namely Shri [ENTITY] had instituted a suit for perpetual injunction registered vide [CASE NUMBER] against defendant no.1 and defendant no.2 and the said suit was dismissed vide order dated 24.11.1995. It is averred that instant suit is also barred under [SECTION] [ACT] as the claim made in the suit has already been adjudicated upon and decided against the plaintiff and his brothers in the writ petition instituted by them before Hon'ble High Court of Delhi bearing [CASE NUMBER]. It is averred that suit is bad for want of statutory notice u/[SECTION] of The [ENTITY] Act. It is also claimed that plaintiff had never been in possession of the suit property. Rest of the contents of the plaint have been denied and it has been prayed that suit of the plaintiff may kindly be dismissed.
5. Defendant no.2, in his written statement has averred that the land of khasra no. 35/8/2/2 measuring 9 biswas is under the unauthorized occupation of residents of Radhey Shyam Park and Rasta/gali and plaintiff has no right, title or interest over the suit land. It is averred that plaintiff, under the garb of present suit, wants to encroach upon government land. It is averred that suit of the plaintiff is not maintainable as no civil suit lies in respect of acquired land. Rest of the contents of the plaint have been denied and it has been prayed that instant suit may kindly be dismissed.
6. Separate replications to the separate written statements of defendants have been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statements.
7. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 10.04.2013.
1. Whether the plaintiff is in possession of land falls in khasra no. 35/8/2 measuring 9 biswas out of land measuring (116) situated in revenue estate of village Khureji Khas ? OPP
2. Whether the suit of the plaintiff is barred u/[SECTION] [ACT] ? OPD1
3. Whether the plaintiff is entitled for injunction as claimed for ? OPP
4. Relief.
EVIDENCE
8. In order to substantiate his case plaintiff has examined two witnesses.
9. One Shri [ENTITY] has been examined by the plaintiff as PW2. However, his testimony remained incomplete as he could not be cross examined.
10. Plaintiff has further examined Shri [ENTITY], [ENTITY], Preet Vihar Distt. East, Delhi. He has produced on record the attested copy of [ENTITY] as Ex. PW3/1 and attested copy of khasra girdawri from 27.09.2010 to 09.10.2013 as Ex. PW3/2.
11. Defendants have opted not to lead any evidence.
12. It would be pertinent to mention here that during the course of plaintiff's evidence, plaintiff was examined by this court u/[SECTION] [ACT] r/w [SECTION] of [ACT]. During his examination, the plaintiff has categorically testified that the suit property is now in possession of the defendants and when the defendants have occupied the suit property on the same day, the instant suit was filed by the plaintiff.
13. Consequently, in view of the unambiguous and categorical admission of the plaintiff the matter was listed for considering the withdrawal of the instant suit / leading further evidence in the matter by the plaintiff. Thereafter the plaintiff has opted neither to withdraw the suit nor to lead any further evidence. Even otherwise also the final arguments were heard in light of the categorical admission of the plaintiff himself.
14. I have carefully gone through the entire material on record and heard the submissions of Ld. counsel for the respective parties.
15. My issuewise findings on the abovesaid issues are as under:
Issues No.1.
Whether the plaintiff is in possession of land falling (Sic) in khasra no.35/8/2 measuring 9 biswas out of land measuring (116) situated in revenue estate of village Khureji Khas ? OPP.
16. It is argued by the counsel for plaintiff that the plaintiff is still in possession of the suit property and being an illiterate person he was misled and he gave the statement dated 25.01.2014. It is submitted that the plaintiff infact meant that the defendants took possession of merely 1 bigha and 7 biswas of land and the plaintiff is till date in possession of the suit property.
17. On the contrary it is argued by the counsel for defendants that in light of crystal clear admission of the plaintiff recorded before the court on 25.01.2014, it has been established beyond doubt that the plaintiff is not in possession of the suit property and thus the suit deserves to be dismissed.
18. It would be pertinent to reproduce herein the statement of the plaintiff recorded before the court on 25.01.2014 : "I am the plaintiff in the instant suit. The property in question i.e. a plot falling in Khasra Number 35/8/2 was initially in my possession. A boundary wall was erected at the said plot. I even used to pay the house tax upon the said property. However, subsequently, the defendants raised railings upon the above said property in dispute and have taken possession of the same. The land in question is now in possession of the defendants.
When the defendants have occupied the plot in question, on the very same day, I had filed the instant suit."
19. It is evident that the plaintiff has himself admitted that he is not in possession of the suit property. The words used in the unambiguous and categorical admission viz "the property in question i.e. a plot falling in khasra no. 35/8/2 " clinches the matter. The explanation rendered by the counsel for the plaintiff that the plaintiff was referring to the land already possessed by the land acquisition collector i.e. the land measuring 1 bigha and 7 biswas and not to the suit property is belied from the very statement of the plaintiff himself. The plaintiff has categorically stated that when the defendants have occupied the plot in question, on the very same day the instant suit was filed, meaning thereby that he was referring to suit land only and not the land already under possession of the land acquisition collector.
20. As per [SECTION] of the [ACT], facts admitted need not be proved. Thus I have no hesitation in holding that the plaintiff is not in possession of the suit property. The issue no.1 is accordingly decided in favour of the defendants and against the plaintiff.
Issue no.2.
Whether the suit of the plaintiff is barred under [SECTION] [ACT] ? OPD1
21. It would be pertinent to mention here that on 21.01.2015, defendant no.1 has opted not to press the abovesaid issue and the same was accordingly dismissed as not pressed. Issue no.3.
Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP
22. The plaintiff herein is seeking to protect his possession in the suit property by way of perpetual injunction.
23. It is argued by the counsel for plaintiff that the forefathers of the plaintiff are recorded owners of the suit property. It is further submitted that the plaintiff is in de facto and de jure possession of the suit property. It is further argued that defendant no.2 in para no.1 of preliminary objections of its written statement has itself admitted that the plaintiff is in possession of the suit property. It is argued that since the plaintiff is in settled possession thus the plaintiff is entitled for the protection of his possession by way of permanent injunction.
24. Counsel for the defendants on the other hand have jointly argued that the plaintiff was never in possession of the suit property and false and frivolous suit has been filed by the plaintiff.
25. Perusal of the preliminary objections of defendant no.2 reveals that there is no such admission in their written statement. Although defendant no.1 has admitted that 9 biswas of land out of the acquired khasra no. 35/8/2/2 is still under unauthorized possession of the residents of Radhey Shyam Park and Rasta/gali but they have nowhere admitted that the plaintiff is in possession of the suit property. Rather to the contrary, it has been specifically pleaded that the plaintiff has no right, title or interest over the suit land.
26. As per the plaintiff's case, khasra no. 35/8/2 including the land in question was under acquisition proceedings. The plaintiff was harping upon the fact that since the land acquisition collector has failed to take possession of suit land, he is entitled for the relief of permanent injunction. It has been indisputably established above that the plaintiff was not in possession of the suit property at the time of institution of the instant suit.
27. Hon'ble Supreme Court of India, in case titled as [PRECEDENT]. [PRECEDENT], [CASE NUMBER] observed that: "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
28. It has been observed by the Hon'ble Apex court in the matter of [PRECEDENT] on 25 March, 2008 [CASE NUMBER].
11. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
29. Thus it is evident that a simplicitor suit for injunction is not maintainable once the plaintiff himself admitted that he was not in possession of the suit property. Issue no.3 is accordingly decided in favour of the defendants and against the plaintiff.
30. Consequently in light of my findings upon the above issue no. 1 and 3, I do not have any hesitation in holding that the suit of the plaintiff deserves dismissal. Ordered accordingly. Decree sheet be prepared accordingly.
31. Before parting, this court would prefer to bring on record its anguish towards the cavalier approach of the plaintiff herein.
32. The plaintiff has filed a suit for permanent injunction seeking to protect his possession in the suit property quite conscious of the fact, right from the very inception, that he was not in possession of the suit property on the date of institution of the suit. Record reveals that the father of the plaintiff has also filed [CASE NUMBER] with more or less similar ground. When the father of the plaintiff was unsuccessful in his attempt to procure a temporary injunction order in the said suit, the plaintiff approached Hon'ble Delhi High Court by filing [CASE NUMBER]. The suit of the father of the plaintiff was ultimately dismissed and even the above mentioned [CASE NUMBER] was dismissed by the Hon'ble Delhi High Court vide order dated 24.08.1995 with a categorical observation that "we find that the whole of the area of khasra no. have been acquired and the petitioner does not seems to have any case". The certified copy of the said order is available on record. The plaintiff has opted not to make any mention of the abovesaid litigations in his pleading. The plaintiff has not only concealed the material fact that he was not in possession or similar litigations have already been disposed off but went on further to contest the application filed by defendant no.1 u/[SECTION] [ACT]. Thus it is evident that it is not a case of any inadvertent error or a plebeian's ignorance.
33. Delay in civil litigation is pandemic in nature. The phrase that the civil litigation moves at a snail's pace jeers at the entire machinery involved in the administration of justice. No amount of hard work in expeditious disposal of the cases shall bring down the number of mounting arrears unless a strict vigil is kept at the entry gates itself so that no frivolous or luxurious litigation enters the maintstream and unnecessarily impedes the unsullied flow of justice. The courts of this country owe a duty to the citizens to purge the system and provide expeditious justice to the citizens of the country. The menace of luxurious and frivolous litigation is chocking the entire system and effective steps needs to be taken to cure the malady.
34. Hon'ble Apex Court in the matter of [ENTITY] and others Vs. Nirmala Devi and others, civil appeal no. 49124913/2011, date of decision 04.07.2011 has reminded the trial courts of its duties to check the evil of luxurious and frivolous litigation and impose realistic costs in appropriate cases. The Hon'ble Apex Court has once again reiterated its salubrious observation in the matter of [ENTITY] vs Erasmo Jack De Sequeria (D) date of decision 21 March, 2012 [CASE NUMBER] and cautioned the trial court judges to follow the mandate of imposing realistic costs.
35. The case at hand is a classical example of the class of people who appears to be acting under a misconceived notion that civil courts are junkyards where anything and everything can be dumped and civil court judges are too naive to discern or check the mischief. Therefore, this court is of the considered opinion that this court is not only duty bound to remove such misconceptions but also follow the mandate of the Hon'ble Apex Court in the matter of [ENTITY] (supra) and [ENTITY] (supra).
36. Record reflects that the plaintiff has wasted about three years and three months of precious judicial time. Quantified in terms of number of days the same comes about to be roughly 1185 days (3x365+3x30= 1185). Taking a moderate view, I am of the opinion that atleast a cost of Rs.100/ per day for filing frivolous litigation ought to be imposed upon the plaintiff. Consequently a cost of Rs.1,18,500/ is imposed upon the plaintiff. The said cost be proportionately divided equally between defendant no.1, defendant no.2 and DLSA. A portion of the cost is awarded to DLSA as, in my considered opinion, even the society needs to be recompensated for the losses sustained by it on account of the frivolous litigation filed by the plaintiff.
37. It would further be pertinent to mention here that the plaintiff herein has filed a false affidavit to the effect that he was in possession of the suit land despite conscious of the fact that, at the time of institution of the suit, he was not in possession of the same. Accordingly, let a show cause notice be also served upon the plaintiff directing him to explain as to why appropriate proceedings u/[SECTION] [ACT] be not initiated against him for filing false affidavits before the court.
38. A copy of the instant judgment be also sent to the Ld. Secretary DLSA (East) and worthy Vice Chairman DDA, who may, if required, initiate appropriate proceedings for recovery of the cost amount.
Announced in the open court ( [ENTITY]) on this 29th day of January 2015. ASCJ/JSCC/G. Judge (East) Karkardooma Courts, Delhi.