IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 322 of 2010 alongwith CWP No.7513 of 2010 Reserved on: 2.12.2010. Date of decision: 6.12.2010 CMPMO No.322 of 2010 Narender Pandit …. Petitioner Versus Rogi Kalyan Samiti. ….. Respondent CWP No.7513 of 2010 Narender Pandit …. Petitioner Versus Rogi Kalyan Samiti & anr. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr.Sanjeev Kuthiala, Advocate in both the petitions. For the respondents: Mr.Trilok Jamwal, Advocate for respondent No.1 in both the petitions. _____________________________________________ Deepak Gupta, J.(Oral) 1. These two petitions are being disposed of by a common judgment as virtually identical questions of fact and law are involved in these petitions. 2 CMPMO No.322 of 2010 2. The brief facts of the case are that petitioner, Narender Pandit was allotted shop No.2 in the Regional Hospital, Bilaspur in the year 2003. There is no dispute that the lease was granted only for a period of five years w.e.f. 1.5.2003 to 30.4.2008 on yearly rent of Rs.2,57,000/-. It was also agreed that there would be 5% increase in rent every year. The lease was to expire on 30.4.2008. About one month before the expiry of this lease period, the petitioner filed a suit being Civil Suit No.69/1 of 2008 in the Court of Civil Judge, Bilaspur. In this suit, he alleged that though the lease was initially granted for a period of five years but instead of giving him a shop, the defendant had only given an open space and had asked him to construct the shop and there was an oral understanding between the parties that the shop would be allotted for a further period of five years after the expiry of the initial lease agreement of 30.4.2008 subject to 10% enhancement of the rent. The hospital is being managed by the defendant-Rogi Kalyan Smiti. 3. According to the defendant, the shop given to the plaintiff was on the ground floor of the hospital 3 and the story set up by the plaintiff that he had constructed the shop was absolutely false. It was further stated that the shop which was within the hospital premises was required for setting up of casualty unit inside the hospital. It was specifically denied that there was any understanding or agreement that the lease deed would be renewed for a period of five years after 30.4.2008. Alongwith the suit, the plaintiff filed an application for interim relief praying therein that the respondents be restrained from evicting him from the shop, in question. On 13.1.2009, the learned Trial Court directed both the parties to maintain status quo qua the nature and possession of the shop till final disposal of the main suit. 4. The defendant-Rogi Kalyan Samiti, aggrieved by the order of the learned Trial Court, filed an appeal before the learned District Judge, Bilaspur. During the pendency of this appeal, the plaintiff sent an application to the Deputy Commissioner-cum- Chairman of the defendant-Samiti praying that he may be given an alternative shop in the hospital premises. On 12.8.2009, both the parties made 4 statements before the learned Lower Appellate Court which read as follows:- “Statement of Dr.B.D.Sharma, C.M.O, Regional Hospital, Bilaspur. On oath 12.8.2009 Stated that as per the amicable settlement arrived at between the parties at the intervention of the Court, the respondent/H.P. Rogi Kalyan Smiti, Regional Hospital, Bilaspur is ready and willing to give on licence the medicine shop No.4, situated nearby entrance gate of the Regional Hospital, Bilaspur on monthly licence fee of Rs.14,500/- for a period of 3 years w.e.f. 1.9.2009 with the condition that the licence fee shall be increased at the rate of 5% per annum. I have been authorized by the appellant-H.P Rogi Kalyan Smiti to make this statement being Chairman of the executive council of appellant/Rogi Kalyan Smiti. If however the licence fee of the adjoining medicine shop after fresh auction is increased which is likely to be auctioned on May, 2010, the same licence fee will be charged from the respondent w.e.f. May, 2010. The licence fee deed to this effect will be executed between the parties on or before 1.9.2009. RO&AC District Judge Bilaspur, H.P. Statement of Sh.Narinder Pandit, respondent/plaintiff. Stated that I have heard the statement of Dr.B.D.Sharma, C.M.O, Regional Hospital, Bilaspur, H.P. This offer is acceptable to me. The appellant however, 5 shall not evict me from the disputed shop in my possession till the deed of licence fee is executed between the parties. RO&AC District Judge, Bilaspur, H.P” 5. On the basis of these statements, the appeal was dismissed as compromised and withdrawn. 6. In fact, after this compromise, nothing survived in the main suit itself but the learned Lower Appellate Court directed the parties to appear before the learned Trial Court. A perusal of the statements clearly shows that licence deed was to be executed on or before 1.9.2009. The defendant-Samiti asked the plaintiff to execute the licence deed and to shift from the shop inside the hospital premises to the entrance gate of the hospital but he did not do so. One communication in this behalf was sent on 1.9.2009 and another communication in this behalf was sent on 28.10.2009 to the plaintiff. The plaintiff vide his letter dated 14.9.2009 raised an objection that the shop No.4 to which he was to shift is below the prescribed standards. He also took up the plea that since the stay order passed by the learned Civil Judge on 13.1.2009 had not been specifically modified or set 6 aside, he could not be asked to shift. He sent another letter in this behalf on 31.10.2009 to the Member Secretary, Rogi Kalyan Samiti. Thereafter, on 10.11.2009 and 20.11.2009, the defendant again asked the plaintiff to execute the agreement in terms of the compromise arrived at and to shift his shop. Thereafter, the plaintiff sent another reply on 30.11.2009 and for the first time, took up the plea that the shop No.4 which had been allotted to him did not have electricity or water connection and this infrastructure be first provided before he could shift. 7. The plaintiff also filed CMPMO No.675 of 2009 which came up for admission before this Court on 18.12.2009. After the matter was heard for some time, the learned counsel for the petitioner withdrew the petition with liberty to either approach the Civil Judge or the District Judge. Thereafter, on 12.1.2010, the defendant again sent a letter to the plaintiff as well as to the Secretary, Bilaspur Federation which was occupying the adjoining shop to shift to the new shops. In response to this, the plaintiff wrote that he is willing to shift to the new shop but first electricity meter be provided. 7 8. The plaintiff also filed an application under Section 39, Rule 2-A against the defendant and alleged that the order dated 13.1.2009 had been violated. This application was filed before the learned Trial Court. The application was contested by the defendant but is still pending. From the material on record, it is apparent that the plaintiff also filed an application with the H.P State Electricity Board for grant of electricity meter but this application was rejected on the ground that the same cannot be granted without NOC of the Town and Country Planning as well as the Municipal Committee, Bilaspur. 9. Thereafter, the defendant filed a petition before the learned Trial Court in which it was stated that the plaintiff had not complied with the agreement and compromise entered into before the learned District Judge and, therefore, police assistance be granted to the defendant to evict the plaintiff from the aforesaid shop. The plaintiff contested this application and vide order dated 31.8.2010, the learned Trial Court came to the conclusion that the plaintiff had entered into a compromise and agreed to vacate the shop before 8 the learned District Judge and since he had not abided by the terms of the said compromise, the defendant was entitled to take assistance of the police. This order is the subject matter of challenge in CMPMO No.322 of 2010. 10. I have heard Sh.Sanjeev Kuthiala, learned counsel for the plaintiff-petitioner and Sh.Trilok Jamwal, learned counsel for the defendant- respondent. 11. The first contention raised by Sh.Kuthiala is that in case this application is allowed, the suit itself shall become infructuous. As observed by me above, in fact, if the statements of the parties made before the learned District Judge are read as a whole, the entire suit had come to an end when the compromise itself was effected. Nothing remained to be decided. Once the petitioner-plaintiff vacated the shop and shifted to another shop to be given to him by the defendant-Samiti, no other relief could be awarded to him. Therefore, this contention is rejected. 12. The second contention raised by Sh.Kuthiala is that since the application under Order 39 Rule 2-A is pending, the Court should not have decided the 9 application. In fact, in my opinion, there can be no manner of doubt that the application filed under Order 39 Rule 2-A was totally misconceived because in that application, it was complained that the defendant is violating the order dated 13.1.2009 passed by the learned Trial Court. The order of the learned Trial Court had merged in the compromise effected between the parties which compromise was recorded by the learned District Judge. Therefore, the said order is not in existence any longer and as such, there can be no disobedience of such order. Therefore, this contention is also rejected. 13. The third contention raised by Sh.Kuthiala is that the application was premature. This contention has been made only to be rejected. The compromise was entered into on 12.8.2009 and the parties had agreed that the fresh licence deed would be executed for a period of three years from 1.9.2009. Despite such compromise and various letters being written to the plaintiff by the defendant, the plaintiff did not vacate the premises in his possession and on one pretext or the other avoided to shift from the shop inside the hospital to the one at the gate. I fail to 10 understand how the application can be said to be premature. Therefore, this contention is also rejected. 14. It was next contended on behalf of the petitioner that no case was made out for grant of police assistance since the petitioner was always ready and willing to shift and could not shift only because of the fact that electricity and water had not been provided in the shop and according to the petitioner, provision of electricity was necessary to preserve the life saving drugs which require refrigeration. 15. At the outset, I may state that when the compromise was entered into between the parties, the petitioner had not laid down any conditions that electricity and water had to be provided by the Rogi Kalyan Samiti. The Rogi Kalyan Samiti has never refused to grant ‘No Objection Certificate’ in favour of the plaintiff to get electricity or water connections. It sent him numerous letters asking him to execute the licence deed and shift to the new premises but the plaintiff avoided to do so. In case the plaintiff was only wanting to ensure electricity and water supply, the best course open to him was to have 11 approached the learned District Judge and asked for modification/clarification of the terms of the compromise. This the plaintiff purposely chose not to do and instead virtually took the law into his own hands and started dictating terms to the defendant. He in fact, started threatening them that they were disobeying the order dated 13.1.2009 of the learned Trial Court which could no longer be deemed to be in existence in view of the compromise arrived at between the parties. It was only after the plaintiff had entered into the agreement and sent the licence deed that the Rogi Kalyan Samiti could have issued a ‘No Objection Certificate’ permitted him to take electricity and water connections. As rightly pointed by Sh.Trilok Jamwal, learned counsel for the Samiti, there is sufficient material on record to show that electricity wiring has been provided by the Samiti in the premises. New premises, in question, consist of four shops out of which two are occupied and two have been allotted to the petitioner and the Bilaspur Federation. It has also been proved on record that the two parties who are occupying the premises have on their own obtained electricity and water 12 connections. No landlord or owner of the premises will give a ‘No Objection Certificate’ for grant of electricity/water connection till the lease/licence deed is signed. The plaintiff was told a number of times to sign such licence deed but he did not do so. 16. It is more than obvious that the petitioner wanted to continue running his shop inside the hospital premises and was hunting for one excuse or the other to avoid shifting from the shop which was inside the premises to the shop which was barely less than 100 meters away but at the entrance of the hospital. The manner in which the plaintiff has conducted himself clearly shows that he does not care for the orders of the Court and does not hesitate to make false statements in Court. 17. In the suit filed before the learned Trial Court, the petitioner had alleged that it was he who constructed the shop but this averment is obviously false because the shop is in the ground floor of the hospital. In fact, no such averment has been made by him in the present two petitions. The petitioner who is a chemist totally over-looked the fact that the shop which was in his occupation was required by the Rogi 13 Kalyan Samiti for running the casualty unit. In fact, the petitioner had no right to stay in the premises after 30.4.2008 but after obtaining the stay order on false averments, he managed to drag on the litigation. His plea that he had constructed the shop and had been orally told that he would be given an extension for five years, on the face of it is totally false and not supported by any material. He has, therefore, managed to stay on in the premises after the expiry of the lease deed. 18. It is further argued by Sh.Kuthiala that the petitioner has been discriminated and according to him whereas the petitioner has been directed to be shifted outside the hospital premises, no such order has been passed in respect of the Bilaspur Federation. 19. I am afraid that the petitioner neither in equity nor in law can claim such a relief. Can a petitioner who has made false allegations in Court, overstayed in the premises after the expiry of the licence deed and not complied with the compromise entered into before the District Judge be permitted to raise such an argument? Both the parties before the learned District Judge agreed for extension of time and also 14 agreed that the plaintiff would shift from the shop inside the hospital to the shop situated at the entrance gate of the hospital and the terms thereof were also fixed. On this agreement, the licence deed of the petitioner was also extended for a period of three years from 1.9.2009, i.e., upto 31.8.2012. The petitioner wants to take advantage of the terms but does not want to comply with, what he has to do. First and foremost, he had to sign the licence deed and other things would have followed. Therefore, I find no merit in the contention. CWP No.7513 of 2010 20. As far as this petition is concerned, to put it mildly, it can be said that this is a crude attempt at forum hunting. The reliefs claimed in this writ petition read as follows:- “a. To direct respondent No.1 to act in accordance with law and the principles of natural justice and not to take coercive actions against the petitioner and in favour of respondent No.2 and further to quash and set aside the notice Annexures P-5, P-7, P-10 as also the orders P-16. b. To direct respondent No.2 to provide basic facilities of electricity, water and 15 give requisite No Objection Certificate as also get the No Objection Certificate from the Municipal Council and the Town and Country Planning Department for shop No.4 where the petitioner is being sought to be rehabilitated before evicting the petitioner from shop No.2. c. To direct respondent No.1 not to take coercive action for the vacation of the shop against the petitioner and to evict both respondent No.2 and the petitioner only after providing basic facilities and getting requisite permissions with respect to the proposed shops for rehabilitation. d. To direct the respondent No.1 to act uniformly with the petitioner as also respondent No.2 and to treat them at par, that without discrimination, and to ensure that rights of petitioner U/A 19, 14, 21 of the Constitution are protected. 21. Almost all these reliefs were claimed in CMPMO No.322 of 2010. No doubt, in special circumstances, a party may take recourse to two actions both of filing of a suit and filing of a writ petition but that can only be permitted when the points in the suit and the writ petition are totally different. 16 22. Reliance placed by Sh.Kuthiala on the judgment of the Delhi High Court in M/s. Cycle Equipments (P.) Ltd. and anr. Vs. Municipal Coporation of Delhi and others, AIR 1983 Delhi 94 and Rampuria Brothers Pvt. Ltd. Vs. Calcutta Municipal Corporation and ors. AIR 1998 Calcutta 370 is totally misplaced. Faced with this situation, Sh.Kuthiala stated that he would withdraw the writ petition but he was not permitted to withdraw the same in view of the following observations made by a Division Bench of this Court while admitting the writ petition:- “It is seen from the record of the CMPMO No.322 of 2010 that Annexure P-16 order has been stayed by order dated 3.9.2010 in CMP No.916 of 2010 in the CMPMO. All the related prayers, prima facie, are to be considered in the CMPMO only. According to the petitioner, prayers in the writ petition and CMPMO are different. Prima facie, we find it difficult to consider this submission. Since CMPMO is being considered by the learned Single Judge, we are of the view that whether the writ petition is misuse or abuse of process of law will also be considered by the learned Single Judge while considering CMPMO No.322 of 2010. In that view of the matter, the writ petition is admitted and post alongwith CMPMO No.322 of 2010 on 2.12.2010 before SB-II.” 23. Once the Division Bench has directed this Court to consider the question whether the writ petition is a 17 misuse or abuse of the process of the Court, the petition could not have been permitted to be withdrawn. The only addition made in this writ petition is that the petitioner is being discriminated qua respondent No.2 Bilaspur Federation otherwise these two petitions are virtually identical. 24. It is obvious that the petitioner having realized that he may not get relief from the Single Judge, wherein orders had been passed that no further adjournment shall be granted, decided to take a chance by filing a writ petition. In my opinion, no party can be permitted to act in such a manner. The legal process is meant to assist the honest litigants. Courts are there to serve the public and to see that justice is done. Therefore, it is also expected that people who approach the Court do so with clean hands. A litigant should not try to mislead the Court or over-reach the Court. In this case, the plaintiff has acted in a manner which shows that he has not only tried to mislead the Court but he has also tried to overreach not only the orders of the learned District Judge but also of this Court itself. Therefore, I feel that this is a case where exemplary costs should be 18 imposed upon the petitioner. Therefore, CWP No.7513 of 2010 is dismissed with costs assessed at Rs.25,000/-. 25. As far as CMPMO No.322 of 2010 is concerned, the same also deserves to be dismissed with exemplary costs. In fact, in view of the above discussion, I would have normally held that the petitioner is not entitled to any relief whatsoever and is in fact, not entitled to even get possession of the new shop. However, since Sh.Kuthiala has strenuously urged that the petitioner and his family are dependant upon the shop in question for their livelihood, this petition is disposed of with the following directions:- 1. That the petitioner shall pay exemplary costs of Rs.2 lacs to the Rogi Kalyan Samiti-defendant on or before 15.12.2010. 2. In case the petitioner deposits these costs on or before 15.12.2010 and vacates shop No.2 inside the hospital premises and hands over possession of the same to the Rogi Kalyan Samiti on or before 15.12.2010, the Samiti shall enter into a licence agreement for shop No.4 at the gate of the Regional Hospital, Bilaspur and hand over the possession of the 19 same to the petitioner on or before 16.12.2010 on the terms and conditions contained in the compromise dated 12.8.2009. The licence period of this agreement shall expire on 31.8.2012 and the petitioner shall not be entitled to claim any extension of this lease period as a matter of right. However, the Rogi Kalyan Samiti shall not be debarred from granting a fresh lease/licence in favour of the petitioner on mutually agreed terms and conditions. 3. In case the petitioner-plaintiff enters into the lease deed on 15.12.2010, the Rogi Kalyan Samiti latest by 16.12.2010 shall issue ‘No Objection Certificate’ in favour of the plaintiff for the grant of electricity and water connection and the authorities concerned shall ensure that such electricity and water connections are released in favour of the petitioner on completion of all codal formalities latest by 20.12.2010. It is made clear that the Rogi Kalyan Samiti shall utilize the costs awarded only for the purpose of giving, free life saving medicines to the poor patients, certified in need of such medicines by the CMO, Bilaspur. 20 Both the petitions are disposed of in the aforesaid terms. December 6, 2010 ( Deepak Gupta ) (m) Judge