RFA No.2887 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.12557-CI of 2011 CM No.10027 to 29-CI of 2011 & CM No.7216-CI of 2010 in/and RFA No.2887 of 2010(O & M) Date of Decision:08.09.2011 Chanan Singh & anr. ....appellants Versus State of Haryana & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.G.S.Dhaliwal,Advocate for the appellants **** RAKESH KUMAR GARG, J.(ORAL): Vide award dated 03.04.2008, reference Court Fatehabad had determined the compensation of the acquired land. The landowners are before this Court claiming enhancement in the compensation. Along with this appeal, applications for condoning the delay in filing and re-filing the appeal and to bring on record the applicants as legal representatives of Dalip Singh, have also been filed. Vide CM No.7216-CI of 2010 a prayer has been made to bring on record, Chanan Singh and Mohan Lal @ Mohan Singh sons of Late Dalip Singh, the original landowner, who is stated to have died on 30.06.2008, as his LRs and allow them to pursue this appeal as legal representatives of Dalip RFA No.2887 of 2010(O & M) 2 Singh. The relevant paragraphs No.5 and 6 of this application reads thus: In the meantime, Dalip Singh son of Sh.Munshi Ram has been died on 30.06.2008 leaving behind the following legal representatives: 1. Chanan Singh s/o late Sh.Dalip Singh 2. Mohan Lal @ Mohan Singh s/o late Sh.Dalip Singh Both are residents of Village Boswal, Tehsil and District Fatehabad The copy of Death Certificate of late Sh.Dalip Singh son of Sh.Munshi Ram is annexed herewith as Annexure A-1. That there is no other legal representative of the above said deceased except Legal Representative mentioned in para No.5. The said application is supported by an affidavit of Chanan Singh, applicant. The applicants have filed further application i.e.CM No.4351 to 4353-CI of 2011 for amendment of earlier application i.e.CM No.7216-CI of 2010. The relevant averments of CM No.4352-CI of 2011 reads as follows: In the meantime, Dalip Singh son of Sh.Munshi Ram has died on 30.06.2008 leaving behind the following legal representatives: 1. Chanan Singh s/o late Sh.Dalip Singh 2. Mohan Lal @ Mohan singh s/o late Sh.Dalip Singh both are residents of village Boswal, Tehsil and Distict RFA No.2887 of 2010(O & M) 3 Fatehabad. That the applicants filed the application for bringing on record the representatives of the deceased under Order 22 Rule 2 and 3 of CPC namely Dalip Singh son of Sh.Munshi Ram. That the above said application came up for hearing before this Hon'ble Court. At the time of hearing, it came to light that the application which has been filed under Order 22 Rule 2 and 3 of CPC it should have been filed under the Rules and Orders of Punjab and Haryana High Court, Volume 5, Chapter 1, Part C(i) which provides that legal representatives of deceased parties and appeals by persons who were not parties to the decree or order. That admittedly, the application should have been filed under the Rules and Orders of Punjab and Haryana High Court, Volume 5, Chapter 1, Part C(i) for becoming a party in the aforesaid appeal being legal representatives of the deceased as the applicants were not party before the ld.Trial Court. That the aforesaid mistake has occurred inadvertently and the same in unintentional and bona fide. Therefore, there is a necessity to amend the application already filed in this Hon'ble Court which is Civil Misc.No.7216-CI of 2010. It is, therefore, respectfully prayed that the present application may kindly be accepted and amended application for bringing on record the legal representatives of deceased Dalip Singh son of RFA No.2887 of 2010(O & M) 4 Munshi Ram be placed on record, in the interest of justice. It is also relevant to notice the following additional averments made by applicants in CM No.4353-CI of 2011: That the deceased namely Dalip Singh son of Sh.Munshi Ram had been executed his Will on 17.01.2008 in favour of his two sons mentioned above. Copy of the Will dated 17.01.2008 is annexed herewith as Annexure A-2. The said applications are also supported by an affidavit of Chanan Singh s/o Dalip Singh. This Court passed the following order on 31.03.2011: CM No.4351-53-CI of 2011 Learned counsel for the applicants submitted that he may be permitted to withdraw the present applications on account of certain errors with liberty to file fresh one for the same relief. Dismissed as withdrawn with liberty as prayed. Thereafter, appellants filed CM Nos.10026 to 10028-CI of 2011 dated 01.08.2011. In CM No.10027-CI of 2011, it has been averred as under : In the meantime, Dalip Singh son of Sh.Munshi Ram has died on 30.06.2008 leaving behind the following legal representatives: 1. Smt.Preeto Devi widow of late Sh.Dalip Singh 2. Chanan Singh s/o late Sh.Dalip Singh 3. Mohan Lal @ Mohan Singh s/o Late Sh.Dalip Singh all are residents of village Boswal, Tehsil and District RFA No.2887 of 2010(O & M) 5 Fatehabad 4. Nirmala daughter of late Sh.Dalip Singh now wife of Sh.Mahender Singh , r/o VPO Haiderwala, Tehsil Tohana, District Fatehabad 5. Bhago Devi daughter of late Sh.Dalip Singh, now wife of Sh.Pola Singh, r/o VPO Haiderwala, Tehsil Tohana, District Fatehabad 6. Shakuntala daughter of late Sh.Dalip Singh, now wife of Sh.Roshan Lal, r/o Flat No.94, Defence Apartments, Near Inder Enclave, Piraghari, New Delhi. That the applicants filed the application for bringing on record the representatives of the deceased under Order 22 Rule 2 and 3 of CPC namely Dalip Singh son of Sh.Munshi Ram. That the above said application came up for hearing before this Hon'ble Court. At the time of hearing, it came to light that the application which has been filed under Order 22 Rule 2 and 3 of CPC it should have been filed under the Rules and Orders of Punjab and Haryana High Court, Volume 5, Chapter 1, Part C(i) which provides that legal representatives of deceased parties and appeals by persons who were not parties to the decree or order. That admittedly, the application should have been filed under the Rules and Orders of Punjab and Haryana High Court, Volume 5, Chapter 1, Part C(i) for becoming a party in the aforesaid appeal being legal representatives of the deceased as the RFA No.2887 of 2010(O & M) 6 applicants were not party before the ld.Trial Court. That the aforesaid mistake has occurred inadvertently and the same in unintentional and bona fide. Therefore, there is a necessity to amend the application already filed in this Hon'ble Court which is Civil Misc.No.7216-CI of 2010. It is, therefore, respectfully prayed that the present application may kindly be accepted and amended application for bringing on record the legal representatives of deceased Dalip Singh son of Munshi Ram be placed on record, in the interest of justice. It may also be noticed that in CM No.10028-CI of 2011 a further averment has been made, which reads thus: In the meantime, Dalip Singh son of Sh.Munshi Ram has died on 30.06.2008 leaving behind the following legal representatives: 1. Smt.Preeto Devi widow of late Sh.Dalip Singh 2. Chanan Singh s/o late Sh.Dalip Singh 3. Mohan Lal @ Mohan Singh s/o Late Sh.Dalip Singh all are residents of village Boswal, Tehsil and District Fatehabad 4. Nirmala daughter of late Sh.Dalip Singh now wife of Sh.Mahender Singh , r/o VPO Haiderwala, Tehsil Tohana, District Fatehabad 5. Bhago Devi daughter of late Sh.Dalip Singh, now wife of Sh.Pola Singh, r/o VPO Haiderwala, Tehsil Tohana, District Fatehabad 6. Shakuntala daughter of late Sh.Dalip Singh, now RFA No.2887 of 2010(O & M) 7 wife of Sh.Roshan Lal, r/o Flat No.94, Defence Apartments, Near Inder Enclave, Piraghari, New Delhi. Copy of the Death Certificate dated 14.07.2008 of late Dalip Singh son of Sh.Munshi Ram is annexed herewith as Annexure A-1. That the deceased namely Dalip Singh son of Sh.Munshi Ram had been executed his Will on 17.01.2008 in favour of his two sons mentioned below: 1. Chanan Singh s/o late Sh.Dalip Singh 2. Mohan Lal @ Mohan Singh s/o Late Sh.Dalip Singh all are residents of village Boswal, Tehsil and District Fatehabad Copy of the Will dated 17.01.2008 is annexed herewith as Annexure A-2. That the applicants filed similar application bearing No.4351-53-CI of 2011 before this Hon'ble Court which came up for hearing before this Hon'ble Court on 31.03.2011 and following order was passed: Applicants also sought amendment in CM No.7216-CI of 2010 by filing CM No.12557-CI of 2011 dated 06.09.2011. The relevant averments read as under: That the above said application came up for hearing on 18.01.2011 before this Hon'ble Court and during the arguments, the Hon'ble Court pointed out that the application which was filed for bringing on record the legal representative of deceased namely RFA No.2887 of 2010(O & M) 8 Dalip Singh son of Sh.Munshi Ram should be amended. That the applicants/appellants filed the amended application for bringing on record the legal heirs of deceased Dalip Singh which came up for hearing on 02.08.2011 before this Hon'ble Court. That it is pertinent to mention here that on 02.08.2011 when the amended application came up for hearing before this Hon'ble Court, during the course of arguments the Hon'ble Court pointed out that the application under Order 6 Rule 17 of CPC to seek permission for amendment in Civil Misc.No.7216-CI of 2010 should be filed. It is also useful to refer to the orders passed by this Court on 18.01.2011 and 02.08.2011: Present: Mr.G.S.Dhaliwal, Advocate for the appellants On written request of learned counsel for the appellants, adjourned to 31.03.2011. 18.01.2011 -sd- (Rajesh Bindal) Judge Present: Mr.P.K.Ganga, Advocate for the appellants On request, adjourned to 08.09.2011. 02.08.2011 -sd- (Rakesh Kumar Garg) Judge Thus,in para No.5 of CM No.7216-CI of 2010, it has been specifically averred that Dalip Singh son of Munshi Ram had died on 30.06.2008 leaving behind the applicants namely Chanan Singh and RFA No.2887 of 2010(O & M) 9 Mohan Lal @ Mohan Singh, as the only legal representatives. In para No.6, again a specific averment has been made that there is no legal representative of the deceased except the legal representatives as mentioned above. It is specifically mentioned in the said application that there is no other averment regarding the other LRs of Dalip Singh. Not only this, in the applications, CM No.10027-CI of 2011 which are purported to have been filed afresh, no such averment has been made and only submission has been made that the application should have been filed for filing the appeal through the applicants under High Court Rules and Orders instead of provisions of the Civil Procedure Code. It may also be seen that in the aforesaid application, it has been mentioned that Dalip Singh, deceased has left behind two sons, three daughters and widow as his LRs, whereas in CM No.7216-CI of 2010, it has been specifically averred that Dalip Singh has not left behind any other legal heir except the applicants Mohan Singh and Chanan Singh. Applicants further made submission in CM No.10028-CI of 2011 to the effect that Dalip Singh had executed Will dated 17.01.2008 in favour of applicants i.e.Chanan Singh and Mohan Singh only and there is no mention of Will dated 17.01.2008 of Dalip Singh in their first application i.e.CM No.7216-CI of 2010. Moreover, vide CM No.12557-CI of 2011, an amendment has been sought in the CM No.7216-CI of 2010 making averments that on 18.01.2011 this Court had pointed out that CM No.7216-CI of 2010 for bringing on record the legal representatives of deceased namely Dalip Singh s/o Munshi Ram, should be amended and that on 02.08.2011, this Court had observed that amendment should be sought in CM No.7216-CI of 2010. A perusal of the orders passed by this Court on 18.01.2011 and 02.08.2011 shows that no such order was passed by this Court as averred. It is pertinent to mention that in the said application for amendment no RFA No.2887 of 2010(O & M) 10 other averment has been made as to why amendment is sought except as stated above. Thus, this court has been given a misleading impression that amendment in CM No.7216-CI of 2010 is being sought at the asking of the Court. The application is wholly misconceived and against the record of this Court. From the facts, it is made out that a calculated effort has been made to mislead this Court. Once the averments made in these applications, as noticed above, are perused, it is crystal clear that the applicants have tried to conceal the factum of other LRs of Dalip Singh i.e.not filing the appeal and bringing on record all the legal representatives of the deceased Dalip Singh, in the first instance. False pleas have been raised before this Court and an attempt has been made to mislead this Court. A person must come to the Court with clean hands, must not suppress any relevant facts from the Court, must refrain from making misleading statements and from giving incorrect information to the Court. It is also useful to refer to the observations of the Hon'ble Supreme Court in S.P.Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs,.and others, AIR 1994 Supreme Court 853, observed as under: “The principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigations 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, taxevaders, bank loan dodgers and other unscrupulous persons from all walks of life find the RFA No.2887 of 2010(O & M) 11 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.” What treatment should be given to such like litigants, an answer was given by the Hon'ble Supreme Court in Dalip Singh v. State of Uttar Pradesh and others, (2010) 2 Supreme Court Cases 114, in which, it was held as under :- “A party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. A person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. Jurisdiction under Articles 32 and 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the RFA No.2887 of 2010(O & M) 12 claim.” After relying upon the aforesaid judgements, CWP 865 of 2006 was dismissed by this Court on 23.2.2011 with costs of Rs.1,00,000/-. The operative part of the said order reads thus: “In view of non-disclosure of material facts and also mis-statement of the facts before this Court, we are not inclined to give any relief to the petitioners who- soever. Accordingly, this writ petition is dismissed with costs of Rs.1,00,000/- to be deposited by the petitioners with the Secretary of UT Chandigarh Legal Services Authority within a period of one month, failing which, Secretary of the said Authority will be at liberty to recover the said amount by initiating proceedings as per law.” It is also appropriate to refer to the observations of Hon'ble the Supreme Court made in Salem Advocate Bar Association v. Union of India, 2005(3) R.C.R. (Civil) 530, which reads as follows:- “Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to RFA No.2887 of 2010(O & M) 13 follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefor. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer's fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.” Thus, it has been noticed in the aforesaid judgement that the costs are imposed so that the same:- (a) should act as a deterrent to vexatious, frivolous and speculative litigations or defences and the spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. (b) costs should ensure that the provisions of the Code, Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court. Hon'ble the Supreme Court in the case of Vinod Seth v. Devinder Bajaj & Another, 2010(3) R.C.R. (Civil) 813 observed as RFA No.2887 of 2010(O & M) 14 under:- “26. The provision relating to compensatory costs (Section 35A of the Code) in respect of false or vexatious claims or defences has become virtually infructuous and ineffective, on account of inflation. Under the said section, award of compensatory costs in false and vexatious litigation, is subject to a ceiling of Rs.3,000/-. This requires a realistic revision keeping in view, the observations in Salem Advocates Bar Association (supra). Section 35B providing for costs for causing delay is seldom invoked. It should be regularly employed, to reduce delay. 27. The lack of appropriate provisions relating to costs has resulted in a steady increase in malicious, vexatious, false, frivolous and speculative suits, apart from rendering Section 89 of the Code ineffective. Any attempt to reduce the pendency or encourage alternative dispute resolution processes or to streaming the civil justice system will fail in the absence of appropriate provisions relating to costs. There is therefore an urgent need for the legislature and the Law Commission of India to re-visit the provisions relating to costs and compensatory costs contained in Section 35 and 35A of the Code.” The Hon'ble Supreme Court in State of Uttaranchal v.Balwant Singh Chaufal and others, 2010(1) RCR (Civil) 842, has held that the Court should also ensure that the petitions filed for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions RFA No.2887 of 2010(O & M) 15 filed for extraneous considerations. In view of the aforesaid law laid down and to curb the tendency of misleading statement of facts, this Court deems appropriate to impose the costs upon the applicants-appellants which are assessed at ` 1 lac to be deposited with State Legal Services Authority, U.T.Chandigarh. In view of the aforesaid facts, as noticed by this Court, no relief can be granted to such a litigant and the appeal is dismissed without going into the merits of the appeal. (RAKESH KUMAR GARG) JUDGE 08.09.2011 neenu