Hon'ble Arvind Kumar Tripathi (II),J.
(Delivered by Prakash Krishna, J.) Appeal stands admitted. The record has been received.
This is defendants' appeal under section 96 of Code of Civil Procedure against the original judgment and decree dated 3rd March, 2012 passed in O.S. No.57 of 1999 whereby the suit for recovery of possession by evicting the defendants and for recovery of damages @ Rs.3,000/- per month has been decreed.
Satya Prakash Goel, the plaintiff, instituted the aforesaid suit in respect of the property known as 2/1406/214, Chandra Nagar, Saharanpur. Indisputably, the plaintiff respondent (hereinafter referred to as the plaintiff) is the owner thereof. The suit was filed against Ajai Goel, Vinay Goel sons of Chandra Prakash Goel and Chandra Prakash Goel (hereinafter referred to as the defendants). The parties are closely related with each other. Satya Prakash Goel, the plaintiff and Chandra Prakash Goel who is the defendant no.3, are brothers and Ajai Goel and Vinay Goel, the defendant nos. 1 and 2 are nephews of the plaintiff.
The plaint was filed on the pleas inter alia that the plaintiff is the owner of the property in question and the defendants without any right or authority illegally occupied the property in question in absence of the plaintiff in the month of April, 1998. The defendant no.1 obtained the electric connection by giving a false affidavit to the Electricity Department claiming himself as the owner of the property in question and has started a business of selling of marble stones. The parties being closely related, the plaintiff requested the defendants to vacate the disputed property and ultimately, he served a legal notice dated 7th November, 1998 requesting them to hand over the peaceful possession but the defendants paid no heed to it. Instead, in reply, they set out a false case that they are tenants of the plaintiff on a monthly rent of Rs.300/- since the year 1997. It was also falsely stated by them that the construction standing thereon belongs to them. The suit was filed claiming damages at the Rs.3,000/- per month for a period of ten months from April, 1998 to the date of presentation of the plaint. Future damages was also claimed.
The suit was contested by filing a joint written statement by the defendants. The defendants did not deny the ownership of the plaintiff over the property in dispute. They took a stand that the property in dispute is in the nature of a piece of land and was earlier in the possession of one partnership Firm namely Kumar & Company and in the said partnership Firm the plaintiff was one of the partners. Subsequently, he withdrew himself and his wife Smt. Dulari was made partner in his place. The said Firm has been paying the municipal taxes. In the year 1997, Ajai Goel and Vinay Goel, the defendant nos. 1 and 2 who were partners in the business under the name and style of M/s. AB Enterprizes, took the property in dispute on rent from the plaintiff for the purposes of godown. At the time of letting, it was in the shape of open vacant land surrounded by the boundary wall and the tenant raised construction thereon with the consent of the plaintiff. The rent was at the rate of Rs.300/- per month and they have constructed a tin shed out of their own expenses and their possession is not unauthorised one. The allegation that the standing construction belongs to the plaintiff, was denied. The plea that the suit is undervalued and insufficient court fees has been paid, were also raised.
The trial Court on the basis of the pleadings of the parties framed the following issues:-
1. Whether the defendants have taken the possession of the property in dispute unauthorisedly in the month of April, 1998, as pleaded in the plaint? If so, its effect.
2. Whether the plaintiff is entitled to get damages @ Rs.3,000/- per month from the defendants?
3. Whether the plaintiff is entitled to get damages @ Rs.3,000/- per month from the defendants?
4. Whether the suit has been undervalued and court fees paid thereon is insufficient?
5. Whether the suit is bad for misjoinder of defendant no.3 as a party?
6. Whether the property in dispute was taken on rent by the defendant nos.1 and 2?
7. Whether the defendant nos.1 and 2 after taking the property in dispute on rent have raised tin-shed etc., as pleaded in the written statement?
8. To what relief, if any, the plaintiff is entitled?
The parties led evidence oral and documentary in support of their respective cases. The plaintiff has examined himself as PW/1 and has denied any kind of tenancy with respect to the disputed property with the defendants. He also filed various documents in the shape of municipal extracts, receipts showing payment of municipal taxes etc. and copies of the application filed and affidavit of contract filed and executed by the defendant no.1 with the U.P. State Electricity Board with regard to a new electricity connection in respect of the property in dispute.
The defendant no.1 examined himself as DW/1. He also examined his brother Rakesh Kumar Agrawal as DW/2. The defendants pleaded the tenancy in his favour given by the plaintiff. He has also deposed that the construction in the shape of tin shed was raised by him. They also filed various documentary evidence such as copy the extract of account of the partnership Firm namely Kumar & Company. Documentary evidence was also filed to show that earlier municipal taxes were paid from the account of the said partnership firm namely Kumar & Company. Certain documents in the nature of application given by the defendants to the Trade Tax Department informing that the Firm has come into possession of the property and has been using it as a godown and copy of the application for obtaining telephone connection, were filed, besides the other documentary evidence which will be referred at the appropriate place.
It appears that the plea regarding the valuation of the suit and the court fees was decided as preliminary issue. The trial Court after obtaining the market value of the property in dispute held that proper court fees was not paid and the suit was not properly valued. Resultantly, the valuation of the suit was enhanced to Rs.22,08,563/- and the total court fees payable thereon comes to Rs.1,66,083/-. The deficiency in court fees was made good and the valuation of the suit was amended accordingly.
The trial Court considered the issue nos. 1 and 6 together and found that the theory of tenancy as set up by the defendants is baseless and incorrect. It has taken into consideration, according to the own showing of the defendants, that the market value of the property in dispute was shown more than Rs.60 Lakhs and it does not appeal to reason that a prudent person would let it out on paltry sum of Rs.300/- per month. It has been found that that the name of the plaintiff is recorded over the disputed property in Nagar Palika Parishad, Shaharanpur. The copies of the account of M/s. Kumar @ Company are not admissible nor proved. The original account books of M/s. Kumar & Company were not produced for comparison and verification. The contents of the application for electricity connection signed by the defendant no.1 is just contrary to his case as set out in the written statement. The other documents were found unreliable. Under issue nos. 2 and 3 it has been found that the defendants are in unauthorised occupation since April, 1998 and they are liable to pay damages @ Rs.3,000/- per month for its use and occupation. Under issue no.5 it was found that the defendant no.3 being father of the defendant nos. 1 and 2 was a necessary party as he supported them and was found in occupation of the property in dispute. The plea that the defendants raised tin-shed and other constructions on the property in question was negated under issue no.7. Under issue no.8 it was found that the plaintiff is entitled for the relief claimed by him.
Heard Shri Ashish Kumar Singh and Sri Ajai Kumar Singh, learned counsel for the appellants and Sri Manish Goel, learned counsel for the respondents in opposition of the appeal and in support of the cross objection filed by the respondent. The respondent has filed a cross objection in so far as the decree of the Court below refuses payment of cost to the plaintiff, to award the cost of suit. It is accompanied with an application for condonation of delay. The office has reported that the said cross objection is barred by time by eighty seven days.
The main plank of the argument of learned counsel for the defendant- appellants is that there is voluminous evidence on record to show that the defendants took the property in dispute on rent in the month of September, 1997 and raised constructions thereon. The plaintiff ought to have amended its plaint with regard to the date of occupation. The contention of the plaintiff that they have taken the unauthorized possession of the property in dispute in the month of April, 1998, is incorrect. Elaborating the argument, it was submitted that the property in dispute was earlier in occupation of M/s. Kumar & Company, a partnership Firm, wherein the plaintiff was earlier a partner, subsequently he retired and in his place his wife was introduced as a partner. The partnership Firm was paying the municipal taxes all through as is evident from the copies of the accounts of the said partnership Firm as also from the certificate given by the banker of the said Firm. To prove that the defendants were tenant since before April, 1998, copy of the application filed before the Post and Telegraph Department for taking telephone connection as also the copy of the letter of the defendant no.1 given to the Trade Tax Department informing them that they have come into possession over the property in dispute and using it as a godown were filed. They are sufficient to establish their possession prior to April, 1998. It was also argued that the tenancy was oral and the plaintiff is in habit of letting the property out without executing any document. Reliance was placed on certain documents to show that he had earlier let out some other property orally.
Refuting the contention of the appellant, Sri Manish Goel, learned counsel for the plaintiff, on the other hand, submitted that this is a case of grabbing the property of the plaintiff by the defendants who happened to be near relatives. The plaintiff is residing at Dehradoon and the property in dispute is situate in District Saharanpur. Taking advantage of the absence of the plaintiff the defendants who are nephews and brother took the illegal possession of the property in dispute. Reference was made to the documents filed by the defendants to show that those documents are worthless papers and they were procured and created for the purposes of making out a case of tenancy. These documents do not corroborate the defendants' case at all and are not genuine documents.
Considered the respective submissions of the learned counsel for the parties and perused the record.
Before proceeding further it may be noted that the fact that the plaintiff is the exclusive owner of the property in dispute was not disputed either in pleading or in evidence before the Court below. Pointedly, a query was put to the learned counsel for the appellants in this regard who candidly stated that he does not dispute the plaintiff's ownership over the disputed property. The plea of the tenancy has been set out by the defendants in their defence and they have to prove it. The burden lay upon them to establish by cogent evidence to prove any such tenancy given by the plaintiff in their favour.
The defendants have come out with a case of oral tenancy given by the plaintiff in their favour. A reading of the paragraph nos. 7 and 8 of the written statement would show that without specifying the nature of possession, the defendants pleaded that the disputed property was earlier in possession of the Kumar and Company which was paying municipal taxes. In the year 1997, the defendant nos.1 and 2 for their partnership business of M/s. AB Enterprizes took the said property for the purposes of godown with the consent of Kumar & Company to which the plaintiff agreed upon. According to the defendants they took the property in dispute with the consent of M/s. Kumar & Company for the business purposes of M/s. AB Enterprizes. In the statement DW/1 has stated that the said premises was taken on rent for M/s. AB Enterprises'. He further states that when he took the property on rent Vinay Goel, the defendant no.2 was one of the partners in the said Firm. In support of the above plea, the defendants have heavily relied upon certain documents referred hereinafter. Much emphasis was laid that it was M/s. Kumar & Company which was paying municipal taxes. The Court was taken through the extracts of the account of the said Firm filed in the suit. The Court below has refused to consider them and in our view rightly so as the original account books of the said Firm were neither produced nor anybody was called to depose about the genuineness and correctness of those accounts. Even otherwise also, the mere payment of municipal taxes as has been the case of the defendants by M/s. Kumar & Company, in our opinion will not make any difference. Admittedly, the plaintiff is the owner of the property in question and he was the partner in the said Firm. There is neither any document nor pleading to show that the property in dispute was at any time partnership property of M/s. Kumar & Company. In what capacity, if any, Kumar & Company was in occupation of the disputed property has not been stated or proved. It appears that the defendants have tried to confuse the issue as the father of the defendant nos.1 and 2 happened to be one of the partners in the said Firm.
Then, the counsel for the appellant taken the Court to one of the letters dated 2nd of December, 1997 written by the defendant no.1 addressed to the Trade Tax Officer, Sector 6, Saharanpur as partner of the M/s. AB Enterprizes informing the department that he has taken a godown in Chandra Nagar wherein he will store his business items. The boundaries of the godown have been described therein. The information given in the said letter is as vague as it could be. The disputed property has distinct municipal No.2/1406/214. In the said letter, the house number/municipal number has not been mentioned purposely. The boundaries of the godown described therein show that there are roads on two sides i.e. towards North and East. The names of these roads are missing. The said information given by the defendant no.1 is in the nature of self serving statement and no reliance can be placed upon it. Even in the said document, it is not mentioned therein that he has taken the said property on rent from its owner namely the plaintiff. This document, therefore, is a worthless document being in the nature of self serving statement. The document was drawn by the defendant no.1 to create evidence for the purpose of the present case.
The learned counsel for the appellants has also referred a copy of application dated 20th October, 1997 given to the department of Telecommunications which is in the nature of an 'application form' for telephone connection. We have perused the said document and are of considered opinion that it has no evidenciary value. Firstly, the relevant columns such as Flat number, building/apartment name, street or road number, locality, area etc. all are left blank. It contains only name of the applicant, father's name and address i.e. Chandra Nagar, opposite Shashi Pal Pundir, MLA. The document does not show anything being incomplete besides the fact that the relevant columns have been left blank, no reliance upon it can be placed. It is not connected with the property in dispute. It is not a complete document. Even otherwise also, from the said document, the contract of tenancy between the parties cannot be established.
As against the above, the plaintiff filed certain documents relating to the electricity connection of the property in dispute obtained by the defendants. The plaintiff obtained copies of those documents under the Right to Information Act. One of them is the affidavit of the defendant no.1 given to the Executive Engineer, Nagar Vidyut Vitran Khand, Saharanpur in connection of a new electricity connection. The said affidavit is dated 23rd March, 1998. In the affidavit, the defendant no.1 has stated that he is the possession for the last 11-12 years of the property in dispute and is the only heir. There is an application along with affidavit of the defendant no.1 signed by him. It is dated 6th of April, 1998 and also contains his photograph. The other documents such as declaration given on stamp paper as also the order sanctioning the electric load are there. The case of the plaintiff is that the defendants illegally occupied the property of the plaintiff in his absence in the month of April, 1998. They have given false affidavit in the electricity department claiming himself as the owner of the property, vide para 3 of the plaint. The affidavit and application referred to above was confronted to the defendant no.1 when he was in the witness box. He admits his photograph on the application form and gave an evasive reply that the said documents are forged documents. He denies his signature. His denial has been disbelieved by the trial Court. On examination of the affidavit and the application etc. we are of the opinion that the inference drawn by the trial Court is perfectly justified. Neither in the affidavit nor in the application, the defendant no.1 has stated that he is the tenant of the property in dispute or the property in dispute has been taken on rent for the partnership business, i.e. M/s. A.B. Enterprizes and the plaintiff is the landlord. On the contrary, the defendant no.1 claims himself as the only heir and his occupation for the last 11-12 years. Had there been any contract of tenancy in the year 1997, as pleaded by the defendants in their written statement, this fact must have found mention in the application form and in the affidavit referred to above.
In none of the documents relied upon by the defendants, it finds mention that the defendant is in occupation of the property in dispute in the capacity of a tenant. Even in the application for telephone connection or information give to the Trade Tax Department referred to above, it does not find mention that the defendant is in the occupation of the property in dispute as tenant on behalf of the plaintiff.
Pointedly, a query was put to the learned counsel for the appellant to refer the document, if any, to show wherefrom an inference of tenancy in favour of the defendants could be drawn but he failed to show. He could not refer even any such circumstance from which an inference of tenancy could be drawn between the parties. The whole emphasis was that it was Kumar & Company which paid the municipal taxes at some point of time and even if it is so, how inference of contract of tenancy between the parties can be drawn, we fail to understand. A contract of tenancy is transfer of immovable property by one person called lessor to another person called lessee for consideration. There is no iota of evidence to show the payment of any rent by the defendants to the plaintiff. According to the defendants the property in dispute was leased out to M/s. AB Enterprises, a partnership Firm. The payment of rent, if any, has not been shown by filing the account books of the said Firm to the plaintiff. In the deposition, the DW/1 has accepted that he has not paid any rent to anybody after the receipt of notice dated 7th November, 1998. Payment of any amount towards rent is also established.
In view of the shifting stand taken by the defendant no.1 in his deposition as DW/1 that it is he who took the property in dispute on rent from Satya Prakash on 1.9.1997, but at a later stage the disputed property was taken on rent by M/s. AB Enterprizes, no reliance can be placed on him. The attending facts and circumstances of the case, also negate the theory of letting the property in question on monthly rent of Rs.3,000/- by the plaintiff to the defendants. According to the defendants, the property in dispute is of value more than Rs.60 Lakhs. Commission was issued to find out the market value of the property in dispute. Valuation report is on the record. The trial Court has fixed its market value at Rs.21,75,563/-. Such a valuable property could not be let out by a man of ordinary prudence at the rate of Rs.300/- per month and that too to a person with whom he is in litigation. In further cross examination the defendant no.1 accepts that neither he nor the defendant no.2 applied for telephone and electricity connections in the Firm's name but applied in his personal capacity. This belies the defendants' case that the property was taken on rent by the Firm. There is no whisper in any of these documents that new telephone connection has been sought for by the applicant as a tenant and or consent of the landlord is there. Obviously, the defendants have not come forward with true facts and their defence is based on wrong and incorrect facts. When the witness was further grilled he took the shelter that he does not remember as to whether in the application it is mentioned that he is seeking the connection for M/s. AB Enterprises or not.
It will not be out of place to mention here that the plaintiff has filed municipal extracts of various periods showing the recording of his name over the property in dispute. There is no mention in any of these documents about the occupation of M/s. Kumar & Company. Therefore, the earlier occupation of M/s. Kumar & Company is not proved.
Viewed as above, we find that the finding recorded by the trial Judge that the defendants have failed to prove the contract of tenancy between the parties in respect of the property in dispute is perfectly justified. The inference drawn by it is based on correct appreciation of the evidence on record. Any other inference from the material on record is not possible.
The learned counsel for the appellant did not urge anything with regard to the finding recorded by the trial Court under issue no.7 holding that the standing construction on the disputed land does not belong to the defendants. The said finding is also confirmed.
Now, coming to the cross objection, we find that the trial Court has not awarded the cost to the plaintiff. The cross objection has been reported to be beyond time by 87 days when presented before the Stamp Reporter. The said report is incorrect as the Stamp Reporter has reported the period of limitation from the date of the judgment for the purposes of filing an appeal. The limitation for filing cross objection under Order 41 Rule 21 CPC is one month from the date of service of notice by the Appellate Court of the date fixed for hearing the appeal or within such further time as the Appellate Court may deem fit to allow. The appeal was not admitted and as such no notice was issued by the Appellate Court to the respondents. Thus, the period of limitation strictly speaking has not started running. Apparently, the Stamp Reporter has calculated the period of limitation from the date of the judgment on the supposition as it is an appeal and has reported 87 days' delay in its filing. The respondent has valued the cross objection at Rs.1,66,312.50 and has paid a court fees of Rs.12,895/-. Firstly, we are of the opinion that there is no delay in filing the cross objection and even if there is a delay, it is a fit case to condone the delay in its filing. We, accordingly, condone the delay and allow the application for condonation of delay.
Section 35 of CPC provides that the Court shall have power to give all necessary direction for the purposes of payment of an incident to all suits to the concerned parties. It further provides that such direction shall be in the discretion of the Court. It goes to the extent of providing that even if the Court has no jurisdiction to try the suit, it shall not be barred to exercise the power awarding cost. Its sub section (2) is relevant for the present purposes. It says that where the Court directs that any cost shall not follow, in that event, the Court shall state its reason in writing. This is indicative of the fact that ordinarily, the cost shall follow the event. In other cases, the Court shall give its reason for not awarding the cost to the successful party. Coming to the facts of the case, we find that the trial Court has decreed the suit in its entirety and has not found that the claim of the plaintiff was in any manner inflated or untenable. In the last sentence of the operative order without assigning any reason, the Court has directed that the parties shall bear their own cost. The said part of the order being in breach of sub section (2) of section 35 cannot be allowed to stand. It is bereft of any reason. We do not find any good ground not to award the cost of the suit payable buy the defendants to the plaintiff.
In Ashok Kumar Mittal Vs. Ram Kumar Gupta (2009) 2 SCC 656, the Supreme Court has observed that the more sound view is that though award of costs is within the discretion of the Court, which is subject to such terms and limitations as may be prescribed and subject to the provisions of any law for time being in force. There is no question of exercising inherent power contrary to the specific provisions of the Code. Further in paragraph 9 of the report it has noticed that the present system of levying meagre costs in civil matter (or no costs in some matters), no doubt is wholly unsatisfactory and does not act as an deterrent to vexatious or luxury litigations borne out of ego or greed, or resorted to a 'buying-time' tactics. More realistic approach relating to the cost may be the need of hour. It suggested that the matter regarding award of actual or more realistic costs should engage attention of the Law Commission of India.
We cannot loss sight of the fact that the Supreme Court in the recent pronouncement had observed that effort should be made by the Court to see that unscrupulous litigants be prevented from taking undue advantage by invoking the jurisdiction of Courts. A person in wrongful possession should not only be removed from that place as early as possible but he be compelled to pay for wrongful use of that property fine, penalty and cost. Any leniency would seriously affect the credibility of the judicial system vide Indian Council for Enviro - Leal Action Vs. Union of India 2011 JT (8) SC 375.
In Indian Council for Enviro Legal Action Vs. Union of India and others, JT 2011 (8) SC 375 it has been observed that the 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 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 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 to be to discourage unjust enrichment using Courts as a tool.
In V. Chandrasekaran and another v. The Administrative Officer, JT 2012 (9) SC 260, the Supreme Court has observed that the judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same.
In Dalip Singh v. State of U.P. & Ors., (2010) 2 SCC 114, the Supreme Court noticed an altogether new creed of litigants, that is, dishonest litigants and went on to strongly deprecate their conduct by observing that, the truth constitutes an integral part of the justice delivery system. The quest for personal gain has become so intense that those involved in litigation do not hesitate to seek shelter of falsehood, misrepresentation and suppression of facts in the course of court proceedings. A litigant who attempts to pollute the stream of justice, or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
The truth should be the guiding star in the entire judicial process. "Every trial is a voyage of discovery in which truth is the quest". An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677; and Amar Singh v. Union of India, (2011) 7 SCC 69).
In Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (dead), (2012) 5 SCC 370), the Supreme Court taking note of its earlier judgment in Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 held: "False claims and defences are really serious problems with real estate litigation, predominantly because of ever- escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our courts. If pragmatic approach is adopted, then this problem can be minimised to a large extent." The Supreme Court further observed that wrongdoers must be denied profit from their frivolous litigation, and that they should be prevented from introducing and relying upon, false pleadings and forged or fabricated documents in the records furnished by them to the court.
Viewed as above, the present case also falls in the category of the cases referred to above, where the defendants have taken advantage of the absence of the plaintiff from the spot and entered into unauthorized occupation of the property in dispute and set up false claim known to them with a view to maintain their illegal possession over the property in dispute. The record further shows that they could be served with summons of the suit when the notice was published in the newspaper. Attempts were made to stall the proceedings of the suit by filing frivolous revision/writ petition before this Court which came to be dismissed, the judgments are on record. They do not deserve any kind of sympathy or leniency.
In the result, the appeal fails and hereby is dismissed with costs throughout.
The cross objection filed by the plaintiff respondents stands allowed and it is provided that the plaintiff is also entitled for the cost of the suit, of this appeal and of the cross objection as well.
The office is directed to send down the record to the trial Court.