1. I have Heard learned counsel for the parties and have gone through the records.
2. Both these cases relate to the same judgment, hence I proceed on to decide both these cases together.
3. Brief facts, giving rise to this appeal are, that respondent No. 1 filed original suit No. 61/1980 for permanent injunction against the appellants in the Court of Civil Judge, Sultanpur, which was dismissed with costs. The plaintiff filed Civil Appeal No. 159/91, which was allowed and the suit for injunction was decreed, against which, this second appeal has been preferred. In the meantime, the appellants filed application under Order XXXXI Rule 21, Section 51 C.P.C. before the learned Appellate Court to the effect that the Counsel was not heard and the appeal was heard ex-parte. Learned Appellate Court registered it as miscellaneous case No. 34/1994 by which the application was rejected by a detailed order. The sorry state of affairs was that in this miscellaneous case before the learned First Appellate Court, two advocates filed affidavit and counter affidavit from both sides. The Learned First Appellate Court has reached to the conclusion that the counsel of the plaintiff appellant was very well present, but he did not prefer to argue the appeal. On this score, the judgment and order dated 22.09.1993 shows that the Learned First Appellate Court has specifically mentioned , after hearing the submissions made by the learned counsel for the parties, "It is absurd to say that the counsel was not present to argue the case. Thus, the facts of this second appeal as well as FAFO makes out a case of sheer abuse of the process of the Court. The appellants are simply dragging the other parties to call for a litigation so as to prolong it after being lost from the first appellate Court.
4. If, for the sake of arguments, it is considered that his counsel did not appear or his arguments were not heard, this is not a case in which a second appeal lies under section 100 of the Code of Civil Procedure. In Sir Chunnilal V. Mehta & & Sons Ltd. Vs. Century Spinning and Manufacturing Co. Ltd.,A.I.R. 1962 S.C., 1314, the Hon'ble Apex Court for the purposes of determining the issue has held : reported in "The proper test for determining whether a question of law raises in the case is substantial, would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties."
5. Further in Rajeshwari Vs. Puran Indoria, reported in (2005) 7 S.C.C., 60, it was held :
"The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine-quanon for the exercise of jurisdiction under the provisions of Section 100 C.P.C. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence."
6. In Smt. Bibhabati Devi Vs. Ramendra Narayan Roy & amp; Ors.,A.I.R. 1947 PC 19, reported in it has been held :
"the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing .... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word a judicial procedure at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law."
7. In Vijay Kumar Talwar Vs. Commissioner of Income Tax, New Delhi, reported in (2011) 1 S.C.C. 673, it has been held :
"a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the facts and circumstances of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."."
8. In the case of Union of India Vs. Ibrahim & Another in Civil Appeal No.1374 of 2008, decided on July 17, 2012, the Hon'ble Apex Court has held :
"There may be exception circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal."
9. On the other score, the appellants have shown a tendency of mischievous litigants to carry on this frivolous litigation In Ravinder Kaur v. Ashok Kumar & Anr., 2003 AIR SCW 7153, the Hon'ble Apex Court has held:-
"Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."
10. In T. Arivandandam v. T.V. Satyapal and another, reported in AIR 1977 SC 2421, the Hon'ble Supreme Court has held:
"The sharp practice or legal legerdemain of the petitioner, who is the son of the 2nd respondent, stultifies the court process and makes decree with judicial seals brutum fulmen. The long arm of the law must throttle such litigative caricatures if the confidence and credibility of the community in the judicature is to survive."
11. Recently in Ramrameshwari Devi & Ors. v. Nirmala Devi & Ors. (2011) 8 Supreme Court cases 249, the Hon'ble Apex Court has quoted Common man's general impression about litigation in the following words:-
"Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."
12. As observed in Ramrameshwari Devi's case (supra), while imposing cost, I have to take into consideration pragmatic realities and be realistic as to what the dragged party had to actually incur before different courts. I have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting, and filing of the counter-affidavit, miscellaneous charges towards typing, photocopying, court fee and expenses incurred on conveyance. The other factor which should not be forgotten by imposing cost as for how long, the respondents were compelled to contest and defend the litigation in various courts. The appellant, in the instant case, have harassed the respondent to the hilt in a totally perverse and dishonest litigations in various courts. Another important aspect is that, underneath there is a current in the society that Civil Litigation does not yeild quick results as expected by the people, and, thereby, the general public is resorting to settle civil dispute by committing Criminal offences and, thereby, a message is eminently required to be transmitted to the public, in such a fashion, which may put a brake that there is deterioration in the prevailing judicial system.
13. Later on in Rajappa Hanamantha Ranoji v. Mahadev Channabasappa & ors, reported in 2000 SCFBRC 321, the Hon'ble Supreme Court has held as under:
"It is distressing to note that many unscrupulous litigants, in order to circumvent orders of the courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of the courts. Such tendency deserves to be taken serious note of and curbed by passing appropriate orders and issuing necessary directions including imposing or exemplary costs."
14. In Gayatri Devi & Ors. v. Shashi Pal Singh, reported in 2005 AIR SCW 2070, the Hon'ble Apex Court has held as under:-
"This appeal demonstrates how a determined and dishonest litigant can interminably drag on litigation to frustrate the results of a judicial determination in favour of the other side......
On 01.11.1987, the appellant committed perhaps the gravest blunder of her life of letting out the suit property to the respondent-tenant at a monthly rent of Rs. 1300/-, which subsequently came to the increased to Rs. 1500/- w.e.f. 01.01.1990....
The history of this litigation shows nothing but cussedness and lack of bona fides on the part of the respondent. Apart from his tenancity and determination to prevent the appellants from enjoying the fruits of the decree, there appears to be nothing commendable in the case. Even before us the same arguments of fraud, and that the appellants were not legally owners of the suit property, were pleaded.....
In our view, the conduct of the respondent deserves condemnation which we indicate by imposition of exemplary costs of Rs. 20,000/- on the respondent."
15. In view of these authorities, this is a clear case which exhibits that the appellants have attempted to open a new chapter in the litigative acrobatics, which deserves to be deprecated.
16. On point of fact, the learned First Appellate Court has mentioned a meaningful and detailed discussion and has arrived to the right conclusion. On legal score, there is any rebutable presumption about correctness of judicial proceedings under illustration (e) of Section Evidence Act, which the appellants have failed to rebut.
17. With these observations, this second appeal, as well as, first appeal from order are dismissed with special cost of Rs. 20,000/- to be paid within thirty days from today. In case, of default, the same shall be recovered as arrears of land revenue by moving proper application to this effect before the learned First Additional District Judge, Sultanpur.
Order Date :- 21.9.2012 Nitesh/Ram.