Dismissed

Dev Singh Negi v. State of Hp

Himachal Pradesh HC12 Aug 2021CWP/244/2017

Case brief

AI extract

What is this about?

An occupant running a school in a Sainik Rest House challenged eviction on a claim of tenancy. The Court dismissed the petition as an abuse of process and directed vacation, permitting forcible possession upon default. It left respondents free to claim occupation charges and damages.

What did the court decide?

Petitioner directed to vacate by 31.8.2021 at 1.00 P.M.; respondent No.4 authorised to take forcible possession with District Administration and Police assistance upon default.

Dev Singh Negi Vs State of Hp — Landlord and Tenant | Himachal Pradesh HC (2021)

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REPORTABLE

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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ON THE 12^th DAY OF AUGUST, 2021

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BEFORE

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HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN

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HON'BLE MR. JUSTICE SATYEN VAIDYA CIVIL WRIT PETITION NO. 244/2017

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BETWEEN:-

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DEV SINGH NEGI, S/O RAMESH CHAND, LITTLE ANGELS PUBLIC SCHOOL, RECKONG PEO, TOP FLOOR, KUMAR BUILDING, OPPOSITE H.P. STATE CO-OPERATIVE BANK EXTENSION COUNTER SUBZI MOHALLA, RECKONG PEO, TEHSIL KALPA, DISTRICT KINNAUR, H.P. ....PETITIONER (BY SH. C.D. NEGI, ADVOCATE)

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AND

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1. STATE OF HIMACHAL PRADESH THROUGH PRINCIPAL SECRETARY (REVENUE) TO THE GOVERNMENT OF HIMACHAL PRADESH, SHIMLA-171002.

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2. DIVISIONAL COMMISSIONER, SHIMLA DIVISION, SHIMLA-171002.

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3. DISTRICT COLLECTOR, KINNAUR AT RECKONG PEO, DISTRICT KINNAUR.

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4. A.C. TO D.C., ADHOC ZILA SAINIK BOARD, KINNAUR DISTRICT AT RECKONG PEO, H.P.

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5. COLLECTOR, SUB DIVISION KALPA AT RECKONG PEO, TEHSIL KALPA, DISTRICT KINNAUR, H.P.

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...RESPONDENTS

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(SH. ASHOK SHARMA, A.G. WITH SH. RAJINDER DOGRA, SR. ADDL. A.G., SH. VINOD THAKUR, SH. HEMANSHU MISRA, SH. SHIV PAL MANHANS, ADDL. A.GS., AND SH. BHUPINDER THAKUR, DY. AG. FOR R-1 TO R-5. SH. N. K. THAKUR, SR. ADVOCATE WITH MR. KARAN VEER SNIGH, ADVOCATE, FOR THE APPLICANT IN CMP NO. 820/2021)

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This petition coming on for orders this day, Hon'ble Mr.

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Justice Tarlok Singh Chauhan passed the following:

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O R D E R

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The instant petition has been filed for the grant of following substantive reliefs:

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“(i) that impugned order dated 21.1.2017 (Annexure P-5) passed by the Divisional Commissioner, Shimla Division, in Appeal No.167/2015, whereby the appeal preferred by the petitioner against the order dated 3.8.2015 (Annexure P-4) passed by Collector, Sub Division Kalpa at Reckong Peo, Tehsil Kalpa, District Kinnaur, H.P. under H.P. Public Premises & Land (Eviction & Rent Recovery) Act, 1971 in Case No.SDK-01/2015 has been dismissed, may kindly be quashed and set aside by issuing writ of certiorari and justice may be done.

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(ii) that the respondent may kindly be directed not to evict the petitioner from the premises in question, by issuing writ of mandamus.

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2 It is averred by the petitioner that the Sainik Rest

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House near Bus Stand Reckong Peo, constructed over land comprised in Khasra Nos. 603, 604 area measuring 0-09-45 hectares, had been taken on rent by him for running a school in the name and style of “Little Angels Public School”. The petitioner had been continuously paying rent to the Sainik Board and despite this, respondents No. 3 and 4 kept on unnecessary harassing the petitioner and threatened him to evict from the premises in question forcibly.

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The petitioner was served with a notice dated 25.3.2015 under the H.P. Public Premises & Land (Eviction & Rent Recovery) Act, 1971 by the Collector-respondent No.5. He filed the reply to the notice, thereafter, he did not turn up. Eventually, eviction order was passed against the petitioner and even the appeal filed by the petitioner came to be dismissed by the appellate authority on 21.1.2017.

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The only ground on which the petitioner has assailed the orders passed by the authorities below is that he is the tenant in the premises in question and has been paying rent regularly and, therefore, he could not have been ordered to be evicted by treating him like a “trespasser”.

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5 The respondents-State have contested the petition by filing reply, wherein it is stated that the premises were not rented out to the petitioner, but were rented out to one Sh. Manjeet Singh, Secretary Surya Karan Education Society, Subzi Mohalla, Reckong Peo to run the school in question by the Deputy Commissioner-cum-President Adhoc Zila Sainik Board, Reckong Peo against rent agreement for one year w.e.f. 1.4.2012 to 31.3.2013 on monthly rent of Rs.8100/- subject to fulfillment of conditions. The Deputy Director, Sainik Welfare Shimla and Kinnaur vide letter dated 4^th April, 2012 requested that no portion of Sainik Rest House be rented out further as that rent

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agreement of Sainik Rest House stood expired on 31.3.2013. Respondent No.4-AC to DC Adhoc Zila Sainik Board Kinnaur vide office letter dated 21.3.2013 issued the notice to Manjeet Singh Secretary Surya Karan Education Society to vacate the accommodation rented out to him and hand over the possession by 1.4.2013, but no response was received from the lessee. Respondent No.4 again issued the notice to Manjeet Singh to vacate the accommodation and to clear rent liabilities, however Manjeet Singh requested the Deputy Commissioner, Kinnaur to extend the rent agreement for further period and if extension is not possible, he is ready to vacate the property in question.

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6 Respondent No.4 issued notice to the petitioner to clear the rent liabilities and to hand over the possession by 31.1.2014, however, the petitioner did not vacate the premises in question. Therefore, the petitioner is in unauthorized possession of property in question from the expiry of rental agreement on 31.3.2013, which was not executed with the petitioner.

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7 At this stage, it would also be necessary to refer to CMP No. 820/2021, which has been filed by the Ex-services League, Kinnaur, through its General Secretary, for impleadment. It has been averred in the application that the property in question was constructed by the administration of

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Zila Sainik Board as Rest House for the facility of serving and exservicemen of Army and other para-military services. The same was given on lease to the petitioner for one year and thereafter, the petitioner is in unauthorized possession of the same as the same was never renewed.

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8 We have heard the learned counsel for the parties and have also gone through the material placed on record.

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9 As mentioned above, the petitioner has not been able to establish any right over the property in dispute as records clearly establish that the same was given to him only for one year.

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10 What is more surprising is that despite being in possession of the premises, the petitioner has not even bothered to pay the rent despite protection granted by this Court qua his dispossession vide order dated 3.2.2017.

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11 Since the petitioner is in possession of the property, we are clearly of the view that he has filed frivolous litigation to prolong his possession and the same is a calculated venture involving no risk situation.

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12 After all, one has only to engage professionals to prolong litigation so as to deprive the rights of the parties and enjoy the fruits of illegalities. It is on account of such frivolous litigation that the court dockets are over-flowing. Here it is apt to

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reproduce the observations made by the Hon'ble Supreme Court in paras 174, 175 and 197 of the judgment in Indian Council

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for Enviro-Legal Action vs. Union of India and others , 2011

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8 SCC 161, which are as under:

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“174. In Padmawati vs Harijan Sewak Sangh, 2008 154 DLT 411 decided by the Delhi high Court on 6.11.2008, the court held as under: (DLT p.413, para 6)

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"6. The case at hand shows that 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. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person."

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We approve the findings of the High Court of Delhi in the

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aforementioned case.

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The Court also stated: (Padmawati case, DLT pp. 414- 15, para 9)

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"Before parting with this case, we consider it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only

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be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."

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The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.

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It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.

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When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.

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Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court. 4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine,penalty and costs. Any leniency would seriously affect the credibility of the judicial system.

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No litigant can derive benefit from the mere pendency of a case in a court of law.

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A party cannot be allowed to take any benefit of his own wrongs.

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Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.

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The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts."

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13 It is because of such false and incoherent pleas by the parties due to which the judicial system in the country is chocked and such litigants consuming courts time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court. This clearly is the abuse of the process of the Court as the intent of the petitioner is to deceive and mislead the Court that too by taking shelter of falsehood, misrepresentation and suppression facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains. This Court is required to maintain strictness, vigilance over the abuse of the process of the Court and curb such tendencies with iron hands.

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14 In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370 , the Hon’ble Supreme Court held that false claims and defences are serious problems with the litigation. The Hon’ble Supreme Court held as under:-

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"False claims and false defences

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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

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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 minimized to a large extent."

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15 In Dalip Singh v. State of U.P., (2010) 2 SCC 114 ,

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the Hon’ble Supreme Court observed that a new creed of litigants have cropped up in the last 40 years who do not have any respect for truth and shamelessly resort to falsehood and unethical means for achieving their goals. The observations of the Supreme Court are as under:-

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"1. For many centuries, Indian society cherished two basic values of life i.e., 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has over shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

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In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure

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fountain of justice with tainted hands, is not entitled to any relief, interim or final."

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16 In Satyender Singh Vs . Gulab Singh, 2012 (129)

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DRJ, 128 , the Division Bench of Delhi High Court following Dalip Singh v. State of U.P. (supra) observed that the Courts are flooded with litigation with false and incoherent pleas and tainted evidence led by the parties due to which the judicial system in the country is choked and such litigants are consuming Courts time‟ for a wrong cause.” The observations of the Court are as under:-

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"2. As rightly observed by the Supreme Court, Satya is a basic value of life which was required to be followed by everybody and is recognized since many centuries. In spite of caution, courts are continued to be flooded with litigation with false and incoherent pleas and tainted evidence led by the parties. The judicial system in the country is choked and such litigants are consuming courts„ time for a wrong cause. Efforts are made by the parties to steal a march over their rivals by resorting to false and incoherent statements made before the Court. Indeed, it is a nightmare faced by a Trier of Facts; required to stitch a garment, when confronted with a fabric where the weft, shuttling back and forth across the warp in weaving, is nothing but lies. As the threads of the weft fall, the yarn of the warp also collapses; and there is no fabric left."

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17 The Three-Judge Bench of Hon'ble Supreme Court in

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Dnyandeo Sabaji Naik & ors. Versus Pradnya Prakash

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Khadekar & ors., (2017) 5 SCC 496 observed as under:-

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This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.

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Courts across the legal system - this Court not being an exception – are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly

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deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.

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18 These observations have thereafter been reiterated

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and relied by Hon'ble Supreme Court in Rashid Khan Pathan

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& in the matter of: In Re: Vijay Kurle & Or., AIR 2020 SC

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4070 .

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19 In Indore Development Authority Versus Manohar

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Lal & ors. (2020) 8 SCC 129 , a Constitution Bench of Hon'ble Supreme Court, while dealing with frivolous litigations and principle of restitution, has observed as under:-

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“In re: Principle of restitution

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The principle of restitution is founded on the ideal of doing complete justice at the end of litigation, and parties have to be placed in the same position but for the litigation and interim order, if any, passed in the matter. In South Eastern Coalfields

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Ltd. v. State of M.P. & Ors. (2003) 8 SCC 648, it was held that no party could take advantage of litigation. It has to disgorge the advantage gained due to delay in case lis is lost. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a final order going against the party successful at the interim stage. Section 144 of the Code of Civil Procedure is not the fountain source of restitution. It is rather a statutory recognition of the rule of justice, equity and fair play. The court has inherent jurisdiction to order restitution so as to do complete justice. This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it. In exercise of such power, the courts have applied the principle of restitution to myriad situations not falling within the terms of section 144 CPC. What attracts applicability of restitution is not the act of the court being wrongful or mistake or an error committed by the court; the test is whether, on account of an act of the party persuading the court to pass an order held at the end as not sustainable, resulting in one party gaining an advantage which it would not have otherwise earned, or the other party having suffered an impoverishment, restitution has to be made. Litigation cannot be permitted to be a productive industry. Litigation cannot be reduced to gaming where there is an element of chance in every case. If the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order. This Court observed in South Eastern Coal Field (supra) thus:

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“26. In our opinion, the principle of restitution takes care of this submission. The word “restitution” in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P., 1984 Supp SCC 505) In law, the term

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“restitution” is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another. (See Black’s Law Dictionary, 7th Edn., p. 1315). The Law of Contracts by John D. Calamari & Joseph M. Perillo has been quoted by Black to say that "restitution" is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for the injury done:

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"Often, the result under either meaning of the term would be the same. … Unjust impoverishment, as well as unjust enrichment, is a ground for restitution. If the defendant is guilty of a non-tortious misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed-upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed."

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The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favor of a party, stands reversed in the event of a final decision going against the party successful at the interim stage. xxx

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x x x This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it (A. Arunagiri Nadar v. S.P. Rathinasami, (1971) 1 MLJ 220). In the exercise of such inherent power, the courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.

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That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the “act of the court” embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not

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have so acted had it been correctly apprised of the facts and the law. x x x the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.” (emphasis supplied)

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In State of Gujarat & Ors. v. Essar Oil Ltd. & Anr (2012) 3 SCC 522, it was observed that the principle of restitution is a remedy against unjust enrichment or unjust benefit. The Court observed:

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“61. The concept of restitution is virtually a common law principle, and it is a remedy against unjust enrichment or unjust benefit. The core of the concept lies in the conscience of the court, which prevents a party from retaining money or some benefit derived from another, which it has received by way of an erroneous decree of the court. Such remedy in English Law is generally different from a remedy in contract or in tort and falls 223 (2012) 3 SCC 522 within the third category of common law remedy, which is called quasi-contract or restitution.

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If we analyze the concept of restitution, one thing emerges clearly that the obligation to restitute lies on the person or the authority that has received unjust enrichment or unjust benefit (see Halsbury’s Laws of England, 4th Edn., Vol. 9, p. 434).”

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In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012) 6 SCC 430 it was stated that restitutionary jurisdiction is inherent in every court, to neutralize the advantage of litigation. A person on the right side of the law should not be deprived, on account of the effects of litigation; the wrongful gain of frivolous litigation has to

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be eliminated if the faith of people in the judiciary has to be sustained. The Court observed:

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“37. This Court, in another important case in Indian Council for Enviro-Legal Action v. Union of India (of which one of us, Dr. Bhandari, J. was the author of the judgment) had an occasion to deal with the concept of restitution. The relevant paragraphs of that judgment dealing with relevant judgments are reproduced hereunder: (SCC pp. 238-41 & 243-46, paras 170-76, 183-88 & 190-93) “

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x x x

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In Ram Krishna Verma v. the State of U.P. this Court observed as under: (SCC p. 630, para 16) ‘16. The 50 operators, including the appellants/private operators, have been running their stage carriages by blatant abuse of the process of the court by delaying the hearing as directed in Jeewan Nath Wahal's case and the High Court earlier thereto. As a fact, on the expiry of the initial period of the grant after 29-9-1959, they lost the right to obtain renewal or to ply their vehicles, as this Court declared the scheme to be operative.

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However, by sheer abuse of the process of law, they are continuing to ply their vehicles pending the hearing of the objections. This Court in Grindlays Bank Ltd. v. ITO held that the High Court, while exercising its power under Article 226, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralized. It was further held that the institution of the litigation by it should not be permitted to confer an unfair advantage on the party responsible for it. In the light of that law 224 (2012) 6 SCC 430 and in view of the power under Article 142(1) of the Constitution this Court, while exercising its jurisdiction would do complete justice and neutralize the unfair advantage gained by the 50 operators including the appellants in dragging the litigation to run the stage carriages on the approved route or area or portion thereof and forfeited their right to hearing of the objections filed by them to the draft scheme dated 26-2-1959.'

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This Court in Kavita Trehan v. Balsara Hygiene Products Ltd. observed as under: (SCC p. 391, para 22) ‘22. The jurisdiction to make restitution is

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inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers, where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words:

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“144. Application for restitution.—(1) Where and insofar as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose ….” The instant case may not strictly fall within the terms of Section 144, but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.' 173. This Court in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. observed as under: (SCC pp. 326-27, para 4) ‘4. From the narration of the facts, though it appears to us, prima facie, that a decree in favor of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged on for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage, providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage, and the person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of the immovable property, its execution takes a long time. In such a situation, for protecting the interest of the judgmentcreditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. Inappropriate cases, the court may appoint a Receiver and direct the person who is holding over the property to act as an agent of the [Receiver with a direction to deposit the royalty amount fixed by the] Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favor the decree is passed and to protect the property, including further alienation.'

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In Padmawati v. Harijan Sewak Sangh decided by the Delhi High Court on 6-11-2008, the Court held as under: (DLT p. 413, para 6) ‘6. The case at hand

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shows that frivolous defenses 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 the 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 courts. One of the aims of every judicial system has to be to discourage unjust enrichment using courts as a tool. The costs imposed by the courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.’ We approve the findings of the High Court of Delhi in the case mentioned above.

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The High Court also stated: (Padmawati case, DLT pp. 414-15, para 9) ‘9. Before parting with this case, we consider it necessary to observe that one of the [main] reasons for overflowing of court dockets is the frivolous litigation in which the courts are engaged by the litigants and which is dragged on for as long as possible. Even if these litigants ultimately lose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right but also must be burdened with exemplary costs. The faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make the wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the courts to see that such wrongdoers are discouraged at every step, and even if they succeed in prolonging the litigation due to their money power, ultimately, they must suffer the costs of all these years' long litigation. Despite the settled legal positions, the obvious wrongdoers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour

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since even if they lose, the time gained is the real gain. This situation must be redeemed by the courts.'

¶125

Against this judgment of the Delhi High Court, Special Leave to Appeal (Civil) No. 29197 of 2008 was preferred to this Court. The Court passed the following order: (SCC p. 460, para 1) ‘1. We have heard the learned counsel appearing for the parties. We find no ground to interfere with the wellconsidered judgment passed by the High Court. The special leave petition is, accordingly, dismissed.’

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In Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. this Court in para 4 of the judgment observed as under: (SCC pp. 326-27) ‘4. … It is true that proceedings are dragged on for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage, providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage, and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time. In such a situation, for protecting the interest of the judgmentcreditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, the court may appoint a Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour the decree is passed and to protect the property, including further alienation.'

¶128

In Ouseph Mathai v. M. Abdul Khadir, this Court reiterated the legal position that: (SCC p. 328, para 13) ‘13. … [the] stay granted by the court does not confer a right upon a party and it is granted always subject to the final result of the matter in the court and at the risks and costs of the party obtaining the stay. After the dismissal of the lis, the party concerned is relegated to the position which existed prior to the filing of the petition in the court

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which had granted the stay. Grant of stay does not automatically amount to extension of a statutory protection."

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There are other decisions as well, which iterate and apply the same principle.

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A wrong-doer or in the present context, a litigant who takes his chances, cannot be permitted to gain by delaying tactics. It is the duty of the judicial system to discourage undue enrichment or drawing of undue advantage, by using the court as a tool. In Kalabharati Advertising v. Hemant Vimalnath Narichania,(2010) 9 SCC 437 it was observed that courts should be careful in neutralizing the effect of consequential orders passed pursuant to interim orders. Such directions are necessary to check the rising trend among the litigants to secure reliefs as an interim measure and avoid adjudication of the case on merits. Thus, the restitutionary principle recognizes and gives shape to the idea that advantages secured by a litigant, on account of orders of court, at his behest, should not be perpetuated; this would encourage the prolific or serial litigant, to approach courts time and again and defeat rights of others- including undermining of public purposes underlying acquisition proceedings. A different approach would mean that, for instance, where two landowners (sought to be displaced from their lands by the same notification) are awarded compensation, of whom one allows the issue to attain finalityand moves on, the other obdurately seeks to stall the public purpose underlying the acquisition, by filing one or series of litigation, during the pendency of which interim orders might inure and bind the parties, the latter would profit and be rewarded, with the deemed lapse condition under Section 24 (2). Such a consequence, in the opinion of this Court, was never intended by Parliament; furthermore, the restitutionary principle requires that the advantage gained by the litigant should be suitably offset, in favour of the other party.

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In Krishnaswamy S. Pd. v. Union of India (2006) 3 SCC 286, it was observed that an unintentional mistake of the Court, which may prejudice the cause of any party, must and alone could be rectified. Thus, in our opinion, the period for which the interim order has operated under Section 24 has to be excluded for counting the period of 5 years under Section 24(2) for the various reasons mentioned above.

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20 To say the least, the instant petition is nothing but a

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gross abuse of the process of law. We could have imposed heavy costs, but that, in the given facts and circumstances, would not

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serve any purpose. Therefore, while dismissing the instant petition, we direct the petitioner to vacate the premises in question by 31.8.2021 at 1.00 P.M., failing which respondent No.4 shall take forcible possession of the same with assistance of the District Administration and Police. However, it is made clear that it shall always be open to the respondents to claim not only use and occupation charges, but also damages from the petitioner in accordance with law.

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21 Pending application(s), if any, also stands dismissed.

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(Tarlok Singh Chauhan) Judge

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12.8.2021

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(Satyen Vaidya) Judge

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(pankaj)

Dev Singh Negi v. State of Hp

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Dev Singh Negi v. State of Hp

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