V.B. Gupta, Presiding Member
Revision petitions No. 3025-3027 of 2011 arises out of common order dated 23.6.2006, passed in First Appeals No.1311-1313 of 2006 by State Consumer Disputes Redressal Commission, Karnataka(for short, State Commission) whereas, Revision Petition No.3028 of 2011 arise out of order dated 16.8.2007, passed in First Appeal No.1692 of 2007 by the State Commission. Since, common question of facts and law are involved in these petitions, as such above noted petitions are being disposed of by this common order.
2. Complainants filed consumer complaints against the Petitioner on the allegations that attracted by the Housing Scheme launched by the petitioner, they wanted to purchase plots for which certain amount was paid by way of consideration. However, there was no development of any of the plots, so they requested the Petitioner/O.P. No.2 to refund the amounts paid by them. Since, petitioner fails to refund the amount, complainants filed consumer complaints seeking refund of amounts alongwith interest.
3. Before Bangalore Urban District Consumer Disputes Redressal Forum(for short, District Forum), petitioner entered appearance through its counsel and sought time to file its version. Inspite of various opportunities granted to the petitioner, he did not place his version before the District Forum and as such District Forum proceeded in the absence of the version of the petitioner.
4. After considering the evidence produced by the complainants, District Forum, vide order dated 20.7.2004, allowed the complaint of the complainants.
5. Being aggrieved by the order of District Forum, petitioner filed appeals before the State Commission. There was delay of 631 days in filing of the Appeals No.1311-1313 of 2006, whereas there was delay of 40 days in filing of Appeal No.1692 of 2007, before the State Commission.
6. State Commission, vide impugned orders dated 23.06.2006 and 17.7.2007 respectively, dismissed all the appeals.
7. Being aggrieved by the impugned order, petitioner has filed present revision petitions. Alongwith these petitions, applications seeking condonation of delay have also been filed. However, no period of delay has been mentioned at all.
8. Be that as it may, as per office report there is delay of 1,817 days in filing of the present revision petitions.
9. Arguments on applications for condonation of delay have been heard. Petitioner has also placed on record written arguments and has also relied upon certain judgments.
10. We have perused the entire record.
11. It has been contended by learned counsel for the petitioner that after passing of the impugned order, petitioner filed Writ Petition in Karnataka High Court, which was ultimately withdrawn on 16.06.2011. Thereafter, present petitions have been filed Under these circumstances, the period which was spent in the High Court in pursing the Writ Petition,should be condoned in view of Section 14 of the Limitation Act.
12. Grounds on which condonation of delay in (RPs No.3025-3027 of 2011) has been sought are reproduced as under;
œ3.It is submitted that after the order dated 26.6.2006, passed by the Honble State Commission, the petitioners were advised to approach the Honble High Court. In pursuance of this, the petitioners filed the Writ Petition No. 10192/2006 under Article 226 and Article 227 of the constitution for quashing the order on 24.07.2006. Interim order was granted.
4. It is humbly submitted that the Honble High Court, by its order dated 16.6.2011, disposed of the Writ Petition with liberty to approach the proper forum and seek alternative remedy under Consumer Protection Act,1986. The Honble High court in its order dated 16.6.2011 also observed that it shall be open to the petitioners to seek condonation of delay for the period during which the instant Writ Petition remained pending before the Honble High Court.
5. The petitioner submits that the petitioner has filed the Writ Petition which was pending from 24.07.2006 to 16.06.2011. The Petitioner was bonafide pursuing his writ petition with due diligence and therefore time taken for pursuing another remedy in a wrong forum be excluded while computing the period of limitation.
5. It is therefore humbly submitted that the delay in filing the revision petition is neither intentional nor deliberate but because of the reasons as explained above.
PRAYER:-
In the circumstances, it is prayed that this Honble Commission may be pleased to:-
a) Condone the delay of days in filing revision petition to appeal against the judgment and order dated 23.06.2006 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore in Appeal No. 131,1312, 1313/2008?.
13. Relevant provision of Section 14 of the Limitation Act, read as under ;
œS.14. Exclusion of time of proceeding bona fide in court without jurisdiction -- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it?.
(3)xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
14. Apex Courtwhile interpreting Section 14 of the Limitation Act, in GhasiRam and Ors. Vs. Chait Ram Saini and Ors., (1998) 6 SCC 200 has held;
œ5. A perusal of the aforesaid provision would show that in order to get the benefit of sub-section (1) of Section 14 of the Act, the party seeking its benefit must fulfill the following four conditions :
(1) The plaintiff who filed the suit had been prosecuting another civil proceeding with due diligence.
(2) The earlier proceeding resorted to by the plaintiff was based on the same cause of action.
(3) The former proceeding was prosecuted by the plaintiff in good faith in a court.
(4) The court, due to the defect of jurisdiction or other cause of a like nature, was unable to entertain such proceeding.?
15. Thus, it is well settled that the real purpose of Section 14 of the Limitation Act, is to extend the period of limitation prescribed by adding the period during which the suit or other proceeding has been prosecuted with due diligence and in good faith in a Court which either on account of defect of jurisdiction or other cause of a like nature, was unable to entertain it.
16. This section does not help a person who is guilty of negligence, laches or inaction. The test of good faith is real and bonafide belief of the plaintiff that he could institute the proceedings in the Court where he first instituted it.
17. The question material for the purposes of Section 14 of the Limitation Act is, whether given due care and attention, the plaintiff could have acted otherwise than he did. The burden of proving his case within the section lies on the plaintiff. Where he fails to satisfy this initial burden, the burden does not shift to the defendant to show the contrary.
18. In SuppiahChettiar Vs. Chinnathurai, AIR 1957 Madras 216, where a proceeding under the workmens Compensation Act was withdrawn voluntarily by an applicant with the permission of the Commissioner and subsequently a civil suit was brought, it was held that;
œSection 14 of the Limitation Act could not be invoked to save the suit from the bar of limitation?.
19. In the present case, petitioner while pursuing his Writ Petition in the High Court for about 5 years, all of a sudden pleaded œthat the Petitioner has an efficacious alternative remedy under the provisions of Consumer Protection Act, 1986. As such, it is submitted that the Petitioner may be relegated to the alternative remedy?.
20. Petitioner has nowhere pleaded at all that he was pursuing the Writ remedy with due diligence and how after pursuing the Writ remedy for a long period of 5 years, he suddenly woke up. There is no explanation to this effect at all. Thus, apparently the petitioner is not entitled to the benefit of Section 14 of the Limitation Act.
21. In K. Rajiv and M/s. Kamla Builders and others, Civil Appeal No. 11431-11434 of 2011, Apex Court observed;
œThe question whether the High Court can directly entertain the writ petition under Article 226 of the Constitution against the order passed by the State Commission ignoring that the aggrieved party is entitled to avail statutory remedy of appeal under Section 19 of the Act was recently considered in Civil Appeal No.10706 of 2011 Nivedita Sharma vs. Cellular Operators Association of India and others decided on 07.12.2011 and answered in negative. The relevant portions of that order are extracted below:-
There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation- L. Chandra Kumar v. Union of India (1997) 3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body / authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
In Thansingh Nathmal v. Superintendent of Taxes AIR 964 SC 1419, this Court adverted to the rule of self-imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:
"The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
In Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433, this court observed ;
"It is now well recognized that where a right or Liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CBNS 336 : 141 ER 486 in the following passage:
'... There are three classes of cases in which a liability may be established founded upon a statute ............ But there is a third class,viz., where a liability not existing at common law is created by statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.'
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 : (1918-19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd 1935 AC 532 and Secy. of State v. Mask and Co. (1939-40) 67 IA 222 : AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
In Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed:
"So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."
In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishadnow Zila Parishad, Muzaffarnagar AIR 1969 SC 556, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge.
It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Superintendent of Taxes (supra)and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for rederssal of grievance still hold field.
In the light of the above, we shall now consider whether the Division Bench of the High Court committed an error by entertaining the writ petition filed by the respondents.
The 1986 Act was enacted for better protection of the interests of consumers by making provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes.The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation. Prior to the 1986 Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is a known fact that decision of the litigation instituted in the Civil Court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before consumer forums at district, state and national level.
In Fair Air Engineers Pvt. Ltd. v. N.K. Modi (1996) 6 SCC 385,this Court referred to the judgment in Lucknow Development Authority v. M.K. Gupta(1994)1 SCC 243 and observed:
"Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words "in derogation of the Provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. The Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy."
In Charan Singh v. Healing Touch Hospital (2000) 7 SCC 668, this Court observed:
"Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial. The authorities under the Act exercise quasi-judicial powers for redressal of consumer disputes and it is one of the postulates of such a body that it should arrive at a conclusion based on reason. The necessity to provide reasons, howsoever, brief in support of its conclusion by such a forum, is too obvious to be reiterated and needs no emphasising. Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes, the chances of arbitrariness and the higher forum can test the correctness of those reasons. Unfortunately we have not been able to find from the impugned order any reasons in support of the conclusion that the claim of the appellant is 'unrealistic' or 'exaggerated' or 'excessive'. Loss of salary is not the sole factor which was required to be taken into consideration.
While quantifying damages, consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard-and-fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge."
Section 17(1)of the 1986 Act which outlines the jurisdiction of the State Commission and Section 19 which provides for an appeal against the order of the State Commission read as under:
"Section 17. Jurisdiction of the State Commission-
(1) Subject to the other provisions of this Act,the State Commission shall have jurisdiction-
(a) to entertain-
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and
(ii) appeals against the orders of any District Forum within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the Stat Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain;
or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not resides, or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or
c) the cause of action, wholly or in part, arises.
Section 19. Appeals -Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause(a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:
Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent, of the amount or rupees thirty-five thousand, whichever is less."
A reading of the plain language of Section 17 shows that every State Commission has the jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs. 20 lacs but does not exceed Rs. 1 crore. By Section 18 the provisions of Sections 12 to 14 and the Rules made thereunder, for the disposal of complaints by the District Forum, have been made applicable for deciding the disputes by the State Commission. 19 provides for remedy of appeal against an order made by the State commission in exercise of its powers under sub-clause (i) of Clause (a) of Section 17. If Sections 11, 17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation.
What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents.
By applying the ratio of the order passed in Nivedita Sharma vs. Cellular Operators Association of India and others to the case in hand, we hold that the Division Bench of the High Court committed serious error by entertaining the writ petitions filed by the respondents ignoring that they could have availed an equally efficacious remedy of filing an appeal under Section 19 of the Act.?
22. Further, in this context, it would be pertinent to refer to a decision of Honble Supreme Court in œM/s Advance Scientific Equipment Ltd. and Anr. Vs. West Bengal Pharma and Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010),in which it has observed interalia as under;
œ ¦¦We are further of the view that the petitioners venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction?.
23. Hence, in view of the above decisions of the Apex Court, the High Court ought not to have entertained the writ petition, since petitioner had an effective alternate remedy available under the Consumer Protection Act, 1986.
24. Now question to be seen is as to whether there are sufficient grounds for condonation of delay.
25. It is well settled that œsufficient cause? for non- appearance in each case, is a question of fact. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, has held;
œNo doubt the words œsufficient cause? should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all œsufficient cause? is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.?
26. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
œIt is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.?
27. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi and Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;
œThere is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.?
28. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court has been observed;
œWe hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.?
29. Recently, Supreme Court in AnshulAggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;
œIt is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras.?
30. Decision of AnshulAggarwal (supra) has been reiterated in CicilyKallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Honble Supreme Court observed;
œ4 This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay?.
31. Under these Circumstances, act of petitioner in approaching a wrong forum, will not entitle him to have the delay condoned. Accordingly, we find no just and sufficient cause to condone the long delay of 1817 days in filing of the present petitions. Applications for condonation of delay being without any merit as well having no legal basis are not maintainable.
32. Further, petitioner from day one has been conducting this litigation with sole motive of delaying the matter. As already stated above, before the District Forum, petitioner entered appearance through its counsel and sought time to file its version. Inpsite of various opportunities granted to the petitioner, he did not place its versions. Under these circumstances, the District Forum had no option but to proceed in the absence of the version of the petitioner.
33. After getting adverse findings form the District Forum, Petitioner took 631 days for filing the appeals before the State Commission. The State Commission, rightly dismissed the appeals of the petitioner on the ground of long delay observing as under;
œThere is a delay of 631 days in filing these appeals. The reason given by the appellant for condonation of delay is that he has not been served with the notice issued by the DF. In order to ascertain the truth or otherwise of the fact we called for the records. Accordingly, records have been received.
From the records, it is found the appellant has been served with the notice. The acknowledgement for having service the notices is also available in the records. The advocate also filed power on behalf of OPs 1,2 and 3 and contested the case. If that is so, the reasons given for condonation of delay do not constitute sufficient cause. In the result we pass the following;
ORDER
Appeals are dismissed?.
34. Thus, only motive of the petitioner is to delay the proceedings and to deprive the respondents/complainants of the fruits of the award passed by the District Fora more than 9 years ago.
35. It is well settled that those litigants whose only motive is just to delay the proceedings and to cause hindrances must be dealt with heavy hands.
36. In RavinderKaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed;
œCourts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system?.
37. Apex Courtin RamrameshwariDevi and Ors. Vs. Nirmala Devi and Ors.,Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
œ45. We are clearly of the view that unless we ensure that wrong “doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
46. Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders. Experience reveals that ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.
47. If an ex-parte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.
48. It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely. The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have heardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.
49. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.
50. Learned Amicus articulated common mans genera impression about litigation in following words :
œMake 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.?
38. In view of the above discussion we are clearly of the opinion that present petitions are nothing but gross abuse of the process of law which are required to be dismissed with punitive costs. Accordingly, we dismiss all the above noted petitions with punitive costs of Rs.50,000/- (Rupees Fifty Thousand Only) each.
39. Out of the costs imposed upon the petitioner, Rs.25,000/-(Rupees Twenty Five Thousand only) each be paid to the each respondent/complainant by way of demand draft in their respective names. Remaining costs of Rs.25,000/- (Rupees Twenty Five Thousand only) be deposited by way of demand draft in the name of œConsumer Legal Aid Account? of this Commission, within one month from today.
40. In case, petitioner fails to deposit the aforesaid costs within the prescribed period, they shall also be liable to pay interest @ 9% p.a., till realization.
41. Costs awarded to the respondents shall be paid to them, only after expiry of the period of appeal or revision, preferred if any.
42. List on 6.12.2013 for compliance.