Judgment:
Madan B. Lokur, J.
1. The importance of this decision lies not in any substantial question of law having been decided - indeed, no question of law was urged before us, only issues touching upon facts. The importance lies in the nature of the dispute between the parties, which is a purely commercial dispute in which litigation expenses have touched the sky. In our opinion, the only way in which a successful litigant can be compensated financially is by awarding actual costs incurred by him in the litigation. The Supreme Court has recommended this course of action and we think the time has come to give more than serious weight and respect to the views of the Supreme Court. We have endeavoured to do just that in this appeal by awarding to the Respondents the actual litigation expenses incurred by them, which is a staggering Rs. 45,00,000/-.
2. The Appellant is aggrieved by an order dated 8th November, 2004 passed by a learned Single Judge in I.A. No. 227/2004 in CS (OS) No. 2213/2003. By the impugned order, it was held that the Appellant (Plaintiff before the learned Single Judge) had failed to make out a prima facie case for continuation of the ex parte ad interim order earlier passed in his favour.
3. The Appellant was a tenant of the Respondents in respect of a shop on the mezzanine floor of 11-E, Connaught Circus, Connaught Place, New Delhi. This tenancy was created in 1970.
4. On 1st July, 1986 the Appellant entered into a lease deed with the Respondents in respect of the first floor of the same premises (hereafter referred to as the leased premises on the first floor).
5. At this stage, it may be stated that there is a staircase from the ground level to the shop on the mezzanine floor. There is also a completely independent staircase in the service lane from the ground level to the leased premises on the first floor.
6. Apparently, for his convenience, the Appellant was desirous of internally connecting the shop on the mezzanine floor with the leased premises on the first floor. Therefore, he addressed two (more or less) identical letters to the Respondents on 4th July, 1986 requesting permission to make an internal staircase connecting the shop on the mezzanine floor with the leased premises on the first floor. The Respondents gave their approval to the construction on the terms and conditions set out by the Appellant and accordingly granted their approval.
7. For facility of reference, we are reproducing below the text of one of the letters dated 4th July, 1986:
Jainsons Outfits
4th July, 1986
Shri Raghubir Saran Charitable Trust,
40-42, Janpath,
New Delhi.
Dear Sirs,
Sub: Permission Under Clause 4 of the
Lease Deed Dated 1st July, 1986
The undersigned is a tenant of Shop No. 11-E (Mezzanine Floor) forming part of your building situated on Units Nos. 13 to 29, Block-E, Circus-D, Connaught Place, New Delhi on a monthly rental of Rs. 2,500/- per month. There is a stair case abutting inner circle of Connaught Place, New Delhi that stair case leads : upto the Mezzanine Floor over and above 11-E, Connaught Place, New Delhi. I seek your permission to provide an additional internal staircase leading from Mezzanine of Shop 11-E to first floor, flat No. 4, Mpl No. 37-E, the tenancy of which also is in the name of the undersigned. The undersigned assures you to fulfill the following conditions:
1. That the internal stair case will be provided to connect Mezzanine and first floor premises taken by the undersigned on rent without causing any damage to any part or portion of the building of which the demised premises are a part.
2. That for providing the internal stair case I shall engage qualified architect or building engineer. The construction work will be carried out on the advice of the said architect/building engineer.
3. That all expenses incurred in engaging the Architect/building engineer and contractor etc. together with all expenses to be incurred for the provision of the said internal stair case will be borne by me alone; and no amount will be spent by you on any score concerning the said construction in any way whatsoever.
4. That I shall remain responsible to answer, remedy and remove any or all objections if raised by NDMC, DDA, L&DO; or any other local or quasi judicial authorities in respect of this extension of the staircase and further indemnify your Trust, its Trustees and Officials harmless from any action of the aforesaid authorities. In case any warrant or summons for arrest or demolition orders of any order, if issued or received by your Trust from any of the authorities, I shall solely remain responsible for the same. The said orders may be communicated to me for onward action.
5. The undersigned shall bear all additional municipal taxes, ground rent and or any other penalty, levy, tax, case fee or any amount imposed by whatsoever name it may be by NDMC, DDA, L&DO; or any Authority in respect of this providing internal staircase. In the event of any such amount if required to be paid by you or charged from you in this regard, I undertake to reimburse the same to you and if I fail to reimburse you with the said amount within 10 day upon hearing from you the same will be realised from me with an interest @ 20% per annum thereupon till it is finally and completely paid or discharged.
6. That in the event of my vacating the said premises the said construction will be left intact and no compensation will be claimed in respect thereof.
I, shall therefore, request you to accord your approval in writing for the construction of internal staircase referred to above upto the first floor level as requested herein.
Thanking you,
Yours faithfully,
Sd/-
(Sanjeev Kumar Jain)
8. Subsequently, some disputes appear to have arisen between the parties with regard to the shop on the mezzanine floor and, therefore, the Respondents took action for eviction of the Appellant from that shop. After prolonged litigation, the Respondents were able to have the Appellant evicted from the shop on the mezzanine floor with the assistance of the Court Bailiff on or about 16th December, 2003.
9. After the eviction of the Appellant from the shop on the mezzanine floor, he seems to have continued to stake a claim to have access to the leased premises on the first floor through the internal staircase constructed by him. This was objected to by the Respondents since the Appellant was no longer a tenant of the shop on the mezzanine floor and so was not entitled to enter the shop and also because the leased premises on the first floor could be accessed via an independent staircase.
10. This controversy led the Appellant to prefer CS (OS) No. 2213/2003 before a learned Single Judge on 30th December, 2003 in which a permanent prohibitory injunction was prayed for permanently restraining the Respondents from obstructing the staircase from the ground level to the leased premises on the first floor via the mezzanine floor or preventing access of the Appellant, his representatives and customers to the leased premises on the first floor through the internal staircase. The Appellant also prayed for an ex parte ad interim injunction (which was granted) to the effect that the Respondents were restrained from obstructing or preventing access of the Appellant, his representatives and customers to the leased premises on the first floor through the internal staircase from the shop on the mezzanine floor.
11. The ex parte ad interim injunction was objected to by the Respondents and by the impugned order dated 8th November, 2004 the learned Single Judge was of the view that the Appellant had failed to make out any prima facie case for continuance of the ex parte ad interim injunction. It is under these circumstances that the Appellant is now before us.
12. At the outset, we may note that before the learned Single Judge the Appellant had claimed a right to have access to the internal staircase in the shop on the mezzanine floor by relying upon Section 13 of the Easements Act, 1882. However, before us no contention was advanced in this regard. The only submission was on the facts of the case and to the effect that in view of the approval granted by the Respondents to the internal staircase, the Appellant could not be denied access to it.
13. Two facts need to be stated here: First, along with the plaint filed before the learned Single Judge, the Appellant submitted a copy of the lease deed dated 1st July, 1986. A copy of this lease deed was also filed before us. But, both before the learned Single Judge as well as before us the Appellant concealed the plan annexed to the lease deed. We find this to be a material concealment of a significant fact since the plan has an important bearing on the case.
Second, in the very first paragraph of the plaint filed by the Appellant before the learned Single Judge, he made a false statement inasmuch as it is stated as follows:
The plaintiff is tenant in respect of shop No. 11-E (Mezzanine floor) forming part of building situated on units No. 13 to 29 Block-E, Circus D, Connaught Place, New Delhi, with entrance from the inner circle of Connaught Place, New Delhi. The tenanted portion is shown and marked in Annexure A (hereinafter referred to as the mezzanine floor).
As mentioned above, the plaint was filed on 30th December, 2003 but by then, not only had the tenancy of the Appellant come to an end but he was not even in possession of the shop on the mezzanine floor from sometime around 16th December, 2003.
14. Normally, the misstatement and concealment of important facts by the Appellant would have been sufficient to deny any equitable relief to him. However, we need not dwell any more on this because even on merits we find that the Appellant has not made out any case for interference with the order of the learned Single Judge. All that we need say is that the Appellant has little or no regard for the truth which, to say the least, is a little unfortunate.
15. Be that as it may, learned Counsel for the parties have shown to us the plan attached to the lease deed dated 1st July, 1986 as well as various photographs, which form a part of the record, which very clearly suggest that the Appellant has independent access from the service lane in the ground level to the leased premises on the first floor. There is, therefore, absolutely no need for the Appellant to access the leased premises on the first floor via the internal staircase. There is also nothing to suggest in the lease deed dated 1st July, 1986 or anywhere else, that access to the leased premises on the first floor could only be through the shop on the mezzanine floor or was intended to be only through the shop on the mezzanine floor. In this context, it may be noted that the lease deed for the shop on the mezzanine floor as well as the deed for the leased premises on the first floor are self-regulating documents and they stand independent of each other. It is nobody's case before us that the two leases are intertwined. The only inter- connection between the two properties is through the internal staircase which, as we have noted above, appears to have been constructed by the Appellant for his convenience since at the relevant time he was a tenant of both properties.
16. Quite apart from the above, we find on a perusal of the letter dated 4th July, 1986 that it is stated in paragraph 6 thereof: 'That in the event of my vacating the said premises the said construction will be left intact and no compensation will be claimed in respect thereof'. In our opinion, what this clearly means is that after the Appellant vacates the shop on the mezzanine floor, he would have no concern with the internal staircase and no compensation would be claimed by him in respect thereof. The Appellant did not (and indeed could not) claim any right to user of the internal staircase because he was no longer entitled to have access to the shop on the mezzanine floor. It is, therefore, manifest that the Appellant cannot claim user of the internal staircase for having access to the leased premises on the first floor, more particularly since there is an independent staircase leading from the ground level to the leased premises on first floor, the user of which was contemplated by both the parties when the lease deed dated 1st July, 1986 was entered into between them.
17. We may look at the matter from another point of view. Since the Respondents are in possession of the shop on the mezzanine floor they are entitled to benefit from it either for their own purpose or by renting it out to somebody else. Consequently, it would be rather odd, if not strange, if the Appellant, its representatives and customers are made entitled to walk through somebody else's shop to access the leased premises on the first floor. This would not only create an impossible situation for whoever is in possession of the shop on the mezzanine floor but would also create a clear hindrance to the full commercial exploitation of that shop.
18. Whichever way the matter is looked at, the approval granted by the Respondents to the construction of an internal staircase in terms of the letter dated 4th July, 1986 was not intended to, and did not, give any additional right to the Appellant over and above the deed dated 1st July, 1986 in respect of the leased premises on the first floor.
19. We, therefore, find no merit in this appeal which is dismissed.
20. On the conclusion of submissions by learned Counsel for the parties, we indicated to learned Counsel for the parties that since the dispute before us is a purely commercial dispute, the party that succeeds in the appeal should be entitled to the litigation expenses incurred from the party who does not succeed. Learned Counsel for the parties agreed to this. Consequently, we required both the parties to indicate to the Court Master the expenses incurred in this appeal. Both the parties have filed their respective set of expenses. The Respondents have intimated that they have spent an amount of Rs. 45,28,000/-.
21. At this stage, it may be mentioned that on 8th July, 2002 the Respondents filed a suit for possession of the shop on the mezzanine floor and for mesne profits. However, despite adequate opportunities, the Appellant did not file any written statement. On 8th February, 2002 the right of the Appellant to file a written statement was closed. The Appellant then filed a review petition in respect of the order dated 8th February, 2002 but on 11th September, 2002 the review petition was dismissed.
22. Thereafter, on the basis of the evidence on record, the learned Civil Judge passed a decree against the Appellant on 23rd August, 2003 holding that the Respondents were entitled to vacant possession of the shop on the mezzanine floor.
23. On 30th September, 2003 the Appellant filed execution proceedings and on 16th December, 2003 the decree was executed, though it appears that a few fixtures and fittings remained in the premises.
24. The Appellant then filed an appeal against the decree dated 23rd August, 2003 along with an application for condonation of delay under Section 5 of the Limitation Act. The appeal was registered as RCA No. 31/04. The learned appellate Judge declined to condone the delay and so the appeal was dismissed.
25. The Appellant then filed a second appeal being RSA No. 113/04 in this Court but withdrew that on 11th October, 2004 with liberty to file a petition under Article 227 of the Constitution.
26. In the meanwhile, on 16th January, 2004 (after the decree was executed) the Appellant filed his objections to the execution petition. These objections were heard and dismissed on 20th September, 2004.
27. Still not being content, the Appellant filed a revision petition against the order dismissing his objections. This petition was registered as CRP No. 469/04. The revision petition was dismissed on 25th October, 2004.
28. Against the decision dated 25th October, 2004 the Appellant preferred a petition for Special Leave to Appeal being SLP (C) No. 23325/2004. The Supreme Court dismissed the SLP on 25th November, 2004.
29. It was in the midst of all this litigation that the Appellant filed the civil suit on 30th December, 2003 out of which this appeal has arisen with the prayers as mentioned in paragraph 10 above.
30. Throughout the year 2004, the Appellant lost his case in all judicial forums and yet chose to prefer this appeal on 16th November, 2004. We would have expected the Appellant to be reasonable especially after his SLP was dismissed by the Supreme Court on 25th November, 2004 but it was not be. This appeal was persisted with for no apparent good reason. We are left with the impression that the Appellant has tried everything possible to somehow or the other hold on to the shop on the mezzanine floor despite his physical eviction therefrom. The civil suit and the present appeal are nothing but another attempt at obtaining possession of the shop on the mezzanine floor - through an indirect and calculated method.
31. In Salem Advocate Bar Assn. v. Union of India : (2005) 6 SCC 344 the Supreme Court held:
Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefor. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer's fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.
32. Accordingly, following the dicta of the Supreme Court and given the facts and circumstances of the case, while dismissing the appeal, we award to the Respondents costs of Rs. 45,28,000/- which will be paid by the Appellant within a period of six weeks from today by depositing the amount by means of a demand draft with the Registrar General of this Court.
33. List for compliance on 8th March, 2010.