2001(3) ALL MR 720
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. KHANWILKAR, J.
Ahmed Abdul Aziz Bengali Vs. Mohammed Hanif M. Mulla & Ors.
Writ Petition No. 3838 of 1989
5th March, 2001
Petitioner Counsel: Mr. P.S.DANI
Respondent Counsel: Mr. A.S.SAYED
(A) Civil P.C. (1908), O.21,R.97, r.w. Rr.101, 100, 99 (As amended by Act of 1976) - Obstructionist proceedings - Scope - Issue at the instance of stranger to suit as to whether decree obtained by fraud - Can be adjudicated in such proceedings.
AIR 1997 SC. 856 - relied on. (Para 6)
(B) Civil P.C. (1908), O.21,R.97 - Evidence Act (1872), S.3 - Obstructionist proceedings - Defendant had not resisted suit notice or suit or notice U/O.22, R.22 - In spite of assurance by Plaintiff, Defendant not produced before Executing Court by Plaintiff - Variance in names and signatures of Defendant in records - Though suit originally filed for default and subletting, later only ground of default pressed and no evidence led for subletting - In his evidence, Plaintiff admitted that Obstructionist was in possession but failed to implead him - Licence under Shops and Establishments Act in favour of Obstructionist since several years prior to suit - Criminal case for criminal tresspass against Plaintiff pending - Variance in discription of suit premises in suit notice, plaint and evidence - No evidence that Plaintiff was owner of suit premises - In circumstances, inference by Court that decree a fradulent one and Obstructionist in possession in his own right - Proper. (Paras 7,7A,8)
(C) Constitution of India, Art.227 - Civil P.C. (1908), S.35A - Petition under - Scope - Finding that Petitioner had filed ficticious suit and subsequent proceedings were also false, frivolous and groundless - Held, Petitioner liable for punitive and exemplary costs - Quantum of such costs not limited by S.35A - Where Petitioner in spite of finding of lower court that vexatious litigation done by him filed a Writ Petition - In circumstances, exemplary costs of Rs.25,000/- imposed on Petitioner. (Paras 11,12)
Hiralal Patni vs. Shri.Kali Nath, AIR 1962 SC 199 [Para 5]
Bank of India vs. Winston Vaz, 1986 (2) Bom. C.R. 74 [Para 5]
Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal, AIR 1997 SC 856 [Para 6]
K.T.S.Mohd. vs. Union of India, (1992) 3 SCC 178 [Para 9]
M.S.Ahlawat vs. State of Haryana, (2000) 1 SCC 278 [Para 9]
1977 (4) SCC 467 [Para 11]
2000 (6) SCC 120 [Para 11]
1994 (6) SCC 68 [Para 11]
1996 (8) SCC 285 [Para 11]
1994 (6) SCC 9 [Para 11]
1995 Supp. (2) SCC 449 [Para 11]
1999 (6) SCC 532 [Para 11]
Dattugir s/o Ratangir Tondchirkar vs. The State of Maharashtra, 1994 (1) Bom. C.R. 476 [Para 11]
SNP Shipping Services Pvt.Ltd. vs. World Tanker Carrier Corporation, 2000(2) Mh.L.J. 570 [Para 11]
T.Arivandandam vs. T.V.Satyapal, (1997) 4 SCC 467 [Para 11]
JUDGMENT :- This writ petition under Article 227 of the Constitution of India takes exception to the judgment and order passed by the Small Causes Court at Bombay dated March 31, 1989 in Appeal No. 335 of 1988.
2. The petitioner filed a suit before the Small Causes Court bearing R.A.E. Suit No.4798 of 1979 praying for possession of the premises situate in the structure allegedly owned by him standing on Plot No.69/3, C.S.T. Road, Andheri (East), Opp: Vijay Nagar Society. The subject premises referred to in the plaint is stated to be the rear portion of the said structure, admeasuring 16 x 20. The same was allegedly let out to the respondent No.3 on monthly rent of Rs.60/ for the purpose of business. The petitioner claims that respondent No.3 was his tenant in respect of the suit premises and his tenancy was terminated vide suit notice dated July 15, 1979 on the ground of default as well as unlawful subletting. However, in the said suit the respondent No.3 alone was impleaded as defendant and the relief for handing over possession of the suit premises was pressed against him. It is stated that suit summons was issued to the respondent No.3 which was duly served, but he did not contest the said suit. Consequently the suit proceeded exparte and was eventually decreed on December 1, 1980. No doubt the decree was passed in December 1980, but the petitioner chose to get the decree executed by taking out notice under Rule 21 of Order 22 on February 10, 1984. This notice is stated to have been duly served on the respondent No.3 , but he did not contest the same. In the circumstances, the decree was sought to be executed on January 15, 1985, when the respondent Nos. 1 and 2 obstructed the execution of the decree. The Respondent Nos. 1 and 2 on the other hand claimed that respondent No.2 was in possession of the said property in his own rights and the decree obtained by the petitioner was collusive one. Consequently, obstructionist notice was taken out, being Obstructionist Notice No. 24 of 1985. The Respondent Nos.1 and 2 appeared in the said Obstructionist notice. Reply was filed by the respondent No.1 stating that the suit filed by the petitioner is a fraud played upon the court in as much as the petitioner is not the owner of the suit premises and the defendant respondent no.3 herein is a fictitious person who never occupied the suit premises. The respondent Nos. 1 and 2 asserted that the petitioner was not the owner of the suit premises and he had no right, title or interest therein. The respondent took a specific plea that the premises which have been occupied by them bear No.KEG 6 1/2 and not the description given by the petitioner. The Respondent Nos. 1 and 2 denied all the material allegations in the Obstructionist Notice and specifically pleaded that the respondent No.2/obstructionist No.2 was in possession and occupation of the premises in question for the last over 5 years, in whose favour batch holders card has been issued by the Naib Tahsildar, Andheri Taluka. The reply further asserts that in fact the petitioner had dispossessed the respondent no.2 from the premises in question which matter was enquired into by the Tahsildar Andheri; and the possession of the suit premises was restored to the Respondent No.2 and panchnama was drawn in that behalf. This is also fortified from the letter issued by The Tahsildar in this connection dated October 20, 1977, which has been placed on record. In fact, there is no serious dispute about this fact. The petitioner has not denied this position as is obvious from the evidence on record. In other words, the respondent Nos.1 and 2 claim that, the possession of the premises in question with the respondent No.2 was in his own rights and as such decree obtained by the petitioner could not be executed by disturbing the possession of the respondent no.2. The respondents in support of their plea placed reliance on 9 different documents, list whereof was filed before the Executing Court. Both the parties adduced oral evidence in support of their respective case. The court below, after considering the evidence on record was pleased to allow the obstructionist notice and ordered that the obstruction caused by the respondent Nos.1 and 2 be removed. The executing court mainly relied on the assessment bill produced by the petitioner paid to Bombay Municipal Corporation for the period from 1.4.1967 to 30.9.1967 and certified copy of the property register card to conclude that the petitioner had established ownership of the entire chawl including the suit premises. The documents and evidence adduced by the respondent Nos. 1 and 2 however did not find favour with the executing court, for the executing court held that the same did not disclose the ownership of respondent No.2. The respondent No.2 assailed the said decision by way of Appeal No.335 of 1998 before the Appellate Bench of the Small Causes Court at Bombay. The Appellate Court was pleased to reverse the conclusion arrived at by the executing court and instead took the view that the respondent No.2 has clearly established that he is in possession of the property in question in his own rights and that the petitioner had failed to establish ownership rights in respect thereof for the diverse reasons enumerated in the judgment. I shall make reference to the said findings and conclusions a little later. Suffice it to point out that the appellate court examined the entire evidence on record and after analysing the same in proper perspective arrived at the aforesaid decision and accordingly by its order dated March 31, 1989 was pleased to allow the appeal and set aside the order passed by the executing court, thereby discharging the obstructionist notice. The petitioner - original plaintiff, in the circumstances, has approached this court by way of present writ petition under Article 227 of the Constitution of India.
3. The learned counsel for the petitioner mainly contends that the appellate court has clearly exceeded its jurisdiction and the approach adopted by the appellate court amounts to going behind the decree, which is impermissible in law. The learned counsel further contends that from the documents placed on record by the petitioner, it was more than evident that the petitioner was the owner in respect of the entire chawl including the premises in occupation of the respondent No.2. In the circumstances, he submits that, the impugned order deserves to be set aside and the order passed by the executing court requires to be restored. On the other land, the learned counsel for the respondent No.1 and 2 contends that the findings recorded by the appellate court are essentially findings of fact, which cannot be interfered with by the High Court in exercise of writ jurisdiction, even if the said findings are erroneous one. He further submits that the appellate court has rightly exercised jurisdiction vested in it; and, assuming that the view taken by the appellate court on the issue of whether the service was duly effected on the original defendant during the suit and the notice under Order 21 Rule 22 is inappropriate, even then the same would not alter the ultimate decision rendered by the appellate court. According to him, the said finding, nevertheless, would be relevant to conclude that the proceedings initiated by the petitioner are abuse of process and fraud played upon the court. He contends that even if the executing court cannot go behind the decree, however, in view of the scheme of the provisions of the Code of Civil Procedure, it is open to the obstructionist, who is not claiming through the judgment debtor to contend that the decree is not binding upon him or that the same has been obtained by fraud. He submits that fraud would vitiate the entire proceedings and the obstructionist cannot be denuded of his right to agitate that the decree has been obtained by fraud on the basis of the other such findings recorded by the appellate court. He has adopted the reasons enumerated by the appellate court in that behalf to support the order and contends that no interference is warranted in writ jurisdiction.
4. Having considered the rival submissions, I am conscious of the fact that the present petition is under Article 227 of the Constitution of India and the scope of interference in such proceedings is very limited. Although this court would examine the matter in its supervisory jurisdiction but that would not permit interference merely because of some error of fact or law. In the circumstances, the present matter will have to be examined in this perspective.
5. Now reverting to the arguments on merits, the learned counsel for the petitioner no doubt relies upon the decisions of the apex court reported in AIR 1962 Supreme Court 199 Hiralal Patni vs. Sri Kali Nath to contend that it is only when the challenge is on the ground that the decree is nullity, having been passed by the court lacking inherent jurisdiction in that behalf only then the executing court would interfere and in no other ground. He has also relied on the decision of this court reported in 1986 (2) Bom. C.R. 74 Bank of India vs. Winston Vaz which more or less takes the same view as taken by apex court in the above said decision. This submission is advanced to assail the correctness of the approach of the appellate court in recording a finding that the petitioner had filed a false suit against Mohd. Chand Amirulla and thereby obtained a fraudulent decree and that the suit was filed against a fictitious person. On the other hand, the learned counsel for the respondent Nos.1 and 2 contends, that in view of the amended provisions of the Code of Civil Procedure, all questions including question relating to right, title or interest in the property arising between the parties to the proceedings and relevant to the adjudication of the application shall be determined by the court dealing with the application, as postulated by Rule 101 of Order XXI of the Code which would include the question adjudicated by the appellate court. Reliance placed on the decision of the apex court by the learned counsel for the petitioner has dealt with the issue of jurisdiction of the executing court in the context of provisions prevailing at the relevant time prior to 1976. It would be therefore apposite to advert to Rules 101 to 103 of Order XXI as it stood prior to 1976, which reads thus :
"101. Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment debtor, it shall direct that the applicant be put into possession of the property.
102. Nothing in rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.
103. Any party not being a judgment-debtor against whom an order is made under rule 98, rule 99, or rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive."
In contradistinction to the above said provisions, the provisions that would govern the present execution proceedings, as amended after 1976, as relied by both the counsels, would read thus:
"Resistance to delivery of possession to decree-holder or purchaser.
"97. (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
Resistance or obstruction by judgment debtor.
[98. (1) Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment debtor or by some other person at his instigation or on his behalf, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed, in obtaining possession, the Court may also, at the instance of the applicant, order the judgment debtor, or any person acting at his instigation or on his behalf, to be detained in the Civil prison for a term which may extend to thirty days, and may order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly or severally in addition to costs reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.
(2) Where upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment debtor or by some other person at his instigation or on his behalf, or by any transferee where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the Civil prison for a term which may extend to thirty days. (The Court may also order the person or persons whom it holds responsible for such resistance or obstruction to pay jointly or severally in addition to costs, reasonable compensation to the decree-holder or the purchaser, as the case may be, for the delay and expenses caused to him in obtaining possession. Any order made under this rule shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree)]
Resistance or obstruction by bonafide claimant.
[99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the persons mentioned in rule 95 or 98) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.)
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
Order to be passed upon application complaining of dispossession.
100. Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,-
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
Where it is determined that the application is made by person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed, the Court shall dismiss the application under sub-rule (a) above.]
Question to be determined.
101. All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. [Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate and thereupon the Court of the District Judge or any other competent court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court.]"
6. On plain reading of the aforesaid provisions, as amended after 1976, it is not open to contend that the question relating to decree obtained by fraud cannot be gone into by the executing court at the instance of the third party who is neither a judgment debtor nor claiming through the judgment debtor. Rule 101, as it presently stands, clearly bars a separate suit; and, instead, postulates that all questions arising between the parties shall be determined by the court dealing with the application filed under Rule 97 or Rule 99. There is no dispute that the present proceedings are arising out of the obstructionist notice taken out by the petitioner under Rule 97 to remove obstruction. Therefore, in such proceedings the issue regarding the decree having been obtained by fraud can surely be adjudicated by the executing court at the instance of a stranger to the decree. Reliance placed on the decision of this court in Bank of India's case (supra) would be of no avail in as much as the observations made therein are in context of the issue that was considered by that court. Moreover the decision of the Apex Court in Hiralal Patni's case (supra) deals with the pre-amendment situation, which is inapplicable to our case. On the other hand, the respondents have rightly relied on the decision of the apex court reported in AIR 1997 Supreme Court 856 in Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another. In the said decision the apex court has held that it cannot be said that the only remedy available to the stranger to the decree for possession who has resisted its execution, to have his claim agitated is the one under Rule 99 of order XXI after he has lost possession to the decree-holder and that he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The apex court after considering the scheme of Order XXI has observed that the provisions of Order XXI lay down a complete Code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. In para 5 of this decision the apex court has observed that the amended provision of order 21 clearly guards against the pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which is subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 to 103 would remain a complete Code and the sole remedy for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves. In view of the aforesaid settled legal position it is too late in the day for the Petitioner to contend to the contrary.
7. To recapitulate the approach adopted by the appellate court, it could be seen from the judgment under challenge that, the appellate court first examined the issue as to whether the suit filed by the petitioners against respondent No.3 was a false suit and the petitioner had obtained fraudulent decree against the fictitious person for deciding the said issue against the petitioner. The appellate court has considered various circumstances to indicate that the suit was false suit and the decree obtained was fraudulent one being against a fictitious person. The appellate court has taken into account the manner of service of writ of summons on defendant - judgment debtor and the fact that the judgment debtor neither resisted the suit notice nor the suit or the notice under Order XXI Rule 22, on the contrary he was conveniently available to the petitioner for effecting service of notice on him whenever required. The Appellate Court also noted that inspite of assurance given by the petitioner that he would produce respondent no.3 before the court in execution proceedings, he did not do so. Besides these circumstance, the appellate court has taken into account the variance in the signatures as well as the names found at different places in the records before the executing court coupled with the fact that although the petitioner had originally filed the suit against the judgment debtor on the ground of default as also on the ground of unlawful subletting but the suit was pressed only on the ground of default and no evidence was led with regard to the ground of unlawful subletting. Moreover, the appellate court has taken into account the fact that the petitioner has admitted in his evidence in the obstructionist notice that the respondent No.2 came to occupy the suit premises in the year 1974. It has also come on record that the respondent No.2 was sought to be dispossessed by the petitioner and pursuant to the order passed by Tahsildar, Andheri, possession of the suit premises was restored to the respondent No.2 some time in 1977. Notwithstanding the above said position and the admission of the petitioner, the petitioner did not implead the respondent no.2 in a suit filed before the Small Causes Court in the year 1979. The appellate court has also considered all the documentary evidence as well as oral evidence adduced by the parties to conclude that the same would indicate that the possession of the suit premises was with respondent no.2 in his own rights in as much as the registration certificate under the Shops and Establishment Act issued in the year 1967, compensation receipts for the compensation paid by the respondent No.2 to the Corporation showing period from January 1976 onwards which would indicate that the respondent No.2 was doing his business, the fact that the petitioner knew and had knowledge and has admitted possession of the respondent No.2 in respect of the suit premises since the year 1974. All these circumstances would clearly indicate that the respondent No.2 was in possession of the suit premises in his own rights. The Appellate Court has also considered the two documents which were relied by the executing court to rule in favour of the petitioner that he is the owner in respect of the chawl including the suit premises. The appellate court has found that the case regarding description of the property has been inconsistent in as much as the description mentioned in the plaint does not match with the description of the property given in the documents relied upon by the petitioner, but the same would match with the stand taken by the respondent No.2. The appellate court has observed that the assessment bill produced by the petitioner indicates the description of the property as "K-1992 (2A) 2A Government Sahar Scheme Tiled Shed" and the petitioner has been shown as occupier of the said property. The appellate court has rightly observed that there is no evidence to show that the tiled shed recorded in the said document corresponds to the premises in question or it refers to the Bengali Chawl or some other shed. In other words the petitioner had failed to prove the identity of the said tiled shed with the suit premises. With regard to the property register card, the appellate court has rightly observed that it describes the property as Survey No.7 and holder of the said property the origin of the title has traced to the Bishop of Bombay and the petitioner's name appeared in the column of encumbrances. Entry in that behalf has been recorded on 25.2.1979 showing him as the owner of the structure. The appellate court has rightly observed that on comparing the two documents relied upon the petitioner it is not possible to countenance that they pertained to one and the same property. On the other hand, the assessment bill indicates the property relating to Government Sahar Scheme whereas the property indicated in the register card is the property belonging to Bishop of Bombay and that the petitioner has been shown as owner of the structure standing thereon. Besides this there is nothing on record that the structures referred to in the said document correspond with the Bengali Chawl stated to be owned by the petitioner in which the suit premises are situated. The appellate court has therefore rightly observed that the petitioner has not produced any title deed in respect of the land on which the said structure is standing. Thus the appellate court, on comparing the evidence adduced by both the parties preferred to accept the version of the respondent No.2 that he is in possession of the suit premises in his own rights which was supported by the evidence on record. These findings of fact cannot be upset and in fact the learned Counsel for the petitioner has not been able to successfully assail the said findings recorded by the appellate court.
7A. Understood thus, it would be amply clear that the petitioner has abused the process of court by filing a false suit against a fictitious person. This inference can be gathered from the various circumstances. It is relevant to note that although the petitioner had impleaded judgment debtor-original defendant as respondent No.3 in the present writ petition but has allowed the writ petition to go by default as against him for the reasons best known to the petitioner. Taking the totality of the circumstances into account, I find no reason to interfere with the finding of fact recorded by the appellate court; that too in exercise of writ jurisdiction under Article 227 of the Constitution of India. I find no infirmity either in the approach or the conclusions reached by the appellate court while allowing the appeal preferred by the respondent No.2.
8. On careful examination of the materials on record, I have no hesitation in taking the view that this is one of those cases where the litigant (petitioner) has engaged in sharp practice and made calculated moves with ulterior design so as to evict the Respondent No.2 who was in possession of the suit premises, by instituting a false suit against respondent No.3 on the premise that he was his tenant in respect of the suit premises; notwithstanding the fact that the petitioner had full knowledge at the time of institution of the said suit that it was respondent No.2 who was in physical possession and occupation of the suit premises. The various circumstances which would justify the finding that the Petitioner has abused the process of court can be summarised are as under:
It is not in dispute that the respondent no.2 was dispossessed by the petitioner from the subject premises, which matter was enquired into by the Tahsildar Andheri - who ordered restoration of possession of the premises to respondent No.2. Undisputedly, this proceedings were allowed to attain finality by the petitioner. The petitioner has advisedly made no reference to the abovesaid proceedings which were anterior in point of time to the suit filed in the year 1979 against respondent No.3 - Mr.Mohamed Chand Amirulla. Whereas, the suit proceeds on the premise that legal notice was issued to the defendant - Respondent No.3 on 15.7.1979 and the same has been duly served on him on the address of the suit premises; that inspite of this notice, the defendant Respondent No.3 did not pay the arrears of rent and therefore committed default within the meaning of Section 12 of the Bombay Rent Act. The other ground asserted in the suit is that the defendant - Respondent No.3 had unlawfully sublet the suit premises, albeit without mentioning the name of the respondent No.2 as unlawful occupant.
It is also relevant to note that suit summons are stated to be duly served on the defendant Respondent No.3, but even the defendant did not resist the suit and allowed it to go exparte. Further, it is intriguing to note that the defendant was conveniently available to the petitioner for affecting service of notice under Order XXI Rule 22, but even that notice was not contested by the defendant. The evidence on record indicates that there is variance in the name of the defendant on different documents as also in his acknowledgment of the notice. Interestingly, the petitioner did not pursue the suit with regard to the ground of unlawful subletting, but led evidence only in respect of the ground of default for the reasons best known to him. According to the petitioner, unlawful subletting was done recently in the year 1973-74, this period obviously corresponds with the period when the respondent No.2 is stated to have obtained possession of the premises in question. The petitioner has not produced any evidence on record to show that the defendant - respondent No.3 herein was the tenant and was occupying the suit premises in that capacity. Moreover, the description of the suit premises in the plaint does not match with the record and the evidence adduced by the petitioner. On the other hand the record would indicate that the respondent No.2 was doing business in the premises in question at least since June 1974 and that the petitioner has admitted this position in his evidence. It is also not in dispute that criminal case is pending against the petitioner for having committed criminal trespass in the suit premises. Although the petitioner gave assurance during the evidence that he would produce the defendant - respondent No.3 before the court, he has not done so. As observed by the appellate court there is clear variance in the description of the suit premises in the suit notice, plaint, evidence including the documentary evidence. All these circumstances considered together would leave no manner doubt that the petitioner had filed a false suit with ulterior designs thereby indulged in abuse of the process of the court. I have no hesitation in concluding that the Petitioner not only filed false and frivolous claim but also modulated the records to subserve his ulterior design.
9. The next question that would arise for my consideration is, what would be the appropriate order to be passed against the litigant who has indulged in frivolous and vexatious proceedings which has unquestionably resulted in loss of precious judicial time right up to this court. I had requested Shri Anturkar to appear in the matter as amicus curiae. He submits that, in such situation, it would be open to the court to take recourse to action under the contempt of Courts Act, besides instituting enquiry for initiating criminal action. He contends that, in addition, this court may also consider of imposing exemplary and punitive costs. Mr.Anturkar has referred to Section 340 of the Code of Criminal Procedure to contend that from the materials on record, prima facie, it would appear that the petitioner has committed offences affecting the adminstratation of justice and related offences and enquiry in that behalf will have to be undertaken by virtue of Section 340 read with Section 195 of the Code. He has relied on the decision of the apex court reported in (1992) 3 SCC 178 K.T.S. Mohd. and another vs. Union of India and another decision reported in (2000) 1 SCC 278 M.S.Ahlawat vs. State of Haryana & Anr. relating to the procedure to be adopted in that behalf. The learned counsel for the petitioner on the other hand contends that such an action can be initiated only by the executing court and not in exercise of writ jurisdiction.
10. After having given my anxious thought, I am of the view that, instead of taking recourse to contempt action or criminal prosecution, it would be just and appropriate that the petitioner is saddled with exemplary and punitive costs. I am therefore, not engaging myself in the discussion about the procedure or the power or the authorities of this court to initiate criminal or contempt action.
11. Mr.Anturkar has rightly referred to host of decisions to contend that if the court is satisfied that the proceedings filed by the petitioner was inspired by fictitious motive and was altogether groundless, then it is the duty of the court to impose exemplary costs. He has referred to the following decisions of the apex court in support of his submissions :
1) 1977 (4) SCC 467
2) 2000 (6) SCC 120
3) 1994 (6) SCC 68
4) 1996 (8) SCC 285
5) 1994 (6) SCC 9
6) 1995 Supp. (2) SCC 449
7) 1999 (6) SCC 532
Besides the above-said decisions of the apex court, he has also adverted to two decisions of this court reported in 1994 (1) Bombay C.R. page 476, (Dattugir s/o Ratangir Tondchirkar vs. The State of Maharashtra and others and 2000 (2) Mh. L.J. 570 (SNP Shipping Services Pvt. Ltd. and others vs. World Tanker Carrier Corporation. All these decisions have been pressed into service to urge that, if the litigation is found to be vexatious and abuse of the process of the court and if such decision is reached by the court it is the duty of the court to impose exemplary and punitive costs. From the decisions of the apex court referred to above the trend seems to be that the apex court has imposed exemplary and punitive costs in such matters ranging between Rs.10,000/- to Rs.1,00,0000/ depending on the facts and circumstances of the case. Even in the present case, since I have already found that the original suit filed by the petitioner as well as subsequent proceedings resorted to against the respondent No.2 are false and frivolous and altogether groundless, therefore, I have no option but to award exemplary and punitive costs. Such an approach is the need of the hour. This Court would only remind the members of the Bar that they have an important role to play to dissuade such litigation. Such a service will go a long way to make the justice delivery system efficient, effective and credible. There can be no manner of doubt that but for their complicity no litigant would dare to walk into the portals of the Courts with frivolous or vexatious claim. In this context the observations made by the apex court in (1977) 4 SCC 467 (T.Arivandandam vs. T.V.Satyapal and another) would be apposite which reads thus:
"The pathology of litigative addiction ruins the poor of this country and the Bar has a role to cure this deleterious tendency of parties to launch frivolous and vexatious cases."
In the same decision the apex court has observed that the trial court is duty bound to impose exemplary costs under Section 35-A of CPC and take deterrent action if it is satisfied that the litigation is inspired by fictitious motive and altogether groundless. It is therefore well settled that; when abuse of the process is clearly established before the court, it is not suffice to merely dismiss the action, but it is the bounden duty of the court to express its disapproval to the course adopted by the parties and to ensure that corrective action is taken against such litigation which is inspired by vexatious motives. In the present case, there can be no doubt that the petitioner has abused the process of law and misused legal system for which has incurred the liability of suffering punitive costs. The next question therefore is about the quantum of exemplary costs. In this context it would be appropriate to advert to the provisions of Order XXI Rules 98 and 100 which clearly indicates that the executing court if satisfied that the obstruction was unjustified the obstructionist could be directed to be sent to civil prison or in addition to pay reasonable costs to the decree holder. Taking clue from the purport of Rules 98 and 100 of order XXI it would be possible to hold that the executing court can pass such order which may include imposing of punitive costs on the decree holder if it is satisfied that the proceedings against the third party resorted to by the decree holder were vexatious and if such satisfaction is reached by the executing court, then it is duty of the executing court to award appropriate compensation to the affected party. Such order could be passed in exercise of power to award costs under Section 35 and compensatory costs under Section 35-A of the Code of Civil Procedure. However, from the plain language of Section 35-A it would be evident that the maximum compensatory costs that can be awarded by the subordinate court cannot exceed amount of Rs.3,000/-. No doubt, Section 35-A of the Code of Civil Procedure would be relevant, but as rightly contended by Mr.Anturkar, since the petitioner has invoked writ jurisdiction of this Court, this Court can award appropriate exemplary and punitive costs against the petitioner and not limit it to the quantum indicated in Section 35-A of the Code of Civil Procedure.
12. In my view the petitioner has not only filed frivolous and vexatious suit and modulated records to subserve his ulterior design, but had the audacity to take out obstructionist notice after the decree was obstructed by the respondent No.2. No doubt, the petitioner succeeded before the First Court, but, in Appeal, the appellate court has considered all the relevant matters which were overlooked by the First Court and rightly concluded that the suit filed by the petitioner was a false suit and the petitioner had obtained a fraudulent decree. Notwithstanding this finding, the petitioner has chosen to approach this court by way of present writ petition. In that sense, the petitioner has not only consumed precious judicial time of the courts below but also engaged this court by reiterating his frivolous and vexatious plea. There can be no doubt that to defend all these proceedings the respondent No.1 and 2 must have spent their fortune and therefore it would be traversity of justice to compensate the said respondents only by awarding the limited amount quantified by Section 35-A of the Code of Civil Procedure. Since the petitioner had the audacity to approach this court in writ jurisdiction; and, having polluted the justice delivery system and resultantly blocked the opportunity of genuine litigants who are waiting in queue for several years; and with a view to create deterring effect on such litigation, I would prefer to follow the dictum of the apex court in awarding exemplary and punitive costs to such litigants. Accordingly, taking over all view of the matter, I am satisfied that this is a fit case where exemplary and punitive costs to the extent of Rs.25,000/- be awarded. The petitioner shall pay this amount within six months from the date of this order, failing which it will be open to the respondent No.2 get the amount recovered in execution. It is however made clear that it will be open to the Respondents 1 and 2 to take recourse to such other remedy against the Petitioners which may be permissible in law, including to demand further damages.
14. For the aforesaid reasons, this writ petition fails and is dismissed with exemplary and punitive costs quantified at Rs.25,000/- to be paid to the respondent No.2 within six months from today. Rule stands discharged.