DHANAJAY NAGESH NAIK vs SUDAM GOPAL PEDNEKAR

AGGRIEVED by order dated 3.10.2011, passed by State Consumer Disputes Redressal Commission, Goa (for short as ?State Commission?) in Revision Petition (No.8 of 2011) filed before it, petitioners have filed this second revision petition, before this Commission.

BEFORE taking up this petition for consideration, it will be fruitful to narrate the brief history of this case. Original complainant (respondent herein) filed complaint against opposite parties namely, Shri Nagesh Naik (since deceased) and Mrs. Anusuya Naik (wife of deceased - Nagesh Naik) before the District Forum, on the ground that they have failed to hand over the possession of the flat as well as shop in question, within the stipulated period as mentioned in the agreement. That complaint was contested by the opposite parties. District Forum, vide order dated 29.9.1997, dismissed the complaint.

Aggrieved by the order of District Forum, respondent filed an appeal before the State Commission, which allowed the same, vide order dated 9.12.1998 and directed the opposite parties to execute the sale deed in respect of the flat/shop within three months.

IN the meanwhile, Nagesh Naik (opposite party no.1) died and present petitioners, being his legal representatives, have been brought on record. Thereafter, respondent filed execution application to which objections were filed by the petitioners. The execution application was allowed by the District Forum, vide its order dated 30.3.2011.

AGAINST order dated 30.3.2011, petitioners filed Revision Petition (No.8 of 2011) before the State Commission. Vide impugned order, above revision petition was dismissed by the State Commission. At this stage, it would be pertinent to point out that petitioners, earlier have also filed Revision Petition (No.3725 of 2010, Dhananjay Nagesh Naik Vs. Sudam Gopal Pednekar) before this Commission. That revision petition has already been dismissed by this Commission, vide order dated 8.2.2011. This is how this matter reached before this Commission again, by way of this second Revision.

IT is contended by learned counsel for the petitioners that, respondent sought the execution of order dated 9.12.1998, after a long delay of 12 years, by filing the execution application, which is hopelessly barred by limitation.

IT is also contended that the Consumer Protection Act, 1986 (for short as ?Act?) does not provide for any period of limitation for filing application for execution of its orders. Therefore, in such a scenario, recourse has to be taken to Article 137 of the Limitation Act, 1963, which specifically provides for three years period of limitation. Thus, State Commission has committed material irregularity and illegality. In support, learned counsel relied upon the following judgments ; i. Asia Resorts Ltd. Vs. Usha Breco Ltd. (2001) 8 SCC 710 and ii. The Kerala State Electricity Board, Trivandrum VS. T. P. Kunhaliumma (1976) 4 SCC 634.

Ex-facie, present revision petition, being second revision petition filed in succession, is not maintainable under the law and same is liable to be dismissed on this short ground.

Even on merits, petitioner has no leg to stand. Present petition has been filed just to deprive the respondent fruits of the decree passed in his favour more than 15 years ago.

PRESENT petition has been filed on the same grounds which were earlier agitated by petitioners in Revision Petition (No.3725 of 2010) that execution being barred by limitation, is not maintainable. In Revision Petition (No.3725 of 2010) petitioners took following grounds with regard to limitation, which reads as under ; "Without prejudice to the aforesaid, it is respectfully submitted that execution initiated by the Respondent before the learned District Forum is not sustainable as the same has been filed much after the stipulated period contained in the impugned order. In this context, it is respectfully submitted that the sale deed with respect to the decree was directed to be executed within three months from the date of the decree. The decree holder i.e., the respondent never approached the petitioners for execution of the sale deed within the time stipulated in the decree. Moreover, the respondent has lost their right to execute the order due to acquiesce and waiver. Thus, the execution even otherwise, is barred by limitation."

WHILE dismissing Revision Petition (No.3725 of 2010), this Commission, vide order dated 8.2.2011 observed ; "Learned counsel for the petitioners states that he has already informed the petitioners that he will not be representing them in this case because the petitioners had totally misrepresented to him about the facts of this case in particular as to when copy of the impugned order was supplied to them and when they applied for certified copy of the order after 10 years of the passing of the order. The petitioners have failed to appear in person or to engage another counsel despite the above position. In the circumstances, the revision petition is liable to be dismissed in default and for non-prosecution as also on the ground that the revision petition is hopelessly barred by time for more than 12 years. Revision petition is dismissed."

Moreover, filing of execution petition by respondent in year 2010, by no stretch of imagination can be said to be beyond period of limitation. Firstly, no period of limitation for filing execution has been provided in the Act, which is a code in itself. Secondly, as per petitioners own case, litigation between the parties has been going on since 1995 and only after the order of District Forum has become final, respondent could file the execution petition. Thus, various judgments cited by learned counsel are not applicable to the facts of the present case.

IT is an admitted fact also that petitioners have already filed Special Leave petition in the Hon?ble Supreme Court against earlier order dated 8.2.2011, passed by this Commission.

IMPUGNED order dated 3.10.2011, is a well-reasoned order and it reads as under ; "3. The grievance of the petitioner is that the lower Forum ought to have considered the said reply wherein it was submitted that the said Execution application pending before the Lower Forum was in itself bad in law being barred by limitation and the learned Forum ought to have considered all objections before passing the cryptic non-reasoned impugned order dated 30.3.2011. 4. At the outset, it is observed that the impugned order passed in the Execution Application by the Lower Forum is the final order inter alia having effect of culminating the execution proceedings in finality. This being so, the petitioner ought to have filed Appeal before this Commission and not the present Revision Application. On this ground alone, the Revision Application deserves to be dismissed in limini. 5. Be it as it may, the petition under consideration is devoid of any merits on facts and at law. It is pertinent to note that the learned counsel for the petitioner has conceded today, in the course of his oral arguments, that the petitioner has not disclosed material circumstance in the petition to the effect that their Appeal before Hon?ble National Commission filed against the impugned order passed by this Commission, was dismissed on the ground of delay by Hon?ble National Commission. Learned counsel for the petitioner has orally submitted that the petition keeps silence on another important circumstance within the knowledge of the petitioner as regards the fact that the Special Leave Petition is presently pending before Hon?ble Supreme Court in respect of the order passed by the National Commission. The applicant herein could not convince this Commission as to the reasons justifying the non-disclosure of the above two material facts in the memorandum of present petition. 6. We are of the opinion that the petitioner has not approached this Commission with clean hands. We are not convinced that the petitioner honestly intends to honour the Decree passed by this Commission in respect of which the Execution application was filed before the Lower Forum and consequently the impugned order was passed. We do not find any material irregularity or manifest illegality so as to disturb the findings of the lower forum. 7. The petitioner has also not enclosed to the present petition the original Decree passed by this Commission. Since no useful purpose would be served by calling for the records from the lower Court and we are of the considered opinion that the present petition deserves to be dismissed at this admission stage itself, there is no question of granting any stay in respect of the impugned order as submitted by the counsel for the petitioner in his oral arguments. 8. In view of our observations made hereinabove, it is hereby ordered that the present revision application is hereby dismissed with no costs."

As per impugned order, petitioners concealed material facts before the State Commission. Thus, looking from any angle, we find that present revision petition is most bogus and frivolous one as the same has been filed just to waste time of this Commission. The only motive of petitioner is not to comply the orders passed by the fora below and to deprive the respondent fruits of the decree.

Hon?ble Supreme Court in S.P.Chengalvaraya Naidu (dead) by LRs Vs. Jagannath (dead) by LRs & Ors., (1994) 1 SCC 1 has observed ; "The courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who?s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."

IN Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ; "Courts 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 law?s delay and bringing bad name to the judicial system."

It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Time and again Courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands.

NOW question which arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioners for dragging the respondent upto this fora, when petitioners had no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ; "45. 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 court?s 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 man?s general impression about litigation in following words : ?Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."

In our opinion, present petition is nothing but a gross abuse of process of law and same is totally, frivolous and bogus one. Hence, the same is required to be dismissed with punitive costs. Accordingly, we dismiss the present petition with punitive costs of Rs.50,000/-.

COSTS of Rs.50,000/- (Rupees fifty thousand only) be deposited by way of demand draft in the name of ?Consumer Legal Aid Account? of this Commission, within eight weeks from today.

IN case, petitioners fail to deposit the aforesaid costs within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. Pending application also stands dismissed.

List for compliance on 6.7.2012.