Ranipet Municipality vs Shamsheerkhan

S. Subramani, J.—This C.R.P. and C.M.P. coming on for hearing on this day upon perusing the petition the order of the court below and

the record in the case and upon hearing the arguments of Mr. P. Bagyalakshmi, Advocate for the petitioner and of Mr. D. Rajagopal, Advocate

for the respondent, the court made the following order:--

This is a revision under Art.227 of the Constitution of India to revise the order of the lower court in I.A. No. 499 of 1996 in O.S. No. 396 of

1996 on the file of the District Munsiff''s Court, Ranipet.

The material facts on the basis of which this revision is filed may be summarised as follows:-- The petitioner is the Ranipet Municipality represented

by its Commissioner. The plaint schedule property admittedly belongs to the petitioner. It is stated to be a weekly market. It is said that the

respondent''s grand father took the vacant land on lease from the petitioner at Ranipet and the same was being used by him till 1966. Even in the

year 1960, the respondent''s grand father had put up some superstructures on the site and he has been using the same as weekly market till his

lifetime in 1970. After his death, his grand-mother continued the arrangement and now it is the case of the respondent that he has been making use

of the same and whatever amount is payable to the petitioner is also being paid. It is said that the respondent is in possession for the last sixteen

years and his ancestors possessed the same for more than twenty years. It is averred that the respondent was repeatedly called upon by the

traders to put up some building and sheds. Since the petitioner was not keen in helping the traders, the respondent for smooth and effective

functioning of the cattle shandy, had pulled down the temporary shed and other amenities when they became old. It is said that the respondent put

up pucca construction in the land for the purpose of weekly market at his own cost, by spending about Rs.2,50,000/- for the above said

construction. The respondent is collecting charges from the traders, those who came and sell their goods in the weekly market by virtue of the

lease. On 29-12-1993, the petitioner issued a notification, wherein it was informed that a public auction is to be held on 12-12-1994 in respect of

the land. Since the conduct of the petitioner was arbitrary, the respondent filed a suit O.S.No.134 of 1994 and obtained an order of interim

injunction restraining the petitioner from conducting the auction. The auction was stopped and as the notification was no more in force.

O.S.No.134 of 1994 was issued by the petitioner on 13-12-1994 proposing to hold an auction on 10-2-1995. Again the plaintiff filed O.S.2244

of 1995 and obtained an order of interim injunction in the City Civil Court. As the notification was no more in force, O.S.No.134 of 1994 was

also withdrawn. A further notification was issued by the petitioner on 13-12-1994 proposing to hold an auction on 10-2-1995. Again the plaintiff

filed O.S.No.2244 of 1995 and obtained an order of interim injunction in the City Civil Court. As the notification was no more in force,

O.S.No.2244 of 1995 was also withdrawn subsequently. Again the petitioner issued another notice on 8-9-1995, wherein it was stated that the

petitioner proposed to hold an auction on 22-9-1995. The respondent again filed another litigation and obtained-interim order. Finally, that was

also withdrawn. The cause of action for the suit O.S.No.396 of 1996 arose on 27-9-1996, when the petitioner again issued a public notification

stating that it intended to hold an auction on 11-10-1996. A letter was sent by the respondent on 27-9-1996 to the petitioner informing that he has

put up superstructure and without compensating him, the auction should not be held. When the petitioner confirmed its intention to hold the auction,

the present suit is filed for the very same purpose viz., ""for declaration of auction notice dated 27-9-1996 published in ""Dina Malar"" as null and

void, for permanent injunction restraining the defendants or their men, agent, servants from interfering with the plaintiffs peaceful possession and

enjoyment of the ""weekly shandy"" at Ranipet more fully described in the schedule hereunder except by due process of law by conducting auction,

for costs of the suit"" etc.

In the counter statement, the petitioner seriously opposed the claim of the respondent. It is stated that even though the Municipality had filed a

Caveat as O.P.No.55 of 1996 the lower court without taking into consideration of the same, passed an ex parte order of injunction and that order,

therefore, is illegal and improper. It is further stated that the suit O.S.No.134 of 1994 filed by the respondent was decided on merits and the

injunction application was also dismissed. Later, he also filed a Writ Petition before this Court as W.P.No.3079 of 1994 and moved for interim

injunction by filing W.M.P.No.4986 of 1994 in that writ petition. The W.M.P. was dismissed and subsequently without getting liberty to file

another suit, the writ petition was also withdrawn. The petitioner also denied the fact that the respondent had at any point of time put up any

construction. It is further said that it is the duty of the petitioner to auction the right to collect the market fees and in view of the various orders of

injunction passed from time to time, the Municipal Authorities are prevented from discharging their duties by auctioning the right to collect market

fees in order to augment their revenue and the auction of the respondent is highly unjustified and the filing of suits one after the other by the

respondent is really vexatious and at any rate, the right the plaintiff is only to collect the market fee from the traders. That right had come to an end

even in the year 1994. But, he has been successfully preventing the defendant from conducting an auction and at the same time he is collecting the

fees from the traders. The auction of the plaintiff, according to the petitioner is really an abuse of the process of court. The petitioner states that the

respondent has no prima facie case and that he has no right to get an order of injunction.

Even though the counter statement was filed by the petitioner herein before the court below, after hearing the parties, the lower court confirmed

the earlier ex parte order of injunction.

It is against that order, this revision under Art.227 of the Constitution of India is filed. At the time when the matter came up for admission, I

ordered notice of motion. The office had also a doubt as to the maintainability of the revision, since an appeal is provided against the order granting

injunction. But, the learned counsel submitted that if a case of abuse of the process of court is brought to the notice of court the other remedies, the

other remedy, though available, can never be a bar. The counsel submitted that the misusing the process of court, the respondent is filing suits one

after the other and in such case, Art.227 of the Constitution of India read with Sec. 151 of the Code of Civil Procedure, will be the effective

remedy and the petitioner is not prohibited from initiating such proceeding and the same will be available even if an appeal is filed. In order to

appreciate the argument, we will have to consider the previous proceedings taken by the respondent.

Even according to the admission of the respondent, he filed O.S.No.134 of 1994 on the file of the same court. He obtained an ex parte order of

injunction and the same was extended from time to time. In that case also, the averment was that himself and his predecessors have put up various

sheds for the convenience of the traders and when the men of the petitioner attempted to demolish the construction, the same was avoided. It is

further averred in that plaint that the respondent has not committed any default in the payment of fee and whatever the amount was due from the

respondent had been paid from time to time and on due dates. A copy of the plaint in O.S.No. 34 of 1994 was brought to my notice, wherein the

right of the petitioner over the suit property is admitted and the respondent had also admitted that he is only a licensee and he used to collect fee

from the various traders. The cause of action for the suit was that the petitioner herein wanted to demolish the superstructure and cause damage to

the basic amenities provided and the petitioner herein proposed to hold public auction for the year 1994-95. He wanted his possession to be

protected since he has put up constructions. He further said that since he is the person in possession, his possession should not be disturbed. He

further averred that he has been in possession of the property for more than four decades. The prayer in the plaint was, to restrain the defendant or

his subordinates from conducting the auction either on 10-2-1994 or any other date. He also wanted a declaration that the auction notification

order dated 29-12-1993 to be declared as null and void and also for a permanent injunction to restrain the petitioner herein from disturbing his

possession until he is evicted by due process of law. That suit was admittedly withdrawn.

Later, the respondent filed a writ petition W.P.No.3079 of 1994 before this court wherein also, he said that he has put up a pucca construction,

superstructure and platform with the consent and approval of the petitioner herein and he wanted this court to permit him continue his right to

collect fee in the weekly market even after 31-3-1994. The final prayer in the writ petition read thus:--

It is most respectfully prayed that this Hon. Court may be pleased to issue appropriate writ or order or direction in particular issue writ of

mandamus directing the respondent to permit the petitioner to continue his trade in weekly shandy at Ranipet after 31-3-1994 and pass such

further or other orders as this Hon''ble Court may deem fit and proper, in the circumstances of the case and thus render justice.

That writ petition was also withdrawn.

It is also not disputed that another suit was filed by the respondent herein on the very same averment as O.S.No.2244 of 1995 before the City

Civil Court, Madras. That was regarding the notice dated 13-12-1994. Similar averments were made and therefore also he prayed that the

defendant therein should not dispossess him except under the due process of law. The same was also withdrawn and finally, we come to the fourth

suit, wherein the present injunction was obtained.

It is this conduct of the respondent that is attacked by the petitioner as abuse of process of court. What is abuse of the process of the court. Of

course, for the term abuse of process of the court, the CPC has not given any definition. A party to a litigation is said to be guilty of abuse of

process of the court, in any of the following cases:--

(1) Gaining an unfair advantage by the use of the rule of procedure.

(2) Contempt of the authority of the court by a party or stranger.

(3) Fraud or collusion in court proceedings as between parties.

(4) Rendition of a benefit wrongly received.

(5) Resorting to an encouraging multiplicity of proceedings.

(6) Circumventing of the law by indirect means.

(7) Presence of witness during examination of previous witnesses.

(8) Instituting vexatious, obstructive or dilatory actions.

(9) Introduction of the Scandalous or objectionable matter in proceedings.

(10) Executing a decree manifestly at variance with its purpose and intent.

(11) Institution of a suit by a puppet plaintiff.

(12) Institution of a suit in the name of the firm by one partner against the majority opinion of other partners, etc.

(See the CPC - AIR Commentary to Sec.151, C.P.C.). The above are only some of the instances, where a party may be said to be guilty of

committing abuse of the process of court.

In a recent decision of the Supreme Court in Municipal Corporation of Delhi Vs. C.L. Batra, , the Municipal Corporation of Delhi questioned

an order of injunction granted by the High Court. There, the Municipal Corporation was prevented from recovering municipal tax of nearly rupees

one crore. A suit was filed and an injunction was obtained by the assessee from time to time. Before the Supreme Court, it was argued that the

interim order has opened a floodgate and many other suits have been bypassing the statutory provisions of appeal and the various demands issued

by the Municipal Corporation had been stayed and they are not in a position to discharge their duties in accordance with law. In that case, the

complainant or the assessee had filed the writ petition challenging the assessment of tax. The same was withdrawn without obtaining any leave for

filing a separate suit. While considering the same, in para.8 of the judgment (at page 356 of the report), their Lordships said:--

Secondly, the assessee had filed a writ petition, praying for similar relief. When interim order was not granted on that writ petition, he withdraw the

writ petition and filed this suit. This was an abuse of process of law. No liberty was obtained from the court to file a suit on the same cause of

auction, when the writ petition was withdrawn.

(Emphasis supplied)

Their Lordship of the Supreme Court deprecated the order of the High Court in granting the injunction even without deciding the maintainability of

the suit. In this case also, alleging the very same reason, the respondent has filed the suit and the court also gracefully granted interim injunction and

thus the municipality was successfully prevented from auctioning the market. After enjoying the benefit of the interim order, when the suit comes up

for trial, he immediately withdrawn the suit. The same is the procedure adopted in the writ, petition.

In Sreedharan v. Seethala (1988 (2) KLT 732), the Kerala High Court had an occasion to consider what is meant by abuse of the process of

the court and it was held as follows:--

The power of the court to make such orders as are necessary to prevent abuse of the process of court is inherent in every court. The term abuse of

the process of the court has not been defined. What then this term means? Its meaning therefore has to be gathered from other sources.

A malicious abuse of legal process occurs where the party employs it for some unlawful object, not the purpose which it is intended by the law to

effect; in other words a perversion of it. Yet another shade of meaning is this: ""Abuse of process is the malicious and improper use of some regular

legal proceeding to obtain some advantage over an opponent"". This is a term generally used to proceeding which is wanting in bonafides and is

frivolous, vexatious or oppressive. An ""abuse of the process of court can be committed by the Court or by a party. It is therefore clear that where

a court employed a procedure in doing something which it never intended to do, but resulted in miscarriage of justice, there is what is called an

abuse of the process of the court. If a subordinate court commits an abuse of the process of the court, a superior court has the power, nay the duty

to prevent the said abuse becoming perpetual by interfering with the proceedings. What then is an abuse of the process of the court committed by

a party to the proceedings? Instituting vexatious, obstructive or dilatory action in court of law is one instance; where a party should be held to be

guilty of an abuse of the multiplicity of proceedings for one''s own aggrandisement is yet another instance where a party could be said to have

committed an abuse of the process of the court.

The main grievance of the respondent is that he has put up construction and has been in physical possession and his possession should not be

disturbed except under due process of law. When he withdraws a suit or a writ petition without reserving the liberty to file another suit or writ

petition, he cannot file another suit for the same reliefs or on the same cause of action. The Municipality might have issued notice of auction. But,

that is not the right claimed by him. He claimed interference with his possession and from dismantling the building. That is the right claimed by him in

the suit. That is the common allegation made in all the suits filed by him and also in the writ petition. If he did not ask for grant of that right, he

should not be allowed to file a separate suit as and when an auction notice was issued. Such a conduct on the part of the respondent is really an

abuse of the process of court as held in Sreedharan v. Seethala (1988 (2) KLT 732), as the respondent was instituting vexatious, obstructive or

dilatory action in court of law and he has been abusing the process of court by filing multiplicity of proceedings with the intent to satisfy his

greediness. Such a conduct on the part of the respondent amounts to abuse of the process of the court.

As early as in 1926, a Division Bench of the Allahabad High Court in Harnand Lal Vs. Chaturbhuj held that Sec. 151 of the CPC declares the

existence of an inherent jurisdiction in all courts to go beyond the law of procedure in the ends of justice. Their Lordships followed the earlier

decisions of that court in Joshi Shib Prakash v. Jhinguria (AIR 1924 All. 446). Their Lordships further held by following an earlier decision that

court in Pandit Balgobind Vs. Sheo Kumar and Another and Musammat Mahtab Kuar and Another, that the phrase ""an abuse of the process of

the courts"" in Sec.151 C.P.C. includes ""the idle multiplicity of proceedings"".

In Mula and Another Vs. Babu Ram and Another, , His Lordship considered the scope of Sec.151 of the CPC and held at page 576 of the

report that even if there is any other remedy available, under Sec.151 of the Code of Civil Procedure, the same will not prevent the court from

exercising the inherent powers, if it is to prevent an abuse of the process of court.

Our High Court had an occasion to consider the same in Venkatacharyulu v. Yesobu, AIR 1932 Mad. 263. In that case, on an application by

the plaintiff for the appointment of a receiver in respect of the standing crops in the suit land, the defendant was ordered by the court to furnish

security for Rs.100/-. No receiver was actually appointed, but the defendant, although put in a security bond, the sufficiency of which was ordered

by the court to be tested, did not pay the batta for the issue of the process to the court amin. The court thereupon ordered the defendant to deposit

the amount in court warning the defendant that on failure to do so, his defence would be struck off. The defendant failed to make the deposit and

consequently, his defence was struck off. The matter was brought to this court. His Lordship held that the striking of the defence was within the

jurisdiction of the court in the exercise of its inherent powers under Sec.151 of the Code of Civil Procedure, although it was not the only order

which the court could pass under the circumstances of the case. The act of the defendant strictly amounted to abuse of process of court. It was

held thus:--

There is no express provision in the CPC which would cover a case of this kind. R.21, O.21, Civil P.C. enables the court to strike off the defence

if default is made in the manner mentioned in that rule. R.16, O.6. R.20, O.16, and R.10, O.8 contain some provisions for punishing a party for

default in a particular manner. The present case can only be brought under Sec.151 of the Code which deals with the inherent power of the court

to pass such orders as may be necessary in the ends of justice, or to prevent the abuse of the process of court.

Even though the case cited was coming under Sec.151 C.P.C., while invoking the powers under Art.227 of the Code of Civil Procedure, this

court can take note of what has happened before the court below and invoke that power along with Sec.151 of the Code of Civil Procedure. And

if there is miscarriage of justice, it is the duty of the court to see that the same is rectified. His Lordship Srinivasan, J. (as he then was) in

Annapoorni v. Janaki (1995 I L.W.141) dealt with such a case. In that case, a decree happened to be passed in a suit for declaration of title. In

execution of that decree, the defendant raised an objection on the ground that the decree was unsuitable in law, on the ground that she being the

mother, is also a legal heir of her deceased son and a decree that had been granted amounted to error of law, for her right had not been

recognised. The plaintiff was the wife and the defendant was the mother of the deceased, both being entitled to half right over the property. The

plaintiff claimed absolute right, even though it is submitted that the deceased died intestate. In the said circumstances, His Lordship held thus:

When this court finds that a decree suffers from an error of law apparent on the face of the record owing to non-application of mind of the court,

to the relevant principles of law, this court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. There

can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are entitled to

succeed to the estate of a deceased Hindu. There is no earthly reason for depriving the mother of the deceased, or her legitimate share in the estate

which in this case happens to be moiety.

This is a typical case of miscarriage of justice which should be rectified the moment it comes to the notice of this court. It is only for that reason. I

am exercising my powers under Sec.115 of the C.P.C. and Art.227 of the Constitution of India.

(Emphasis supplied)

I followed the above decision in Varada Reddiar & Anr. v. Jayachandran (1996 I L.W. 559), where a decree was granted which was beyond

the scope of the suit. In that case, I held that if a wrongful gain has been obtained, that would amount to miscarriage of justice and it will be a fit

case to invoke the powers under Art.227 of the Constitution of India.

Taking into consideration the above position of law, it can never be doubted in this case that by virtue of an order of injunction, the petitioner a

public authority is prevented from discharging its legal obligations and at the same time the plaintiff was careful enough to see that he continues in

possession of a public property that too unauthorisedly, while the court below also had played its part in helping him.

For granting an order of interim injunction there is a duty cast on the court below to see that whether the plaintiff has got a prima facie case. In

all the proceedings, the plaintiff has admitted that he is only a licensee and that his licence has ended years before. If he is only a licensee, he cannot

file a suit against the owner. That is a fundamental thing which the court below has forgotten to take note of. His position was only that of an ex-

licensee. The title to the property on the petitioner is admitted. The claim of the respondent that he has put up construction was the claim really put

forward in all the proceedings. He did not want to agitate that matter fully and get a final decision in any proceeding, but was satisfied in stalling the

auction sought to be held by the petitioner, for some time, and later withdrawing the suit. That means, by his own conduct, he did not want to

prove that he is the owner of the buildings, which he claims to have put up. The same is seriously opposed by the defendant, the petitioner herein,

in all the proceedings. Even if he had put up the constructions, that will be his right? Either he has to remove the same on the expiry of the period of

licence or he has to leave it for the owner to take it. This position of law was never considered by the court below, while passing the order of

injunction. At least the court below should have thought that since in an earlier writ petition when this court refused to pass an order of injunction

on the same grounds, it should have been slow in passing an order of injunction. The fact remains that the court below has flouted the judicial

discipline that is expected of it. It has refused to follow the precedent of this court in a decision as between the same parties.

Counsel for the respondent submitted that the petitioner municipality itself has filed an appeal against the interim order and only against the very

same order, the petitioner Municipality has moved this court by way of revision. When it had availed of an effective alternative remedy, the

revisionary power of this court should not be exercised. It is true that the petitioner did move the appellate court in C.M.P. But, I find from the

relevant dates, that this revision was filed earlier to the appeal and the office entertained some doubt about its maintainability and refused to number

the same. By that time, the appeal time was getting barred and naturally, by abundant caution, it had to protect its right of filing an appeal and when

the notice of motion was ordered in this revision that appeal was withdrawn unconditionally. I may say that the right of appeal will not be an

effective remedy in this case, since the plaintiff/respondent herein was guilty of abuse of the process of the court by filing various suits for preventing

the public authorities from discharging its legal obligations. The appellate court will not be competent to grant an injunction in favour of petitioner

herein, even if it succeeds in the appeal. By invoking the inherent powers and taking note of the abuse of the process of court, even if there is an

alternative remedy, this court is entitled to invoke the power under Sec.151 of the Code of Civil Procedure, taken along with Art.227 of the

Constitution of India.

Now that I have found that there has been a miscarriage of justice and the action of another is really an abuse of process of court, what is the

remedy to which the petitioner is entitled. I have also found that the court below has not taken into consideration the relevant provisions of law

while passing the impugned order. The lower court has committed an error and that has caused injustice to the petitioner. It is the duty of this court

to see that the error is corrected. It cannot be doubted that apart from the provisions of the Code, the Court has got the inherent power to correct

such error by any means consistent with the ends of justice. As was held in Pandit Balgobind Vs. Sheo Kumar and Another and Musammat

Mahtab Kuar and Another, . ""Even if the defendants have shown a prompt sense of their obligation, or a right appreciation of the appropriate

procedure, it is nonetheless as Lord Justice Bowen said in the case of R. Cropper v. Smith (16 Chancery Division page 700) the object of courts

to decide the rights of parties, and not to punish them for mistakes they make in the conduct of their case, by deciding otherwise than in

accordance with their rights. But it seems to us further that section 151 could not be invoked more appropriately, than in a case like this, for the

purpose of correcting such a miscarriage of justice appearing on the face of the proceedings, and there is abundant authority, which it would be

wearisome to cite, there being no case quite analogous to this one, where the courts in India held themselves justified, under this salutary provision,

in making such orders in the nature of consequential orders, as may be necessary for the ends of justice, and to prevent an abuse of the process of

court, which we take to include the idle multiplicity of proceedings. (emphasis)

In view of my finding against the respondent, it follows that the lower court itself) should not have entertained the suit and should have rejected

the same atleast when the counter affidavit was filed. In spite of the fact that a caveat was entered, court below has thrown to wings all the first

principles of law, and, without hearing the petitioner, an ad-interim injunction was also granted, and later the same was confirmed by the impugned

order. When the very initiation of legal proceedings itself is an abuse of process, it is the duty of the court to see that the respondent did not take

advantage of that litigation and put a local authority to further hardship. It is also the duty of the court to see that the right of the Local Authority is

protected, and they should not be asked to attend court every now and then on frivolous litigations.

Under the above circumstances, as was approved by the decision in AIR 1932 Mad. 263 (supra), the plaint filed in the suit is struck off from

the file. Injunction already granted by the lower court will stand vacated. I further order that there will be a permanent prohibitory injunction against

the respondent herein from interfering with the rights of the Local Authority, petitioner herein, in the conduct of the market and their enjoyment of

the same, in any manner. The Local Authority, even without any order from court, is entitle to police protection to see that the respondent herein

does not cause any obstruction either in the enjoyment of the market or in conducting the auction. Petitioner is also entitled to give necessary

protection to the person who bids the market in auction, the right to collect fees from the market. On the request of the local authority, police also

will give adequate and necessary police protection to the successful bidder. It goes without saying that the petitioner is also entitled to take

necessary steps against the respondent by way of legal action, for recovering the loss, if any, sustained by it, since it was prevented from holding

the auction of the market. In the result, the Civil Revision Petition is allowed with costs before this court as well as before the lower court.

C.M.P.No.3550 of 1997 is dismissed as unnecessary.