Abusing legal process and the court by repeatedly filing petitions for almost the same relief, Supreme Court Judgment
December 7, 2017
In a Judgment passed against an appeal filed in the Supreme Court a Bench of Justice Arun Mishra and Justice Mohan M. Shantanagaudar said that:
"This matter is a classic example as to how a litigant before the Court takes
disadvantage of the process of law and the court by repeatedly tapping the doors
of the courts for almost the same relief, after losing legal battles on a number
of occasions."
The facts of the case are Bangalore Development authority had issued notification on 16.11.1977 for acquisition of land in two villages, namely Leggere and Jaraka Bande Kaval for the purpose of forming residential lay out called Extension Mahalakshmi Layout. Out of 519 Acres 37 guntas 393 acres 25 guntas in Survey No. 1 of Jaraka Bande Village was also notified, which included 25 acres 25 guntas of land of the respondents. On 4.6.1985 award was passed for 127 acres 21 guntas of land including the disputed land.
The respondent filed a suit for injection. The trial court passed an ex-parte
order injunction in favour of respondent No. 4 on 20.06.1985. After passing the
award, the possession of the land in question was taken on 23.09.1986.
Panchanama was drawn evidencing taking of possession. Subsequently the Trial
Court by its order dated 01.10.1986 modified its earlier ex-parte interim order
of injunction and permitted BDA to form a road. On 31.10.1986, BDA handed over
possession to its engineering section for the formation of the road. A
notification under Section 16(2) of the Land Acquisition Act was issued on
20.11.1987 disclosing the factum of taking of possession of the land including
the land in question. Respondent no. 4 chose to withdraw the suit in O.S. No.
10488 of 1985 on 30.01.1989 without seeking any liberty to file afresh suit.
However, respondent no. 4 filed another suit for permanent injunction against
BDA for protecting its alleged possession, before 13th Additional City Civil
Court, Bangalore in O.S. No. 3551 of 1989. In the said suit also, the order of
temporary injunction was granted on 10.07.1989 in favour of respondent no. 4
herein. However, the Trial Court by its order dated 08.03.1990 modified the
order of temporary injunction earlier granted, on an application filed by BDA
and confined the order of injunction only to existing structures. The civil
court while modifying the order of temporary injunction as mentioned above has
noted in paragraph 6 of its order that BDA has acquired the property and has
taken the possession of the property. It is also observed that the title vests
with BDA.
When the facts stood thus, respondent no. 4 filed writ petition no. 17040 of
1991 (after a delay of 10 years from the date of the final declaration)
challenging the preliminary and final acquisition notifications. The learned
Single Judge by his order dated 28.08.1991 dismissed the said writ petition on
the ground of delay and laches. Against such dismissal, the respondent no. 4
filed writ appeal no. 2798 of 1991 before the Division Bench of the High Court,
which also came to be dismissed on 25.11.1991.
Respondent no. 4 did not stop at that stage. It approached the High Court once
again by filing writ petition no. 31007 of 1992 praying for a direction to the
State Government to consider its representation for de-notification and for
re-conveyance of the land. The High Court by its order dated 09.12.1992 disposed
of the writ petition with the observation that the government will hear and
dispose of the representation of respondent no. 4 herein in accordance with law.
The State Government by its order dated 15.02.1993 rejected the representation
of respondent no. 4. Challenging such order of dismissal by the State
Government, respondent no. 4 filed writ petition no. 33996 of 1993 which also
came to be dismissed on 09.02.1996. Respondent no. 4 in the meanwhile had
approached the High Court of Karnataka by filing writ petition 25719 of 1994
praying for a direction against BDA not to form the road in the land in dispute.
The said writ petition came to be dismissed as withdrawn on 02.07.1996.
In the meanwhile, the State Government by its order dated 17.11.1994 had
permitted respondent no. 4 to run a school situated on the land in question.
However, the government by its order dated 29.04.1997 modified its earlier order
dated 17.11.1994. Thereafter respondent no. 4 filed yet another writ petition
(5th writ petition before the High Court) being writ petition no. 1071 of 1998
to implement the government order dated 17.11.1994. On being objected to by BDA,
the petition came to be dismissed on 05.10.1999.
Respondent no. 4 filed yet another suit for injunction, i.e. O.S. No. 16147 of
1999 (3rd suit). The said suit came to be dismissed for default. Thereafter, the
respondent no. 4 once again approached the High Court of Karnataka by filing
Writ petition no. 49339 of 2004 (6th Writ Petition) The learned Single Judge of
the High Court dismissed the writ petition on 15.03.2007 by specifically noting
that the possession was taken by BDA, layout was formed, and sites are carved
out and distributed to the allottees who were put in possession of the sites.
The appellants herein are all allottees of the sites (who are 43 in number). The
learned Single Judge also noticed that the allottees have put up constructions
and are residing in their respective houses constructed on the sites allotted.
The learned Single Judge further noticed that the contentions taken and reliefs
prayed for by respondent no. 4 though they were available for respondent no. 4
to be urged earlier, were not urged by it and therefore, the said prayers are
barred by Order 2 Rule 2 of C.P.C.
Respondent no. 4 filed writ appeal no. 1575 of 2007 before the Division Bench
questioning the judgment of dismissal by the learned Single Judge in writ
petition no. 49339 of 2004. The Division Bench by its impugned judgment as
mentioned supra, though did not interfere in the order passed by the learned
Single Judge, proceeded to grant the liberty to respondent no. 4 to work out its
remedy in civil court once again. The Division Bench has strangely observed that
in case the suit is filed, the same is to be considered without being influenced
by the observations made by the learned Single Judge. Thus, the Division Bench
though did not interfere in the order passed by the learned Single Judge, has
virtually ignored all the aforementioned facts, including successive judgments
made by the civil court as well as the High Court of Karnataka in six writ
petitions including the one in writ petition 49339 of 2004, and has virtually
kept open all the questions including the question of title and possession,
which means that the Civil Court is directed to go into the validity of the
acquisition notification, award proceedings and the factum of taking of
possession by BDA pursuant to acquisition proceedings.
The Bench of Supreme Court observed that:
"Even when respondent no. 4 approached the High Court of Karnataka by filing
the writ petitions and writ appeals, it has failed. Futile attempts have been
made by respondent no. 4 only to see that the allottees are harassed and to keep
the litigation pending."
"The writ petition filed by respondent no. 4 challenging such order of
dismissal of the representation was also dismissed. Despite the same, respondent
no. 4 is pursuing the matter by filing writ petition after writ petition. It is
a clear case of abuse of process of law as well as the Court."
"We do not find any reason to interfere in the finding of fact rendered by
the learned Single Judge that possession was taken by BDA on 23.09.1986. There
is nothing to be adjudicated further in respect of the title or possession of
the property."
The Court restored the Judgment of the Learned Single Judge in the Writ Petition
Number 49357 of 2004 stands restored and allowed the appeal.
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