5.2 This Court further finds that, and it is also the finding of the Court below that, not only the plaintiffs were not entitled for declaration as prayed for, but there was connivance of the plaintiffs with the family members, being defendant Nos. 3,4 & 5, and thereby they had attempted to abuse the process of law. There is also finding to the effect that, the bonafide purchaser is kept in litigation throughout these decades by one of the family members, since the prices of the property has gone up. The tendency to abuse the process of law needs to be curbed, for which even cost needs to be imposed. While recording so, this Court has kept in view the observations of Honourable the Supreme Court of India in the case of Rakesh Kumar Goel V. U.P. State Industrial Development Corporation Ltd. and others, reported in AIR 2010 SC 2451, which is to the effect that, filing of a petition before the Court of law is not like buying a lottery ticket that if luck favours, might bring a windfall, but would cost no more than the expresses of litigation. This litigation is no exception to what is observed by Hon'ble the Supreme Court of India as recorded above. Further, this Court has also kept in view the observations of Hon'ble the Supreme Court of India in the case of Salem Advocate Bar Association vs. Union of India, reported in (2005) 6 SCC 344 which is to the effect that, judicial notice can be taken of the fact that unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party, unfortunately it has become a practice to direct parties to bear their own costs, such a practice also encourages filing of frivolous suits. The dismissal of this Second Appeal in these facts, without imposing costs, would encourage filing of frivolous suits and appeals. Under these circumstances, cost is required to be imposed and the same should not be nominal either. In the facts of this case, the cost is quantified as Rs.25,000/.
GUJARAT HIGH COURT
Hon'ble Judges:Paresh Upadhyay, J.
Vaghela Suryaba Ranchhodji Versus Becharbhai Adarbhai Patel-decd.
SECOND APPEAL No. 194 of 2013 ; J.Date :- JANUARY 08, 2014
Equivalent Citation(s): 2014 (2) GLR 1068 : 2014 JX(Guj) 58,AIR 2014(NOC) 449 GUJ
JUDGEMENT :-
2 Challenge in this Second Appeal is made by the original plaintiffs to the concurrent findings of both the Courts below. This appeal is directed against the judgment and decree dated 30.11.2012 passed by the the Additional District Judge, Gandhinagar in Regular Civil Appeal No. 45 of 2005, and thereby confirmed the judgment and decree dated 26.11.2004 passed by the Civil Judge (Junior Division) Gandhinagar in Regular Civil Suit No. 03 of 1994, whereby the suit for cancellation of the saledeed dated 20.04.1982 was dismissed. The Court below has further found that the institution of this suit was abuse of process of law by the plaintiffs, in connivance with defendants No. 3, 4 & 5 who are family members of the plaintiffs themselves. The said connivance was against the original defendant No.1 to extract money over and above the sale consideration of the property, which was sold to him by the above referred registered saledeed.
3.2 One Ranchhodji died in the year 1978 leaving behind him widow Navuba, five daughters and one son. The daughters are Suryaba, Manjulaben, Prabhatben, Jashuba and Kailashba. The name of the only son is Jiluji.
3.3 After the death of said Ranchhodji, three parcels of his agricultural land were sold to one BECHARBHAI ADARBHAI PATEL. The said sale was by executing a registered sale deed dated 20.04.1982.
3.4 The said saledeed was executed by the widow (named Navuba) and son (named Jiluji) of said Ranchhodji. It is not the case that there was any coercion or misdeed of any nature by the purchaser Becharbhai. The genuineness of the thumb impression of the widow or the signature of the son is also not in dispute. The sale consideration having been received by them is also not in dispute.
3.5 The said saledeed dated 20.04.1982 is sought to be declared as illegal by three of the five daughters of the original land owner late Ranchhodji, in these proceedings, on the ground that at the relevant time, they were minor, and their interest are not taken care of.
3.6 Be it noted that, this suit was instituted in the year 1994 (Regular Civil Suit No. 03 of 1994) and even at that time, these sisters were claimed to be minor, and as such the suit was instituted through their mother Navuba in capacity of their guardian and next friend.
3.7 The position of the parties i.e. the plaintiffs and defendants of the suit are very relevant. All the legal heirs of Ranchhodji have strategically positioned themselves, in the suit. Three of the five sisters, through their mother have stood as plaintiffs and the brother and remaining two sisters are joined as defendants No. 3,4 & 5. The original purchaser of the land in question is shown as defendant No.1 and both his minor sons were shown as defendant No.2 through their father defendant No.1.
3.8 The foundation of the suit is that Navuba – the mother (plaintiff) and her son defendant No.3 had committed illegality in selling the suit property to defendant No.1. The plaintiffs sought declaration from the Trial Court that, the saledeed dated 20.04.1982 be declared as illegal, null and void. Defendant Nos. 3, 4 & 5 agreed that, let Civil Suit be decreed in favour of the plaintiffs. Defendant No.3 was also a signatory to the said sale deed.
3.9 It is not that the sisters and mother and brother are fighting interse. As claimed the plaintiffsisters were minor at the time of death of the father in the year 1978, were minor in the year 1982 when the agricultural land was sold by mother and brother and they were still minor in the year 1994 when the suit was instituted through mother and strategically showing brother as defendant. It is also not the case that these minor sisters were not taken care of by mother or brother. The funds realised from the sale of some of the estates like the saledeed in question, were utilized for upbringing of these sisters. It has also come on record that, apart from the land – the saledeed of which is in question, there are other properties also but these sisters have not asked for any share from those properties.
3.10 The connivance on the part of the plaintiffs and defendants No. 3, 4 & 5 in this factual background was so apparent, that the suit ought not to have detained the Trial Court to take it to its fate, however, to complete the procedure, the suit was tried.
3.11 While doing so, more serious factors came to the notice of the Trial Court, which are as under.
3.12 After the saledeed was executed in the year 1982, in the year 1990 the son (Jiluji) who was one of the signatories of the said sale deed, without challenging the validity of the said sale deed, instituted Regular Civil Suit No. 145 of 1990 against the purchaser, interalia claiming that, the purchaser of the said property be restrained from enjoying the said property. In the said suit Ext.5 application was rejected, against which appeal was filed, which was also rejected. The said rejection attained finality. Thus, nothing more remained to be extracted from the said civil suit. Therefore, one more suit was instituted. This time, it is not by the brother but by the sisters. The said brother is defendant this time. It is the present suit i.e. Regular Civil Suit No. 03 of 1994. But what will happen to the earlier suit i.e. Regular Civil Suit No.145 of 1990. The plaintiff of the said suit (the brother) gave withdrawal pursis on 30.07.1999. Thus the plaintiff of Civil Suit No. 145 of 1990 withdrew his suit, since now he was defendant No.3 in Civil Suit No. 03 of 1994. The abuse of process of law had not ended there. The original purchaser the present defendant No.1 was, in the year 1992, constrained to move the Civil Court by filing Regular Civil Suit No. 149 of 1992 praying for permanent injunction against the original sellers from disturbing his possession in any manner. The son Jiluji, who is the signatory to the saledeed was defendant. On that suit injunction is granted against Jiluji the seller. All these things are suppressed from the Trial Court, and relief was sought, with the mask of minor sisters. This ingenuine attempt could not have escape notice of the Trial Court and it has not. The suit, on the basis of material on record, was dismissed.
3.13 The Appellate Court below has also, on the basis of the evidence on record, found that no error is committed by the Trial Court.
3.14 It is in above facts that the present Second Appeal is filed by the two of the three original plaintiffs. One of the three sister Kailashba has died, that is how she is not the appellant. The mother Navuba has also died during pendency of the suit.
4 Learned advocate for the appellants has submitted that substantial question of law arises for consideration of this Court and this Second Appeal be admitted. It is contended that the share of the minor daughters, who are the present appellants, was not taken care of while disposing of the property and therefore, both the Courts below have committed serious error of law in not declaring the said saledeed as illegal. In support of his contention, he relied on the decision of Hon’ble the Supreme Court of India in the case of Saroj Vs. Sunder Singh and others reported in 2013 STPL (Web) 919 SC, decided on 25.11.2013.
5 Having heard learned advocates for the respective parties and having gone through the reasons recorded by both the Courts below, so also the factual background recorded above, this Court finds that, no question of law, muchless any substantial question of law arises for consideration of this Court to be gone into in exercise of power under Section 100 of the Code of Civil Procedure, 1908. The Courts below have not committed any error of non reading or misreading of evidence on record. This Second Appeal therefore, needs to be dismissed. The above referred decision relied by the learned advocate for the appellants will not be of any help to the appellants in the facts stated above.
5.2 This Court further finds that, and it is also the finding of the Court below that, not only the plaintiffs were not entitled for declaration as prayed for, but there was connivance of the plaintiffs with the family members, being defendant Nos. 3,4 & 5, and thereby they had attempted to abuse the process of law. There is also finding to the effect that, the bonafide purchaser is kept in litigation throughout these decades by one of the family members, since the prices of the property has gone up. The tendency to abuse the process of law needs to be curbed, for which even cost needs to be imposed. While recording so, this Court has kept in view the observations of Honourable the Supreme Court of India in the case of Rakesh Kumar Goel V. U.P. State Industrial Development Corporation Ltd. and others, reported in AIR 2010 SC 2451, which is to the effect that, filing of a petition before the Court of law is not like buying a lottery ticket that if luck favours, might bring a windfall, but would cost no more than the expresses of litigation. This litigation is no exception to what is observed by Hon'ble the Supreme Court of India as recorded above. Further, this Court has also kept in view the observations of Hon'ble the Supreme Court of India in the case of Salem Advocate Bar Association vs. Union of India, reported in (2005) 6 SCC 344 which is to the effect that, judicial notice can be taken of the fact that unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party, unfortunately it has become a practice to direct parties to bear their own costs, such a practice also encourages filing of frivolous suits. The dismissal of this Second Appeal in these facts, without imposing costs, would encourage filing of frivolous suits and appeals. Under these circumstances, cost is required to be imposed and the same should not be nominal either. In the facts of this case, the cost is quantified as Rs.25,000/.
6 For the reasons recorded above, this Second Appeal is dismissed. Appellants are directed to pay cost of Rs. 25,000/ to the respondent Nos. 1/1 to 1/3 of this appeal who are legal heirs of the original purchaser defendant No.1. This amount of cost shall be paid within a period of two months from today.
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