Full Judgment Text
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PETITIONER:
MUNICIPAL CORPORATION OF DELHI
Vs.
RESPONDENT:
KAMLA DEVI AND ANR.
DATE OF JUDGMENT: 03/04/1996
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
PARIPOORNAN, K.S.(J)
CITATION:
1996 AIR 1733 JT 1996 (4) 128
1996 SCALE (3)403
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
B.P.JEEVAN REDDY, J.
Leave granted. Heard the counsel for the appellant and
respondents.
This appeal is preferred against the judgment and
decree of the learned Civil Judge, Ghaziabad [Uttar Pradesh]
dated September 11, 1991 in Suit No.451 of 1990 in rather
peculiar circumstances. Smt.Kamta Devi, first respondent
herein [who died pending the present appeal and whose legal
representatives have come on record] was the owner of
premises/building bearing Property No.416, Kucha Brijuath,
Chandni Chowk, Delhi. By an order dated January 28, 1991 the
Deputy Assessor and Collector determined the rental value
and rateable value of the said building [comprising four
floors] with effect from April 1, 1993 and also determined
the property taxes payable thereon. Against the order of
assessment, Kamla Devi filed an appeal before the learned
District Judge, Delhi on March 8, 1991. While the appeal was
pending, Kamla Devi went to Ghaziabad and filed a Suit
No.451 of 1991 against (1) Municipal Corporation of Delhi
and (2) the Deputy Assessor and Collector (House Tax) SC-I
for a declaration that "the orders dated 28.1.91 passed by
Defendant No.2 as illegal, invalid and void ab initio" and
for a prohibitory injunction restraining the defendants from
"attaching the plaintiff’s property or taking any other
action/proceddings/orders against the plaintiff or her
assets in pursuant to the order dated 28. 1.1991 passed by
the Deputy Assessor and Collector SC-I, MCD". The suit was
filed on April 19, 1991. In the first paragraph of the
plaint, Kamla Devi stated that she is resident of C-92,
Inder Puri, Loni, Ghaziabad owned by her grand-children. In
Para-2, she stated that on April 18, 1991 "three persons
claiming to represent defendant came to the residence of the
plaintiff and threatened to attach her assets that the
rateable value for the purposes of fixing house tax has been
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increased by Defendant NO. 2 in respect to property No. 416,
Kucha Brijnaths Chandni Chowk, Delhi-6 owned by the
plaintiff" and that after great persuasion. and interference
by local respectable persons, did the officials postpone
their action for a day. Then follow a number of paragraphs.
Paragraphs 3 to 16, set out the reasons and grounds for
which the order of assessment dated January 28˜ 1991 was
said to be contrary to law and illegal. In Paragraph 19
pertaining to cause of actions she stated that the cause of
action for the suit arose on April 18, 1991 when the
defendent sent their officials to C-92, Inder Puri, Loni,
Ghaziabad to attach the properties belonging to the
plaintiff and also because the defendants were persisting
with their illegal acts. It is on the above pleas that the
declaration and prohibitory injunction aforementioned were
asked for. It is significant to note that no document was
filed along with the plaint or later - showing that any
attempt was made by the defendants or their officials to
distrain or attach the plaintiff’s movables or other
properties at Ghaziabad. Among the twelve documents filed by
the plaintiff, the last document is the assessment order
dated January 28, 1991. No other document subsequent to that
date has been filed. It is equally significant to notice
that the declaration asked for is with respect to assessment
order passed by the second defendant [an officer of the
appellant-Corporation] relating to a house situated in
Delhi. More significant is the wide language in which the
prohibitory injunction was asked for. It is worded widely to
restrain proceedings against any of the properties or assets
of the plaintiff [situated anywhere] for recovery of the
said tax. Another important fact to be noticed is that the
plaintiff, while setting out in detail the reasons for which
the assessment order aforesaid was said to be illegal, did
not disclose in her plaint that she had already filed an
appeal against the said assessment order before the
appropriate authority and it was pending. Suit notices were
issued to the defendants and were supposed to be served upon
them. The suit was decreed on September 11, 1991.
The judgment sets out the averments in the plaint at
length and then says that though served, the defendants have
not filed any reply and that, therefore, the case is
proceeded with ex parte. Except stating that the plaintiff
has reiterated the averments in the plaint and that "the
case of the plaintiff as stated deserves to be accepted in a
one sided matter", no specific finding is recorded in the
judgment that the officials of the appellant-Corporation did
indeed seek to attach or sell the assets of the plaintiff.
The suit was decreed in the following terms: "it is declared
that the defendant’s order dated 28.1.91 are illegal, bad
and contrary to law and that the defendant and his
representatives/agents are hereby restrained from auctioning
the property at C-92, Inder Puri, Loni, Ghaziabad pursuant
to the orders dated 28.1.91". While it is true that the
prohibitory injunction is confined only to properties at
Ghaziabad, yet the declaration that the order dated January
28, 1991 is illegal and contrary to law makes it
unenforceable and ineffective for all purposes.
In the present appeal filed by the Municipal
Corporation, it is stated that having filed an appeal
against the assessment order, Kamla Devi filed a suit in
Ghaziabad deliberately concealing the fact of filing of the
said appeal and has obtained a decree thereby trying to
hoodwink the courts below. It is then stated in Para 10 that
the Corporation has sent a Dill dated July 8, 1991 to the
respondent-assessee on the basis of the assessment order
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dated January 28, 1991 and that it was shocked when it was
apprised of an order of stay passed by a court in Uttar
Pradesh. It is also stated that the Corporation has not
received any suit notice from the Ghaziabad court. Since the
filing of the suit in Ghaziabad court is said to be an abuse
of the process of courts it is prayed that the said judgment
and decree be set aside by this Court.
Ms.Madhu Tewatia, learned counsel for the appellant-
Corporation, submitted that the filing of the suit by Kamla
Devi was a stark abuse of process of court. She submitted
that no proceedings for recovery were ever taken against her
properties in Ghaziabad by the Corporation or its officials
and that allegation in Para 2 of the plaint is only a
pretence and a total fabrication put forward with a view to
create jurisdiction in Ghaziabad court. It is submitted that
property is situated in Delhi, that the assessment was made
at Delhi by an authority competent in law to do so which was
indeed questioned by Kamla Devi by filing an appeal which
was pending before the competent authority. Filing of the
said suit in the above circumstances is said to be a clear
case of over-reaching the processes of law and amounts to a
sharp practice. Which should be sternly put down by this
Court. It is submitted that if this type of suits are
allowed to be filed anywhere outside Delhi, it would be
impossible for the Corporation to function effectively. She
placed strong reliance upon the decision of this Court in
Oil and Natural Gas Commission V. Utpal Kumar Basu (1994
(4)S.C.C.711), delivered by a Bench comprising
M.N.Venkatachaliah,CJ., A.M.Ahmadi,J. and one of us
[B.P.Jeevan Reddy,J.].
On the other hand, the learned counsel for the
respondents [legal representatives of Kamla Devi], submitted
that when the suit summons were served upon the Corporation
and the assessing officer by the Ghaziabad court, it was
their duty to appear before the court and contest it by
putting forward such Defences as were open to them in law.
Not having done that and having suffered a decree and
allowed the limitation for filing the appeal to lapse, it is
not open to the Corporation to approach this court directly
under Article 136 of the Constitution against the Judgment
and decree of the Ghaziabad court. It is submitted that the
only manner in which the said judgment and decree could be
avoided by the Corporation was to file an appeal as provided
by law. The several allegations made against the first
respondent are denied and it is submitted that when the
officials of the Corporation wanted to attach their movables
at Ghaziabad, Kamla Devi was obliged to file the suit in
Ghaziabad. Counsel also sought to argue that the order of
assessment dated January 28, 1991 is contrary to law,
excessive and deserves to be set aside. It is also brought
to our notice that the appeal filed by Kamla Devi against
the assessment order dated January 28, 1991 was dismissed
for default on September 12, 1994.
The first question is whether the filing of this suit
by Kamla Devi in Ghaziabad court was a proceeding taken
bonafide by her or whether it was only a sharp practice
designed to abuse the process of law and to take unfair
advantage over the Corporation. On a consideration of the
facts and circumstances of the satisfied that it was a clear
case of abuse of process of court and of law. We are also
satisfied that the averment made in Para 2 of the plaint to
the effect that the officers of the appellant-Coporation
went to Ghaziabad to attach the movables of Kamla Devi or
her grand-children to realise the tax under the order dated
January 28, 1991 is a total falsehood and was a mere
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pretence to create jurisdiction in Ghaziabad court. Not a
single document or any other scrap of paper has been filed
before the Ghaziabad court in support of the said
allegation, Moreover, the frame of the suit and the language
and terms in which the declaration and prohibitory induction
are asked for suggest a clear attempt to over-reach the
process of court. The object clearly was to obtain a
declaration that the assessment order dated January 28, 1991
is illegal and invalid from a court outside Delhi. The fact
that Kamla Devi [plaintiff] chose to conceal the fact of her
filing the appeal against the said assessment order is also
indicative of the malafides on her part. It is true that the
court has limited the prohibitory injunction only to
properties in Ghaziabad but it has granted a declaration
that the very assessment order is void and illegal which
means that it cannot be enforced even within the limits of
Delhi Municipal Corporation. In the Special Leave Petition,
it is stated by the Corporation that the Bill of demand
pursuant to the assessment order aforesaid was sent only or
July 8, 1991 to the respondent whereas the suit was filed on
April 19, 1991. Once this Court is satisfied that Kamla Devi
has abused the process of law and misused the legal system,
the objections put forward by the respondents’ counsel are
of no consequence. This Court is entitled to act in such
cases to prevent such abuse and misuse.
In Oil and Natural Gas Commission, this Court was
dealing with a case where Engineers India Limited acting as
consultants for Oil and Natural Gas Commission [O.N.G.C.]
issued an advertisement in the newspapers of the country
inviting tenders for a particular work to be carried oat at
Hazira complex in Gujarat. According to the advertisement,
the tenders were to be communicated to E.I.L. at Delhi. The
respondent-company [NICCO] having its registered office at
Calcutta submitted a tender which was considered along with
other tenders received at New Delhi and was rejected. Tender
of another party was accepted. Thereupon, NICCO filed a writ
petition in the Calcutta High Court praying that ONGC be
restrained from awarding the contract to such other party
and, if already awarded, to cancel the sane. In the writ
petition, an allegation was made by NICCO that it had come
to know of the tender from the publication in the ‘Times of
India’ within the jurisdiction of the Calcutta High
Court, that it had submitted its tender from its registered
office located within the jurisdiction of the Calcutta High
Court and that further correspondence in at behalf was also
done from its said registered office at Calcutta. On the
said averments, it was submitted that the Calcutta High
Court had jurisdiction in the matter. NICCO also asked for
and obtained certain interim orders which were challenged
under Article 136 of the Constitution. Before this Court,
NICCO relied upon a fax message sent by O.N.E.C./E.I.L to
NICCO on its Calcutta address. It was e reply to a letter
sent by NICCO. It was submitted that in view of the said
communication along with other facts mentioned in the writ
petition, the Calcutta High Court did have the jurisdiction
to entertain the said writ petition. It was held by this
Court that even if the averments in the writ petition are
taken as true, it cannot be said that a part of the cause of
action had arisen within the jurisdiction of the Calcutta
High Court. This Court pointed out that the advertisement
itself mentioned that the tenders should be submitted to
E.I.L. at New Delhi, that they would be scrutinised at New
Delhi and that the decision to accept or reject would also
be taken at Now Delhi. [The work, of courses to be carried
out in Gujarat]. It was further held that merely because
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NICCO read the advertisement at Calcutta or that it
Submitted its tender from Calcutta or that it made or that a
fax message was sent to it on its Calcutta address did not
constitute facts forming integral part of the cause of
action. It was held that NICCO did not act bonafide in
invoking the jurisdiction of the Calcutta High Court and
that the filing of the writ petition was an abuse of the
process of court. Accordingly, the appeal was allowed, the
order of the Calcutta High Court were set aside and
exemplary costs in a sum of Rs.50,000/- were imposed upon
NICCO. In our opinion, the principle of the said decision
clearly applies here. Indeed, the present case is more guess
one. In this case, there is no mention that any demand
notice or bill was sent to Kamla Devi at Ghaziabad address.
We have already held that the averment in Para 2 of the
plaint was a mere pretence and a total fabrication.
Accordingly, this appeal is allowed, the judgment and
decree of the learned Civil Judge, Ghaziabad, Uttar Pradesh
dated September 11, 1991 in 199 in Suit No.451 of 1990 is
set aside. In view of there reprehensible conduct, the
respondents [legal representatives of Kamla Devi, who
appeared in this court as representing her estate] are
directed to pay exemplary costs in a sum of Rupees fifty
thousand. Such practices ought no be put down with a stern
hand so that others similarly minded may desist from
indulging in similar acts.
Application for bringing legal representatives of Kamla
Devi on record is ordered.