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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.