1 2025:CGHC:21787 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MCC No. 290 of 2025 Reserved on 07/05/2025 Pronounced on 09/05 / 2025 Smt. Sobhna Chourasiya D/o Late Shri (Dr.) Sushil Kumar Chourasiya, presently Aged 76 years, Presently R/o E-1502, Eon Water Front Phase II, Kharadi Pune, Maharashtra ... Applicant versus 1 - Munnalal Agrawal S/o Chaganlal Agrawal Aged About 39 Years Occupation Hotel Business, R/o Ward No. 13, Kali Ward, Kawardha District - Kabirdham (C.G.) 2 - Smt. Satyawati Yadav (Wrongly Mentioned As Saraswati Yadav) W/o Narayan Yadav, R/o Ward No. 15, Kawardha, Tahsil And District - Kabirdham (C.G.) ... Non-Applicants _____________________________________________________________ For Applicant : Shri Rajeev Shrivastava, learned Senior Advocate appears along with Shri Sourabh Sahu, Advocate For Non-Applicant No.1 : Shri Ratnesh Kumar Agrawal, Advocate appears along with Shri Anuroop Panda, Advocate For Non-Applicant No.2 : Shri Harsh Dave, Advocate ------------------------------------------------------------------------------------------------------- Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal C A V Order 1. This petition has been filed by the Defendant No.1- Smt. Sobhna Chourasiya seeking recall of the judgment and decree dated 17.03.2021 passed by this Court in First Appeal No.3/2011 and, praying for re-hearing of SUNITA GOSWAMI Digitally signed by SUNITA GOSWAMI Date: 2025.05.09 17:56:21 +0530 2 the same. Parties shall be referred hereinafter as per their descriptions before the trial Court. 2. Learned counsel appearing for the Applicant/Defendant No.1, submits that the notice of the said appeal, i.e. First Appeal No.3/2011, was never served upon her, as she was residing at Noida and her address is shown as the resident of Bhopal. It is contended further that without following the procedure prescribed under Order 5 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’), an application moved by the plaintiff/Non-Applicant No.1-Munnalal Agrawal seeking service of notice upon her through paper publication, namely, “Times of India”, was allowed and the said matter was heard and the impugned judgment and decree was delivered in her absence. Further contention of the Applicant is that, in the meantime, she was shifted to Pune, where she received a letter/notice dated 11.01.2025 (Annexure A-3) from the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav, whereby, she was informed regarding delivery of the said impugned judgment and decree dated 17.03.2021 and then only, she came to know about the entire proceedings. It is the further contention of the counsel appearing for the Applicant/Defendant No.1 that non-representation on her part was occurred, because of non-service of notice of the said appeal (First Appeal No. 3/2011), therefore, the impugned judgment and decree passed in the said appeal be recalled. In support, reliance has been placed upon the decisions rendered by Hon’ble the Supreme Court in the matter of Yallawwa (Smt) Vs. Shantavva (Smt), reported in (1997) 11 SCC 159 and Neerja Realtors Private Limited Vs. Janglu (Dead) Through Legal Representative, (2018) 2 SCC 649. 3 3. The aforesaid contention of the Applicant/Defendant No.1 has been accepted by the counsel appearing for the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav. 4. On the other hand, learned counsel appearing for the plaintiff/Non- Applicant No.1- Munnalal Agrawal, while referring to the order sheet dated 08.12.2016, submits that since the notice issued to the Defendant No.1/Applicant was neither returned served nor unserved and, as she was residing at Noida, therefore, a request was made on 10.03.2017 for serving the notice upon her through paper publication and the said application, marked as I.A.No.2, made to this effect was allowed on 03.04.2017 and the Non-Applicant No.1/plaintiff was permitted to serve the notice upon her through the paper publication, namely, “Times of India”, which is widely circulated at both the places, i.e. Delhi and Bhopal and, only on due service upon her on 19.04.2017, the matter was directed to be listed for final hearing in due course vide order dated 30.06.2017. Further of his contention is that the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav had questioned the impugned judgment and decree before Hon’ble the Supreme Court, which was dismissed vide order dated 06.12.2021 in Special Leave to Appeal (C) Nos.19530-19531/2021 and, much after the dismissal of the said appeal, the instant petition has been filed with an ulterior motive to get rid of the impugned decree. The petition as framed, therefore, deserves to be dismissed with costs. 5. I have heard learned counsel appearing for the parties and perused the entire record carefully. 4 6. From perusal of the record, it appears that a suit, being Civil Suit No.7- A/2007 instituted by the plaintiff/Non-Applicant No.1 for specific performance of contract against the Defendant No.1/Applicant- Smt. Sobhna Chourasiya and the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav, the purchaser under the registered deed of sale dated 31.03.2004 from her, was dismissed by the trial Court vide judgment and decree dated 28.10.2010 and being aggrieved, the plaintiff/Non-Applicant No.1- Munnalal Agrawal had preferred an appeal, which was registered as First Appeal No.3/2011. 7. Perusal of the order sheet dated 08.12.2016 of the said appeal would show that the Non-Applicant No.1/plaintiff informed the Court that the Applicant/Defendant No.1 is residing at Noida and copy of her statement (Annexure R-1/1) recorded before the trial Court, particularly paragraphs 10 and 103, would show that she is living at Bhopal and, used to go to Delhi time to time where her son is living and stated further that she lives in Delhi and her address of Delhi is “Sector- 15, Exortica Apartment, C-702, Noida” and, in view of that, he wanted to serve the Applicant/Defendant No.1 through the paper publication, as reflected from the order sheet, dated 10.03.2017 and, the application to this effect was, accordingly, made and upon due satisfaction, the same was allowed vide order dated 03.04.2017 and the plaintiff was permitted to serve the notice upon her through the paper publication “Times of India” and, the matter was thereafter directed to be listed for final hearing in due course vide order dated 30.06.2017. The matter was, accordingly, heard finally on 02.03.2021 and the impugned judgment and decree was thereupon delivered on 17.03.2021. 5 8. It is to be seen at this juncture that being aggrieved with the aforesaid judgment and decree, a Special Leave to Appeal (C) Nos. 19530-19531/2021 was preferred by the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav, as she had acquired the suit land under the registered deed of sale dated 31.03.2004, during the pendency of the suit, and after hearing the said appeal, the same was dismissed by Hon’ble the Supreme Court vide order dated 06.12.2021. 9. It appears further that after more than three years upon the dismissal of her said Special Leave Petition, a letter dated 11.01.2025 (Annexure A-3) was written by her to the Defendant No.1/Applicant and directed her to put her case before the Court, else an appropriate action shall be taken against her. Pertinently, to be noted here that while writing such a letter (Annexure A-3), the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav, whose Special Leave Petition was dismissed by Hon’ble the Supreme Court vide order dated 06.12.2021, has deliberately not disclosed the said fact to the Applicant. 10. Be that as it may, despite receiving of the said letter, the Defendant No.1/Applicant was kept silent for a considerable period of more than two months and applied for obtaining the certified copy of the impugned judgment and decree only on 18.03.2025 for filing of this petition, though, her right, title and interest was already conferred upon the said Defendant- Smt. Saraswati Yadav during the pendency of the suit under a registered deed of sale dated 31.03.2004. It is, thus, apparent that when she (Smt. Saraswati Yadav) lost her appeal before Hon’ble the Supreme Court, the alleged letter (Annexure A- 6 3) was written by her to the Applicant/Defendant No.1 after passing of more than three years and that too, without disclosing the said material fact regarding the dismissal of her said Special Leave Petition by Hon’ble the Supreme Court on 06.12.2021. It, thus, appears that both the Applicant/Defendant No.1 and Defendant No.2- Smt. Saraswati Yadav in connivance with each other with an ulterior motive and in order to frustrate the impugned judgment and decree, which has already been affirmed by Hon’ble the Supreme Court, has filed the instant petition. The Applicant has, thus, not approached this Court with clean hands, but rather appears to have come after creating the false evidence of the alleged letter dated 11.01.2025 in connivance with the said Defendant- Smt. Saraswati Yadav. In view of such circumstances, it cannot be said that the Applicant was not aware regarding the proceeding of the said appeal as pleaded herein with a false and concocted manner. 11. Insofar as the principles laid down by Hon’ble the Supreme Court in the matters, as relied upon by the Applicant are, however, entirely on different footings and would be of no use in view of the facts involved herein, as in the matter of Yallawwa (Smt) (supra), an ex-parte divorce decree was passed against the wife, who was an illiterate lady, while serving her through the paper publication without following the procedure provided under Order 5 Rule 17 of the CPC, however, in the instant matter, the Applicant/Defendant No.1 is a doctor and was duly known about the litigation. Likewise, the principles laid down in the matter of Neerja Realtors Private Limited (supra) is distinguishable as in the said matter, the concerned Court without its due satisfaction that the notice cannot be served upon the defendant, had ordered 7 for the service through the paper publication, but that is not the situation here, as observed herein-above and, therefore, no reliance could be placed upon it. 12. Since the Applicant has approached this Court in connivance with the Defendant No.2/Non-Applicant No.2, with an ulterior motive, as observed herein-above would, therefore, deserves to be burdened with exemplary costs, as the Supreme Court in the matter of "Dnyandeo Sabaji naik and another vs. Pradnya Prakash Khadekar and others" reported in (2017) 5 Supreme Court Case 496 had deprecated the conduct of the litigants in flooding the Court with frivolous litigations, as a result of which, the genuine matters, which require consideration, are delayed. The relevant observation made therein at paragraphs 13 and 14 reads as under :- "13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth. 14. Courts across the legal system - this Court not being an exception - are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the Infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No 8 litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner." (Emphasis Supplied) 9 13. In view of the aforesaid mandate given by Hon’ble the Supreme Court, in the above-referred matter, the instant petition is, accordingly, dismissed with cost of Rs.25,000/- (Rs. Twenty Five Thousand only), which shall be payable by the Applicant/Defendant No.1 to the High Court Bar Association though its Secretary, within a period of 45 days from today, failing which, the same shall carry interest @ 6% per annum from the date of passing of this order till its realization. Sd/- (Sanjay S. Agrawal) JUDGE sunita