Vijay Kurle And Ors vs Unknown on 3 September, 2020


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Supreme Court of India

In Re : Vijay Kurle And Ors vs Unknown on 3 September, 2020

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Hemant Gupta, S. Ravindra Bhat

                                                Non-Reportable

         IN THE SUPREME COURT OF INDIA
             INHERENT JURISDICTION
               M.A. No.1434 of 2020
                          In
      Misc. Application Diary No.15272 of 2020
                          In
 Suo Moto Contempt Petition (Criminal) No.2 of 2019


Rashid Khan Pathan
                                              ……. Applicant
AND

IN THE MATTER OF:

IN RE: Vijay Kurle & Ors.
                                            .... Respondent(s)

O R D E R

1. By a judgment dated 27.04.2020, the Appellant

herein Sh. Rashid Khan Pathan and two others, Sh. Vijay

Kurle and Sh. Nilesh Ojha were held guilty of contempt for

making scurrilous and scandalous allegations against the

Judges of this Court. On 01.05.2020, the matter was listed

for hearing the contemnors on the sentence. On that day

this Court was informed that applications for recall of the

judgment dated 27.04.2020 were filed. Anyhow, the

matter could not be heard on 01.05.2020 due to technical

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reasons as connection could not be established with one of

the contemnors or his counsel. After hearing the

contemnors regarding the sentence on 04.05.2020, this

Court found that there was no remorse or any semblance

of apology shown by them. The three contemnors were

sentenced to undergo a simple imprisonment for a period

of three months with a fine of Rs.2,000/-. In view of the

Covid-19 pandemic and the lockdown conditions, this Court

directed that the sentence shall come into force after

sixteen weeks from 04.05.2020. The contemnors were

directed to surrender before the Secretary General of this

Court to undergo the imprisonment.

2. An application filed by the contemnor No.3 – Sh.

Nilesh Ojha for recusal of Justice Deepak Gupta was

rejected on the same day i.e. on 04.05.2020. Interim

Application Nos. 48480, 48482 and 48484 of 2020 were

filed by the contemnors seeking recall of the judgment

dated 27.04.2020. This Court was of the opinion that the

recall applications were not maintainable and the only

proper remedy available to the contemnors is to file a

Review Petition. In such view of the matter, this Court

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dismissed the applications for recall of the judgment dated

27.04.2020 by giving liberty to the contemnors to file a

Review Petition, if they so desired. The prayer made by

Sh. Nilesh Ojha that he may be granted liberty to file a Writ

Petition was also rejected by this Court by holding that a

writ petition is not maintainable against the judgment

dated 27.04.2020.

3. The Appellant herein filed an application for recall of

the order dated 04.05.2020. By relying upon the

judgments of this Court, the Registrar (Administration) by

an order dated 07.08.2020 lodged the application as ‘it did

not deserve to be received for registration’. The above

appeal is preferred by Sh. Rashid Khan Pathan against the

said order of the Registrar (Administration) dated

07.08.2020.

4. Sh. Paratho Sorkar, learned counsel appearing for the

Appellant submitted that the judgment dated 27.04.2020 is

without jurisdiction. Therefore, application for recall is

maintainable. He submitted that this Court in A.R.

Antulay v. R.S. Nayak1 clearly held that the formality of

Review Application should not be insisted upon and this

1 (1988) 2 SCC 602

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Court should correct the errors in exercise of its inherent

jurisdiction, especially in matters of violation of

fundamental rights. Mr. Sorkar argued that the judgment

dated 27.04.2020 has been impliedly overruled by a larger

bench of this Court in Suo Motu Contempt Petition

(Crl.) No.1 of 20202.

5. The order passed by the Registrar (Administration)

lodging the application filed for recall of the order dated

04.05.2020 was mainly challenged on the ground that

the judgment of this Court dated 27.04.2020 is without

jurisdiction and, therefore, this Court should not insist on

filing an application for review. In such circumstances,

the Appellant contended that an application for recall is

maintainable. Reliance was placed on a judgment of this

Court in New India Assurance Co. Ltd. v. Krishna

Kumar Pandey3 in support of the contention that an

application for recall is maintainable when the order is

passed without jurisdiction. The Respondent in the said

case was convicted for an offence punishable under

Section 498-A of the Indian Penal Code, 1860 (IPC) and

2 In Re: Prashant Bhushan & Anr, Suo Motu Contempt Petition (Crl) No. 1 of 2020
3 2019 SCC OnLine SC 1786

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was sentenced to rigorous imprisonment for one year. The

appeal filed by him was dismissed by the Sessions Court

against which he filed a Revision Petition under Section 397

Cr. P.C. before the High Court. The Revision Petition was

partly allowed by the High Court and the sentence was

reduced to the period already undergone. The High Court

also held that the conviction shall not affect the service

career of the Respondent adversely. The Appellant filed an

application for correction of the order passed in the

Revision Petition which was dismissed. The Respondent-

Employee submitted before the High Court that the order

cannot be modified. The High Court accepted the

submission of the Respondent-Employee in that case and

dismissed the application against which the Appellant

approached this Court. This Court was of the opinion that

the High Court acted in excess of its jurisdiction in holding

that the conviction shall not affect the service career of the

Respondent therein. By referring to an earlier judgment of

this Court in State of Punjab v. Davinder Pal Singh

Bhullar4 it was held that inherent power of the High Court

under Section 482 Cr. P.C. was available to pass suitable

4 (2011) 14 SCC 770

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orders where an order is passed without jurisdiction or in

violation of the principles of natural justice. The said

judgment has no application to the facts of this case. By

no stretch of imagination can it be said that the order

dated 04.05.2020 suffers from the vice of lack of

jurisdiction.

6. Yet another ground raised in the appeal is that an

application for recall is maintainable when principles of

natural justice are violated. A perusal of the order dated

04.05.2020 discloses that the Appellant and the other

contemnors were heard before the applications were

dismissed. Therefore, the contention of the Appellant is

without any substance.

7. As we are concerned only with an application filed to

recall the order dated 04.05.2020 it is not necessary to

examine the submission made by Mr. Sorkar that the

judgment dated 27.04.2020 has been impliedly overruled

by a later judgment of this Court in Prashant Bhushan’s

case (supra). We are in agreement with the order passed

by the Registrar (Administration) holding the application

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for recall of the order dated 04.05.2020 is not

maintainable.

8. This Court in Delhi Admn. v. Gurdip Singh Uban5

deprecated the practice of filing of applications for

“clarification”, “modification” or “recall” of final judgments

or orders. It was held in the said judgment that a party

cannot be permitted to circumvent or bypass the

circulation procedure provided in the provision pertaining

to Review and indirectly obtain a hearing in the open Court

by filing an application for modification or recall. Such an

application deserves to be dismissed with costs. While

lodging the application for recall, the Registrar

(Administration) relied upon another judgment of this Court

in A. P. S. R. T. C. v. Abdul Karim6 in which it was held

that applications for clarification, which are in essence and

substance seeking the review of an order of the Court, are

impermissible and amounted to an undesirable practice

which do not deserve any consideration by the Court.

9. In a country governed by the rule of law, finality of

the judgment is absolutely imperative and great sanctity is

5 (2000) 7 SCC 296
6 C.A. 7797/2003

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attached to the finality of the judgment. Permitting the

parties to reopen the concluded judgments of this Court by

filing repeated interlocutory applications is clearly an abuse

of the process of law and would have far-reaching adverse

impact on the administration of justice7.

10. Repeated filing of applications which are not

maintainable amounts to abuse of process of law. O.

Chinappa Reddy, J. in Advocate General, State of Bihar

v. M.P. Khair Industries8 was of the opinion that abuse of

process of Courts amounts to criminal contempt. In the

said case, the Respondent was accused of filing repeated

applications and obstructing the administration of justice

which interfered with the due course of judicial

proceedings.

11. Repeated filing of applications can also result in a

direction that no further applications shall be received by

the Registry of this Court in respect of the litigation (See:

Ila Vipin Pandya (2) v. Smita Ambalal Patel9).

12. In Dnyandeo Sabaji Naik v. Pradnya Prakash

Khadekar10, D.Y. Chandrachud J, speaking for a three-
7 Indian Council for Enviro-Legal Action v. Union of India, (2011) 8 SCC 161
8 (1980) 3 SCC 311
9 (2007) 6 SCC 750
10 (2017) 5 SCC 496

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Judge bench held that Courts are obligated to act firmly in

dealing with abuse of process, and impose exemplary costs

when necessary. Chandrachud J. held:

“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
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 penalises such behaviour.

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

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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.”

13. The application for recall of an order by which an

earlier application for recall of the judgment was dismissed

is not maintainable. The only remedy open to the

Appellant was to have filed a Review Petition as suggested

by this Court in the order dated 04.05.2020. We are of the

considered view that the application for recall of the order

dated 04.05.2020 is an abuse of process of Court.

Therefore, we are constrained to dismiss the Appeal with

exemplary costs of Rs.25,000/- (Rupees Twenty-Five

Thousand Only). If the Appellant continues to file such

repetitive applications in this litigation which are not

maintainable, he will be visited with deterrent actions

referred above such as initiation of criminal contempt

proceedings or a direction to the Registry that no further

applications in this litigation will be received.

10 | P a g e
…………………………..J.

[L. NAGESWARA RAO]

…………………………..J.

[ANIRUDDHA BOSE]

New Delhi,
September 03, 2020.

11 | P a g e



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