W.P.(C)/6148/2013 of DEEPAK KHOSLA Vs HONBLE HIGH COURT OF DELHI & ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 29.10.2013

Pronounced on: 04.03.2014

+W.P.(C) 6148/2013, C.M. APPL. 13533/2013, 13534/2013,13535/2013, 13536/2013, 13537/2013 & 13538/2013

DEEPAK KHOSLA

…..Petitioner

Through: Petitioner in person.

Versus

HON’BLE HIGH COURT OF DELHI AND ORS. ……..RespondentsThrough: None.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT

1.The present petition presents several questions concerning theauthority of Courts to regulate the manner in which litigation isconducted.Broadly,thepetitionerraisesthefollowingsevenquestions:

a)Whether Court has the power (“the jurisdiction”) to injunct aparty from filing any kind of application?

b)Whether Court has the power (“the jurisdiction”) to injunct aparty from filing an application before ‘coordinate’ Court.

In parallel: when the same matter being heard by learned Single Judge‘X’ is now required to be placed before different learned SingleJudge ‘Y’ (because of review of ‘prior’ order passed by Judge ‘Y’),

whether the latter Ld. Single Judge ‘Y’ can be construed to be a‘coordinate’ Bench of the Court of Ld. Single Judge ‘X’?

c)Whether Court, purportedly acting to check vexatious orfrivolous litigation, has the power to impose costs under any provisionof law other than in the manner laid out in Section 35-A of the CPC?Put differently: Whether ‘inherent powers’ can be claimed to usurpjurisdiction to impose costs for what is allegedly vexatious orfrivolous litigation beyond the limit of Rs. 3.000 (as laid out in Section35-A of the CPC), especially in contempt proceedings, in which themaximum fine that can be imposed is Rs. 2,000?

d)Can suchcosts be‘punitive’ in nature i.e. other than‘compensatory’ in nature?

e)Can the power to do so be usurped by following procedureother than that laid out in Section 35-A of the CPC?

f)Can such costs be directed to be paid to beneficiary other thanthe opposite party?

g)If such so-called costs be ‘punitive’ in nature, whether they are,in actual reality, ‘costs’, or in truth, ‘fine’?

2.Each of these questions concern, in one way or another, theauthority of the Court to regulate the proceedings before it, and toensure the fair administration of justice. The petition questions thebreadth of those powers, and what actions precisely Court canengage in. At the outset, it is trite to remark that these questionscannot be answered in terms of their breadth in one go by Courtexercising writ jurisdiction, as in the present case. The questionsposed, though relevant, concerning the authority of the Court to

impose costs, prevent listings etc. necessarily depend on the facts andcircumstances of the case before the Court, and it may not be possibleto provide broad generalizations of the legal principles applicable(absent the necessary factual context) when such questions arise.

3.With this in mind, it is important here to provide broad factualnarrative of the orders passed by this Court previously against thepresent petitioner that have led to these questions.

4.The present petitioner was party in matter titled MontreauxResorts P. Ltd. and Ors.v. Sonia Khosla, before this Court. Thepetitioner had filed an intra-Court appeal (LPA 16/2012) impugningthe order dated 4[th]January, 2012 passed by the learned Single Judge.The impugned order in paragraph 15 gives two directions: that theappellant would not appear in any Court either in person or as anattorney of third party, as he does not have inherent right to appearand argue; that the appellant should be medically examined whetherhe was suffering from any mental disorder. The SHO of the PoliceStation Tilak Marg was directed to get the appellant admitted in theInstitute of Human Behaviour and Allied Sciences (IHBAS, for short),Shahdara, Delhi. The Medical Superintendent of IBHAS was directedto submit report within week. The Division Bench of this Court inLPA 16/2012, reported as Deepak Khosla v. Montreaux Resorts Pvt.Ltd. and Ors., (2012) ILR 5 Delhi 117, overturned both direction inthe order of the learned Single Judge, but held – on the first direction –as follows:

“…thisquestionshouldbedecidedfirstandimmediately before Deepak Khosla can be permitted to

appear and is given an audience. Keeping theseaspects in mind, we feel that it will be appropriate thatthe entire aspect and issue is decided by the learnedSingle Judge as expeditiously as possible and till thedecision is taken, there should be stay of furtherproceedings in different matters before the High Courtand in the District Courts. This direction will not applyand prevent Deepak Khosla for filing any writ petitionunder Article 226 or moving an application forbail/anticipatory bail. This will also not apply to anyproceedings pending before the Supreme Court orCourts outside Delhi.”

5.Further, the Division Bench after considering various questions,and hearing the submissions, issued the following directions:

“(i) The High Court has inherent power distinct andseparate from power of contempt to injunct/sanctionvexatious or frivolous litigation, vexatious/habituallitigants, contumelious litigant and issue appropriatedirections, including prohibiting the said litigant fromappearing and arguing matters in person and forothers and from initiating or filing proceedings, exceptwith permission of the Court. (ii) The two directionsgiven in the impugned order dated 4[th]January, 2012are set aside.

(iii) Order dated 4th January, 2012 will be treated asa show cause notice. The learned Single Judge willexamine other allegations, which have been made bythe respondents and issue supplementary show causenotice, if deemed appropriate and necessary.”

6.Subsequently, in the course of the proceeding of the matter,marked as Cont. Cas.(C) 165/2008 (currently sub judice), thepetitioner filed CM 12430/2013 for early hearing of the matter. That

application was disposed off by an order – which is impugned in thepresent proceedings – dated 13.8.2013, which held as follows:

“This is another application under Section 151 CPCfiled, by the respondent No. 2 Mr. Deepak Khosla forearly hearing and disposal of C.M 2045/2013. Theprayers have also been made for various other reliefsas enumerated in prayer clause (iv) to (viii) of theinstant application.

At the outset, it may be noted that having regardto the manner in which case is being conducted by therespondent No. 2 Mr.Khosla since from the receipt ofthis case on transfer, the averments in the instantapplication attributing delay on the part of the Courtare utterly false.

The proceedings speak for themselves that thecase has repeatedly got adjourned only at the instanceof this respondent-applicant. Further, it is also notedthat the matter is already listed for hearing of theapplication (CM 2045/2013) as also some otherapplications along with the main contempt petition for20.09.2013 and on being so informed that the previoustwo applications filed for early hearing within theshort span were dismissed as the date for hearing wasnearing and still-further, that in any case, the notice ofthe instant application was required to be given to theopposite side for hearing.

Mr.Khosla in his usual manner insisted fordisposal of the application being CM 2045/2013. Onthe last date i.e. 26.07.2013, Mr.Khosla had himselfsought adjournment for filing reply to the applicationCM 7668/2013, which was filed by his counsel forseeking discharge. Despite being informed that he wasdebarred for arguing for himself and for others, heinsisted for disposal of the pending application/s

including CM 2045/2013. Having heard him on thisaspect and seeing that there was no urgency fordisposal of these applications, which could be disposedof along with the main contempt petition, the matterwas adjourned for hearing on the main contemptpetition along with the miscellaneous applications for20.09.2013. Again, the same issue is sought to beraised for early hearing of the said application CM2045/2013. The averments in the instant applicationseeking early hearing are not only contrary to therecord,butarehighlyirrelevant,frivolousandvexatious. The prayers which have been made aremisconceived and are nothing, but trying to divert thecontempt proceedings to different dimensions. In anapplication of early bearing, such pleadings andprayers are uncalled for. Having seen the conduct ofthe applicant Mr.Khosla in filing application afterapplication and not even letting the case to proceed onmerits, this application is another tactic for delayingthe hearing in the main case. In this state of affairs, Iam constrained to dismiss this application with cost ofRs. 20,000/-, and also with direction to the Registrynot to register/list any application of Mr.Khosla in thiscase without the leave of this Court, and also until thecost is deposited with Delhi High Court Legal ServicesCommittee.

CM stands dismissed accordingly.”

7.Given the background, the Court also notes that contempt case(165/2008) is currently pending, and recently on 21.01.2014, thelearned Single Judge hearing the matter passed the following order:

“CM No.20026/2013

This is an application by petitioner Nos.2 and 3 forpre-ponement of the date of hearing. Since the date ofhearing has already reached, the application hasbecome infructuous.

The application is dismissed as infructuous.

CONT.CAS(C) 165/2008

When the matter was taken up, learned senior counselfor the petitioners pointed out to order of the DivisionBenchdated24.4.2012andmorespecificallyparagraph 72 of the said order that records that theissue whether or not Mr.Deepak Khosla is entitled toappear as self-representative litigant or for other hasto be decided first and immediately before Mr.DeepakKhosla can be permitted to appear and has audience.

As per the direction given in paragraph 72, theDivision Bench has directed that this issue should bedecided as expeditiously as possible.

In this view of the matter, list for hearing on 29thJanuary, 2014.”

7.The petitioner had urged with the aid of authority with somevehemence that the order of the learned Single Judge, challenged byhim in the present case, is nullity, and that this Court has thejurisdiction and the right to so declare it. He particularly relied onKiran Singh and Ors. v.Chaman Paswan and Ors.,AIR 1954 SC 340,especially the observation that:

“6......................A defect of jurisdiction, whether it ispecuniary or territorial, or whether it is in respect ofthe subject-matter of the action, strikes at the very

authority of the Court to pass any decree, and such adefect cannot be cured even by consent of parties.

It was argued that the order to pay costs, made by the learnedSingle Judge, while dismissing the petitioner’s application is nullity,because firstly the quantum of costs is beyond the limit permissible inlaw, by virtue of the Supreme Court judgment mandating that costsshould not be burdensome and should not exceed ` 3000/- (thereference here being to Vinod Seth v. DevinderBajaj and Anr., 2010(8) SCC 1). It was submitted essentially that direction to depositcosts as precondition for consideration of an application, and inviolation of the Supreme Court decision is nullity which can becured in any proceeding, including writ petition, and not necessarilyin an appeal. It was also urged that the direction to deposit costs limitsif not entirely extinguish the petitioner’s right to access justice, and isliable to be set aside.

8.It is in this context, specifically the order of the learned SingleJudge dated 13.08.2013, that the present writ petition has been filed. Itis important to note that writ petition is not means to challenge anorder or judgment litigant believes to be incorrect, or is aggrievedby. If litigant seeks to undo the effects of any adverse order orjudgment against him or her, then the correct remedy is to approachthe appellate Court. Indeed, in opposing the order of the learnedSingle Judge dated 4[th]January, 2012, the present petitioner – andcorrectly so – approached Division Bench of this Court by means of

Letters Patent Appeal, which overturned the adverse order evenwhilst imposing certain terms upon him. Similarly, the proper remedyin this case would be an appeal against the order of the learned SingleJudge dated 13.08.2013 were the petitioner aggrieved by it - in theproper appellate Court, rather than to question the validity of the orderthrough limited writ jurisdiction under Article 226, which cannotextend to bypass appellate procedures, nor to reverse decisions ofCourts passed in civil proceedings on an assessment of the merits ofthe reasoning. Whether decisions are correct or incorrect as matter oftheir appreciation of the law, and the application to the facts of thecase, is not an exercise that can ordinarily be reviewed in writproceedings, but only in proper appellate setting. This is not to saythat judicial order can never be the subject of proceedings underArticle 226, but the limits of that power are to be strictly construed.The order of 13.08.2013, which was passed during the course ofdisposing off an application for early hearing, during the pendency ofa contempt case against the present petitioner is in matter which issub judice. No appellate remedy has been availed by the petitioner inthis case, but direct approach under Article 226 has been made. TheCourt, while passing the impugned order, granted an appropriate oralhearing to the parties and reasoned decision was pronounced by theCourt subsequently. The reasons provided by the order may be corrector incorrect, but so long as the Court is properly seized of the matter,and it falls within its jurisdiction, the assessment of the merits of theimpugned order is to be conducted in appropriate appeal/reviewproceedings,andcannotbeinterferedwiththroughthewrit

jurisdiction of this Court, within the limited power of judicial review.These principles, and limitations on the writ jurisdiction of this Courtunder Article 226, have also been recognized by various judgments ofthe Supreme Court (se, Radhey Shyam and Anr. v. Chhabi Nath andOrs., (2009) 5 SCC 616; Surya Dev Rai v. Ram Chander Rai and Ors.,(2003) 6 SCC 675).

9.This Court is also conscious that the jurisdiction to issue writsor directions, or grant other reliefs under Article 226 of theConstitutionofIndia,isavailableagainstadministrative/executive/statutory authorities or those falling withinthe description “State”, or those performing specific functions speltout by statute. However, barring the remedy under Article 227 of theConstitution and the writ of certiorari, which are available againstinferior Courts and Tribunals, this remedy cannot be exercised inrespect of judicial orders made by the High Court. This Court issupported by its reasoning by the judgment of the seven Benchdecision of the Supreme Court in A.R. Antulay v. R.S. Nayak and Anr.,AIR 1988 SC 1531.

10.Accordingly, for the above reasons, this writ petition andpending applications are dismissed.

S. RAVINDRA BHAT(JUDGE)

MARCH 04, 2014

NAJMI WAZIRI(JUDGE)