Measures Available To Curb Frivolous Or Vexatious Litigation
In this article, we shall examine the alternatives to enhancement of user costs available to curb frivolous or vexatious litigation in courts. Broadly, two alternatives have been tried and have been found more or less effective. One is the imposition of exemplary costs by the courts in individual cases. This serves as a specific deterrent on the recalcitrant litigant. The other device is by empowering the courts through a separate legislation or by a specific provision in a statute. This has the effect of a general deterrent on litigants as a whole and puts them on guard if they were to resort to abuse of the process of law. The illustrations of these two devices will be presently discussed.
(1) Imposition of exemplary costs
No doubt, frivolous or vexatious litigation is a serious problem and it is required to be dealt with effectively. The Supreme Court in Dr BuddhiKota Subbarao v. K. Parasaran, AIR 1996 SC 2687, has criticized the practice of frivolous petitions. The Supreme Court observed:
“No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived frivolous petition.”
As observed in Chapter VI, enhancing the Court fee for purpose of limiting vexatious litigation is not an appropriate step as suggested by the Department of Justice and Standing Committee of Secretaries. On the contrary, enhancement in the Court fees would adversely affect the rights of genuine litigants to get justice. There are many other ways which up to some extent can curb the flood of vexatious litigations. One way is awarding exemplary costs. The Court can pass an order of exemplary costs in cases of vexatious or frivolous litigation. Supreme Court and other Courts in fact have passed an order of exemplary cost in many cases. In Rajappa Hanamantha Ranoj v. Mahadev Channabasppa, (2002) 6 SCC 120, the Supreme Court has held:
“It is distressing to note that many unscrupulous litigants in order to circumvent orders of Courts adopt dubious ways and take recourse to ingenious methods including filing of fraudulent litigation to defeat the orders of Courts. Such tendency deserves to be taken serious note of and curbed by passing appropriate orders and issuing necessary directions including exemplary costs.”
The Supreme Court in this case passed an order of exemplary costs of rupees twenty five thousand against appellant for filing of vexatious case.
In another instance in Charanlal Sahu v. Dr. A.P.J. Abdul Kalam, (2003) 1 SCC 609, the Supreme Court imposed exemplary costs of rupees twenty 108 five thousand on the petitioner for filing a frivolous petition challenging the election of the President of India, Dr. A.P.J. Abdul Kalam. The Court observed that the petitioner who is an advocate had earlier filed four election petitions challenging the election of the returned candidates in the President’s elections held in the years 1974, 1977, 1982 and 1997. All these election petitions were dismissed on the ground that the petitioner had no locus standi. The Court in Charanlal Sahu v. Giani Zail Singh, 1984 (1) SCC 390, observed:
“In order to discourage the filing of such petitioners, we would have been justified in passing a heavy order of costs against the two petitioners.”
In that case the Court did not pass any order as to costs it would create a needless misconception that Supreme Court, which is the exclusive forum for deciding election petitions relating to election of the President and the Vice President, is loathe to entertain such petitions. Instead, the Court expressed its disapproval of the high-handed and indifferent manner in which the petitions were drafted and filed. But when the same petitioner again filed another election petition in 1998, the Supreme Court imposed costs of rupees ten thousand on him Charanlal Sahu v. K.R. Narayanan, (1998) 1 SCC 56).
There are other instances where the Supreme Court had passed order of exemplary costs. Sivamoorthy v. University of Madras, (2001) 10 SCC 483; State of Punjab v. Bhajan Singh, (2001) 3 SCC 565.
Section 26 of the Consumer Protection Act, 1986 provides that whenever the Dist. Forum, State Commission or the National Commission finds that any complaint instituted before it is frivolous or vexatious, it shall dismiss the complaint with a reasoned order along with an order directing the complainant to pay to the opposite party, costs not exceeding rupees ten thousand as may be specified in the order.
Section 35A of the Code of Civil Procedure, 1908 also provides for compensatory costs in respect of false or vexatious claims or defences. Any party to suit or other proceeding may object to the claim or defence on the ground that such claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward. And if thereafter, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court may hold that such claim or defence to be false or vexatious and make an order for payment of costs to the objector by whom such claim or defence was put forward.
In T.S. Arivandanan v. T.V. Satyapal, AIR 1977 SC 2421, Krishna Iyer J. condemned the petitioner for the gross abuse of the process of Court to which he resorted unrepentantly. It was held that if the trial Court was satisfied that litigation was inspired by vexatious motives and altogether groundless, it should take deterrent action under sec. 35A to the CPC.
The National Commission to Review the Working of the Constitution has also stated (para 7.11) that an award of exemplary cost should be made in appropriate cases of abuse of process of law.
(2) Enacting a separate legislation to curb vexatious litigation
The other device to curb the vexatious litigation is to enact a separate legislation to deal with such cases. Though there is no Central enactment on the subject, it is significant to note that the Legislature of the State of Madras has enacted the Vexatious Litigation (Prevention) Act, 1949 (Madras Act VIII of 1949). This Act is similar to the English statute 16 and 17 Vict. Ch. 30 (now repealed by the Supreme Court of Judicature (Consolidation) Act, 1925 (15 and 16 Geo V.C. 49). It is therein provided that when the High Court on an application made to it by the Advocate General, is satisfied that any person has habitually and without any reasonable grounds has instituted vexatious civil or criminal proceeding, in any Court or Courts, it may, after giving an opportunity of being heard to that person, pass an order that no proceeding civil or criminal shall be instituted by him in any Court in the State without the leave of Court. In case of the Presidency town leave may be granted by the High Court and for elsewhere the leave may be granted by the District and Sessions Judge. The leave could only be granted when the Court is satisfied that prima facie ground exists for such proceedings being initiated. Any proceeding instituted by such person without obtaining such leave is liable to be dismissed. Copy of the order is liable to be published in the Gazette. A five Judges Bench of the Supreme Court upheld the constitutional validity of the Madras Act in P.H. Mowle v. State of A.P., AIR 1965 SC 1827.
Hidayatullah J. (as he then was) for himself and for K. Subba Rao J., Wanchoo J. and Sikri J. held as follows:
“The next argument of the appellant before us is that this Act is unconstitutional because it prevents some citizens from approaching the court and obtaining relief to which every one is entitled in a State governed by Rule of Law……….. This argument is not acceptable to us because the litigants who are to be prevented from approaching the Court without the sanction of the High Court are a class by themselves. They are described in the Act as persons who habitually and without reasonable cause file vexatious action civil or criminal. The Act is not intended to deprive such a person of his right to go to a Court. It creates a check so that the Court may examine the bona fides of any claim before the opposite party is harassed. Such an Act passed in England, has been applied in several cases to prevent abuse of the process of Court. In its object, the Act promotes public good because it cannot be claimed that it is an inviolable right of any citizen to bring vexatious actions without control either legislative or administrative. The Act subserves public interest and the restraint that it creates is designed to promote public good. The Act does not prevent a person declared to be habitual litigant from bringing genuine and bona fide actions. It only seeks to cut short attempts to be vexatious. In our judgment, the Act cannot be described as unconstitutional or offending either Article 19 or 14.”
A Central Act may be enacted on the same lines to curb the vexatious litigation. Even in the absence of such a law made by the legislature, the High Court in exercise of its rulemaking power relating to its own procedure and procedure of the Civil Courts, can make rules prescribing the procedure for dealing with vexatious litigation for purpose of declaring persons as vexatious litigant. Part X of the Code of Civil Procedure, 1908 which consists of Sc. 121 to 131 deals with power of the High Court to make rules regulating its own procedure and the procedure of the Civil Courts subject to its superintendence and may by such rules annul, alter or add to all or any of the rules in the First Schedule. Article 225 of the Constitution of India provides for making of rules by the High Court. Similarly, sec. 23 of the Contempt of Court Act, 1971 also provides rule making power of the High Court. There was a question before the Division Bench of the Kerala High Court in Jose v. Madhu, 1994 (1) KLT 855, that whether in the absence of any legislation by the State Legislature for declaring litigants as vexatious litigants, the High Court can make rules under its rule making power? Relying on the decision of the Australian High Court in Jones v. Skyring, (1992) 66 Aus. L.R. 810, the Kerala High Court held that such a rule can clearly be made by the High Court under its powers to make rules of ‘procedure’ as provided in Part X of the CPC, Article 225 of the Constitution of India and in sec. 23 of the Contempt of Courts Act, 1971. It is not necessary that the Legislature alone should intervene. The Kerala High Court after relying on another decision of the Australian High Court reported in Williams v. Spautz, (1992) 66 ALJR 585 also held that before any such rules are made by the High Court in exercise of its rule making power, it is permissible for the High Court to grant ‘permanent stay’ of cases amounting to abuse of process, after such cases are filed in Court. The High Court can grant ‘permanent stay’ in exercise of its ‘inherent power’ of section 151 of the Code and as a Court of record.
The above discussion makes it clear that problem of vexatious or frivolous litigation can be sorted out by the abovesaid modes and there is no need to enhance the Court fee for curbing the vexatious litigation. On the contrary, it may adversely affect the right of a poor genuine litigant to knock at the doors of the Court.
The question whether court fees need to be revised in order to account for the steady decline in the value of the rupee in order to reflect the actual costs is considered in the next chapter.
SOURCE: Law Commission of India Report No. 189-Revision of Court Fees Structure-February 25, 2004