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Report No. 192

Prevention of Vexatious Litigation

Chapter I

Introductory

Earlier Reports of the Law Commission

In the 189th Report of the Law Commission of India on 'Revision of Court-Fee Structure' (February 2004), there was a reference to 'frivolous and vexatious' litigation. In the Introductory Chapter and in Chapter VI of that Report, the Commission had occasion to refer to the constant demand for increase in court fee to prevent frivolous or vexatious litigation. The Commission agreed with the critical remarks of Lord Macaulay made over one hundred and fifty years ago in connection with the preamble to the Bengal Regulation of 1795.

The preamble to the said Regulation stated that the purpose of prescribing higher court fee in the said Regulation was intended to drive away "vexatious" litigation. But Lord Macaulay who was then heading the Law Commission of pre-independent India disagreed with the said statement in the preamble and said that the increase in court fee, if it was intended to drive away vexatious litigation, it would also drive away genuine and bona fide litigation. In his minutes dated 25th June, 1835 he described the preamble as:

"the most eminently absurd preamble, that was ever drawn." He further stated that there was frivolous and vexatious litigation long before the system of levying 'court fee' came into vogue and it continued after the levy also. He posed various questions:

"It is undoubtedly a great evil that frivolous and vexatious actions should be instituted. But it is an evil for which the Government has only itself and its agents to blame, and for which it has the power of providing a most sufficient remedy.

Why did dishonest plaintiffs apply to the Courts before the institution fee was imposed? Evidently because they thought that they had a chance of success. Does the institution of fee diminish that chance? Not in the smallest degree. It neither makes pleadings clearer, nor the law plain. It will no doubt drive away dishonest plaintiffs who cannot pay the fee. But it will also drive away honest plaintiff."

The views of Lord Macaulay were accepted in the 14th Report of the Law Commission (Chapter 22, para 6) and it was observed:

"29. The argument that it is necessary to impose high court fee to prevent frivolous litigation, already referred to has no substance". (para 29, Ch 22)

These views were further reiterated in the 128th Report of the Law Commission on 'Cost of Litigation' (1988) (para 3.6).

In Chapter VII of the 189th Report, the Law Commission proposed that a separate law be made on the lines of the Madras Vexatious Litigation (Prevention) Act, 1949 (Act VIII of 1949) and referred to the judgment of the Supreme Court in P.H. Mawle v. State of A.P, AIR 1965 SC 1827 in regard to the applicability and validity of that Act and to other cases. Under Recommendation 10, in Chapter IX, the Law Commission recommended:

"We recommend that, on the lines of the above mentioned Madras Act VIII of 1949, a Central Act may be enacted to curb vexatious or frivolous litigation".

That frivolous and vexatious litigation has to be separately tackled and not by way of increase in court fee was also stated by the Supreme Court in Secretary to Govt. of Madras v. P.R. Sriramulu, 1996)(1) SCC 345 (p 351) where it was observed as follows:

"In the beginning the imposition of the (court) fee was nominal but in the course of time, it was enhanced gradually under the impression that it would prevent the institution of frivolous and groundless litigation and as an effective deterrent to the abuse of process of the Court without causing any impediment in the institution of just claims.

However significant this view may be that the levy of fees would have a tendency to put a restraint on frivolous litigation, that view, at any rate, had the merit of seeking to achieve a purpose which was believed to have some relevance to the administration of justice. Since about past two decades, the levy of court fee on higher scales would seem to find its justification, nor in any purpose related to the sound administration of justice but in the need of the State Government for revenue as a means for recompense."

In the light of the recommendation in the 189th Report, referred to above, the Commission has decided to deal with frivolous and vexatious litigation in detail. It was, however, found that the special statutes which 8deal with prevention of 'vexatious' litigation are different from those dealing with 'frivolous' litigation. The concepts are also quite different. As will be seen in he ensuing chapter, 'vexatious' litigation means habitually or persistently filing cases on the issues in which have already been decided once or more than once or against the same parties or their successors in interest or against different parties.

But so far as 'frivolous' litigation is concerned, a litigation may be frivolous,- without the need for persistent filing of similar case,- even if it has no merits whatsoever and is intended to harass the defendant or is an abuse of the process of the Court. Further, there are some existing provisions in the Code of Civil Procedure like Order 6 Rule 16, Order 7 Rule 1, section 35A etc. which deal with 'frivolous' litigation. It is also necessary to deal with vexatious criminal proceedings which now fall under section 250 of the Code of Criminal procedure, 1973.

Those provisions may indeed have to be strengthened further. For these reasons we are separating the issues and giving separate reports. Hence, it was decided that two separate reports are necessary, one on preventing vexatious litigation and another on restricting frivolous litigation. We have, therefore, decided that this Report will deal with prevention of vexatious litigation only. We shall following this up by a separate report on restriction of frivolous litigation.



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