Report No. 192
Recommendations for Preventing Vexatious Litigation in India
We have already referred in Chapter II, to the existing laws on prevention of vexatious litigation in the former State of Madras and in the State of Maharashtra, namely, the Madras Vexatious Litigation (Prevention) Act (Act 8 of 1949) and the Maharashtra Vexatious Litigation (Prevention) Act (Act XLVIII of 1971). The title of the Madras Act of 1949 has been amended vide Tamil Nadu Adaptation of Laws Order, 1969 and now known as Vexatious Litigation (Prevention) Act, 1949 (TN Act 8 of 1949). In other chapters, we have referred to the statutory position and case law in other countries. In the 189th Report on Revision of Court Fee Structure, the Law Commission recommended (Recommendation No.10) for enacting a Central legislation on the subject. Now, we will discuss various provisions necessary in that Act. We shall now refer to particular aspects of the various legislations and formulate our recommendations.
(1) Both the Madras and Maharashtra Acts referred to above, apply to initiation of civil as well as criminal proceedings. While the Madras Act does not apply to seeking leave for continuation of pending proceedings, the Maharashtra Act requires leave to be obtained to continue pending proceedings also, in case a person is declared a vexatious litigant during the pendency of such proceedings. In fact, in other countries too, the laws prescribe the need for leave for continuing pending proceedings.
This being the current position, we are of the view that once a person is declared to be a vexatious litigant, the proposed law should require leave not only to initiate civil or criminal proceedings but for continuing any civil or criminal proceedings which had already been commenced before the person was declared a vexatious litigant. In such pending proceedings, the person who is declared vexatious litigant, shall have to apply seeking leave to continue the said proceedings.
(2) So far as the Court to which application can be made for declaring a person as a vexatious litigant, the Madras Act requires that application be made to the High Court. In Maharashtra, sec. 2(1) of the Act of 1971 refers to the High Court while Rule 7 of the Rules of 1976 made by the Bombay High Court, requires the application to be filed on the Appellate side of the Bombay High Court and that it shall be heard by a Division Bench.
We are of the view that the application in this regard should be filed in the High Court and be dealt with by the High Court in a Division Bench.
(3) As to the grounds to be alleged and established for declaring a person as a vexatious litigant, both Acts use the words 'habitually and without reasonable ground instituted vexatious proceedings'. They do not use the word 'persistent', which word is used in sec. 42 of the UK Act of 1981 and in other countries.
In UK (see Chapter IV), section 42 of the Supreme Court Act, 1981 (as amended by section 24 of the Prosecution of Offences Act, 1985) uses the words "habitually and persistently and without reasonable ground".