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Report No. 192

This is one aspect to be considered.

In the States in USA another method is employed (see Chapter V). In California, it is required to prove that in the preceding 'seven year period', the person has commenced, prosecuted or maintained propria persona at least five litigations other than in a small claims Court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least for two years without having been brought to trial or hearing.

In Texas, the provision is similar but with a further condition that such litigations must have been 'determined by a trial or appellate Court to be frivolous or groundless under the State or federal laws or rules of procedure'.

In Australia (see Chapter VI), the High Court Rules, 1952 (Rule 6.3.0) require proof that the person 'frequently and without reasonable ground has instituted vexatious legal proceedings'.

In Western Australia, section 3 of the Vexatious Proceedings Prevention Act, 2002, defines vexatious proceedings as those

"(a) which are an abuse of the process of a Court or tribunal;

(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(c) instituted or pursued without reasonable cause; or

(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose"

In Queensland, section 3 of the Vexatious Litigant Act, 1981 requires proof that the person had 'frequently and without reasonable ground instituted vexatious legal proceedings'.

In New Zealand, section 88A of the Judicature Act, 1908 uses the words 'persistently and without any reasonable ground'. In Canada, section 40 of the Federal Courts Act, 1985 uses the words 'persistently instituted vexatious proceedings'.

After examining the above statutes, we are not inclined to go by the test of seven cases in five years as adopted in some States in USA. So far as the Supreme Court Act of 1981 (UK) is concerned, it uses the words 'habitually and persistently and without reasonable ground' while Western Australia gives some examples of vexatious litigation as stated in sub-paras (a) to (d) of section 3 of the Vexatious Proceedings Prevention Act, 2002.

Question is whether, in addition to the word 'habitually', we should also use the word 'persistently'. We have seen in Chapter IV that Lord Bingham has explained the meaning of the words 'habitually and persistently' in Attorney General v. Banker, 2000 (1) FLR 759 while interpreting section 42 of the Supreme Court Act, 1981 as follows:

"The hallmark usually is that the plaintiff sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, thereby imposing on defendants the burden of revisiting claim after claim; that the claimant relies on essentially the same cause of action, perhaps with minor variations, after it has been ruled upon, in actions against successive parties who, if they were to be sued at all shall be joined in the same action; that the claimant automatically challenges every adverse decision on appeal, and that the claimant refused to take any notice of or give effect to orders of Court. The essential vice of habitual and persistent litigant is keeping on and on litigating where earlier litigation has been unsuccessful and where on any rational and objective assessment the time has come to stop"

After considering the matter in depth, we are not inclined to add the word 'persistently' for the reasons we propose to give. In our view, the words 'habitually' and 'persistently' convey more or less the same meaning. In the very case in P.H. Mawle (AIR 1965 SC 1827), decided with reference to the Madras Act of 1949, the Supreme Court observed (para 7):

"The Act, which was passed by the Madras Provincial Legislature in 1949 conferred jurisdiction upon the Madras High Court to deal with cases of habitual litigants who were persistently filing vexatious actions and were guilty of an abuse of the process of Court"

Further, in Vijay Narain Singh v. State of Bihar, 1984 (3) SCC 14, dealing with section 2(d)(iv) of Bihar Control of Crimes Act, 1981, the majority held that the word 'habitually' also means 'persistently'. The Court observed:

"The expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts - are necessary to justify an influence of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. Because the idea of 'habit' involves an element of persistence and tendency to repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones"

The above interpretation of the word 'habitual' has been followed in a number of cases by the Supreme Court, the latest being in Vijay Amba Das Diware v. Balakrishna Waman Dande, 2000 (4) SCC 126, where while considering sec. 13(3) of the C.P. and Berar Letting of Houses and Rent Control Order, 1948, the learned Judges relied on the meaning of the words 'habitually' in Ramanatha Iyer's Law Lexicon (2nd Ed). In the said Lexicon, the meanings of the words 'habit' and 'habitual' are stated as follows:

"Habit: Settled tendency or practice; mental constitution. The word 'habit' implies a tendency or capacity resulting from frequent repetition of the same acts. The word by 'habit' and 'habitually' imply frequent practice or use. Habitual - constant, customary; addicted to a special habit".

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