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Report No. 192

The Court thereafter observed:

(para 9)

"Therefore, the expression 'habitual' would mean repeatedly or persistently and implies a thread of continuity stringing together similar repeated acts. An isolated default of rent would not mean that the tenant was a habitual defaulter".

Thus, we find that the word 'habitually' includes a 'persistent' behaviour.

So far as the word 'persistently' is concerned, Ramanatha Iyer in his Law Lexicon says:

" 'Persistently' connotes some degree of continuance or repetition. A person may persist in the same default or persistently commit a series of defaults: Re Arctic Engineering Ltd 1986 (2) All ER 346 (Ch. D)"

In the light of the above discussion, we are of the view that it is not necessary to use both the words 'habitually and persistently'. The words which have been used in the Madras and Maharashtra Acts, namely, 'habitually and without reasonable cause' are sufficient.

(4) In the Maharashtra Act, it also uses the words "habitually and without reasonable ground instituted vexatious proceeding civil or criminal, in any court whether against the same person or against different person". The Madras Act of 1949 does not use the words, 'whether against the same person or different person'. The UK Act (sec. 42) also uses these words. In our view, it will be more appropriate to use these words also, i.e. 'whether against the same person or different person'.

(5) As to who should file an application in the High Court to declare a person as a vexatious litigant, the Madras and Maharashtra Acts permit the Advocate General to file the application in the High Court. In England, under section 42 of the Supreme Court Act, 1981, the application is to be filed by the Attorney General. In Australia, as per the High Court Rules, 1952, the application can be filed by a Law Officer, or the Australian Government Solicitor or the Principal Registrar of the Court.

In Western Australia, section 4(2) of the Vexatious Proceedings Prevention Act, 2002 provides that an application can be filed by (a) the Attorney General, (b) Principal Registrar of the Supreme Court or the Principal Registrar of the District Court, or (c) with leave of Court by a person against whom another person has instituted or conducted vexatious proceedings, or (ii) a person who has a sufficient interest in the matter.

In New Zealand, under section 88A of the Judicature Act, 1908, the application has to be filed by the Attorney General. In US, in California, under section 391.1 of the Code of Civil Procedure, even 'the defendant' can move the Court but that is for an order requiring security on the ground that plaintiff is a vexatious litigant. In Texas, section 11.051 of the Civil Practice and Remedies Code is on the same lines as in California. In Canada, under section 40(2) of the Federal Courts Act, 1985, the application may be made only with the consent of the Attorney General of Canada, who is entitled to be heard on the application.

In the light of the above provisions, the question arises as to what recommendations have to be made to enable applications to be filed for declaring a person as a vexatious litigant. We are of the view that the Advocate General of the State and in the absence of an office of Advocate General (as in Delhi High Court), a Senior Advocate nominated by the High Court, should be entitled to file the application.

We are also of the view that the Registrar General of the High Court should also be empowered to file an application. In addition, we are also of the view that a person against whom another person has instituted or conducted vexatious proceeding must also be entitled, with leave of the Division Bench of the High Court, to file an application to declare the opposite party as a vexatious litigant. In such cases, the Court must also hear the Advocate General or the Senior Counsel nominated by it (where there is no office of Advocate General). The Court must also hear the person against whom the application is made.

(6) Next question is as to what type of orders the High Court should pass in the applications. The High Court will, in such an application, after hearing the parties referred to above, no doubt decide whether the opposite party is a vexatious litigant. But it shall also have to direct that the person so declared shall not initiate any civil or criminal proceedings, or if already instituted, shall not continue the same in the High Court or in any Court under the supervisory jurisdiction of the High Court without obtaining leave. (This will cover cases where a High Court has jurisdiction over more than one State/Union Territory). The order will include a direction that no civil or criminal proceedings shall be instituted or continued by a vexatious litigant -

(a) in the case of proceedings in the High Court, without leave of the High Court, and

(b) in the case of proceedings in the District and Sessions Court or in any Court under the supervisory jurisdiction of the High Court, without the leave of the District and Sessions Judge.

The above Courts are described as 'appropriate Courts' in the further discussion in this Chapter. But, in the following cases, it shall not be necessary for the vexatious litigant to obtain leave for instituting or continuing the proceedings:

(a) where the vexatious litigant proposes to institute a proceeding in

(b) where in any matter instituted against the vexatious litigant, such litigant proposes to file or continue any recourse by way of defending himself;

(c) where in a proceeding instituted or continued by such vexatious litigant after obtaining leave from the appropriate court, the said litigant proposes to file or take appropriate further proceedings.

(7) We shall now refer to the circumstances under which leave can be granted or refused. We find the following procedures in various jurisdictions.

In the Madras Act, 1949, it is stated in section 3 that leave shall not be given in respect of any proceeding which may be filed by the vexatious litigant unless the Court before which the leave application is filed finds a 'prima facie' ground for such proceedings.

The Maharashtra Act, 1971 refers to two conditions. Sec. 2(2) states that leave shall not be given unless the Court is satisfied that the proceedings are (a) not an abuse of the process of the Court, and (b) there is prima facie ground for the proceedings.

Sec. 42(3) of the UK Supreme Court Act, 1981 uses the words 'unless the High Court is satisfied that the proceedings or applications are not an abuse of the Court in question and that there are reasonable grounds for the proceedings or application.

In USA, in California, section 391.7(b) uses the words 'only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay'. In Texas, section 11.102 also requires leave to be granted only if the case has merits or has not been filed for the purpose of harassment or delay.

In Australia, section 63.6 of the High Court Rules, 1985 uses the words 'unless the Court of Justice is satisfied that the proceedings are not an abuse of the process of the Court and that there is prima facie ground for the proceedings'.

In Western Australia, section 6(7) of the Act of 2002 states that the Court must be satisfied that the proceedings are not vexatious and there is prima facie ground. 'Vexatious' is defined in section 3 as being either abuse of process or instituted to harass or annoy or to cause delay or detriment or for any wrongful purpose or without reasonable ground or conducted in a manner to harass or annoy or cause delay or detriment.



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