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Report No. 192

In Queensland, section 11 of the Act of 1981 refers to prima facie ground or sufficient reason and also that there is no abuse of process of Court.

In New Zealand, section 88A(2) of the 1908 Act says leave is to be granted only if the Court is satisfied that the proceeding is not an abuse of process of Court and there is prima facie ground in the proceedings. In Canada, in the 1985 Act, section 40(4) also refers to the proceedings not being an abuse of process of Court and there being reasonable grounds for the proceedings.

On a consideration of the above statutes, we prefer the words in the Maharashtra Statute of 1971 which says that leave shall not be granted unless the Court is satisfied that the proceeding is not an abuse of process of Court and there are also reasonable grounds for the proceedings. (The Madras Act, 1949 does not refer to the other condition that the proceeding should not be an abuse of process of Court).

(8) A provision for modification or rescission of an order declaring a person as vexatious litigant is not contained in the Madras and Maharashtra Acts. Question arises whether it is necessary to have a separate provision.

In section 7 of the Western Australia Act of 2002, it is stated that where, in respect of a vexatious litigant, a proceeding is stayed as he is prohibited from filing fresh cases, except with leave, the Court may, on the application of the said vexatious litigant, 'rescind or vary' the order.

We do not think such an express provision is necessary inasmuch as the Court which passed an order declaring a person as a vexatious litigant can always rescind or modify it, if there is change of circumstances under its inherent power and in that case it has to hear the party at whose instance the person was declared vexatious litigant, as also the Advocate General or other Senior Counsel nominated by the High Court (where there is no office of Advocate General).

(9) Question arises as to the consequences of filing a case or continuing a case without obtaining leave.

It has been debated as to what action is to be taken against a person (who is declared as a vexatious litigant and who is directed to obtain prior leave for initiating or continuing an action) but who violates the order and either initiates or continues a case, in violation of the order, without obtaining leave and without disclosure of the existence of an order against him.

Section 4 of the Madras Act of 1949 states that such proceedings be dismissed. The only exception where leave has not to be obtained is an application seeking leave.

Section 3 of the Maharashtra Act, 1971 is also on identical terms. There does not appear to be any specific provision in the UK Act of 1981 but in USA, in California, sec. 391.7 of the Code of Civil Procedure permits the Court to take action for contempt of Court. In Texas, sec. 11.101 of the Civil Practice and Remedies Code also permits the Court to take proceedings for contempt of Court. In Western Australia, section 5 of the Act of 2002 permits imposition of costs and the striking out of the proceedings.

We are of the view that in such a situation as mentioned above, the Court in which the proceedings are so instituted or continued without obtaining leave in spite of an earlier direction to obtain leave, the Court should have power to dismiss the proceedings and also award costs against the person who is in such violation. This is the action that can be taken by the Court in which the person has instituted a case or is continuing a case without leave. But, the High Court which declared the person as a vexatious litigant and which imposed the condition that he should obtain prior leave, must take action for contempt of Court for violation of its order. Of course, it must be made clear that no leave is required for filing an application for leave.

(10) As to the right of appeal against an order declaring a person as a vexatious litigant and directing him not to initiate/continue proceedings without leave, inasmuch as we are recommending that such orders shall be passed only by a Division Bench of the High Court, it is not necessary to provide for any further right of appeal. Parties can always move the Supreme Court under Article 136 of the Constitution of India.

(11) Almost all statutes provide for a gazette publication of the order of the Court declaring a person as a vexatious litigant. But, when in some States the subordinate Courts are in hundreds, it is possible that all the Courts do not have access to the gazettes. We are, therefore, of the view that whenever the Division Bench of the High Court passes such an order as stated above, a copy of the order must be communicated to all the subordinate Courts within its supervisory jurisdiction. In addition to a Gazette notification, it may also be permissible for the High Court to give directions for publication of its order in any other manner it deems fit.

(12) As to extension of period of limitation, the Madras and Maharashtra Acts make no special provision. If the High Court restrains a person from initiating a proceeding, and the person has to apply for leave before the appropriate Court as stated above, there may be cases where the suit may, in some cases, get barred by limitation by the time leave is granted.

Question is whether any special exemption or extension of time is necessary. Section. 15(1) of the Indian Limitation Act, 1963 provides that 'in computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded'.

Likewise, under section 470(2) of the Code of Criminal Procedure, 1973, it is stated that where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded. In view of the above provisions, we are of the view that it is not necessary to make any special provision for exemption or extension of time in the proposed Act.

(13) Cases in more than one State can raise problems. Let us assume that the High Court in State A has passed an order declaring a person as a 'vexatious litigant' and prohibited him from initiating or continuing any case, civil or criminal, in any Court subordinate to it, without obtaining leave from the appropriate Court. Can the person so declared and so prohibited by injunction, bring or continue an action in any Court which is under the supervisory jurisdiction of another High Court?

In such a situation, in our view, the opposite party against whom the case, civil or criminal, has been initiated or is being continued in another State, or the Advocate General or the Registrar General of the High Court can move the High Court in which such proceeding is instituted or continued or instituted or continued in a Court which is subordinate to the High Court, to pass a similar order declaring the person concerned as a vexatious litigant and to direct him to seek leave for continuing that case or for initiating any fresh case in any Court within the supervisory jurisdiction of that High Court.

(14) Before concluding, we may advert to certain exceptions such as where a person who has been declared as vexatious litigant, wants to move for anticipatory bail or is arrested and wants to file an application for habeas corpus or for bail. To require a person to seek prior leave in such cases would, in our view, be violative of basic right to liberty as guaranteed in Article 21 of the Constitution of India.

In order to see that such cases are not covered by the word 'criminal proceeding', we recommend that a definition of 'criminal proceeding' be inserted to the effect that a criminal proceeding means the commencement or institution or continuation of a proceeding seeking prosecution by way of complaint. Likewise, in so far as civil proceedings are concerned, we should exclude proceedings under 226 of the Constitution of India, because basically our intention is to stop vexatious civil litigation which start with suits.

We recommend accordingly.

In order to concretize our recommendations in legislative form, a Draft Bill, namely, the Vexatious Litigation (Prevention) Bill, 2005 is appended as Annexure I in this Report.

We place on record the valuable assistance rendered by Dr. S. Muralidhar, Part-time Member of the Law Commission.

Justice M. Jagannadha Rao

Dr. K.N. Chaturvedi

Dated: 7th June, 2005

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