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Report No. 189

(2) Enacting a separate legislation to curb vexatious litigation

The other device to curb the vexatious litigation is to enact a separate legislation to deal with such cases. Though there is no Central enactment on the subject, it is significant to note that the Legislature of the State of Madras has enacted the Vexatious Litigation (Prevention) Act, 1949 (Madras Act VIII of 1949). This Act is similar to the English statute 16 and 17 Vict. Ch. 30 (now repealed by the Supreme Court of Judicature (Consolidation) Act, 1925 (15 and 16 Geo V.C. 49).

It is therein provided that when the High Court on an application made to it by the Advocate General, is satisfied that any person has habitually and without any reasonable grounds has instituted vexatious civil or criminal proceeding, in any Court or Courts, it may, after giving an opportunity of being heard to that person, pass an order that no proceeding civil or criminal shall be instituted by him in any Court in the State without the leave of Court. In case of the Presidency town leave may be granted by the High Court and for elsewhere the leave may be granted by the District and Sessions Judge.

The leave could only be granted when the Court is satisfied that prima facie ground exists for such proceedings being initiated. Any proceeding instituted by such person without obtaining such leave is liable to be dismissed. Copy of the order is liable to be published in the Gazette. A five Judges Bench of the Supreme Court upheld the constitutional validity of the Madras Act in P.H. Mowle v. State of A.P., AIR 1965 SC 1827. Hidayatullah J. (as he then was) for himself and for K. Subba Rao J., Wanchoo J. and Sikri J. held as follows:

"The next argument of the appellant before us is that this Act is unconstitutional because it prevents some citizens from approaching the court and obtaining relief to which every one is entitled in a State governed by Rule of Law. This argument is not acceptable to us because the litigants who are to be prevented from approaching the Court without the sanction of the High Court are a class by themselves. They are described in the Act as persons who habitually and without reasonable cause file vexatious action civil or criminal. The Act is not intended to deprive such a person of his right to go to a Court. It creates a check so that the Court may examine the bona fides of any claim before the opposite party is harassed.

Such an Act passed in England, has been applied in several cases to prevent abuse of the process of Court. In its object, the Act promotes public good because it cannot be claimed that it is an inviolable right of any citizen to bring vexatious actions without control either legislative or administrative. The Act subserves public interest and the restraint that it creates is designed to promote public good. The Act does not prevent a person declared to be habitual litigant from bringing genuine and bona fide actions. It only seeks to cut short attempts to be vexatious. In our judgment, the Act cannot be described as unconstitutional or offending either Article 19 or 14."

A Central Act may be enacted on the same lines to curb the vexatious litigation. Even in the absence of such a law made by the legislature, the High Court in exercise of its rulemaking power relating to its own procedure and procedure of the Civil Courts, can make rules prescribing the procedure for dealing with vexatious litigation for purpose of declaring persons as vexatious litigant. Part X of the Code of Civil Procedure, 1908 which consists of Sc. 121 to 131 deals with power of the High Court to make rules regulating its own procedure and the procedure of the Civil Courts subject to its superintendence and may by such rules annul, alter or add to all or any of the rules in the First Schedule.

Article 225 of the Constitution of India provides for making of rules by the High Court. Similarly, sec. 23 of the Contempt of Court Act, 1971 also provides rule making power of the High Court. There was a question before the Division Bench of the Kerala High Court in Jose v. Madhu, 1994 (1) KLT 855, that whether in the absence of any legislation by the State Legislature for declaring litigants as vexatious litigants, the High Court can make rules under its rule making power?

Relying on the decision of the Australian High Court in Jones v. Skyring, (1992) 66 Aus. L.R. 810, the Kerala High Court held that such a rule can clearly be made by the High Court under its powers to make rules of 'procedure' as provided in Part X of the CPC, Article 225 of the Constitution of India and in sec. 23 of the Contempt of Courts Act, 1971. It is not necessary that the Legislature alone should intervene.

The Kerala High Court after relying on another decision of the Australian High Court reported in Williams v. Spautz, (1992) 66 ALJR 585 also held that before any such rules are made by the High Court in exercise of its rule making power, it is permissible for the High Court to grant 'permanent stay' of cases amounting to abuse of process, after such cases are filed in Court. The High Court can grant 'permanent stay' in exercise of its 'inherent power' of section 151 of the Code and as a Court of record.

The above discussion makes it clear that problem of vexatious or frivolous litigation can be sorted out by the abovesaid modes and there is no need to enhance the Court fee for curbing the vexatious litigation. On the contrary, it may adversely affect the right of a poor genuine litigant to knock at the doors of the Court. The question whether court fees need to be revised in order to account for the steady decline in the value of the rupee in order to reflect the actual costs is considered in the next chapter.

Revision of Court Fees Structure Back

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