Misusing the Judicial process

Abusing / misusing the judicial machinery

Abusing the process of the court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious and oppressive.

Authority of courts exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. State of MP versus Awadh Kishore Gupta – (2004) 1 SCC 691 at p. 698 : AIR 2004 SC 517.

Apex court in T. Arivandandam v. T. V. Satyapal reported in (1977) 4 SCC 467 : (AIR 1977 SC 2421)

"We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints....... if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and merit less, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11. C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C. P. C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot clown at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this ease, the learned Judge to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: "It is dangerous to be too good."

Dismissing the, petition for special leave, the Court, HELD : (1) If on a meaningful-nor formal-reading of the plaint it is manifestly vexatious, and merit less, in the sense of not disclosing a clear right to sue, he (Munsif) should exercise his power under Order VII rule 11, C.P.C. taking care to see that the ground mentioned therein fulfilled. And, if clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Chapter X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot-down at the earliest stage. The penal Code (Chapter XI) is also resourceful enough to meet such men and must be triggered against them. In the instant case, the suit pending before the First Munsif's Court, Bangalore being a flagrant misuse of the mercies of the law in receiving plaints having no survival value, the court directed the Trial Court to dispose of it forthwith after giving an immediate hearing of the parties concerned and to take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and is altogether groundless, reminding itself of sec. 35A of the C.P.C. [744 E-G, 745 A] Observation : The pathology of litigative addition ruins the poor of this country and the Bar has a role to cure this deleterious tendency of parties to launch frivolous and vexatious cases. The sharp practice or legal legerdemain stultifies the court process and makes a decree with judicial seals brutum fulmen. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients and remembering that an advocate is an officer of justice and its society not to collaborate in shady actions. [743 B, C, 745 B] [The Court expressed its hope that the Bar Council of India Would activate this obligation.]

ABUSE OF THE MACHINERY OF LAW /FALSE SUBMISSIONS

Whenever any person with malafide intention and dilatory tactics tried to delay justice, then in such circumstances, heavy cost could be imposed upon the same. Natwar Textiles Processors Pvt Ltd versus UOI AIR 1995 SC 2256

M/s SRF Ltd versus M/s Garware Plastics and Polyesters Ltd AIR 1995 SC 2228.

The party approaching the Court without merit in his allegations may have to pay costs to the suffering party. (2001) 10 SCC 483.

Varinderpal Singh versus M R Sharma

1986 Supp SCC 719

Lord Denning: Duties of a Counsel

AIR 1987 SC 1550

Abuse of – contrary to good order established by usage – improper use of a thing – (1983) 2 Guj LR 1220 at p. (1226).

Abusing the process of the Court – AIR 1967 – AP 230.

Salem Advocate Bar Association versus State of UOI AIR 2005 SC 3353.

The SC has to dispel the common impression – injunction by false averments – forged documents - Perjury has become a way of life in our courts – Waste of precious time of court – (2011) 8 SCC 249 – Para 43, 47; costs have to be realistic – pragmatic – Paras 54, 55, 56,

Fraudulent – dishonest litigation – duties of court –

(2011) 8 SCC 161 – Paras – 150 to 197 – Restitution; disgorging all benefits obtained by

abusing the process – Para 149; realistic cost – Para 192.

(2010) 14 SCC 38

(2011) 10 SCC 404 – fraud on the court – costs

(2010) 14 SCC 522 – contempt of the court

(2011) 9 SCC 147 – Contractual reliefs

Exemplary costs –

(2011) 9 SCC 126;
(2011) 1 SCC 429
(2011) 12 SCC 220 – Paras 48, 49

Costs for thrusting avoidable proceedings –
(2011) 11 SCC 269
(2011) 6 SCC 145
(2011) 3 SCC 408 – Paras 37 to 39.
(2011) 12 SCC 600 – Paras 16 to 19

Unwarranted litigation – (2011) 7 SCC 755; (2011) 8 SCC 142;

Frivolous litigation – Appeal – (2011) 1 SCC 525

Frivolous Litigation – weeding out – fraud upon court – suppression of facts – coming with unclean hands – non entitled to be heard on merits – Order 11, Rule 5, 13 – (2011) 7 SCC 69 – Para 53.

Unwarranted litigation foisted – (2011) 5 SCC 553

Filing and admission of frivolous litigation without imposition of costs –

That the 192nd Report by the Law Commission, 2005, has recommended with certain exceptions, the concept of a vexatious litigant and the court declaring a person as such. The Report has concluded its recommendations in the form of a draft bill, The Vexatious Litigation Prevention Bill, 2005, enacted in some states so far. That this Court has directed that reasonable costs be imposed on parties engaging in frivolous litigation, yet costs are not imposed and frivolous litigations continue at the expense of serious matters languishing in the courts. In Salem Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344 this Court has observed as follows:

“Para 36. Section 35 of the Code deals with the award of costs and Section 35-A with the award of compensatory costs in respect of false or vexatious claims or defences. Section 95 deals with grant of compensation for obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with three different aspects of the award of costs and compensation. Under Section 95 costs can be awarded up to Rs   50,000 and under Section 35-A, the costs awardable are up to Rs   3000. Section 35-B provides for the award of costs for causing delay where a party fails to take the step which he was required by or under the Code to take or obtains an adjournment for taking such step or for producing evidence or on any other ground. In the circumstances mentioned in Section 35-B an order may be made requiring the defaulting party to pay to the other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. Section 35 postulates that the costs shall follow the event and if not, reasons thereof shall be stated. The award of the costs of the suit is in the discretion of the court. In Sections 35 and 35-B, there is no upper limit of amount of costs awardable.

Para 37. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court fee, lawyer’s fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.” 

Non-implementation of laws on perjury

That according to various authorities, lawyers and litigants known to blatantly misrepresent facts, and get away with impunity, and this results in delays as justice is neither done nor seen to be done. Section 193, IPC (punishment for perjury and fabrication of false evidence) provides for both imprisonment and fine, and yet, is seldom invoked. This is quite unlike the situation in the U.S., where the consequences of perjury are serious and where it was a count on which President Clinton was almost impeached and was one of the counts on which President Richard Nixon was impeached, and in the U.K. where well known author and parliamentarian Jeffrey Archer served a long jail sentence for perjury.  That it is only recently, in 2005, that this Court convicted a witness Zahira Sheikh for perjury in the Best Bakery case, but this too was an exception and that too, after the witness had changed her statement many times. That most people still get away with inconsistent statements and obvious lies in court, without any consequence at all, with the result that justice is neither done nor seen to be done. Copies of news articles, write-ups and speech by leading authorities on perjury as a source of delay titled - National Conference on Legal & Judicial Reforms: The Bird’s Eyeview on Balance Sheets & Projections, dated September 6, 2002, ‘What Did You Say?’ dated Mar 12, 2006, ‘Perjury in India – Nobody is in the same quiver as Archer’, ‘Flip-flops may attract perjury charges’ dated 9 March 2006, ‘Zahira Sheikh’s case stresses on enforcing perjury law’, dated 24 December 2004, annexed as Annexure 14, Colly.

Misuse of processes of the court with impunity –

That the dilatory tactics of litigants and lawyers, seeking frequent adjournments and delaying in filing documents, delays in serving, evading service, etc., prolong matters considerably. That although Order 17, Rule 1, CPC does not allow more than 3 adjournments and is to be read with the proviso to Order 17, Rule 2 where Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party however, in practice, adjournments are sought and obtained at the asking and other delays are being allowed with impunity or at very nominal costs, if any. That this is the situation prevailing in spite of this Court having held in Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), (2005) 6 SCC 344, that “…grant of any adjournment let alone the first, second or third adjournment is not a right of a party. The grant of adjournment by a court has to be on a party showing special and extraordinary circumstance. It cannot be routine. While considering prayer for adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments.”

Unduly lengthy / prolix examination and cross examination of witnesses – That according to both the 14th and 77th Law Commission Reports, there is a tendency to over-prove allegations in India, and unessential ones at that. That both the Bench and the Bar should be alerted to this, and while the Bar must play a proactive role in being organized with their questions / line of inquiry, the Bench can take a lead role in actively encouraging this and curtailing prolix and repetitive questioning.

Prolix (merely talkative, wanting in substance) arguments –

That in many cases, arguments are unduly prolix. That there can be a system of timing arguments, such as in the U.S., where a maximum period is given to each side to argue their case. That there are two benefits – firstly, counsels come well prepared, and secondly, all cases scheduled in the diary then get heard. The 79th Law Commission Report (1979) on delays and arrears in the High Courts has recommended that a concise written statement setting out briefly the facts giving rise to the dispute, the points at issue, the propositions of law or fact to be canvassed and the authorities relied upon for each proposition and the relief claimed, may be made mandatory. That these statements must be exchanged between the advocates well in advance of the hearing and the judges need not ordinarily permit the advocate to travel outside such a statement or to cite authorities, not included therein, and this in itself would curtail time of the court hearing. The Law Commission Report also cautions that for this to work, the judge concerned must read the said note beforehand.

Hon’ble Supreme Court, in the context of the common practice of misuse of the judicial process, in the very recent case of Ramrameshwaridevi versus Nirmalaldevi –(2011) 8 SCC 249, has made some very critical observation –

Para 33. According to the learned author, 90% of our court time and resources are consumed in attending to uncalled for litigation, which is created only because our current procedures and practices hold out an incentive for the wrong- doer. Those involved receive less than full justice and there are many more in the country, in fact, a greater number than those involved who suffer injustice because they have little access to justice, in fact, lack of awareness and confidence in the justice system.

Para 34. According to Dr. Mohan, in our legal system, uncalled for litigation gets encouragement because our courts do not impose realistic costs. The parties raise unwarranted claims and defences and also adopt obstructionist and delaying tactics because the courts do not impose actual or realistic costs. Ordinarily, the successful party usually remains uncompensated in our courts and that operates as the main motivating factor for unscrupulous litigants. Unless the courts, by appropriate orders or directions remove the cause for motivation or the incentives, uncalled for litigation will continue to accrue, and there will be expansion and obstruction of the litigation. Court time and resources will be consumed and justice will be both delayed and denied.

Para 35. According to the learned author lesser the court's attention towards full restitution and realistic costs, which translates as profit for the wrongdoer, the greater would be the generation of uncalled for litigation and exercise of skills for achieving delays by impurity in presentation and deployment of obstructive tactics.

Para 38. According to the learned Amicus Curiae, every lease on its expiry, or a license on its revocation cannot be converted itself into litigation. Unfortunately, our courts are flooded with these cases because there is an inherent profit for the wrong- doers in our system. It is a matter of common knowledge that domestic servants, gardeners, watchmen, caretakers or security men employed in a premises, whose status is that of a licensee indiscriminately file suits for injunction not to be dispossessed by making all kinds of averments and may be even filing a forged document, and then demands a chunk of money for withdrawing the suit. It is happening because it is the general impression that even if ultimately unauthorized person is thrown out of the premises the court would not ordinarily punish the unauthorized person by awarding realistic and actual mesne profits, imposing costs or ordering prosecution.

Para 50. Learned amicus articulated common man's general impression about litigation in following words: "Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road."

Para 52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials.

A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.

B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.

C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.

E. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed.

F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.

G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.

H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice.

I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.

J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed.

Para 56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.

Forged documents submitted in false claims and complaints.

AIR 1961 SC 1808

AIR 1986 SC 991

AIR 2010 SC 1974

Abuse of process of law – Sunil Kumar versus State of Haryana – 2012 AIR SCW 2127 – Paras 12, 18, 19.

Abuse of machinery of law – (2012) 5 SCC 398 – Para 3, 11, 12

Imposition of penalty – 2012 (2) All MR 450 – Para 5

Sandeep Jalan

Advocate

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