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Saturday, February 13, 2016

Civil Procedure Code (Act V. 1908), section 35A, Order VII, rule 11 and 10-Duties of the court in curbing frivolous and vexatious cases. HEADNOTE: Respondent No. 2 in partnership, with his minor son the petitioner contested an eviction petition filed by the landlord-respondent No. 1 in respect of the premises where the partnership firm was located, and lost it at the trial, appellate and revisional stages. The High Court gave six months' time to vacate the premises. Thereafter, the petitioners filed a suit before the Fourth Additional First class Munsif, Bangalore for a declaration that the order of eviction which has been confirmed right upto the High Court and resisted by the second respondent throughout was one obtained by fraud and collusion and sought an injunction against the execution of the eviction order. During the hearing of the prayer for further time to vacate the premises filed by respondent No. 2, the learned Judge of the High Court, taking pity on the tenant persuaded the landlord for giving time for vacating the premises on the basis that the suit newly and sinisterly filed by the petitioner would be withdrawn. Another five months' time was granted accordingly. But, the petitioner instituted another suit before another Munsif making a carbon copy of the old plaint and obtained an ex-parte injunction which was, however, got vacated later by the respondent No. 1. An appeal against the said order having failed, the petitioner managed to get an ex-parte injunction once over again in revision from the High Court. At the hearing of the application for vacating the temporary injunction filed by respondent No. 1, the petitioner submitted that the said learned Judge having decided the earlier revision case should not hear the petition on the plea of bias referring to an affidavit filed by him to that effect. But the learned Judge heard the arguments, went into the merits and dismissed the revision. 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 meritless, 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 fradulent 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] 743 [The Court expressed its hope that the Bar Council of India Would activate this obligation.]

PETITIONER:
T. ARIVANDANDAM

Vs.

RESPONDENT:
T.   V. SATYAPAL & ANOTHER

DATE OF JUDGMENT14/10/1977

BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SINGH, JASWANT

CITATION:
 1977 AIR 2421  1978 SCR  (1) 742
 1977 SCC  (4) 467


ACT:
Civil Procedure Code (Act V. 1908), section 35A, Order VII,
rule 11 and 10-Duties of the court in curbing frivolous and
vexatious cases.



HEADNOTE:
Respondent  No. 2 in partnership, with his  minor  son the
petitioner contested an  eviction petition filed by the
landlord-respondent  No. 1 in respect of the premises  where
the partnership firm was located, and lost it at the  trial,
appellate and  revisional  stages. The High Court  gave six
months' time  to  vacate  the premises.  Thereafter, the
petitioners filed a suit before the Fourth Additional  First
class Munsif, Bangalore for a declaration that the order  of
eviction which    has been confirmed right upto the High
Court  and resisted by the second respondent throughout was
one obtained by fraud and collusion and sought an injunction
against the execution of the eviction order.      During
the hearing    of the prayer for further time to vacate the
premises filed by respondent No. 2, the learned Judge of the
High Court, taking pity on the tenant persuaded the landlord
for giving time for vacating the premises on the basis that
the suit newly and sinisterly filed by the petitioner  would
be   withdrawn. Another  five months' time  was   granted
accordingly.  But,  the petitioner instituted  another suit
before another Munsif making a carbon copy of the old plaint
and obtained   an  ex-parte injunction which  was,  however,
got vacated later by the respondent No. 1. An appeal against
the said order having failed, the petitioner managed to get
an ex-parte injunction once over again in revision from the
High  Court. At the hearing of the application for  vacating
the  temporary injunction filed by respondent No.  1, the
petitioner  submitted  that the said  learned  Judge  having
decided the  earlier  revision case  should  not  hear the
petition on the plea of bias referring to an affidavit filed
by  him to  that effect. But the learned  Judge  heard the
arguments, went into the merits and dismissed the revision.
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 meritless,  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  fradulent 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]
743
[The Court expressed its hope that the Bar Council of  India
Would activate this obligation.]



JUDGMENT:
CIVIL  APPELLATE  JURISDICTION :  Special  Leave   Petition
(Civil) No. 4483 of 1977.
From the Judgment and Order dated 19-7-1977 of the Karnataka
High Court in Civil Misc.  Petition No. 943 of 1977
P. R. Ramasesh for the Petitioner.
The Order of the Court was delivered by-
KRISHNA IYER, J. The pathology of litigative addiction 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.
Here is an audacious application by a determined engineer of
fake litigations asking for special leave to appeal  against
an  order of the High Court on an interlocutory application
for injunction. The sharp practice or legal legerdemain  of
the  petitioner,  who  is the son  of  the  2nd respondent,
stultifies the court process and makes decrees with judicial
seals brutum fulmen.  The long arm of the law must  throttle
such, litigative   caricatures  if  the   confidence and
credibility  of the  community in  the  judicature  is  to
survive.  The contempt power of the Court is meant for such
persons as the present petitioner.  We desist from  taking
action because of the sweet reasonableness of counsel Sri
Ramasesh.
What  is the horrendous enterprise of the  petitioner? The
learned Judge has,  with a touch  of personal  poignancy,
Judicial  sensitivity  and anguished anxiety,  narrated the
sorry story of a long-drawn out series of legal proceedings
revealing  how the father of the  petitioner  contested  an
eviction  proceeding,  lost it, appealed  against  it, lost
again, moved  a  revision only to be  rebuffed by  summary
rejection by the High Court.  But the Judge, in his  clement
jurisdiction  gratuitously granted over six months' time  to
vacate the premises.  After having enjoyed the benefit  of
this  indulgence the maladroit party moved for further time
to  vacate.  AR these proceedings were being carried  on  by
the  2nd  respondent who was the father of  the petitioner.
Finding that the court's generosity had been  exploited  to
the  full, the 2nd respondent and the petitioner,  his son,
set  upon a clever adventure by abuse of the process of the
court. The  petitioner  filed a  suit before the  Fourth
Additional First Class Munsif, Bangalore, for a declaration
that  the order of eviction, which had been confirmed  right
up  to the High Court and resisted by the  2nd  respondent
throughout,  was one obtained by 'fraud and collusion'.  He
sought an injunction against the execution of the  eviction
order. When this fact was brought to the notice of the High
Court, during the hearing of the prayer for further time: to
vacate, instead of frowning upon the fraudulent stroke, the
learned judge took pity on the tenant and  persuaded the
landlord to give more time for vacating the premises on the
basis  that  the suit newly and sinisterly filed  would be.
withdrawn  by the petitioner.  Gaining time by another five
months on this score, the father and son belied the hope  of
the learned judge who thought that the litigative skirmishes
would come to an end, but hope can be dupe when the customer
concerned is a crook.
744
The  next  chapter  in the  litigative acrobatics  of the
petitioner   and  father  soon followed  since they were
determined  to dupe and defy the process of  the  court  to
cling  on  to  the  shop.  The trick  they  adopted  was  to
institute  another  suit before another Munsif making a
carbon copy as it were of the old plaint and  playing upon
the likely gullibility of the new Munsif to grant an exparte
injunction.   The  1st respondent  entered  appearance and
expose the, hoax played upon the court by the petitioner and
the 2nd respondent.  Thereupon the Munsif vacated the  order
of injunction he had already granted.  As appeal was carried
without success.   Undaunted  by  all these  defeats the
petitioner came to the High Court in revision and managed to
get  an injunction   over  again.   The  1st respondent
promptly  applied for vacating the temporary injunction and
when  the  petition came up for hearing before Mr.  justice
Venkataramayya, counsel for the petitioner submitted that he
should not hear the case, the pretext put forward being that
the petitioner had cutely mentioned the name of the judge in
the  affidavit while describing the prior proceedings. The
unhappy Judge, who had done all he could to help the  tenant
by  persuading the landlord, found himself  badly  betrayed.
He  adjourned  the  case to the next day.   The torment  he
underwent is obvious from his own order where he stated :
 "I spent a sleepless night yesterday."
Luckily,  he  stabilised  himself the  next  day  and  heard
arguments  without yielding to the bullying tactics  of the
petitioner  and impropriety of his advocate.  He  went into
the  merits  and dismissed the revision.  Of  course,  these
fruitless  proceedings in the High Court did not  deter the
petitioner from daring to move this Court for special  leave
to appeal.
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. The
learned Munsif must remember that if on  a  meaningful-not
formal-reading of the plaint it is manifestly vexatious, and
meritless,  in the sense of not disclosing a clear right  to
sue,  be  should exercise his power under Or.  VII  r. 1  1
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 court should insist  imperatively  on
examining  the party  at the first bearing  so that  bogus
litigation  can be shot down at the  earliest stage. The
Penal Code (Ch. XI) is also resourceful enough to meet such
men, and must be triggered against them.  In this case, the
learned Judge to his cost realised what George Bernard Shaw
remarked on the assassination of Mahatma Gandhi
"It is dangerous to be too good."
The  trial court in this case will remind itself of s. 35-A
C.P.C. and take deterrent action if it is satisfied that the
litigation was inspired by vexatious motives and  altogether
groundless.  In any view, that suit
 745
has  no survival value and should be disposed of  forthwith
after giving an immediate hearing to the parties concerned.
We  regret  the infliction of the ordeal upon  the  learned
Judge  of the High-Court by a callous party.  We  more than
regret the circumstance that the party concerned  has been
able  to prevail upon one lawyer or the other to present  to
the court a case which was disingenuous or worse.  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 he owes it to society not
to collaborate in shady actions.  The Bar Council of  India,
we  hope will activate this obligation. We are constrained
to make these observations and hope that the co-operation of
the  Bar  will be  readily forthcoming to  the  Bench for
spending  judicial time on worthwhile disputes and  avoiding
the  distraction of sham litigation such as the one  we are
disposing  of. Another moral of  this  unrighteous  chain
litigation  is the gullible grant of ex parte orders  tempts
gamblers  in  litigation  into easy  courts.   A  judge who
succumbs  to  ex  parte pressure in  unmerited cases  helps
devalue the  judicial process.  We  must  appreciate Shri
Ramasesh for his young candour and correct advocacy.
S.R.       Petition dismissed.
746



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