Tuesday, November 24, 2015

Land Mark Judgement of Order 7 rule 11 of C.P.C. Supreme court of India

Supreme Court of India
T. Arivandandam vs T. V. Satyapal & Another on 14 October, 1977
Equivalent citations: 1977 AIR 2421, 1978 SCR (1) 742
Author: V Krishnaiyer
Bench: Krishnaiyer, V.R.
           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be   withdrawn.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.
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 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.

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