M J Antony: Cost of wasteful litigation

SC asks Law Commission for ways to hack forensic weed

The Supreme Court asks the Law Commission to devise ways to hack forensic weed.

The Chinese have a curse, “May you be caught in a litigation where you are in the right!” Several statutes have recognised the prevalence of vengeful and vexatious suits which slow down genuine judicial work. The Civil Procedure Code has at least three provisions which deal with such instances and imposes costs or penalty on persons who initiate such suits. However, the urge to gamble in the courts, take revenge or harass opponents surpasses the fear of consequences.

One reason is that the court’s power to impose costs is restricted by law, normally limited to Rs 3,000. So, earlier this month, the Supreme Court recommended the Law Commission review this problem and come up with a solution. The courts are already creaking with huge dockets, and the frivolous petitioners are the first to be got rid of.

The occasion for this suggestion was an appeal from the Delhi High Court. The high court might have been so annoyed with the antics of the parties (Ashok Kumar Mittal vs Ram Kumar Gupta) that it went beyond the book in imposing costs. Both the subordinate court and the high court found that the petitioner had not approached them “with clean hands” in a petition for the specific performance of a contract for sale. The high court found that the conduct of the opposite party was also not above board. Both had lied on oath and deserved to be prosecuted.

On the ground that courts were over-burdened with litigation, the high court decided that instead of directing prosecution, heavy costs should be levied on both the petitioner and respondents “to be paid to the state which spends money on providing the judicial infrastructure.” It asked both parties to pay Rs 100,000 each to the Delhi High Court Legal Services Committee. One of them appealed to the Supreme Court, in vain. Last week, the Madras High Court also imposed Rs 100,000 on one persistent petitioner.

It was in this context that the Supreme Court made the recommendation to the Law Commission. It said: “The present system of levying meagre costs in civil matters (or no costs in some matters), no doubt, is wholly unsatisfactory and does not act as a deterrent to vexatious or luxury litigation borne out of ego or greed, or resorted to as a ‘buying-time’ tactic. A realistic approach relating to costs may be the need of the hour. Whether we should adopt suitably, the western models of awarding actual and more realistic costs is a matter that requires to be debated and should engage the urgent attention of the Law Commission of India.”

The courts are rather helpless to tackle the gamblers in litigation. Time and again, the Supreme Court has pointed to this situation. In Salem Advocates Bar Association vs Union of India (2005), it wanted the courts below to award “realistic costs” as a general rule to deter frivolous and vexatious litigants. However, the Civil Procedure Code puts a cap on the court’s power. Section 95 imposes a limit of Rs 50,000 in certain cases and Section 35A clamps it at Rs 3,000. In practice, the courts impose only nominal costs or even asks the parties to bear their own costs. This encourages unscrupulous parties to take their opponents to court merely to harass them.

In one of the gross cases, the Supreme Court had asked the judges to be active in weeding out irresponsible law suits. In this case, T Aravindam vs T V Satyapal (1977), the father and son carried on a series of legal proceedings against their landlord. The campaign was so virulent that the Karnataka High Court judge confessed in his order that he had spent a “sleepless night” before dismissing the case. In the appeal, the Supreme Court made certain suggestions to put an end to this sham litigation: While the judges must close the door to such litigants, the lawyers should also screen their clients before accepting their briefs.

The courts have been generous with those who move public interest writ petitions, though there might not be any substance in them. However, in some instances, heavy costs have been imposed, and in at least one instance a high court had barred a petitioner from filing further PILs. The courts are not restricted by any rule in imposing costs on writ petitioners.

However, in the absence of uniform and well-thought out rules, compulsive litigants would not stop misusing the mercies of law. The present judgement has made certain recommendations to save the time of the courts. However, whether they would gather dust in law journals like several other past suggestions made by the Supreme Court is another matter.