Deepak Khosla vs Montreaux Resorts Pvt Ltd & Ors
2012 Latest Caselaw 2663 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 LETTERS PATENT APPEAL NO. 16/2012

                                Reserved on: 28th March, 2012
%                               Date of Decision:24th April, 2012

DEEPAK KHOSLA                              ....Appellant
             Through            Mr. Prashant Bhushan, Ms. Indira
                                Unninayar and Ms. Kirat Randhawa,
                                Advocates.

                      VERSUS

MONTREAUX RESORTS PVT LTD & ORS...             ...Respondents

Through Mr. Vibhu Bakhru, Sr. Advocate with Mr. Anand M. Mishra, Advocate for Vikram Bakshi & Group.

Mr. Arvind Nigam, Sr. Advocate (Amicus Curiae).

CORAM:

HON'BLE MR. JUSTICE SANJIVKHANNA HON'BLE MR. JUSTICE R.V. EASWAR

SANJIV KHANNA, J.:

Deepak Khosla has preferred this intra-Court appeal impugning

the order dated 4thJanuary, 2012 passed by the learned single Judge.

The impugned order in paragraph 15 gives two directions; that the

appellant would not appear in any Court either in person or as an

attorney of a third party, as he does not have inherent right to appear

and argue; that the appellant should be medically examined whether he

was suffering from any mental disorder. The SHO of the police station

Tilak Marg was directed to get the appellant admitted in the Institute of

LPA No. 16/2012 Page 1 Human Behaviour and Allied Sciences (IHBAS, for short), Shahdara,

Delhi. The Medical Superintendent of IBHAS was directed to submit

a report within a week. The appellant was ordered not leave the

premises of IHBAS and the SHO of the concerned police station was

asked to provide adequate security.

2. By order dated 6thJanuary, 2012, in appeal, operation of the

second direction in the impugned order was stayed. Medical records

maintained by IHBAS, Delhi were directed to be produced and have

been directed to be kept in a sealed cover. However, copy of the same

has been given to the appellant.

3. As far as the second direction is concerned, the appellant is

entitled to succeed. There are various reasons for the same. The

appellant has rightly drawn our attention to the provisions of Mental

Health Act, 1987 including Sections 2(l), 2(m), 2(s), 14, 15-18, 19-28,

30-31 etc. Section 22 of the said Act may not be squarely applicable as

it applies and postulates the procedure to be followed by a Magistrate

but the procedure prescribed in the statute has a salutary purpose and

object behind it. The directions given in paragraph 16 onwards are

stringent, severe and deleterious. Before passing and issuing the said

direction it would have been appropriate if a preliminary examination

LPA No. 16/2012 Page 2 and report of a doctor or a psychiatric was obtained.Certain other

aspects dealing with the second issue will be considered later on.

4. The first aspect is the core issue on which we have heard the

learned counsel for the parties. We also had the assistance of Mr.

Arvind Nigam, Sr. Advocate, who was asked to assist as Amicus

Curiae. We appreciate the effort and assistance provided by him.

5. The first issue, as per the appellant, raises a dilemma and legal

issues. Contention of the appellant is that the freedom of speech and

expression and right of a litigant to self represent himself or the co-

suitor are sacrosanct. There is no dissention between the fundamental

right to freedom of speech and expression, the right to access the courts

and appear in person or for a co-suitor. Denial of right of self

representation is illegal and wrong for the following reasons:-

(a) Right to audience and to argue in person or for a co-suitor is

conferred by clause 8 of the Letters Patent Act. A Court order

cannot take away the said right.

(b) The injunction/sanction order has been passed without

opportunity to show cause and hearing.

LPA No. 16/2012                                            Page 3
 (c)     The order was passed without hearing or adhering to the

principles of natural justice and is a nullity. The order can be

ignored by the appellant and by the Courts.

(d) The order, including the first direction, is biased.

(e) Cont. Case (C) No.165/2008 in which directions have been

issued, was earlier adjourned sine die. The direction could not

have been passed as the said aspect could not have been

examined and dealt with in the contempt petition.

(f) The direction is contrary and goes beyond the punishment

stipulated in Section 12 of the Contempt of Courts Act, 1971 and

cannot be sustained.

(g) The fair and reasonable procedure envisaged under the Contempt

of Courts Act, 1971 and under Article 215 of the Constitution of

India has not been adhered to and the procedure followed is

contrary to the mandate of the Supreme Court.

6. The impugned order dated 4thJanuary, 2012, records that on 22nd

December, 2011, a review application filed by the appellant was

dismissed by the learned single Judge. At that time, it was noticed that

the appellant was recording the court proceedings. Digital

devices/gadgets, i.e. electronic recorder, mobile phone and a laptop, LPA No. 16/2012 Page 4 were seized and handed over to the Registrar (Vigilance). With help of

experts, the recordings were copied on to a CD and the data was

removed from the electronic recorder/mobile phone as directed by the

learned single Judge.

7. The impugned order records that the ld. Single Judge had heard

the audio recordings and it was established that the appellant had

recorded the proceedings of the said Court, proceedings before another

Co-ordinate Single Bench of the High Court and proceedings before

two different Additional Chief Metropolitan Magistrates (ACMMs, for

short). The audio recordings of the proceedings before the ACMMs

revealed that the appellant had not maintained dignity and decorum in

the Court and the language used by him was condemnable. Thereafter,

the order refers to and quotes the order dated 20th March, 2009 passed

by the Arbitration Tribunal consisting of one retired judge of the

Supreme Court and two retired judges of this Court, who had tendered

their resignation. The order reads:-

"For Claimants : Mr. Vibhu Bakru, Advocate Mr. P. Nagesh, Advocate Mr. Anand Mishra, Advocate along with Mr. Vikas Kakkar, Advocate.

For Respondent: Mr. Deepak Khosla, representing respondents 1 & 2.

Due to highly obstructive and abrasive conduct of Mr. Deepak Khosla representing Mrs. Sonia LPA No. 16/2012 Page 5 Khosla, his wife-respondent 1 and Mr. R.P. Khosla, his father- respondent-2 throughout the proceedings, we the three arbitrators have resigned as arbitrators in this matter. Mr. Khosla does not let the matter proceed on merits as he keeps on moving one application after another and insists on the applications being heard first. Moreover his stand (as recorded in proceedings on the late date of hearing dated 4.2.2009) is that this Arbitral Tribunal is not legally constituted. The resignations of each of the arbitrators, hand written and duly signed, are annexed hereto.

JUSTICE ARUN KUMAR (Retd.) PRESIDING ARIBTRATOR"

8. The impugned order makes reference to the orders dated 29th

May, 2009 and 28th January, 2009 passed by Gita Mittal, J., the

relevant portions of which again for the sake of convenience are

reproduced below:-

Order dated 29.5.2009 "42. Having regard to the protracted hearings before this court and the uncontrolled and vituperous allegations against the other side and their counsels, the matter has been taken up on all dates at the end of the Board. Adjournments which have been taken from the court on the pretext of sickness of his wife by Mr.Deepak Khosla, have been utilised to file voluminous and repetition applications to protract the hearings which appear to indicate that the applicant is bend on avoiding adjudication in the main issue which is pending consideration.

These applications are filed in either Co.A.(SB) No.6/2008 or Co.A.(SB) No.7/2008 or both by

LPA No. 16/2012 Page 6 Mr. Deepak Khosla utilising the shield of the appellants by the applicant. The applicants have not been present in court on any date of hearing. Yet the applications purport to make submissions on court proceedings which are incorrect.

43. By way of Co.A. No.512/2009, a prayer to cross examine his own counsels as well as counsels on the other side is made. Without there being any pleading or statement in respect of which they are to be cross-examined.

44. Furthermore, the application is premised on a total misconception about procedure as well as what would constitute pleadings in law. I find that the application has been filed as a dilatory tactic to avoid adjudication in CA No.1001/2008 in Co.A.(SB) No.7/2008 and CA No.1000/2008 filed in Co.A.(SB) No.6/2008. The same certainly is intended to pressurize the counsels appearing on the other side.

45. The manner in which the prayers have been couched amount to seeking yet another review.

46. While making submissions on the present application, Mr. Deepak Khosla has urged that if the order under review in the proceedings which are under consideration was correct, "either I have lost senses of my counsel has"; "counsel has to explain what a relief counsel has got me", "I can go on filing review ad nausesum and you have to entertain them". His conduct and utterances in the proceedings are noticed in other judgments on two other applications."

Order dated 28.1.2009 "The applications before this Court are in the nature of a review of hearings wherefrom a brother colleague has rescued himself for reasons of scandalous averments contained in CA no.1000/2008. It is well settled that consideration LPA No. 16/2012 Page 7 of any application has to abide by judicial record which is placed before the court. Fully conscious of the well settled legal position, unfounded allegations, before even submissions could be completed by counsel, have been made.

The matter was adjourned at request of counsel for the respondents to today. During the intervening period, CA No.133/2008 in Co.A (SB) 7/2008 and CCP No. 1/2009 in Co.A (SB) No.6/2008 have been filed on behalf of the applicant.

When the matter was called out for hearing today, the applicant insisted on arguing CCP NO. 1/2009 in Co.A. (SB) No.6/2008 and CA No. 27/2009 & 31/2009 in Co.A (SB) No.7/2008 objecting to the appearance of learned counsel on the other side on the ground that they have no right to appear.

Counsels for the respondents were heard and have drawn my attention to the memo of parties filed by Ms. Sonia Khosla before the Company Law Board wherein this company was arrayed as the respondent no.1 and was represented by counsel appearing for the respondent nos.2, 3 and 4 before this court. Counsels relied on Paras 3 to 9 of order dated 31st January, 2008 passed by the Company Law Board at Page 60 of Co.A (SB) No.6/2008.

In this background, in as much as counsels had appeared for the respondents before the Company Law Board and the present petition in appeal being continuation thereof, I saw no reason as to why they cannot continue to complete the arguments in the part-heard matter. It was pointed out that no such objection was ever raised even though the same counsel have been appearing in the matter right from the first date when the respondents first put in appearance. Caveat is also stated to have been filed. In this background, Mr. Vibhu Bhakru, Advocate who has been addressing LPA No. 16/2012 Page 8 arguments was asked to resume arguments on the part-heard application. At this stage, Mr. Deepak Khosla rose and started gesticulating. He interrupted the court proceedings in a loud voice making allegations that the counsels appearing in the matter have no right of audience in the matter and that proceedings in this court are not as per law. All requests to him to contain himself, to resume his seat and permit respondents‟ counsel to complete his submission did not bear any fruit. Mr. Khosla continued to interrupt the court proceedings in loud and obstructive tone and making allegations against the counsel appearing on the other side in open court that they are lying.

He used insulting language and has cast aspersions on counsel appearing on the other side. The allegations made are scandalous and aimed at creating prejudice and embarrassment to counsel who are discharging their professional duties towards their client. I have been exercising considerable restraint keeping in view that Mr. Deepak Khosla was appearing in person. The respondents have objected to his appearance inasmuch as he is arrayed as respondent no.11 before the Company law Board in the petition which has been filed by his wife Ms. Sonia Khosla as the petitioner and Mr. Khosla is the opposite party before the Company Law Board.

His conduct in court today was so obstructive that this court found it impossible to record the order in open court and has risen to dictate this order in chambers.

The acts of Mr. Deepak Khosla in standing up when the other side is arguing, gesticulating with his hands, raising his voice and not permitting the proceedings in the court to continue amounts to interference with the due course of judicial proceedings before this court, which prima facie, constitutes criminal contempt of court.

LPA No. 16/2012 Page 9 Paras 1 to 9 of this order be treated as the facts constituting the gravamen of the charge as per para 10 above.

Let a copy of order be given to Mr. Deepak Khosla under signatures of the Court Master. Mr. Deepak Khosla is hereby called upon to submit his response to this order, which is being treated as a notice of charge, to be responded within two weeks.

The contempt matter may be place before Hon‟ble the Chief Justice for placing before the appropriate Division Bench for further proceedings.

Registry shall appropriately register the matter and place copies of all the orders and applications noticed above before the Division Bench. Dasti."

9. The Single Judge made reference to the order dated 2nd

December, 2011 passed by a Single Judge Bench of this Court in

Arbitration Petition No. 323/2010. The impugned order further records

that the office of the Commissioner of Customs and Central Excise,

NOIDA had issued a show cause notice dated 31st August, 2004 and

the appellant and his cousin were arrested for violation of the

provisions of the Customs Act, 1962 and the Central Excise Act, 1944.

It is mentioned that the appellant invariably fights with the courts and

uses insulting or contemptuous language and exhorts that he was not

afraid of going behind the bars.

LPA No. 16/2012 Page 10

10. Learned single Judge has mentioned and referred to the decision

in W.P.(C) 12787/2009 titled Deepak Khosla Vs. Union of India

&Ors reported in 182 (2011) DLT 208 (DB). In the said writ petition,

the appellant had prayed for declaration that he was entitled to non-

intrusively audio record judicial proceedings; and a writ of prohibition

or similar command be issued restraining the Registrar/Registrar

General of this Court from interfering with the non-intrusive audio

recording. The said writ petition was dismissed on the ground that

there was no specific legislation, provision or any law regulating the

field. A writ of mandamus means a command that can be issued in

favour of a person who establishes an inherent legal right in his case.

Such a writ is issued against a person who has a legal duty or

obligation to perform but has failed or neglected to do so. It was

accordingly held as under:-

"6. There is no cavil over the issue that there is no specific legislation, provision or any law regulating the field referring to which it can be said that there is a mandate of law that the audio/video recording is to be done in respect of Court proceedings. There is no statutory authority which has been given the said responsible function. A writ of mandamus means a command which is issued in favour of a person who establishes an inherent legal right in his case.

Such a writ is issued against a person who has a legal duty or obligation to perform but has failed or neglected to do so. It needs no special emphasis to state that such a legal duty emanates either LPA No. 16/2012 Page 11 from discharge of a public duty or operation of law. In this context, we may refer with profit to the decision in Director of Settlements, A.P. &Ors. v. M.R. Apparao & Anr., (2002) 4 SCC 638 wherein it has been stated thus:

"The expression "for any other purpose" in Article 226 makes the jurisdiction of the High Courts more extensive but yet the Courts must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh v. State of UP, AIR 1962 SC 1183). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law."

LPA No. 16/2012 Page 12

7. In the case at hand, the petitioner does not have a legal right which is provided for under any enactment, common law or by rules or orders which have the force of law. He has advanced his arguments on the basis of transparency. Needless to emphasise, the material brought on record pertains to the practice followed in other countries and the petitioner's personal belief as he has been litigating many cases before this Court. In a way, he has made an adroit effort to give sermons in the name of transparency. An individual sermon cannot earn the status of any law. What is canvassed by him is that the audio/video recording process will curtail the Courts' time and the submissions would be luculent and there would be saving of the proceedings for future. The feelings of the petitioner have not yet been codified into a law by the Legislature. Hearings in Court take place in open court except where it is stipulated by the statute that proceedings shall be taken in camera or in certain cases of habeas corpus or matters relating to chamber proceedings. They are different from recording of proceedings in open court by way of audio/video recording. There is no rule in that regard. Framing of a rule is a matter of policy. Someone can have a grievance when there is a rule which is not followed and the litigant's legal right is affected. Therefore, no mandamus can be issued to the respondents for audio and video recording of the Court proceedings

8. In this context, we may refer with profit to certain authorities in the field. In Narinder Chand Hem Raj and Ors. v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh and Ors., AIR 1971 SC 2399, their Lordships have opined that no court can issue a mandate to a legislature to enact a particular law and similarly, no court can direct a subordinate legislative body to enact or

LPA No. 16/2012 Page 13 not to enact a law which it may be competent to enact.

9. In State of Himachal Pradesh v. A Parent of a Student of Medical College, Simla and ors., AIR 1985 SC 910 it has been ruled that the court cannot usurp the functions assigned to the executive and the legislature under the Constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it WP(C) No.12787/2009 page 10 of 13 or assume to itself a supervisory role over the law making activities of the executive and the legislature.

10. In Supreme Court Employees' Welfare Association and Ors. v.Union of India and Anr., AIR 1990 SC 334, it has been held that no court can direct an executive authority.

11. In Chandigarh Administration and Anr. v. Manpreet Singh and Ors., AIR 1992 SC 435, their Lordships of the Apex Court has clearly stated that the High Court cannot assume the role of a rule making authority in exercise of the power under Article 226 of the Constitution of India.

12. In State of Jammu & Kashmir v. A. R. Zakki & Ors, AIR 1992 SC 1546, the principle was reiterated that a writ of mandamus cannot be issued to the legislature to enact a particular legislation and the same is true as regards the executive when it exercises the power to make rules which are in the nature of subordinate legislation.

13. In Municipal Committee, Patiala v. Model Town Residents Association and Ors., AIR 2007 SC 2844, though in a different factual WP(C) No.12787/2009 page 11 of 13 matrix, the ApexCourt has opined that the High Court has no power to structure or restructure the legislative LPA No. 16/2012 Page 14 enactments. It has been reiterated that High Court must ensure that while exercising its jurisdiction which is supervisory in nature, it should not over step the well recognized bounds of its own jurisdiction.

14. In view of our premised reason, we answer the reference stating that a writ in the nature of mandamus cannot be issued for taking measures of audio/video recording in trial courts as well as in this Court. We may hasten to add that as the sole prayer in the writ petition pertains to the said relief, nothing subsists to be adjudicated in the writ petition. Accordingly, the writ petition stands dismissed without any order as to costs."

11. Learned single Judge has referred and quoted from the decision

of the Supreme Court in Ila Vipin Pandya (2) Vs. Smita Ambalal

Patel, (2007) 6 SCC 750. In our opinion, the aforesaid judgment is

relevant and appropriate and our reasons are stated below. Our reasons

will also disclose why we need not refer to some contentions and

judgments referred to by the learned counsel for the appellant.

12. Litigation inter-se parties started in the year 2008, when wife

and father of the appellant, Sonia Khosla and R.P. Khosla, filed a

petition under Section 397/398 of the Companies Act, 1956 before the

Company Law Board. This litigation has now broadened and

embroiled the parties in various legal proceedings including criminal

proceedings.

LPA No. 16/2012 Page 15

13. In most of these petitions/applications, Deepak Khosla, the

appellant was/is appearing as an attorney of his wife and father, Sonia

Khosla and R.P. Khosla, respectively. In some of the cases he appears

in person as a litigant and has entered appearance for Sonia Khosla,

R.P. Khosla etc. as a co-suitor.

Legal Position in England, the United States of America and other

Countries

14. The legal question is whether the Court is competent, and is it

permissible in law to direct/injunct a self-represented litigant or a pro

se litigant from appearing in person or for a co-suitors and if so under

when and under what circumstances. To our mind, the aforesaid

question is answered by the Supreme Court in their decision in the case

of Ila Vipin Pandey (2) (supra). We also feel that the said power is not

a power exercised by the court under the Contempt of Court Act, 1971

and it is not a punishment imposed by the court. It is an inherent power

of the Court, different and distinct from the power to punish for

contempt. The view and legal position is not new but similar views

have been expressed by the Courts in England and Wales and in the

United States of America.

LPA No. 16/2012 Page 16

15. Vexatious and frivolous litigation has been held to be abuse of

the legal system and the Courts have an inherent power to control and

prevent such litigation and injunct/sanction vexatious litigants. Way

back in 1879 in Grepe versus Loam (1888) L.R. 37 Ch. D. 168, first

step was taken by the courts in England under the inherent powers to

injunct and issue sanction against repeated frivolous applications for

the purpose of impeaching the same judgment. The Court of Appeals

passed an order prohibiting any further application without the leave of

the court. The injunction order thereafter came to be known as

the"Grepe versus Loam" order and the direction issued reads:-

"That the said applicants or any of them be not allowed to make any further applications in these actions or either of them to this Court or to the Court below without leave of this Court being first obtained. And if notice of any such applications shall be given without such leave being obtained, the Respondents shall not be required to appear upon such applications, and it shall be dismissed without being heard."

16. The aforesaid order is presently known and described as "limited

civil restraint order" and is issued when two or more applications are

made, totally without merit. It is directed that further applications

should not be permitted without permission of the court. United

Kingdom has enacted statutes to prevent vexatious litigation, which

LPA No. 16/2012 Page 17 were enacted in the years 1896, 1925 and 1981. In spite of the

aforesaid statutory enactments, it has been repeatedly held that the

courts have inherent power to stay or dismiss actions which are

frivolous and vexatious. The Supreme Court Practice (UK) in its

commentary under Order 18 Rule 19 (which deals with striking off

frivolous or vexatious pleadings) refers to "inherent power" of Courts

to stay or dismiss actions and states:

"Apart from the rule, the Court has an inherent jurisdiction to stay or dismiss actions, and to strike out pleadings which are vexatious or frivolous, or in any way an abuse of the process of the Court, under which it could deal with all the cases included in this Rule (Reichel vs. Magrath (1989) 14. App. Cas 665." Gleeson vs. J. Wippall & Co. Ltd.: 1977 (1) WLR 510. It can stay or dismiss actions, before the hearing, which it holds to be frivolous or vexatious: Metropolitan Bank vs. Pooley (1885) 10 App les 210. This jurisdiction is not diminished by Order 18 Rule

19."

17. The Courts in England have extended the Grepe versus Loam

order (supra) to what is called extended "civil restraint order" for

persistent vexatious behaviour which lasts for a specified period of no

more than two years for applications touching upon existing subject

matters. This can be granted by a Judge of the Court of Appeal, High

LPA No. 16/2012 Page 18 Court or the designated Civil Judge. The third category of restraint

order is a "general civil restraint order" which again can be for a

maximum period of two years for all proceedings in the High Court or

the specified County Courts. Further applications, which are devoid of

merit, can lead to withdrawal of the right to appeal. Harassment of

court or court officials can lead to penal prohibition, i.e. prohibiting the

litigant from conducting or approaching the Court without permission.

A list of vexatious litigant is maintained by Her Majesty‟s Court

Service and is available on the official website.

18. European Court of Human Rights has held that the prohibitions

imposed on self-represented litigants do not violate the right to access

to justice under Article 6 of the European Convention. In Golder versus

United Kingdom, (1979- 80) 1 EHRR 524, the European Commission

on Human Rights observed that the provisions for curbing vexatious

litigation do not violate a citizen‟s right to access to courts observing

that vexatious litigants have abused their right to access, but having

been declared a vexatious litigant, it is open to the person to prove to

the court that he has a sustainable cause of action and should be

allowed to proceed. The courts have the power and authority to allow

the litigant to proceed. Right to access the courts is, therefore, not

LPA No. 16/2012 Page 19 absolute and some form of regulation of access to court may become

necessary for proper administration of justice.

19. In Ebert versus Official Receiver, (2001) 3 All England

Reporter 942 (C.A.) the Court of Appeal after referring to the decision

of the European court, had examined and applied Section 42 of the

Supreme Court Act, 1981 which ensures that the judicial processes are

not abused.

20. In Bhamjee versus Forsdick and Others, (2004) 1 WLR 88,

Lord Phillips of Worth Matravers has held that the access to justice

could be limited if two conditions are satisfied; (i) the limitations

applied should not restrict or refuse the access to courts of an

individual in such a way or to such an extent that the very right is

impaired and (ii) the restriction imposed is pursuant to a legitimate aim

and there should be reasonable proportionality between the means and

aim sought to be achieved.

21. Lord Phillips has summarized the different types of protective

orders as:

"(i) Protective measures Strasbourg Jurisprudence; (ii) Protective measures, Grepe vs. Loam; (iii) An extended Grepe vs. Loam order as passed by Neuberger J approved by the Court of Appeal in Elbert vs. Vervil 1999 (3) WLR 670;

LPA No. 16/2012 Page 20

(iv) Protective measures under sec. 42; (v) Exceptional orders in Att Gen vs. Elbert 2002 (2) All ER 789; (vi) restraining the litigant from entering the Royal Courts or from interfering with the Court or its staff, and (vii) only paper procedure (i.e. no oral hearing) as inTaylor Landrena (2000) QB 528."

22. The position in law has been summarized by Lord Phillips as

under:

"It is, therefore, well established on authority that

(i) This Court, like any Court, has an inherent jurisdiction to protect its process from abuse;

(ii) The categories of abuse will never be closed;

(iii) No litigant has any substantive right to trouble the Court with litigation which represents an abuse of its process;

(iv) So long as the very essence of a litigant‟s right to access the Court is not extinguished, a Court has a right to regulate its processes as it thinks fit (absent any statute or rule or practice direction to the contrary effect) as its remedies are proportionate to the identified abuse (whether it is existing or threatened);

(v) One way in which a Court may legitimately regulate its processes is by directing that the procedure be conducted in writing (rather than by giving an oral hearing).

(vi) So far as the last of these matters is concerned, if a litigant persistently makes applications or LPA No. 16/2012 Page 21 institutes actions that are devoid of merit, then by his conduct, he will be disentitled to the hearing that would otherwise be available as of right. We know of no reasonable suggestion that the equivalent procedures in the House of Lords... or the European Court of Human rights itself, are not ECHR complaint."

23. The importance of the aforesaid ruling lies in the fact that it

recognizes the inherent right of the court to protect its‟ process from

abuse and that there is no violation of the right to access to courts if the

same is not extinguished but only regulated by the court. The court has

an inherent right/power to regulate its process as it may deem fit, in the

absence of any statute or rule or practice as it remedies the

proportionate identified abuse, whether existing or threatened. The

court can legitimately regulate its process by directing that the

procedure be conducted in writing rather than by giving an oral

hearing. In Attorney General versus Ebert, (2002) 2 All England

Reporter 789, the court exercised inherent power and restrained the

litigant from wasting the time of court staff and disturbing orderly

conduct of Court proceedings. In Attorney General versus Ebert

(2004) EWHC 1838 (Administration), an application by the Attorney

General to restrain Ebert from switching his activities to criminal

courts was allowed for an indefinite period.

LPA No. 16/2012 Page 22

24. Courts in the United States have recognised the right of self-

representation in criminal cases at the trial stage. In Faretta versus

California 422 U.S. 806 (1975), the Supreme Court held that criminal

defendants have a constitutional right to refuse counsel in State

criminal proceedings. It must be highlighted that the "Faretta right"

applies only at the time of trial; there is no constitutional right to self-

representation on direct appeal from a criminal conviction and in civil

suits. In Cooter and Gell versus Hartmarx Corporation, 496 US 384

(1989), the court recognized that sanctions can be imposed on a pro

se/pro per or in propria persona. The aforesaid principle was

introduced in the form of Rule 11 of the Federal Rules of Civil

Procedure in 1983 to knock down any abusive pro se litigant. Further,

the said powers have been treated as a part of inherent power, which

are necessary for functioning of the courts. These are implicit as the

court must have the power to curb abuses associated with judicial

litigation. The power of sanction is a necessary adjunct, as the courts

have to function in an orderly manner and achieve expeditious disposal

of cases. The Courts have the power to manage their own affairs. In

some cases Court can impose or direct silence for compelling reasons.

[See Chambers versus Nasco Inc., 501 US 32 (1991) and Link versus

Wabash Railroad Co., 370 US 626 (1962)]. The line of reasoning,

LPA No. 16/2012 Page 23 which has met acceptance, is that access to courts is one of the

cherished freedoms, but there comes a point when limits should be

imposed. Great latitude should be granted to pro-se litigants but the

courts cannot turn their back to the rights of others and when the courts

are used as a vehicle of harassment by "a knowledgeable and articulate

experienced pro se litigant". In such circumstances, issuance of

injunction is warranted. (Ken versus City of New York, 486 F. SUPP.

586, 590). Frivolous and vexatious litigation should be prevented as it

subjects innocent parties to expense; it impounds an effort or a drain on

the already pressed judicial resources and unnecessarily depletes public

funds. Vexatious litigations mean litigation in bad faith, wantonly, and

for oppressive reasons. The motive for filing should not be for an

improper purpose such as harassment. Additionally, sanction can be

issued against a Pro se litigant when there is a history of repetitive or

vexatious litigation. Restriction can be put to require the litigator to

obtain leave of the court before filing an additional action. Pro se

litigants can be restrained from representing themselves as the

plaintiffs if the said litigants have hampered efficient administration of

justice to an invariable degree. The courts are not utterly powerless to

deal with litigants who have hampered efficient administration of

LPA No. 16/2012 Page 24 justice to an intolerable degree. The remedy being unique, it should be

invoked as an appropriate response to what may well be a unique harm.

25. There are curbs in vexatious litigation in Australia and New

Zealand. In Australia, under the High Court Rules of 1952, Rule 16.6

deals with vexatious proceedings. In New Zealand Section 88B of the

Adjudicator Act, 1908 relates to restriction of institution of vexatious

actions. There is also power under the High Court Rules (Part VII

relating to speedy dismissal). In Canada there are specific statutory

provisions in the federal system, which deal with prevention of

vexatious proceedings. Section 40 of the Federal Court Act enables

legal sanctions to restrict or to continue proceedings by those who have

instituted vexatious proceedings or conducted proceedings in a

vexatious manner.

Legal Position in India

26. In India, two states- Tamil Nadu and Maharashtra- have anti

vexatious litigation acts, namely, Anti Vexatious Litigation

(Prevention) Act, 1949 and Maharashtra Vexatious Litigation

(Prevention) Act, 1971. The Law Commission of India in their 192 nd

Report has recommended statutory enactment for prevention of

vexatious litigation. The said report refers to the earlier report, i.e.,

LPA No. 16/2012 Page 25 189th Report of the Law Commission on Revision of Court Fee

Structure in which reference is made to frivolous and vexatious

litigation.

27. The Vexatious Litigation (Prevention) Act, 1949 was

unsuccessfully made subject matter of challenge before the Andhra

Pradesh High Court on the ground that it violated Article 19(1)(a) of

the Constitution. The challenge was rejected by the Supreme Court

also in their decision Prabhakar Rao H. Mawle versus State of

Andhra Pradesh, AIR 1965 SC 1827. Hidayatullah, J., who has

authored the majority judgment, held that the said enactment was legal

as the Act is not intended to deprive a person from going to the court

but it only creates a check that the opposite party is not harassed. A

similar Act passed in England, it was observed has been applied to

prevent abuse of process of court. The object of the Act promotes a

good cause as it cannot be claimed that a litigant has unchecked right

to bring vexatious action without control. The Act serves a public

interest and is only to prevent a habitual litigant from filing repeated

litigations without a reasonable cause. Challenge to Article 14 was

also rejected. However, the majority took the view that the Act does

not extend to the State of Andhra Pradesh and for this reason the

appeal was allowed. Shah, J. in his separate judgment again upheld the

LPA No. 16/2012 Page 26 constitutional validity of the Act as it was not offending Article 19 or

Article 14 of the Constitution. He, however, held that the Act extends

to the State of Andhra Pradesh. On merits, Shah, J., opined that the

drastic order of the nature passed was not justified in the facts of the

said case.

28. Dispensing justice is a serious matter. There are two parties

before the court; one who approaches and the one who defends. Courts

of law, in a democratic system governed by Rule of Law, are regulated

by practices in form of statutory provisions as well as customs and

traditions. The hearing before the court has to be conducted in an

orderly and punctilious manner. Right of audience before the court is a

potent and cherished right but is subject to control and supervision of

the court and can be withdrawn if it is repeatedly and persistently

misused and abused. It is not an absolute right. Habitual refusal even

after a warning to obey and abide by the basic fundamental canons or

rules of appearance or audience, or when it amounts to wilful or

deliberate misconduct, cannot and should not be tolerated and has to be

dealt with, otherwise the adjudicatory institution itself suffers.

Similarly, baseless, frivolous or vexatious filing puts the machinery of

justice under burden and puts opposite party to needless expense and

delay. It is not absolutely unknown that litigants can file cluster of

LPA No. 16/2012 Page 27 cases, enclose reams of paper in the name of pleadings, move repeated

motions or briefs/applications to delay and stall proceedings. Courts

when inundated with applications/petitions suffer immense pressure

and burden, as each matter even when frivolous and vexatious takes

time, has to be heard and then dictated/decided. The cause of justice is

defeated and justice is denied to other litigants in good faith, who are

denied prompt and quick justice because of the delay caused by

vexatious, frivolous or even repetitive litigation. Judicial or court time

is precious and it is the duty of the parties also to ensure that judicial

time is not diverted and spent on pointless repetitive, frivolous or

vexatious litigation at the expense of time, and justice due to other

litigants is not delayed.

29. At the same time, we have to be conscious that a pro se litigant

faces disadvantages as he is inexperienced and at times faces

challenges, polarisation and sometimes even resentment when opposed

by a professional advocate. He is not familiar with the court processes

and mannerisms. Being emotionally involved, at times he gets agitated

and hostile by what he feels and perceives is an unequal treatment in an

adversarial litigation process. Being unfamiliar with the art and skills

of advocacy, unschooled in the intricacies of law, rules or procedures,

he loses his nerves gets agitated and is not able to project the matter in

LPA No. 16/2012 Page 28 a dispassionate, calm, composed manner and with clarity of thought.

The role of the judges here is important as they have to ensure that

there should be a fair hearing. Access to justice for litigants in person

is an important and valuable right which should be protected. In India,

because of docket explosion and other reasons, judicial process may

take time. The delay itself may generate frustration with the process

and a pro se litigant may dwell and get a feeling that he has been

denied what is due. He feels that there is adequate justification for his

protest and that he has a right to raise objections. Further, we have

illiterate indigent litigants and those without adequate resources and

means. Such persons, when opposed Advocates or Senior Advocates,

possibly feel that they are at a disadvantage and are discriminated in a

system, where they have been pitted against experts. This is perceived

as an adequate justification or support for their conduct when

appearing in person and for indulging in repetitive litigation even after

failure.

Definition of Words

30. It is important to understand the terms "vexatious" or "vexatious

litigant" and persons who indulge in vexatious or frivolous litigation.

The term "vexatious" in common parlance means "To vex" means

anger by a slight or a petty annoyance; irritate. "Vexation" means the

LPA No. 16/2012 Page 29 Act or an instance of vexing or annoying or distressing thing.

"Vexatious" means such as to cause vexation. (See The Oxford

English Reference Dictionary, Edition-1995). The term "vexatious",

when used in law, signifies an action not having sufficient ground

therefore and seeking only to annoy the adversary. In Attorney

General versus Barker [2000] 1 FLR 759, it was observed:-

"Vexatious is a familiar term in legal parlance. The hallmark of a vexatious proceeding is, in my judgement that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense, out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process."

31. The term "vexatious" not only applies to vexatious litigation but

also to vexatious litigants. Vexatious litigant indulges in frivolous

litigation which has the effect to put the other side to inconvenience

and harassment. In other words, the judicial process is used in a way,

which is significantly different from its ordinary and proper use.

Whether a person is a vexatious litigant, therefore, depends upon the

LPA No. 16/2012 Page 30 nature and character of the litigation, which is initiated. It also relates

to the manner in which litigation is conducted.

32. The term "frivolous litigation" can have various connotations. It

can refer to merits of the litigation. However, in a given case it can

refer to persistent and habitual litigation activity. It happens when a

person sues a party repeatedly and relies upon persistently on the same

cause of action. A habitual and persistent litigant keeps on litigating

even when an earlier litigation has been unsuccessful or is pending

consideration and when a rational time has come to stop.

33. The words "habitual" and "persistent" represent the same

meaning. In Vijay Narain Singh Vs. State of Bihar 1984 (3) SCC

14while dealing with Section 2(d)(iv) of the Bihar Control of Crimes

Act, 1981 the majority judgment observed:-

"The expression „habitually‟ means „repeatedly‟ or „persistently‟. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts- are necessary to justify an influence of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions........ Because the idea of „habit‟ involves an element of persistence and tendency to repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones."

LPA No. 16/2012 Page 31

34. The word "habitual" means constant, customary or addicted to a

special habit. The word "habit" means settled tendency or practise;

physical constitution. It applies to a tendency or capacity resulting

from frequent repetition of the same acts (Refer Ramanatha Iyer‟s Law

Lexicon, Second Edition).

35. In a given case, Court can opine that the litigant has become a

vexatious litige or litigant even when there is no final decision in the

earlier proceedings because of repetitive or habitual filing i.e. when the

proceedings are repeatedly and habitually initiated on virtually

identical cause of action with the object and purpose to cause prejudice

or obstruct or interfere with the due course of the judicial proceedings.

The conduct should be highly unreasonable to fall under the said

category. Thus, manner by which proceedings are conducted may be

relevant in determining whether the pro se litigant is indulging in

frivolous litigation or is a vexatious litigant.

36. Rarely, but in exceptional cases, a quarrelsome, belligerent and

combative litigant can be categorized as a vexatious litigant. Normally

courts/judges are able to deal with and handle pro se litigants, but

sometimes litigants demonstrate that they are completely

uncontrollable and if audience is given to them the proceedings cannot

continue. They perceive themselves to be right, no matter what the LPA No. 16/2012 Page 32 Judge does. They dictate. Nothing is acceptable unless the view or

contention of the pro se litigant is accepted. When such litigants

persistently indulge in intimidation or making gross imputations and

cast aspirations causing breakdown or frequent adjournments of the

judicial proceedings, inherent power to control the proceedings in an

appropriate manner should be exercised. A persistent argumentative

litigant, when in spite of the latitude, oversteps and becomes an

obstacle, uses vague threats and abrasive behaviour or disrespectful

language, the brazenness may not require the contempt, but injunction

or a sanction under the inherent powers vested with the courts.

Appropriate and deserving injunction or sanction, as may be necessary

and required, should be given. These litigants for the sake of

convenience can be called habitual contumelious litigant. The word

"habitual" has been interpreted and explained above. The word

"contumelious" postulates insolent and stubborn pervasiveness;

incorrigible obstinacy; scornfully insolence and/or insulting rudeness

in speech or manners in the court proceedings or conduct.

Exercise of Discretion and the Test

37. The real dilemma lies in balancing the two rights/ principles;

Self- represented litigant‟s right to address and the inherent power of

the court to deny a pro se vexatious litigant from appearing or LPA No. 16/2012 Page 33 addressing the court or from filing vexatious, frivolous or repetitive

litigation. The said power or inherent right should be exercised with

caution, with restraint and sparingly. The power is very potent and

harsh and, therefore, the exercise of discretion has to be with great care

and caution. The harsher the sanction, the more is the need and

requirement that the discretion should be justified. It should be

exercised in an extreme situation.

38. While it is apparent what is meant by the terms "vexatious

litigation" and "frivolous litigation"; a test should be laid down to

determine the whether an individual could be characterised as, and

included within the realm of, a "habitual contumelious litigant".

Exercise of the discretion test is to be applied in cases of a vexatious

litigant or a habitual contumelious litigant. The exercise of discretion

in such cases must, and should, meet the following test:

(1) The pro se litigant has indulged in repetitive or frivolous or

vexatious litigation or has acted as a vexatious litigant.

(2) The sanction can be imposed if and only if there is no other way

the pro se litigant/litigation can be dealt with. First an attempt

should be to explain and warn the litigant. Then, cost can be

imposed and only if thereafter the abuse continues, appropriate

and mandated sanction order can be passed.

LPA No. 16/2012 Page 34 (3) The nature and type of sanction imposed should be

commensurate with and should be proportionate to the abuse. It

should not be excessive and disproportionate.

39. The true test is whether without the said sanction there would be

order, i.e. but for the said sanction/ restraint, the courts would be

prevented from orderly and expedient dispensation of the subject

litigation. Special care and caution has to be taken when the litigant is

indigent, financially weak and/ or illiterate. A stricter criteria can be

applied in cases of wealthy, well read and knowledgeable litigants,

who because they feel that they are articulate and well acquainted with

law and facts are entitled to conduct the litigation themselves and on

their own terms. Sanction may not be imposed particularly if there is a

possibility that the litigant‟s conduct may be attributed to ignorance of

law and proper procedures. In such a case, it should be the last resort.

Legal Authorities

40. As noted above, the view we have taken find resonance and

acceptability in the decision of the Supreme Court in Ila Vipin Pandya

(2)(supra). The relevant observations read as under:

"8. There is yet another disturbing feature of this case which needs to be highlighted. We must, at the outset, emphasise that a litigant appearing in person does not enjoy a status higher than that of LPA No. 16/2012 Page 35 a lawyer arguing a case for his client. We are also aware that such a litigant is nevertheless given extra consideration by the court for several justifiable reasons; first, the torturous and cumbersome court procedures are truly debilitating and tend to exhaust and frustrate the most hardened and energetic litigant, often making him bitter about the entire system; secondly, as a layman with limited knowledge of law he is unable to distinguish between a relevant and an irrelevant argument leading to verbosity;

and finally, being oversensitive to his case with the opposite counsel and judge often being identified as belonging to a hostile camp, an occasional digression or deviation from established norms and mores is tolerated. We have, however, come to notice a growing tendency on the part of some litigants to misuse the latitude granted to them and to deliberately create a situation whereby the functioning of the court becomes an impossibility thus stultifying the entire judicial process. Smita Patel falls eminently within this category. During the course of arguments spread over parts of three days she refused to argue on the merits of her case and on the issues raised by Mr. Nariman but used foul language for some of the counsel who had been associated with this and other connected matters dubbing them as criminals closely associated with those who had been responsible for the Bombay blasts. We had at first advised her to be careful and to refrain from making baseless allegations against those who were not before the Court as parties and had subsequently cautioned her that she was overstepping the limits of decency which would compel us to take unpleasant steps against her, but to no avail. On the contrary she shouted LPA No. 16/2012 Page 36 back that the Court could do whatever it liked but she would continue to expose the advocates who were a threat to the safety and security of her country. Finding it impossible to proceed any further we were constrained to record the following order on 3-5-2007:

"The respondent, appearing in person, had started her arguments in this case on 28-3-2007 at 3.00 p.m. and the matter remained part-heard on that day. Thereafter, she resumed her arguments on 12-4-2007 at 3.15 p.m. and did not complete even on that date. Thereafter, the matter came up for hearing on 19th April, 2007 when a telegram sent by the respondent was placed before us in which she had requested for adjournment of the matter till 2nd May, 2007. That is how the matter is before us today.

The respondent, appearing in person, resumed her arguments at 10.40 a.m. She has not addressed any argument so far which may be considered to be relevant to the issue involved in the appeal before us. We have repeatedly tried to persuade her to deal with the submissions urged on behalf of the appellant. Rather than doing that, she has been reading before us various documents in the different volumes of the paper-book relating to the conduct of certain advocates and she insisted that she is concerned about the misconduct of the advocates who have held this country to ransom and who have associated in causing bomb blasts in this country. When we tried to explain to her that we are not concerned with those issues and we are concerned with only those issues which are relevant to the dispute before us, she retorted that she is very much concerned with the misconduct

LPA No. 16/2012 Page 37 of lawyers and her real fight is against them not the appellant and, therefore, we must hear her on those issues. When we explained to her that those issues are irrelevant and she must confine herself to the relevant issues she raised her voice and started addressing the Court in a manner unbecoming of even a party appearing in person. Having regard to the fact that she is a lady and she is appearing in person, and that she may have a grievance, we tolerated her to the extent possible. Her conduct is now beyond tolerance. She has reduced the judicial proceeding to a mockery. Since she is wasting the time of the Court by referring to irrelevant record and not addressing the Court on the issues involved, we are constrained to close the arguments. Since the respondent persists in raising her voice and making irrelevant comments in a manner which completely erodes the sanctity of judicial proceeding, we shall only be wasting the time of the Court, if we continue to hear the respondent further. We shall proceed to pronounce our judgment in due course.

The respondent who appears in person has handed over to us written arguments on affidavit and prays that her written submissions may be taken into consideration. We shall certainly take into consideration the written arguments submitted by her."

9. We have also gone through the earlier record of proceedings and find a very disturbing picture indeed."

LPA No. 16/2012 Page 38

41. The judgment thereafter went to show instances wherein the

litigant appeared and conducted herself in as a habitual contumelious

litigant.

42. We may appropriately refer to the observations of the Supreme

Court in T. Arvindandam versus T.V. Satyapal and Another, (1977) 4

SCC 467 in which it has been held:

"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 LPA No. 16/2012 Page 39 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 par ties 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."

43. In Supreme Court Bar Association versus Union of India,

(1998) 4 SCC 409, it was held that punishment for professional

misconduct prescribed under the Advocates Act can be only inflicted

by the Bar Council after following the statutory procedure. Further,

the nature and type of punishments, which a Court of Record, can

LPA No. 16/2012 Page 40 impose in the case of established contempt under the common law

have been now specifically incorporated and stipulated in the

Contempt of Courts Act, 1971. The Contempt of Courts Act, 1971,

which identifies and states the nature and type of punishments, does

not impinge upon the inherent powers of the High Court under Article

215. No new type of punishment can be created or assumed by the

High Court when punishment is awarded for contempt, even under

Article 215 of the Constitution. However, in the said case it was also

observed that the Supreme Court or the High Court can prevent the

contemnor advocate from appearing before it, till he purges the

contempt and this is different from suspending or revoking his licence

or debarring him from practicing as an advocate. Subsequently, in

Praveen C. Shah versus K.A. Mohd. Ali, (2001) 8 SCC 650, a lawyer

was found guilty of contempt of court and as a consequence was

debarred from appearing in the courts till he purged himself of the

contempt. Constitution Bench of the Supreme Court in Ex Captain

Harish Uppal versus Union of India and Another, (2003) 2 SCC 45

has stated that the right of appearance in courts is (still) "within the

control and jurisdiction of courts". Article 145 of the Constitution

gives the Supreme Court and Section 34 of the Advocates Act gives to

the High Court power to frame rules including rules regulating the

LPA No. 16/2012 Page 41 conditions on which a person (including an advocate) can practice in

Supreme Court and or High Court and the courts subordinate thereto.

If such rules are framed, the same would not have to do with the

disciplinary jurisdiction of the Bar Council but would concern dignity

and orderly functioning of the courts. It was stated that "Right to

appear and conduct cases in courts is a matter on which the courts must

and does have major supervisory and controlling power". Hence,

"courts cannot and are not divested of control and supervising of

conduct in court merely because it may involve the right of an

advocate". Even if Section 30 of the Advocates Act were to be

brought in force, control of proceedings in courts will always be

remain with the court. Referring to the said decisions in the case of

R.K. Anand versus Registrar, Delhi High Court, (2009) 8 SCC 106 it

was held:

"238. In Supreme Court Bar Assn. the direction prohibiting an advocate from appearing in court for a specified period was viewed as a total and complete denial of his right to practise law and the bar was considered as a punishment inflicted on him. In Ex. Capt. Harish Uppal it was seen not as punishment for professional misconduct but as a measure necessary to regulate the court's proceedings and to maintain the dignity and orderly functioning of the courts. We may respectfully add that in a given case a direction disallowing an advocate who is convicted of LPA No. 16/2012 Page 42 criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may become necessary for the self-protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the court's record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an "inconvenient" court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately these examples are not from imagination. These things are happening more frequently than we care to acknowledge.

239. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactor's conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any court's functioning, apart from constituting a substantive offence and contempt of court and professional misconduct. In such a situation the court does not only have the right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings from being polluted in any way and to that end bar the malefactor from appearing before the courts for an appropriate period of time.

LPA No. 16/2012 Page 43

240. It is already explained in Ex. Capt. Harish Uppalthat a direction of this kind by the Court cannot be equated with punishment for professional misconduct. Further, the prohibition against appearance in courts does not affect the right of the lawyer concerned to carry on his legal practice in other ways as indicated in the decision. We respectfully submit that the decision in Ex. Capt. Harish Uppal v. Union of India places the issue in correct perspective and must be followed to answer the question at issue before us.

241. Lest we are misunderstood it needs to be made clear that the occasion to take recourse to the extreme step of debarring an advocate from appearing in court should arise very rarely and only as a measure of last resort in cases where the wrongdoer advocate does not at all appear to be genuinely contrite and remorseful for his act/conduct, but on the contrary shows a tendency to repeat or perpetuate the wrong act(s).

44. The aforesaid view/ratio is in conformity with the observations

made above. The distinction between the power of the Court to

regulate the right to appear and address arguments is different and

distinct from the power of contempt.

Clause 8 of the Letters Patent Act

45. Learned counsel for the appellant had submitted that clause 8 of

the Letters Patent Act applicable to Delhi confers a statutory right to a

litigant to appear in person and for a co-suitor. It is further submitted

LPA No. 16/2012 Page 44 that the aforesaid clause in the Letters Patent Act cannot be diluted and

made otiose by applying the doctrine of inherent power/rights.

Inherent power/rights of the courts cannot be exercised when there is a

specific provision to the contrary. It is also submitted that a pro se

litigant, who indulges in vexatious litigation can be punished with one

of the punishments specified in Section 12 of the Contempt of Courts

Act, 1971.

46. The aforesaid contention though attractive has to be rejected for

several reasons. Clause 8 of the Letters Patent Act reads:

"8. Powers of High Court in making rules for the qualifications, etc., of Advocates, Vakils and Attorneys:

And We do hereby ordain that the High Court of Judicature at Lahore shall have power to make rules from time to time for the qualification and admission of proper persons to be Advocates, Vakils and Attorneys-at-law of the said High Court, and shall be empowered to remove or to suspend from practice, on reasonable cause, the said Advocates, Vakils or Attorneys-at-law ; and no person whatsoever but such Advocates, Vakils or Attorneys shall be allowed to act or to plead for, or on behalf of, any suitor in the said High Court, except that any suitor shall be allowed to appear, plead or act on his own behalf, or on behalf of a co-suitor."

47. The intention of incorporating and enacting the said Clause is

apparent. The Letters Patent Act was enacted when the Lahore High LPA No. 16/2012 Page 45 Court was established. The Act itself stipulates that the Letters Patent

was issued constituting the High Court of Judicature at Lahore. The

clause was necessary and required as advocates, vakils and attorneys

had to be enrolled and admitted for appearance before the High Court.

Clause 8 has to be read along with clause 7, which reads:

"7. Powers of High Court in Admitting Advocates, Vakils and attorneys:

And We do hereby authorise and empower the High Court of Judicature at Lahore to approve, admit and enrol such and so many Advocates, Vakils and Attorneys as to the said High Court may seem meet ; and such Advocates, Vakils and Attorneys shall be and are hereby authorized to appear for the suitors of the said High Court, and to plead or to act, or to plead and act for the said suitors, according as the said High Court may by its rules and directions determine, subject to such rules and directions."

48. Once advocates, vakils and attorneys were enrolled, then they

were authorized, subject to the rules made from time to time, to appear,

plead and act on behalf of the parties/litigants. The last part of clause 8

is a clarificatory in nature. It seeks to clarify and state that a litigant or

a suitor is not prohibited from acting or pleading on his own behalf or

on behalf of a co-suitor. This clarification was required to remove

doubts whether or not a litigant in person can appear or every litigant

must engage an advocate, vakil or an attorney registered and enrolled

under Clause 7.

LPA No. 16/2012 Page 46

49. Moreover, the last part of Clause 8 of the Letters Patent merely

permits and allows a suitor to appear and act on his own behalf and on

behalf of a co-suitor. The said right in no way affects the inherent

power of the court to ensure that the court proceedings are conducted

in an orderly and proper manner and frivolous, repetitive or vexatious

litigations are not brought to court and court‟s time is not wasted by a

party, who engages in hilbert stubbornness and or acts in abstractive

manner to prevent continuation and decision of the legal proceedings.

50. Clause 8 of the Letters Patent Act, therefore, merely means that

a litigant in person is not barred and prohibited from appearing in

person and does not in any manner conflict with the inherent

power/rights of the Court.

51. Clause 8 of the Letters Patent Act is applicable only to High

Courts and not to the district courts. As far as right to appear and

audience for co-suitor under clause 8 is concerned, the same is contrary

to Section 32 of the Advocates Act, 1961. We need not examine

whether Section 32 negates or overrides clause 8 of the Letters Patent

Act, in view of the reasoning/ratio elucidated and explained. Once a

restraint/sanction order is passed against a self representing litigant, the

necessary sequitor and effect thereof is that the order/permission

granted to represent any person or a co-suitor stands withdrawn or

LPA No. 16/2012 Page 47 cancelled. Section 32 of the Advocates Act states that a court can

permit a person, who is not an Advocate, to appear before her or him in

a particular case. Exercise discretion under the said Section has been

settled by judicial pronouncements. [See C. Venkatachalam versus

Ajitkumar C. Shah and ors. (2011) 9 SCC 707, Harishankar Rastogi

versus Girdhari Sharma and anr. AIR 1978 SC 1019, Ex- Capt.

Harish Uppal versus Union of India and anr. (2003) 2 SCC 45].

Reasoning given above concurs and is supported by the said

pronouncements.

52. Right to appear and address the Court under Section 32 of the

Advocates Acts can be withdrawn subsequently. This right, even if

granted, does not mean that it is permanent. Order granting permission

can be always recalled for valid and just grounds. It is not absolute and

forever.

Sanction/injunction to institute legal proceedings

53. Section 41(b) of the Specific Relief Act reads as under:-

"41. Injunction when refused.--An injunction cannot be granted--

xxx

(b) to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;"

LPA No. 16/2012 Page 48

54. The aforesaid section recognize that injunction may be granted

to restrain a person from instituting or prosecuting proceedings in a

Court subordinate to the court granting injunction. The principle

enshrined is that a superior Court can regulate the proceedings in a

subordinate Court. This is implicit in the language of the section. It

follows that a person can be restrained from instituting or prosecuting

proceedings in a subordinate Court, but no such injunction can be

granted to a Court of co-ordinate jurisdiction or superior jurisdiction

under the said sections. In Cotton Corporation of India Vs. United

Industrial Bank Ltd. (1983) 4 SCC 625, after referring to the aforesaid

provision it has been held as under:-

"8. It is, therefore, necessary to unravel the underlying intendment of the provision contained in Section 41(6). It must at once be conceded that Section 41 deals with perpetual injunction and it may as well be conceded that it has nothing to do with interim or temporary injunction which as provided by Section 37 are dealt with by the Code of Civil Procedure. To begin with, it can be said without fear of contradiction that anyone having a right that is a legally protected interest complains of its infringement and seeks relief through court must have an unhindered, uninterrupted access to law courts. The expression „court‟ here is used in its widest amplitude comprehending every forum where relief can be obtained in accordance with law. Access to justice must not be hampered even at the hands of judiciary. Power to grant injunction vests in the court unless the legislature confers specifically such power on some other forum. Now access to court in search of justice LPA No. 16/2012 Page 49 according to law is the right of a person who complains of infringement of his legally protected interest and a fortiori therefore, no other court can by its action impede access to justice. This principle is deducible from the Constitution which seeks to set up a society governed by ride of law. As a corollary, it must yield to another principle that the superior court can injunct a person by restraining him from instituting or prosecuting a proceeding before a subordinate court. Save this specific carving out of the area where access to justice may be impeded by an injunction of the court, the legislature desired that the courts ordinarily should not impede access to justice through court. This appears to us to be the equitable principle underlying Section 41(b). Accordingly, it must receive such interpretation as would advance the intendment, and thwart the mischief it was enacted to suppress, and to keep the path of access to justice through court unobstructed.

9. Viewed from a slightly different angle, it would appear that the legal system in our country envisages obtaining of redressal of wrong or relief against unjust denial thereof by approaching the court set up for the purpose and invested with power both substantive and procedural to do justice that is to grant relief against invasion or violation of legally protected interest which are jurisprudentially called rights. If a person complaining of invasion or violation of his rights is injuncted from approaching the court set up to grant relief by an action brought by the opposite side against whom he has a claim and which he wanted to enforce through court, he would have first to defend the action establishing that he has a just claim and he cannot be restrained from approaching the court to obtain relief. A person having a legal right and complains of its violation or infringement, can approach the court and seek relief. When such person is injuncted from LPA No. 16/2012 Page 50 approaching the court, he has to vindicate the right and then when injunction is vacated, he has to approach the court for relief. In other words, he would have to go through the gamut over again: when defending against a claim of injunction the person vindicates the claim and right to enforce the same. If successful he does not get relief but a door to court which was bolted in his face is opened. Why should he be exposed to multiplicity of proceedings? In order to avoid such a situation the legislature enacted Section 41(b) and statutorily provided that an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought. Ordinarily a preventive relief by way of prohibitory injunction cannot be granted by a court with a view to restraining any person from instituting or prosecuting any proceeding and this is subject to one exception enacted in larger public interest, namely, a superior court can injunct a person from instituting or prosecuting an action in a subordinate court with a view to regulating the proceeding before the subordinate courts. At any rate the court is precluded by a statutory provision from granting an injunction restraining a person from instituting or prosecuting a proceeding in a Court of coordinate jurisdiction or superior jurisdiction. There is an unresolved controversy whether a court can grant an injunction against a person from instituting or prosecuting a proceeding before itself but that is not relevant in the present circumstances and we do not propose to enlarge the area of controversy."

55. The controversy, regarding co-ordinate courts that the Supreme

Court did not deal with, has been examined by the single Judge of the

Kerala High Court in Raghavan and Anr. versus Sankaran LPA No. 16/2012 Page 51 EzhuthassanAIR 1993 Ker 178. This was subsequently accepted and

relied upon by a Divisional Bench of the Kerala High Court in Santha

versus Vasu, Muthalamada and ors. AIR 1996 Ker 188. The operative

part of Sankaran Ezhuthassan (supra) reads as under:

"3. Clause (b) of Section 41 of the Act lays down that an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a court "not subordinate" to that from which the injunction is sought. There must be a proceeding sought to be prevented and such proceedings must have been instituted or is being prosecuted in a court which is not subordinate to the court where the subsequent proceedings are instituted. "Not subordinate" are significant words. Courts are of (a) subordinate jurisdiction,

(b) superior jurisdiction or (c) co-ordinate jurisdiction. The court of the subordinate judge, Thrissur, is not superior to the court of subordinate judge, Thrisur. It is the same court. It is also not subordinate to the same court. Co- ordinate means equal, of the same rank, or of importance. Since two equals cannot be subordinate to each other, it follows that theres is no subordination between courts of co-ordinate jurisdiction. "Coordinate" necessarily means "not subordinate." The question whether Court A is subordinate, arises only in the context of another Court B in relation to which its status is to be decided. It therefore follows that the words "not subordinate" or "co-ordinate" have no application where there is only one court under consideration. Therefore in a case where both the proceedings are instituted in the same court the question even of "coordinate" status does not arise, for, there is only one court under consideration. It is therefore illogical even to consider whether the same court is subordinate to itself.

LPA No. 16/2012 Page 52

4. The question boils down to this. Can a court grant an injunction to restrain a person from instituting or prosecuting proceedings before itself. The sub court of Trissur is certainly not subordinate to itself because it is "itself and not its subordinate. This is very simple. But the controversy is created by the words "not subordinate" used in Section 41(b) of the Act. The question not free from doubt, has not yet been judicially resolved. That is why the Supreme Court in Cotton Corporation of India Limited v. United Industrial Bank Limited: AIR 1983 SC 1272 characterised this controversy as "an unresolved controversy." The Calcutta High Court in Ram SadanBiswas v. Mathura Mohan Hazra, AIR 1925 Cal 233 and the Patna High Court in RadhaMadhabJiu Thakur v. Rajendra Prasad Bose: AIR 1933 Pat 250 had no hesitation in holding that the prohibition under Clause (b) of Section 41 of the Specific Relief Act does not apply to the grant of injunction to restrain a party from prosecuting a proceeding before itself.

5. The rationale of these decisions is two fold.

Firstly every court has inherent jurisdiction to protect itself from abuse of its own process and the need to prevent it by an injunction. Secondly, the court from which the injunction is asked for can regulate the proceedings before itself by an appropriate injunction. It is for these reasons that the prohibition enacted by Clause (b) of Section 41 cannot be applied where a court grants injunction in respect of the proceedings before itself. Suppose a court makes an order or decree which is subsequently discovered to be the result of fraud or abuse and the party affected adversely seeks an injunction to restrain the opposite party from taking advantage of the order obtained by fraud or abuse of the court's process. If Section 41(b) were applied to such cases the results would be disastrous. This is the rationale behind the exclusion of the same court from the scope of the

LPA No. 16/2012 Page 53 application of Clause (b) of Section 41 of the Act."

56. We respectfully follow and are in agreement with the views

expressed in the said judgments.

57. Injunction/sanction order once issued in exercise of inherent

powers should be respected and applied by the subordinate or the same

Court i.e. different Benches of the same Court. Even under Section

317 of the Code of Criminal Procedure, 1973, if an accused is

represented by a pleader, his personal presence can be dispensed with

under exceptional circumstances, if required and necessary. If an

accused is not represented by a counsel, then procedure under Section

317(2) has been specifically carved out.

Bias

58. The appellant has made allegation of bias. This contention has

to be rejected as a wrong order or an order, which cannot be sustained

or even failure to abide by principles of natural justices as audi alteram

partem, does not show or establish bias. We may note that the word

"bias" has not been used in the grounds of appeal, but the word

"prejudice" has been used. It is alleged that in the present case there

was pre judgment without hearing the appellant. The word "bias" can

have various connotations and meanings and on this aspect we would

like to follow and apply the decision of the Supreme Court in G.N.

LPA No. 16/2012 Page 54 Nayak Vs. Goa University2002 (2) SCC 712 in which it has been held

as follows:-

"32. This brings us to the issue of bias.

33. Bias may be generally defined as partiality or preference. It is true that any person or authority required to act in a judicial or quasi-judicial matter must act impartially.

"If however, „bias‟ and „partiality‟ be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions and the processes of education, formal and informal, create attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices."

34. It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by self-interest -- whether pecuniary or personal. Because of this element of personal interest, bias is also seen as an extension of the principles of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore, the courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred.

35. In A.K. Kraipak v. Union of India the Selection Committee had been constituted under Regulation 3 of the Indian Forest Service (Initial Recruitment) Regulations, 1966 for the purpose of LPA No. 16/2012 Page 55 making selections to any State cadre of the All- India Forest Service. The Chief Conservator of Forests was selected. Setting aside the selection, this Court held that the Chief Conservator of Forests being himself one of the candidates seeking to be selected to the All-India Forest Service should not have been included as a member of the Selection Board because of the possibility of bias.

36. As we have noted, every preference does not vitiate an action. If it is rational and unaccompanied by considerations of personal interest, pecuniary or otherwise, it would not vitiate a decision. For example, if a senior officer expresses appreciation of the work of a junior in the confidential report, it would not amount to bias nor would it preclude that senior officer from being part of the Departmental Promotion Committee to consider such junior officer along with others for promotion."

(See State of Punjab Vs. V.K. Khanna(2001) 2 SCC 330

wherein distinction has been drawn between intention and motive.

Also see Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant,

(2001) 1 SCC 182.)

59. As far as principles of natural justice are concerned, the same

cannot be put in a strait jacket. In certain situation, they have been

read into under Articles 14 of the Constitution. In Bar Council of

India Vs. High Court of Kerala(2004) 6 SCC 311 it has been

observed:-

45. Principles of natural justice are required to be observed by a court or tribunal before a decision LPA No. 16/2012 Page 56 is rendered involving civil consequences. They may only in certain situations be read into Article 14 of the Constitution of India when an order is made in violation of the rules of natural justice. Principles of natural justice, however, cannot be stretched too far. Their application may be subject to the provisions of a statute or statutory rule.

46. Before a contemner is punished for contempt, the court is bound to give an opportunity of hearing to him. Even such an opportunity of hearing is necessary in a proceeding under Section 345 of the Code of Criminal Procedure. But if a law which is otherwise valid provides for the consequences of such a finding, the same by itself would not be violative of Article 14 of the Constitution of India inasmuch as only because another opportunity of hearing to a person, where a penalty is provided for as a logical consequence thereof, has been provided for. Even under the penal laws some offences carry minimum sentence. The gravity of such offences, thus, is recognised by the legislature. The courts do not have any role to play in such a matter.

47. Rule 11 framed by the Kerala High Court is legislative in character. As validity of the said rule has been upheld, it cannot be said that the same by itself, having not provided for a further opportunity of hearing the contemner, would attract the wrath of Article 14 of the Constitution of India.

48. In Mohinder Singh Gill v. Chief Election Commr. this Court observed: (SCC pp. 432-33, para 43) "43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save LPA No. 16/2012 Page 57 where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy government, recognised from earliest times and not a mystic testament ofjudge-made law. Indeed, from the legendary days of Adam -- and of Kautilya's Arthasastra -- the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system."

49. In N.K. Prasada v. Govt. of India this Court observed: (SCC p. 308, paras 24-25) "24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta v. Asha Devi Gupta of which two of us (V.N. Khare, C.J. and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held: (SCC p. 506, para 29) „29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby.‟

25. The principles of natural justice, it is well settled, must not be stretched too far."

LPA No. 16/2012 Page 58 (See also Mardia Chemicals Ltd. v. Union of India and Canara Bank v. Debasis Das.)

50. In Union of India v. Tulsiram Patel whereupon reliance has been placed by Mr Reddy, this Court held: (SCC p. 477, para 97) "97. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed."

51. The ratio of the said decisions, therefore, does not support the proposition canvassed by Mr Reddy.

52. Furthermore, the contemner could also get an opportunity of hearing while purging his conduct. Rule 11 of the Rules, therefore, is not also ultra vires Article 14 of the Constitution."

Aforesaid has been examined and has to be read along with our

observations/ findings recorded below under the heading "the First

Direction, Issue of Notice/ Hearing and Procedure".

LPA No. 16/2012 Page 59

60. We do not agree with the appellant that he was/is entitled to

ignore the impugned order as a nullity and void abinito and in spite of

the direction was/is entitled to appear or argue in person. The

appellant cannot be a self adjudicator and claim that he is entitled to

ignore the order. Even if an order is bad or wrong, it must be

challenged and a prayer for stay/interim order can be made. In a

hierarchical system, an order can be challenged and set aside by the

appellate forum. Self opinion or understanding cannot and should not

become a basis for ignoring an order or questioning the same in

collateral or other proceedings.

61. There is some controversy and dispute whether the learned

single Judge had rejected the prayer for dasti copy of the impugned

order. It appears that no such request was made when the order was

dictated, but was made subsequently. The contention of the learned

counsel for the appellant is that the request was rejected. However, the

impugned order itself records that a copy of the order be given dasti to

the appellant. In such cases, the order should be given to the party, his

counsel or his family member. It should be also given before the order

is implemented as the party concerned has right to file and challenge

the order in appeal and ask for stay. It is stated that the order was

LPA No. 16/2012 Page 60 made available to the appellant only at 10 p.m. at night. We agree with

the appellant that the order should have been given immediately.

62. The first direction mentioned above given in the impugned order

has been set aside. On the basis of the said direction, it was submitted

that bias is proved. As Judges we do face dilemmas while dealing with

self represented litigants and sometimes we feel exacerbated with the

fact that some of them may be suffering from some mental ailment or

disorder. Often we feel deeply uncertain how to deal with the said

litigants. Sometimes we feel motivated to help them and the desire can

be strong. Sometimes we also feel uncomfortable while dealing with

what we perceive as individuals who require attention. These are

difficult issues and errors and mistakes can be made, though we should

avoid them especially when it involves question of liberty and

freedom. Mental sickness sometimes can be confused with personality

traits, such as an obsession with litigation or a blind conviction that one

is always right. Carl Jung had coined the terms "introversion" and

"extroversion". However, the trait theory is now accepted. The

personality traits differ with degrees and with situation/conditions.

63. In State of West Bengal Vs Shivananda Pathak, (1998) 5 SCC

513 it has been observed as under:-

"27. Judges, unfortunately, are not infallible. As human beings, they can commit mistakes even in LPA No. 16/2012 Page 61 the best of their judgments reflective of their hard labour, impartial things and objective assessment of the problem put before them. In the matter of interpretation of statutory provisions or while assessing the evidence in a particular case or deciding questions of law or facts, mistakes may be committed bona fide which are corrected at the appellate stage. This explains the philosophy behind the hierarchy of courts. Such a mistake can be committed even by a judge of the High Court which are corrected in the letters patent appeal, if available."

OTHER ALLEGATIONS MADE BY THE RESPONDENT

64. The respondent i.e. the Bakshi Group has made several

allegations and has submitted that Deepak Khosla has been indulging

in vexatious litigation or as a vexatious litigant, he is trying to delay

the adjudication of the core dispute. Their allegations are as under:-

(i) Khosla family has not made any investment in Montreaux

Resorts Pvt. Ltd. They have received Rs. 1.5 crores from the

Bakshi Group for sale of majority stake. Vikram Bakshi has paid

substantial amounts to land owners for sale of land in the name

of Montreaux Resorts Pvt. Ltd. and for its business.

(ii) Deepak Khosla is facing three contempt proceedings. Crl. Cont.

No.2/2009 initiated suo motu by Gita Mittal J. by order dated

28th January, 2009; C.C.P. (O) 15/2010 initiated by Valmiki

Mehta, J. vide order dated 28th September, 2010 and 3rd

LPA No. 16/2012 Page 62 February, 2010 in AA No.217/2009 and OMP No.660/2010; and

Criminal Cont. Pet. No.5/2010.

(iii) Earlier contempt proceedings were initiated against Deepak

Khosla by the Chairman of the Company Law Board in Criminal

Reference No.7/2010. These proceedings were subsequently

dropped after Deepak Khosla had tendered unconditional

apology.

(iv) Deepak Khosla had filed CA No.1290/2009 in Company Appeal

No.6/2008 seeking permission to audio/video record the

proceedings, which was disallowed. Deepak Khosla in the said

application had referred to the decision of the Gujarat High

Court in the case of Ajit D. Padiwal vs. State of Gujarat, 1996

Lab.I.C. 389, that audio/video recording without permission of

Court constitutes contempt.

(v) Deepak Khosla has made derogatory remarks against Judges,

who have decided or passed orders against him/khosla group. An

adverse order invariably results in allegation of bias or loss of

confidence in the Judge.

(vi) Deepak Khosla variegates and punctuates his arguments with

derogatory references and remarks on the counsel who appear

against him.

LPA No. 16/2012 Page 63

(vii) Several Courts have observed, advised and even warned Deepak

Khosla about the abrasive and curt manner of addressing

arguments, filing of repetitive petitions/applications, derogatory

remarks etc. Reference is made to the orders dated 29th January,

2010 and 3rd February, 2010 passed in Arbitration Petition No.

217/2009, OMP No.660/2009 and order dated 17.1.2011 in

Cont. Case (C) No. 190/2010 Deepak Khosla Vs. Delhi High

Court & Anr. It is stated that costs imposed by the Court in

several orders have not been paid. Thus repeated warnings have

gone unheeded.

(viii) Our attention is also drawn to the averments/language used in

the pleadings made by Deepak Khosla against the judges,

opposing advocates and the Bakshi Group. Voluminous and

copious pleadings with sermons, derogatory and denunciatory

language repeatedly used by Deepak Khosla in the pleadings

have been highlighted. Moving applications for dismissal or

expunging the remarks/comments would be futile and

cumbersome and lead to another unending round of litigation on

an ancillary aspect. Whenever this was pointed out and objected

to in the form of an application/orally and questioned, Deepak

LPA No. 16/2012 Page 64 Khosla takes umbrage, terming the allegations as scandalous and

attributes motives to the advocates.

66. The appellant has not addressed arguments on the merits of the

allegations, though the learned counsel for the appellant was

asked to respond. In the written submissions, which were filed

on 28th March, 2012, when arguments had virtually concluded, it

was stated as under:-

"b. Further, that before the Court, the matter is a limited one, an appeal to set aside the impugned order

i. The Appellant therefore, is not dealing with the merits of the case, they are complex and require specific addressing and are beyond the scope of this matter

ii. The Appellant seeks that that portion of the matter, should it be required to be taken up, be referred to the Bench of the Chief Justice of this Court, in order that it be dealt with following due procedure"

67. Ms. Indira Unninayar, Advocate appearing for the appellant

clearly stated that she has instructions not to state or urge anything on

merits. The instructions obviously were given by the appellant in

person. In the written submissions dated 31st March, 2012, after the

arguments were concluded on 28th March, 2012, it is stated as under:-

"Issue 13 - Whether this court, in its appellate jurisdiction, can entertain allegations by the

LPA No. 16/2012 Page 65 opposite parties of vexatious litigation, in this appeal itself?

a) It has been held that contempt of courts is a proceeding between the court and contemnor. It is submitted that, during the course of these proceedings, should other parties/parties bring before the court other aspects dealing with merits of the case, those would require to be looked into separately. Also, the scope of this matter is limited to declaring the impugned order void. Therefore, it is urged that the aspect of the matter dealing with merits, multiplicity of litigation, closure to various matters, etc. would require it to be referred to another bench, say the Bench of the Hon‟ble Chief Justice to adjudicate upon it, and evolve solutions. It is urged that that aspect is beyond the scope of the present appeal before this court.

b) It is also urged that the tape recordings, heard in chambers, not be considered, as the appellant has not had a chance to have a detailed hearing of it, although his counsel has heard it in chambers along with the opposite side, the amicus, and this Bench."

68. The appellant cannot choose and decide what part of the

issue/matter in appeal should be heard by this Bench. The appellant

himself in the index had stated that this matter should be listed before

the Division Bench-VIII. Thereafter, on 6th January, 2012, a detailed

order was passed recording statement made by Mr. Prashant Bhushan,

Advocate on instructions that this Bench could hear the matter. The

bifurcation of subject matter/issues cannot be done at the wish or on a

statement of the appellant. We may also note that the appellant on

selective basis had answered the factual merits. With regard to the LPA No. 16/2012 Page 66 audio recording it is stated that the appellant has a constitutional right

to audio record the proceedings in the Court and this does not require

permission. With regard to the other allegations, the appellant has

remained quiet. This aspect has been kept in mind while passing the

order giving final directions. We have avoided references, not quoted

specific instances/pleadings and not given our comments on the

allegations made by the respondents in view of the order of remit we

have passed. Observations/comments on merits can and may cause

prejudice.

69. The contention that the appellant in person has not heard the

audio files/recordings relating to the court proceedings is specious and

should be rejected. Counsel for the appellant had heard the audio

recording of the proceedings. She is aware of the contents. Wife and

father of the appellant were also present (in part) when audio recording

were heard. It is impossible to conceive and believe that the appellant

does not know the contents of the said audio files. The appellant had

asked for transcript of the audio files, but this has no relevance on the

question of formation of believe whether or not a prima facie case

exists or not.

The First Direction, Issue of Notice/ Hearing and Procedure

LPA No. 16/2012 Page 67

70. An injunction or sanction of this nature, as noticed above, has

serious consequences. In the present case, the Court i.e. the learned

single Judge suo motu has taken cognizance. In these circumstances,

we feel that it would have been appropriate and proper to first issue

notice specifically pointing out instances and allegations against the

person concerned and why and for what reasons, a prima facie and

tentative opinion has been formed. The person concerned should

respond in writing. Oral hearing to the litigant in person, in such

circumstances, is beset with difficulties. Normally, therefore, written

submissions rather than oral hearing may be mandated. Of course,

representation through an advocate is always permissible. Court may

permit oral hearing through a friend/ third person in terms of Section

32 of the Advocates Act. In some cases, the Court may also give oral

hearing to the litigant in person. However, the same for obvious

reasons is not and cannot be mandatory.

71. During the course of proceedings before us, the Bakshi Group

has filed details of litigations/proceedings which have been initiated by

the Khosla Group from 2008 onwards in this Court. The number is 67.

These are original or substantive proceedings. This number does not

include applications for interim directions/orders and other

interlocutory prayers/directions. The Khosla Group has initiated as

LPA No. 16/2012 Page 68 many as 8 proceedings against the advocates appearing for Bakshi

Group primarily on the ground that they have wrongly claimed or

stated that Vikram Bakshi was/is Director of the company or/ and they

can appear on behalf of the said company on the basis of authorization

given by Vikram Bakshi/the Bakshi Group. The Khosla Group has

filed as many as 16 contempt cases, some of which have been disposed

of. 14 applications under Section 340 Cr.P.C. have been filed by

Khosla Group against Bakshi Group or others. Most of the

applications are based on the cause of action that Vikram Bakshi was/is

wrongly claiming himself to be a director; the minutes of the AGM

held on 30th September, 2006 are forged etc. The details of these 67

cases is submitted by the Bakshi Group during the course of hearing is

not being reproduced this order for the sake of brevity.

72. As noticed, there are number of proceedings/cases pending both

in the High Court and in District Courts. Issue of this nature and

whether or not Deepak Khosla is entitled to appear as a self

represented litigant or for others, if taken up for consideration in

different forums/courts, would lead to and cause it‟s own problems and

difficulties. Apart from the possibility of conflicting orders, there

would be delay, confusion and judicial time will be spent in several

courts dealing with an identical/similar question/issue. It is, therefore,

LPA No. 16/2012 Page 69 advisable that this aspect be considered and decided before one Bench

in the High Court rather than in different benches/courts. Further, this

question should be decided first and immediately before Deepak

Khosla can be permitted to appear and is given an audience. Keeping

these aspects in mind, we feel that it will be appropriate that the entire

aspect and issue is decided by the learned single Judge as expeditiously

as possible and till the decision is taken, there should be stay of further

proceedings in different matters before the High Court and in the

District Courts. This direction will not apply and prevent Deepak

Khosla for filing any writ petition under Article 226 or moving an

application for bail/anticipatory bail. This will also not apply to any

proceedings pending before the Supreme Court or Courts outside

Delhi.

73. In view of the aforesaid, we hold as under and issue the

following directions:-

(i) The High Court has inherent power distinct and separate from

power of contempt to injunct/sanction vexatious or frivolous

litigation, vexatious/habitual litigants, contumelious litigant

and issue appropriate directions, including prohibiting the said

litigant from appearing and arguing matters in person and for

LPA No. 16/2012 Page 70 others and from initiating or filing proceedings, except with

permission of the Court.

(ii) The two directions given in the impugned order dated 4 th

January, 2012 are set aside.

(iii) Order dated 4th January, 2012 will be treated as a show cause

notice. The learned single Judge will examine other

allegations, which have been made by the respondents and

issue a supplementary show cause notice, if deemed

appropriate and necessary.

(iv) The appellant will be entitled to respond and file reply to the

show cause notice. He will not be orally heard or given

audience. He can, however, appoint an advocate to appear for

him and make oral submissions.

(v) Till the decision, there will be stay of the pending proceedings

or initiation of new proceedings before the High Court and in

the District Courts. This direction will not apply and prevent

Deepak Khosla from filing writ petitions under Article 226

and moving any application for bail/anticipatory bail, if

required and necessary. Deepak Khosla, however, will not be

permitted and allowed to appear for any third party till the

LPA No. 16/2012 Page 71 decision. This will not apply to any proceedings before the

Supreme Court or in any courts outside Delhi. In case

immediate orders are required, the parties (including the

respondents) can approach the learned single Judge for

appropriate directions or permission to continue with the

pending proceedings or initiate new proceedings.

(vi) An order disposing of the show cause notice will be passed

expeditiously as soon as possible. In such matters, it is

apparently desirable that the proceeding should be concluded

as soon as possible as it causes prejudice to the parties in

litigation.

The appeal and all pending applications are accordingly

disposed of. In the facts of the case, there will be no order as to

costs.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

                                                 (R.V. EASWAR )
                                                    JUDGE

April 24, 2012
NA+VKR

LPA No. 16/2012                                             Page 72