ISSUE XVIII : EX PARTE ORDERS: GUIDELINES TO CHECK THE ABUSE OF LAW

Introduction

The Supreme Court of India recently laid down certain guidelines for the grant of ex parte orders while hearing the case in Ramrameshwari Devi & Others v. Nirmala Devi & Others. The courts have over several past matters have passed ex parte orders controversies in a very indiscriminate way, especially in the IPR matters, and this decision providing the guidelines has come as a respite to the parties. In this matter Hon’ble Supreme Court have given valuable steps to the trial courts and the counsels appearing for the respective parties for prevailing a well and proper system of adjudication before civil courts in India. The main issue taken up by the Hon’ble Supreme Court is that parties with the wrong advice of their counsels should not be benefited by filing frivolous and bogus applications to find a route to prolong the litigation.

This bulletin briefly discusses the factual matrix of the case, the issues before the court and the guidelines laid down by the court for the grant of ex parte orders.

1.0 Factual Matrix

The present dispute involved a 40 year old disputed property. Appellants filed partition suit claiming the suit property as a joint Hindu family property. Property was originally allotted to the respondents by Government of India and separate suit was filed by Respondent in the year 1992 for permanent injunction. Appellants/Defendants filed frivolous and bogus applications before various courts to stall the trial of the suit. After several rounds of litigation Hon’ble High Court, Delhi denies the appellants in their favor and imposed cost on them and subsequently review petition filed by them was also dismissed. Present appeal before the Apex Court is against the order of the Hon’ble High Court, Delhi.

2.0 Discussion

Taking into consideration with regard to the seriousness of the matter, the Hon’ble Supreme Court have stated that the courts in India while granting interim ex-parte injunctions have to take an undertaking from the petitioner or should pass an conditional order directing the petitioner to pay profits at the market rate and heavy costs in the event of not complying with the orders of the respective court granting injunction to the petitioner. The Hon’ble Supreme Court in Para 43 of the judgment have given much importance regarding framing of issues stating that “Framing of issues is a very important stage in the civil litigation and it is the bounden duty of the court that due care, caution, diligence and attention must be bestowed by the learned Presiding Judge while framing of issues.”

In the present case, the entire question of title has been determined by the Hon’ble High Court and the special leave petition against that judgment has been dismissed by the

Hon’ble Supreme Court, thereafter the trial court ought not to have framed such an issue on a point which has been finally determined by Hon’ble Supreme Court. The action of the trial court is merely total non-application of mind.

For granting ex-parte injunction the Hon’ble Supreme Court in Para 46 and 47 of the Judgment, has given certain guidelines to the Lower Courts to follow, for effective justice which are “The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders………………………………… Therefore, as a rule, the court should grant

interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits. If an exparte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court”

3.0 Decision

The Hon’ble Supreme Court stated that the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials:

  1. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
  • The court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.
  • Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.
  • The court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.
  • The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed.
  • Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.
  • The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.
  • Every case emanates from a human or a commercial problem and the court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice.
  • If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.
  1. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed.”

Supreme Court further said that while imposing costs on the wrong doers, the nature of the case and also the duration of the litigation that both the petitioner and the respondent have gone through, have to be considered seriously by the Courts granting interim ex-parte injunction. In the present case, Hon’ble Supreme Court has rightly come to a conclusion that the appellants have dragged the respondents for almost 40 years by filing applications over application and never allowed the trial court to proceed with the trial and have clearly pointed out that the Appellants were never interested in settling the matter but only to harass the respondent and the cost of Rs.2 Lakhs imposed on the appellants is absolutely justified.

Conclusion

These aforementioned steps may help the courts to drastically improve the existing system of administration of civil litigation in our courts. No doubt, it would take some time for the courts, litigants and the advocates to follow the aforesaid steps, but once it is observed across the country, then prevailing system of adjudication of civil courts is bound to improve.

Authored by: S. Aravindan

Archives

 

DISCLAIMER

The Bar Council of India restricts advocates from maintaining a website as a source of advertising. This site contains general information for informative purposes only. The reader should not consider / construe information on this site to be an invitation for any attorney-client relationship.