*1* appln.3397.03.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3397 OF 2003 Mr.Goolam E. Vahanvati, ) Advocate General for ) the State of Maharashtra, ) having his office at Annexe Bldg., ) High Court, Mumbai-400032. ) ..Petitioner -Versus- Mr.Anil Gulabrai Gidwani, ) Age about 43 years, ) Indian Inhabitant, ) R/a. Ganga Bhavan, ) 24th Road, Plot 459, Flat No.10, ) T.P.S.III, Bandra (W), ) Mumbai-400050. ) ..Respondent ........... Mr.H.J.Dedhia, Additional Public Prosecutor, for the Petitioner. The Respondent appears in person. .......... CORAM : B.H.MARLAPALLE & A.M.THIPSAY, JJ. Reserved on : 25th March, 2011. Pronounced on : 06th May, 2011. JUDGMENT (Per A.M.Thipsay, J): 1 This is a petition filed by the Advocate General for the State of Maharashtra under Section 2(1) of the Maharashtra Vexatious Litigation (Prevention) Act, 1971, praying that the Respondent be *2* appln.3397.03.sxw declared as a vexatious litigant and that he be restrained by an order of this Court from initiating any fresh proceedings against one Smt.Shanta Mhatre (mentioned as “the victim lady” in the petition) and from initiating any further application in any pending matters, without seeking prior permission of this Court. 2 This petition is based on the information received by the Petitioner from the said Smt.Shanta Mhatre (hereinafter referred to as “the victim lady”) that the victim lady is being continuously harassed by the Respondent who is habitually and without any reasonable ground, instituting various vexatious proceedings, civil as well as criminal, against her. The petition in paragraph No.1 itself gives the details of the proceedings initiated by the Respondent against the victim lady. The petition states -- on the basis of the information received by the Petitioner from the victim lady -- that the Respondent has been in the habit of using filthy language, making false, baseless and serious allegations against the Judges of the Small Causes Court, Mumbai where an ejectment suit filed by the Respondent against the victim lady is pending. The Respondent is the landlord and the victim lady is his tenant. It is also stated in the petition that in the pending suit between the parties, the Respondent has been continuously filing the applications after applications and has, in the course of argument levelled false, baseless and frivolous allegations against the victim lady using most abusive language against her. The Respondent has not only threatened *3* appln.3397.03.sxw the Judges of the Small Causes Court, Mumbai but has also cast aspersions on the judiciary by making certain statements before the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra about “inefficiency of the judicial system” and “leniency shown by the Magistrate towards criminals”. It is also stated that inspite of specific warning given by the learned Magistrate, the Respondent continued to make unwarranted statements and therefore, the Magistrate was required to warn him in open Court and by passing an order on 16.01.2003. The petition also states that the victim lady, who is an Advocate, was constrained to give up her practice, having been required to attend the various civil as well as criminal matters filed by the Respondent and due to unnecessary litigations filed against her by the Respondent. The petition also states, that with object of causing undue harassment and humiliating the victim lady, the Respondent has been referring to the victim lady by her earlier name which the victim lady has got changed. The Respondent also filed a false complaint against the victim lady with the Bar Council, which was dismissed. The Respondent has been filing the proceedings against the victim lady with malicious intention and that the applications which he files are false and frivolous. The petition also gives certain details of the proceedings between the Respondent and the victim lady. The petition gives several instances of misbehaviour of the Respondent with the victim lady and consequent harassment caused by the Respondent to the victim lady. After giving these details, the petition states that the Respondent has habitually and *4* appln.3397.03.sxw without any reasonable ground instituted the vexatious proceedings, civil and criminal, in the Small Causes Court, the City Civil Court and Criminal Courts. 3 The petition has been opposed by the Respondent by filing a written reply. The Respondent has denied that he is, habitually and without any reasonable ground, initiating various vexatious proceedings against the victim lady. While denying the averments in the petition to the effect that the Respondent has cast aspersions on the judiciary, the Respondent has stated that “judiciary is perceived as inefficient by most citizens in India” and that “pointing this out is not casting aspersion”; and the Respondent has claimed that the same would be fair and valid criticism which has been allowed under the Constitution of India. The Respondent has undertaken to stand by and prove his statement. The Respondent has denied the allegations levelled against him and has advanced his own version with respect to alleged incidents or happenings. Ultimately, the Respondent submits that none of the proceedings initiated against the victim lady are false. According to him, seeking a legal remedy to counter the continuous violations of the provisions of the Rent Act and the terms and conditions of the tenancy agreement on the part of the victim lady, is a valuable right vested in the Respondent by the Constitution of India and cannot be lightly taken away. The Respondent, thus, prays for dismissal of the petition. *5* appln.3397.03.sxw 4 We have heard Mr.H.J.Dedhia, the learned Additional Public Prosecutor appearing for the State in support of the petition. We also permitted the victim lady to make oral submissions before us. We have heard the Respondent who appears in person. 5 The Maharashtra Vexatious Litigation (Prevention) Act, 1971 (hereinafter referred to as the Act) has been enacted to prevent the institution or continuance of the vexatious proceedings in courts. Section 2(1) of the Act reads thus:- “2. (1) If, on an application made by the Advocate General, the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or Courts, whether against the same person or against different persons, the High Court may, after hearing that person or giving him an opportunity of being heard, order that no proceedings, civil or criminal, shall be instituted by him in any Court (and that any legal proceedings instituted by him in any Court before the order shall not be continued by him),-- (a) In Greater Bombay, without the leave of the High Court; and (b) elsewhere in the State, without the leave of the District and Sessions Judge. At the hearing of any such application, the Advocate General may appear through a pleader.” 6 Section 3 of the Act provides that any proceeding instituted or continued in any Court by a person against whom an order under sub- section (1) of Section 2 has been made without obtaining the leave referred to in that section, shall be dismissed by the Court. Section 4 *6* appln.3397.03.sxw thereof saves the applicability of the provisions of any other law for prevention of the vexatious proceedings or other abuse of legal process or necessity of consent, sanction or approval in any form of any other authority for institution or continuance of any proceeding, and makes it clear that the provisions of the Act shall be in addition to and not in derogation of the provisions of such other law. 7 It is clear that an order under sub-section (1) of Section 2 of the Act can be passed by the High Court if it is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any Court or Courts. Thus, what must be established before an order under sub-section (1) of Section 2 of the Act is passed is that (a) a person has instituted the vexatious proceedings in the Court or Courts and (b) that such person has instituted such proceedings (i) habitually and (ii) without any reasonable ground. The Act, however, does not define the term “vexatious” or “vexatious proceedings”. 8 In common parlance, “To vex” means anger by a slight or a petty annoyance; irritate. “Vexation” means the 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 therefor and seeking only to annoy *7* appln.3397.03.sxw the adversary. 9 The Advanced Law Lexicon, 3rd Edition Reprint 2007, defines the term “Vexation” as under:- “The action of troubling or harassing by aggression or interference; the action of troubling or irritating by physical means.” “Vexatious” has been defined as causing or likely to cause vexation. The “vexatious action” or “vexatious proceedings” has been defined as under:- “An action brought for the purpose of annoying the opponent and with no reasonable prospect of success.” 10 Black’s Law Dictionary, Eighth Edition, defines the words “vex”, “vexation”, “vexatious”, “vexatious litigant” and “vexatious proceeding” as under:- (a) Vex :- to harass, disquiet, or annoy. (b) Vexation :- The damage that is suffered as a result of another’s trickery or malice. (c) Vexatious :- (Of conduct) without reasonable or probable cause or excuse; harassing; annoying. (d) Vexatious litigant :- A litigant who repeatedly files frivolous lawsuits. (e) Vexatious proceeding :- A lawsuit instituted maliciously and without good cause. 11 We have carefully gone through the petition to ascertain the *8* appln.3397.03.sxw number, details and other particulars of the proceedings which have been initiated by the Respondent. These details are found in Part-A of the petition which speaks of “brief background” and also in Part-B of the petition which has been classified as “facts of the case”. Now, in Part-A, there is mention of criminal case No.608/S/2001 filed by the Respondent against the victim lady and her husband. It is also stated that prior to the filing of the said case, the Respondent had also filed several complaints against the victim lady, the details of which are as follows:- 1) N.C. Complaint at the Nirmal Nagar Police Station, Bandra (East) being N.C. Complaint No.4831/2000, filed on 20.11.2000. 2) Complaint filed against the victim lady at the Khar Police Station, Mumbai dated 15.11.2000. 3) Complaint dated 21.09.2000 filed at Khar Police Station, Mumbai. 4) Complaint filed against the victim lady at Khar Police Station, Mumbai dated 24.04.2000. 5) Complaint filed against the victim lady at Khar Police Station, Mumbai dated 30.07.1999. 6) Complaint filed with the Commissioner of Police regarding criminal intimidation dated 08.01.2001. 7) Criminal Appeal No.300/2000 filed by the Respondent against the order passed by the Special Executive *9* appln.3397.03.sxw Magistrate, Bandra, West Division, Mumbai. 8) Criminal Complaint No.610/S/2002 filed by the Respondent against the victim lady under Sections 506, 504, 352, 268, 447, 107, 427 r/w 34 of the Indian Penal Code. 12 Now, in our opinion, the complaints mentioned at Sr.No.1 to 6 above would not come within the purview of the Act. It is clear that the Act seeks to prevent the institution or continuance of the vexatious proceedings in Courts. Section 2 of the Act also refers to the institution of the vexatious proceedings in any Court or Courts. Thus, the complaints made to the various Police authorities cannot be termed as “vexatious proceedings” within the meaning of the Act. 13 The matter at Sr.No.7 above, namely, Criminal Appeal No. 300/2000, cannot be termed as “vexatious proceedings” inasmuch as the Respondent had filed the same for challenging the order passed by the Special Executive Magistrate requiring the Respondent to execute a bond for good behaviour. The Respondent had a right to challenge the said order by approaching the higher court. The proceedings instituted by the Respondent for challenging an adverse order passed against him, can, by no stretch of imagination, be considered as “vexatious proceedings”. It is also significant that the Respondent succeeded in the said appeal and the Court of Sessions set aside the order passed by the Special *10* appln.3397.03.sxw Executive Magistrate. 14 So far as the Criminal Complaint No.610/S/2002 appearing at Sr.No.8 above is concerned, the same indeed requires to be taken into consideration for deciding whether the Respondent has habitually and without any reasonable ground instituted the vexatious proceedings. The petition, however, instead of highlighting as to how the said complaint is either false, frivolous or vexatious, deals more with the conduct of the Respondent in the course of hearing of the complaint. It is stated that the Respondent is in the habit of using filthy language and making false, baseless and serious allegations against the Judges of the Small Causes Court. It is stated that the Respondent also levelled false, baseless and frivolous allegations against the victim lady and used most abusive language against her. It is stated that the Respondent has cast aspersions on the judiciary by making serious statements before the learned Additional Chief Metropolitan Magistrate, Bandra. It is also mentioned that the Respondent was warned by the learned Magistrate, thrice, orally, and thereafter, by passing an order; and that while the order was being dictated the Respondent submitted an apology. Indeed, it appears from the order dated 16.03.2003 passed by the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra that the Respondent had behaved in an improper manner in the Court and had started arguing about inefficiency of the judicial system. It may be observed, at this stage, that the Respondent seems to be in the habit of speaking about the *11* appln.3397.03.sxw inefficiency of the judicial system, inasmuch as, not only he has made remarks about inefficiency of the judicial system in his reply to the petition, but the record shows that in the course of hearing of this petition itself, he has attempted to teach the Hon’ble Judges of this Court as to how they are supposed to do their job. 15 The Petition also refers to the order dated 07.01.2003 passed by the Court of Small Causes, Mumbai in Interim Notice No. 7/2003 in RAE Suit No.3000/838/1994. The Respondent is the Plaintiff No.2(d) in the said suit and the victim lady is the Defendant. Copy of the order, which has been annexed to the petition at Exhibit-D, indicates that the Court of Small Causes ordered to strike out certain portion contained in the Respondent’s affidavit in reply dated 13.12.2002, under the provisions of Order-VI Rule-16 of the Code of Civil Procedure. Thus, this prima facie indicates that the Respondent had resorted to scandalous and unnecessary averments in his affidavit in reply. 16 The petition then refers to a complaint filed by the Respondent against the victim lady with the Bar Council. In our opinion, the Bar Council cannot be termed as a “Court” and therefore, the proceedings filed by the Respondent against the victim lady with the Bar Council would be outside the purview of the Act and therefore, cannot be taken into consideration. Undoubtedly, the conduct of the Respondent insofar as it appears from the filing of the said proceedings may be taken *12* appln.3397.03.sxw into consideration while deciding the propriety of treating him as a vexatious litigant, but this complaint made by him to the Bar Council cannot be added to the list for showing the number of alleged vexatious proceedings initiated by him. 17 The petition then refers to the threatening language used by the Respondent to the Judge of the Court of Small Causes. An incident which has taken place in Revision Application No.16/2002 pending in the Court of Small Causes has been cited and a copy of the order passed by the Court of Small Causes has been annexed to the petition as Exhibit-F. It is not clear, as to what is sought to be conveyed by referring to the said order except that the Respondent threatened or used improper language while addressing the learned Judge of the Small Causes Court. 18 Now, coming to the details given in part-B of the petition classified as “facts of the case”, there is reference of the suit bearing RAE No.537/4434/63, but this suit has, admittedly, not been filed by the Respondent and apparently the same has been filed by the grandfather of the Respondent. Reference to an order dated 03.05.2003 passed by the Court of Small Causes has been made and a copy of the said order has been annexed to the petition as Exhibit-H. A perusal of Exhibit-H shows that it is an order passed in RAE Suit No.300/838/1994 in which the Respondent is one of the Plaintiffs and the victim lady is the *13* appln.3397.03.sxw Defendant. By the said order, the suit filed by the Plaintiffs was dismissed. It is clear from the averments in the petition itself that the legal proceedings are pending between the parties since the year 1963. The petition itself states, that the victim lady had been suffering at the hands of the grandfather of the Respondent since 1961 and thereafter, at the hands of the father of the Respondent, who both were landlords of the victim lady. It is only subsequently that the Respondent has come on record as one of the landlord. 19 The petition then states that the Respondent has been initiating the legal proceedings by filing unnecessary, false and frivolous litigation and that he makes various applications in the legal proceedings and does not even spare the judicial officers etc.. In our opinion, if the Respondent has stepped in the shoes of his grandfather and father in his capacity as the landlord, and is continuing the suits filed by them, it cannot be said that the Respondent has initiated or instituted those suits. The petition then proposes to give history of the suit bearing RAE No. 537/4434/63 filed by the grandfather of the Respondent, and it is clear therefrom, that the Respondent came in picture in the year 1998 only. It seems that he was earlier in U.S.A. and after coming down from there, he started taking interest in the litigation which was already pending between the landlords and the victim lady. 20 The petition then narrates the instances of objectionable *14* appln.3397.03.sxw conduct of the Respondent such as filing the complaint with the Bar Council, sitting right under the window of the victim lady’s house from morning to evening and making her uncomfortable by peeping inside the house, etc.. It is alleged that the Respondent, on the pretext of reading books and doing meditation, continues to sit near the window of the victim lady reading law books and passing unwanted remarks stating that he will become a better lawyer by reading law books and will teach the victim lady a lesson. The Respondent is also alleged to have killed the kitten to whom the victim lady regularly used to feed. He is also alleged to have called three men to remove coconuts from the coconut tree and in the process broke number of flower pots belonging to the victim lady and destroyed the garden maintained by her. The victim lady also suspects that the attempt of robbery, that was committed on 04.01.2000 at the flat of the victim lady, was at the instance of the Respondent. 21 An incident dated 20.01.2000 is also quoted in the petition. The Respondent, when he attended the office of the Advocate for the victim lady, fought with the said Advocate and embarrassed him in front of his other clients, due to which, the Advocate refused to represent the victim lady who was, therefore, constrained to engage another Advocate, putting her to unnecessary harassment, financial burden and mental agony. In our opinion, the objectionable conduct of the Respondent, as alleged, and the harassment caused by him to the victim lady, by various *15* appln.3397.03.sxw methods as referred to above, is not relevant in the context of the provisions of the Act. The Act intends to prevent only the harassment as would be caused by instituting vexatious proceedings, and not other forms of harassment, for which appropriate legal action can be taken by the aggrieved person. 22 The petition then refers to a suit bearing L.C. Suit No. 157/2001 filed by the victim lady against the Municipal Corporation of Greater Bombay and others challenging the notice under Section 53(1) of the M.R.T.P. Act issued by the Municipal Corporation to the victim lady. Apparently, the Respondent who was the Defendant No.3 in the said suit had taken out the Notice of Motion No.3785/2001 praying for various reliefs including that certain copies of the affidavits filed in the same proceedings be made available to him, that the criminal complaint should be lodged against the Plaintiff i.e. victim lady, that the criminal complaints be also lodged against the persons named as Respondents in the said motion, etc.. The said Notice of Motion was dismissed as not tenable and it was observed by the learned Judge, City Civil Court, Mumbai that the Respondent had moved the Notice of Motion to pressurize the Plaintiff i.e. victim lady for ulterior motive. The learned Judge also observed that the Respondent wanted to harass the victim lady by hook or crook by filing such frivolous motion. The petition also states that the Respondent had filed a perjury application against the victim lady in L.C. Suit No.157/2001 in the City Civil Court and the *16* appln.3397.03.sxw learned Judge who dealt with the matter observed that the application had been filed with a view to harass the victim lady and other persons. 23 The petition then states, that on every date in the matter in the Small Causes Court, the Respondent misbehaved with the victim lady by instructing the Court clerk to call the victim lady by previous name i.e. Shanta Wadhva instead of calling her by changed name i.e. Shanta Mhatre, that he insists on keeping back the matter etc. with a view to cause harassment to the Court as well as the victim lady. There is a reference to the applications filed by the Respondent in the Court of Small Causes praying the action for contempt should be taken against the victim lady, which applications were dismissed by the Court. 24 The petition then refers to the Criminal Case No.608/2001 filed by the Respondent against the victim lady and her husband under the provisions of the Maharashtra (Urban Areas) Preservation of Trees Act, 1975 (wrongly referred as the Urban Land Development of Trees Act, 1975 in the petition) and Section 435 r/w 34 of the Indian Penal Code. The petition then refers to the Criminal Case No.610/2001 filed by the Respondent against the victim lady for the offences punishable under Sections 352, 268, 425 r/w 34 of the Indian Penal Code. 25 Lastly, the petition purports to give the list of all cases filed by the Respondent against the victim lady pending in various Court as *17* appln.3397.03.sxw Exhibit M to the petition. However, Exhibit-M to the petition consists of some other documents, though a list of such cases is found annexed to the petition, perhaps, as a part of Exhibit-M. Only four matters are mentioned in the said list which are as follows:- (1) Criminal Complaint No.608/S/2001 filed in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra under Section 8 r/w 21(1) of the Maharashtra (Urban Areas) Preservation of Trees Act, 1975 and Section 435 r/w 34 of the Indian Penal Code. (2) Criminal Complaint No.610/S/2002 filed in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra under Sections 506, 504, 353, 268, 447, 107, 427 r/w 34 of the Indian Penal Code. (3) R.A.E. Suit No.300/838/1994 filed in the Court of Small Causes Court, Bandra. (4) Chamber Summons No.307/2003 for restoration of L.C. Suit No.2146/2001, in the City Civil Court. 26 It can be seen that R.A.E. Suit No.300/838/1994 mentioned at Sr.No.3 above, had not been filed by the Respondent alone and the same was dismissed on 03.05.2003. Apparently, the same has been restored. Who has taken out the Chamber Summons No.307/2003 mentioned at Sr.No.4 above, is not