The Supreme Court of India in a recent judgment, Ramrameshwari Devi & Ors. vs Nirmala Devi & Ors. has laid down guidelines for the grant of ex parte orders. We have earlier blogged about the indiscriminate nature in which courts have passed ex parte orders particularly in relation to the IPRS and PPL controversies. These can be viewed here and here and a little while earlier with respect to patent infringement cases as well. These can be here ,here and here.
The present dispute involved a 40 year old disputed property; the Appellants had continuously filed frivolous appeals before the courts even after the matter had been decided. Justice Dalveer Bhandari the presiding judge laid down the following guidelines which the courts should adopt in preventing such litigation and also cautioning courts on the grant of indiscriminate ex parte orders:
- The Presiding Judge must exercise due care, caution, diligence and attention while framing the issues for the suit so as not to include issues already decided by other courts in violation of the principle of res judicata.
- The trial judge must carefully scrutinize, check and verify the pleadings and the documents filed by the parties.
- The court should order discovery and production of the documents at the earliest so as to focus on the main controversies of the case and arriving at the truth of the matter.
- Courts should impose realistic costs on parties who engage in frivolous litigation. In our present system, courts do not impose penalties on the parties who prolong the suit. Thus unscrupulous parties are incentivised to carry out a cost-benefit analysis between the likelihood of tiring the other party into settlement and prolonging the case to such an extent that the other party suffers. In the present case, the court imposed Rs. 2 lakhs as costs on the Appellants for unnecessarily prolonging the dispute.
- Courts have to be very careful in imposing ex parte orders. If an injunction has been granted on the basis of false pleadings or forged documents (which is very often the case in India) courts must impose costs on the litigants.
- Courts should give short notice to the Defendants and hear both parties before passing ex parte interim orders since the experience has been that once granted these orders cause havoc and getting them modified is next to impossible.
- In an exceptional case where the court has to grant an ex-parte injunction it must record in the order that if the suit is dismissed the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.
- If ex parte order is granted then all endeavours should be made to dispose the application for injunction as expeditiously as possible, preferably as soon as the defendant appears in court or another option available is, to limit the life of the ex parte order for a week so as to prevent any incentive of prolonging the matter on the plaintiff’s part.
These are positive guidelines being issued by the Supreme Court of India and hopefully we shall see more discretion being exercised in granting ex parte orders and interim injunctions by the lower courts in the coming days.
We would like to thank Mr. Devanshu Jain for referring us to this judgment.