Code of Civil Procedure, 1908 (CPC)
Abuse of the Process of Court under the CPC
The machinery of a civil court is powerful: it compels attendance, freezes property, restrains conduct and takes possession. That power is given for the resolution of genuine disputes, and it can be turned to other ends. Abuse of the process of court is the use of that machinery for a purpose it was not given for, and the Code of Civil Procedure, 1908 answers it in two ways: by specific provisions directed at particular abuses, and by the inherent power in Section 151, which names the prevention of abuse as one of its two express purposes. These notes cover the forms it takes and the answers available.
The recurring forms of abuse, and the provision that answers each
1. What Abuse of Process Means
§ The idea Abuse of process is the employment of the court's own procedure for an improper purpose or in an improper manner: to harass, to delay, to extract a settlement by pressure, to obtain an advantage the substantive law would not give. It is not the same as a weak case. A party may lose, and lose badly, without having abused the process. Abuse concerns the purpose and manner of using the machinery, not the merits of the claim. It is not the same as fraud, though the two overlap. Fraud deceives the court about the material; abuse misuses the process the court offers. Misleading the court is both. Section 151 names it expressly. The inherent power exists for orders necessary for the ends of justice or to prevent abuse of the process of the Court, and the second purpose is as much part of the section as the first. |
2. The Recurring Forms, and the Answers
The form it takes | The Code's answer |
|---|---|
Splitting a claim, or keeping a plea in reserve for a second suit | Order II Rule 2 bars an omitted claim or relief; Explanation IV to Section 11 bars a ground that might and ought to have been raised |
Two proceedings on the same matter, or filing where a favourable result is thought likelier | Section 10 stays the later suit; Section 11 bars a second contest; Sections 22 to 25 provide for transfer |
A claim or defence known to be false, or raised to harass | Section 35A awards compensatory costs, and Section 35 read with Salem Advocate Bar Association (II) calls for realistic costs |
Delay as a tactic: adjournments sought, steps left undone | Section 35B makes payment of the costs of the day a condition precedent; Order XVII caps adjournments; Order XV-A imposes a timetable in commercial suits |
Obtaining an interim order on insufficient grounds, to gain leverage | Section 95 awards compensation up to fifty thousand rupees; Order XXXIX Rule 4 requires an injunction obtained on a false or misleading statement to be vacated |
Suppressing a material fact or obtaining an order behind a party's back | Recall under Section 151, and the principle that fraud on the court vitiates the order |
Repeated applications on the same point, or applications made only to delay | The court's control of its own file, costs, and in a clear case an order under Section 151 |
A suit filed to pressure rather than to obtain relief | Rejection under Order VII Rule 11(a) where no cause of action is disclosed, read with T. Arivandandam on a vexatious plaint |
3. The Court's Own Protection: Section 151
§ How the inherent power is used against abuse Four recognised situations: • Recall of an order obtained by suppression or without notice, where the party who obtained it should not be allowed to keep the benefit. • Stay or consolidation where a party has commenced proceedings in a way designed to multiply the contest, and no specific provision covers the situation. • Striking out a proceeding or an application that is manifestly an abuse, where the Code provides no express power, though this is exercised with great caution. • Refusing to entertain a repeated application on a point already decided in the same proceeding, applying the principle of constructive res judicata within the proceeding. |
§ The limit that always applies Where the Code has provided a specific answer, that provision governs. The inherent power is supplementary. A party who seeks costs for a false claim must go to Section 35A; a party complaining of delay must invoke Section 35B; a party aggrieved by an injunction wrongly obtained has Section 95 and Order XXXIX Rule 4. Section 151 is the residuary answer, for the abuse the Code did not foresee. And it is exercised sparingly. Labelling an opponent's conduct an abuse is easy; establishing it is not, and the power is not used to shut out a party who has merely litigated unsuccessfully or persistently. |
4. The Line Between Firm Litigation and Abuse
Conduct | Abuse? | Why |
|---|---|---|
Pursuing a claim that ultimately fails | No | Losing is not abusing; the court exists to decide contested claims |
Raising several alternative pleas, some inconsistent with others | No | Order VI permits pleading in the alternative; inconsistency in pleading is not misuse |
Seeking an adjournment for a genuine reason | No | Order XVII contemplates adjournments on sufficient cause, subject to costs |
Filing a second suit on a claim deliberately omitted from the first | Yes | Order II Rule 2 and the policy against litigation in instalments |
Obtaining an ex parte injunction while concealing that an earlier identical application was dismissed | Yes | It is both an abuse and fraud on the court |
Seeking adjournments repeatedly with no intention of proceeding | Yes | Section 35B and Order XVII are directed at exactly this |
5. Landmark Points
- Section 151. The inherent power exists for the ends of justice or to prevent abuse of the process of the Court, the second being an express purpose.
- Order II Rule 2 and Explanation IV to Section 11. The Code's answer to litigation conducted in instalments.
- Sections 35A and 35B. Compensatory costs for a false or vexatious claim, and costs of the day for delay, payment of which is a condition precedent to further prosecution.
- Section 95 and Order XXXIX Rule 4. Compensation for an interim order obtained on insufficient grounds, and mandatory vacation of an injunction obtained on a false or misleading statement.
- T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467. A plaint that is a sham and discloses no clear right to sue must be nipped in the bud under Order VII Rule 11.
- The limit. Where a specific provision answers the abuse, it governs; Section 151 is the residuary power and is exercised sparingly.
6. Frequently Asked Questions
What is abuse of the process of court?
The use of the court's procedure for a purpose it was not given for, or in an improper manner: to harass, to delay, to extract a settlement by pressure, or to obtain an advantage the substantive law would not give.
Is losing a case an abuse of process?
No. A party may lose, and lose badly, without abusing the process. Abuse concerns the purpose and manner in which the machinery is used, not the strength of the claim.
How does the Code deal with abuse?
In two ways. Specific provisions address particular abuses: Order II Rule 2 and Explanation IV to Section 11 on splitting a dispute, Sections 35A and 35B on false claims and delay, Section 95 and Order XXXIX Rule 4 on interim orders wrongly obtained. And Section 151 supplies the residuary answer.
What does Section 151 add?
It names the prevention of abuse of the process of the court as one of the two express purposes of the inherent power, so the court may make such orders as are necessary to protect its own machinery where the Code provides no specific answer.
Can the court act against abuse where a specific provision exists?
It applies the specific provision. The inherent power is supplementary and is not used to give relief on terms different from those the Code has fixed. Section 151 is for the abuse the Code did not foresee.
What is the difference between abuse of process and fraud on the court?
Fraud deceives the court about the material before it; abuse misuses the process the court offers. They overlap, and conduct such as obtaining an order by concealing a material fact is both.
7. Related Topics in This CPC Series
- Section 151: Inherent Powers of the Court
- Fraud Vitiates Judicial Proceedings
- Costs under Sections 35, 35A, 35B and Order XX-A
- Order II: Frame of Suit and the Bar under Order II Rule 2