Justice Anand Venkatesh’ Exemplary Verdict as a Vaccine to Pendency Pandemic Narasimhan Vijayaraghavan

Justice Anand Venkatesh’ Exemplary Verdict as a Vaccine to Pendency Pandemic
Narasimhan Vijayaraghavan

Justice Anand Venkatesh in his mercurial style has invented or discovered a Vaccine, with no boosters required, for the Pendency Pandemic. Has he? Or scores being even, would the parties swallow pride and let bygones be bygones. We may need to wait and see.

Or his very order dt.15.02.2022 in Ramaniyam Estates Pvt Ltd v. Spencers Retail Ltd may itself, be escalated in appeals, by both sides, adding to the existing backlog. An ironical twist and fallout, which captures the Dickensian ‘Law is an Ass’ aphorism.

Nevertheless,the verdict from the learned judge imposing exemplary costs equivalent to the counter claim itself and then setting it off in lieu of the suit costs, has come not a day too soon.

“ 55. In view of the above discussion, this Court is inclined to impose exemplary cost on the defendant for the unwarranted litigation/avoidable litigation, equivalent to the amount claimed by them as counter claim. In other words, the counter claim that was ordered in favour of the defendant is entirely set off from the cost imposed on the defendant and payable to the plaintiff. This issue is answered accordingly.

56.In the result, the suit filed by the plaintiff is dismissed. However, considering
the facts and circumstances of the case, there shall be no order as to costs. Insofar as
the counter claim made by the defendant is concerned, the same is allowed and it is set
off entirely from the exemplary cost awarded against the defendant and payable to the plaintiff. “

Trust, we the practitioners learn as well as the litigant with whom the buck stops. Without alluding to the merits of the cause deserving of such a shattering verdict, let us deal with the fall out.

Pendency is a huge Pandemic. While, this is New and Novel it is Long Overdue. Frivolous and Vexatious suits get filed. And lawyers innovate with counter claims too. What do you think we are not capable of ? The court is burdened with twin blasts and valuable Judicial time is lost. ‘ And it is lost forever’ as Albert Einstein put it.

Justice S A Kader once said, “ The difference between litigation in the East and West is the prohibitive costs of facing a loss. Here, we can sue for a million. Yet not suffer the consequences of even a penny . Time lost? Who cares? Eternity is our credo. No wonder, we are a litigious nation, for lawyers to thrive, not litigants to seek Justice”.

One has always been reminded about this. If anything, the position has been exacerbated multiple times, with thousand upon thousands of lawyers being enrolled on a weekly basis Pan India. “ And each one has to be fed and he/she feed his/her family too”, as Nani Palkhivala bemoaned the numbers we had.

In the West, pendency is not so huge. We boast of it with 4 crore plus cases waiting to be heard across all hierarchies. One of the primary reasons as Justice V R Krishna Iyer is , “The cost of litigation. Not the court or practitioner’s fees paid or payable, but there is no cost for the lost litigation or litigant . Futile and puerile causes, just to settle scores get escalated to courts and ‘suits and counter blasts’ are in the legal lexicon, not for nothing. Unless we catch the bull by the horn and impose exemplary costs on the wayfarers, we may never deal with this disease eating into the vitals of our administration of justice”.

“ Lawyers need to be told. Of hard lessons. And continuously reminded of their failings, for they are too sensitive to admit”, said my favourite Justice Antonin Scalia. And ‘told how’ ? By such exemplary costs.

But this is strange and curious. Party wrapped not on the wrist but bang on the knuckles. It would hurt? We may not know for sure until ‘they’ exhaust the appeal remedies.

In the west, litigation is not pursued easily. It would be prohibitively expensive on the party losing. Huge costs would be imposed for using ‘valuable judicial time’. In fact, that is why settlements take place all the time, to avoid the ‘cost of failing’. Here, we rarely worry over losing. It costs little or nothing, to be honest.

In fact, we at times file ‘lost causes’ knowing fully well that it was ‘intended’ to needle the other side. And mere pendency can be a huge irritant. And the longer it drags on, the impacted suffers more and more prejudice, the merrier it is, with no costs. Courts are infested with litigation of this genre and it takes time to hear them all.

The viral impact of Justice Anand Venkatesh’ order would be beneficial not harmful ‘if lessons are well learnt by the Bar’ as Lord Denning put it in a different context. Without passing value judgment on the individual litigants or their attorneys, in this pronouncement , it must have been one helluva cause for the learned judge to come down like a tonne of bricks like this. The order is akin to “ Plague on you both” as Justice Louise Brandeis, People’s Judge said once before The SCOTUS.

The Bar may seem stunned with the sledgehammer approach of the learned judge rather than use a surgeon’s scalpel. But there is a time and place for such things too. It must have been welling up in the learned Judge. The gall and gumption on display and the innocuous costs faced. He has come down quite heavily. It holds up a tarnished mirror to the Bar and society . The Mirror is not tarnished. You get it ?

We owe it to We the People to invigorate the faith in Judiciary as an healthy institution to embrace for succour, relief, remedy and Justice. Not just to LITIGATE.

( Author is practising advocate in the Madras High Court)