JUDGMENT 1. - This revision petition has been preferred to this Court against the Order dated 14.9.1993 (Annexure-6) passed by the learned Chief Judicial Magistrate-cum-Civil Judge, Bharatpur, whereby the said court had dismissed petitioner's/defendant's application under Order 7 Rule 1.1 read with Sections to & 151 of the CPC. 2. The girevance of the petitioner as unfolded by this revision petition in short is that the non- petitioners/plaintiffs filed a Civil Suit in the court of Civil Judge, Bharatpur against petitioner-defendant for payment of damages to the tune of Rs. 45,000/- for the alleged defence of having published defamatory material against them, which culminated in filing of the said suit by the plaintiffs. 3. On 27.00.1992 one Mahesh Chandar, S/o Shiv Charan R/o Kirawali, District Agra, Uttar Pradesh, who is the real brother of non-petitioner Nos. 1 & 3 and son of Non- petitioner No. 2 had sent a registered notice through his counsel to the petitioner-defendant contending inter-alia that the non-petitioners had advanced a sum of Rs. 50,000/- to the petitioner-defendant on the execution of a promissory note, but since the said amount had not been returned within the stipulated period, the defendant was liable to pay that amount to the plaintiff along with interest w 2% per annum and costs failing which legal consequences will follow. This fact has been clarified by notice dated 27.06.1992 vide (Annexure-1) to this petition. 4. The petitioner sent a reply to the aforesaid notice through his counsel by a registered post on 6.07.1.992, wherein it was stated that the amount of Rs. 50,000/- was never advanced to the plaintiffs nor he had executed any promissory note in favour of defendant in this regard and rather the true facts were that the non- petitioner No. 1, Jagdish Prasad and the petitioner were the brother-in-laws and in view of the delicate relationship between the parties, the petitioner trusted the non- petitioners by handing over the ornaments of the approximate value of Rs. 70,000/- to the latter on the ground that they were required for the wife of N.P. No. 1 and for the use of daughter of N.P. No. 3 and soon after the solemnisation of the marriage ceremony, same will be returned to the petitioner within the stipulated period but since they were not returned to the petitioner, he was left with no option but to take the aforesaid plea in reply to the notice served on him by the defendants in reply to the notice served on him by the defendants vide the reply dated 6.7.1992 (Annexure-2). Thereafter having failed to elicit any response from the non-petitioners, the petitioner was left with no option but to file a criminal complaint in the Court of learned A.C.J.M. No. 2, Agra against the non-petitioners Under sections 406/420 IPC and in respect of which this Court has been informed that cognizance has already been taken by the aforesaid Court at Agra against the Non-petitioners vide the Order dated 12.10.1992 (Annexures 3 & 4) respectively. The aforesaid order of the learned A.C.J.M. No. 2 was challenged by the Non-petitioners before the Hon'ble Allahabad High Court, where the matter is sub-judice. 5. Thereafter on 7.12.1992 a suit claiming damages to the tune of Rs. 45,000/- on the pretext of alleged defamation having been committed by the petitioner was filed by the Non-petitioners before the learned Civil Judge, Bharatpur, wherein it was averred on the basis of the reply dated 6.7.1992, which was sent by the petitioner through his counsel to the plaintiff-non-petitioners in response to the notice served on him that there was absolutely no intention on the part of the petitioner to institute legal proceedings against the non-petitioners except to have raised a legitimate demand for return of the gold ornaments, which were handed over to the Non-petitioners on a trust and since the said ornaments were not returned, the -petitioner was left with no option but to file the aforesaid complaint before the learned A.C.J.M. No. 4, Agra. 6. During the course of hearing, Sh. Rastogi, learned counsel for the petitioner has contended at the bar that the defence, which the petitioner has taken is common in both the suits and he is a sole contesting party (defendant) in both the suits. 6. During the course of hearing, Sh. Rastogi, learned counsel for the petitioner has contended at the bar that the defence, which the petitioner has taken is common in both the suits and he is a sole contesting party (defendant) in both the suits. The learned counsel has further contended that the matter directly and substantially in issue in the first suit filed by the Mahendra Shah, brother of Non-petitioner at Agra and is also directly and substantially in issue in the second suit which was filed for recovery of damages, which the petitioner has taken in reply to the notice sent by his counsel as referred to above and on the basis of which the non-petitioners have set-up a plea of defamation against the petitioner in second suit and therefore the proceedings arising out of the 2nd suit at Bharatpur should have stayed. 7. Prima-facie, I am of the considered opinion that it was the bounden duty of the learned Civil Judge at Bharatpur to have stayed the proceedings in Civil Suit No. 85/92 soon after the said Court was informed that the collateral proceedings initiated, by the Mahesh Chandra, close relative of the non-petitioners, which were initiated against the petitioner before the Learned Single Judge at Agra and particularly when the matter directly and substantially in issue in the said suit was also directly and substantially in issue in the proceedings before the learned Civil Judge at Agra, which the learned trial Court failed to take note of notwithstanding the fact that subject matter at issue as well as the defence being common to both the proceedings. 8. 1 am further of the view that the issue with regard to the claim raised by the non-petitioners for recovery of damages against the petitioner on the basis of the publication of the purported defamatory material court only be decided after establishing the ulterior motives of the petitioner with regard to the publication of the alleged defamatory material on. 8. 1 am further of the view that the issue with regard to the claim raised by the non-petitioners for recovery of damages against the petitioner on the basis of the publication of the purported defamatory material court only be decided after establishing the ulterior motives of the petitioner with regard to the publication of the alleged defamatory material on. the basis of evidence to be tendered on the record of Trial Court and no presumption or any inference with regard to the ulterior motives of the petitioner in having published such defamatory material could have been drawn without first determining his culpability to the same and in absence of which the learned Civil Judge at Bharatpur was not even competent to quantify the damages, which have been claimed by the non- petitioner plaintiff in the said suit. The mere exchange of the notice or the reply sent by the learned counsel to the said notice would by itself not tantamount to publication of the defamatory material against the petitioner on the basis of which any culpability or liability to have committed alleged defamation could be arrived at by the trial court and which issue in fact has to be determined only after recording positive evidence to he led by the respective parties to the proceedings since otherwise it would tantamount to pre-judging the material issue against the petitioner. 9. 1 am further of the view that the petitioner's defence would certainly have been prejudiced because he is also the complainant against the non-petitioners in the proceedings arising out of criminal complaint filed against the Non-petitioners under sections 406/420 IPC which are pending before the learned A.C.J.M. at Agra in Criminal Complaint No. 764/92. 10. At this stage for the sake of convenience and ready reference, the provisions of Order-7 Rule 11 read with Section 10 of the Code of Civil Procedure . 10. At this stage for the sake of convenience and ready reference, the provisions of Order-7 Rule 11 read with Section 10 of the Code of Civil Procedure . 1908, may be referred to which read as under:Section 10- No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation : The pendency of a suit in a Foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.ORDER VII Rule 11-The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to he fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plain( is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp- papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. My observations are fortified from the judgments of the Apex Court as well as this Court in the matters of T. Arivandandam v. T.V. Satyapal and another reported in AIR 1977 SC page 2421. My observations are fortified from the judgments of the Apex Court as well as this Court in the matters of T. Arivandandam v. T.V. Satyapal and another reported in AIR 1977 SC page 2421. , B.P. Bhaskar v. B.P. Shiva reported in 1993 Criminal Law Journal page 2685. , P.R. Ramakrishnan v. Subbaramma Sastrigal and another reported in AIR 1988 Cr.L.J. page 124. , Nagar Palika, Nathdwara v. Temple Board, Nathdwara reported in 1981 R.L.W. page 239. 11. In the matter of T. Arivandandam v. T.V. Satyapal and' another (supra) similar controversy had arisen for consideration of the Apex Court in Special Leave Petition arising out of the impugned order of the Karnataka High Court. The Apex Court vide it's observations recorded in para 5 and 7 of the said judgment observed as under: "We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the Court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, CPC an activist judge is the answer to irresponsible law suits." "It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the cooperation of the Bar will be readily forthcoming to the Bench Tor spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of." 12. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the cooperation of the Bar will be readily forthcoming to the Bench Tor spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of." 12. In this case on perusal of the impugned order of the High Court as well as the material on the record, the Apex Court had very significantly deprecated the practice having been resorted to by the non-petitioners for having adopted deliberate tactics, which had resulted in gross abuse of the process of the Court for having initiated the proceedings, which were vexatious and meritless in the sense of not disclosing a clear right to sue since as much as the conditions stipulated in the provisions as envisaged under Order VII Rule 11 of CPC as well as Section 10 CPC should have been fulfilled at the first instance and in absence of which no liability could have been fastened against the party to the suit. 13. The apex court in the matter of T Arivandandam v. T.V. Satyapal (supra) laid down certain material guidelines to be followed by the trial courts by observing as under: 14. "The trial court in this case will remind itself of S. 35-A, CPC and taken deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned." 15. In the matter of B.P. Bhaskar v. B.P. Shiva (supra), the question which had arisen before the Madras High Court was as to what constitutes the offence of defamation within the ambit of Sections 499 & 500 of the Indian Penal Code with regard to the exchange of notices between parties' counsel. It was held by the Madras High Court that there could not have been nay pale of controversy that the so-called scurrilous allegations or imputations contained. in the notice exchanged between the parties can, by no stretch of imagination be construed to be `publication' in the eye of law. 16. It was held by the Madras High Court that there could not have been nay pale of controversy that the so-called scurrilous allegations or imputations contained. in the notice exchanged between the parties can, by no stretch of imagination be construed to be `publication' in the eye of law. 16. This question had also arisen for consideration of the Kerala High Court in the matter of P.R. Ramakrishnan v. Subbaramma Sastrigal and another (supra) wherein the learned Single Judge of the said High Court answered the question by expressing his views in the following manner: "The privilege attached to the professional communications between 'a lawyer and his client is further fortified by providing Section 127 of the Evidence Act as per which the ban against disclosure is extended to clerks and servants of the lawyer. The clerk of a lawyer, in the professional sphere, has to maintain confidence regarding matter conveyed to him, if it relates to communication between the counsel and the client. If a notice, or a letter or even a pleading is dictated to the clerk by a lawyer, it does not, in practical sense go beyond the lawyer's professional range. The fact that the clerk, as a different human being, comes to know of the contents of the notice cannot make it publication to a third person." 17. The Kerala High Court further held that neither the advocate nor the client is under any obligation to spell it to a third person. 18. During the course of hearing, learned counsel for the respondents has placed reliance upon the decision of the High Court of Manipur in the matter of Laisram Rasmon Singh v. Hindangmayum Dwijamani Sharma and others reported in AIR 1964 Manipur page 2 . 19. 18. During the course of hearing, learned counsel for the respondents has placed reliance upon the decision of the High Court of Manipur in the matter of Laisram Rasmon Singh v. Hindangmayum Dwijamani Sharma and others reported in AIR 1964 Manipur page 2 . 19. I have perused the said order passed by the Manipur High Court and I am of the view that the ratio of the said decision is not attracted to this case because it is not necessary that parties of both the suits should have filed their written statements and it is only after framing the issues it can be determined by the concerned court as to whether the provisions of Code of Criminal Procedure or Section 10 of the Code of Civil Procedure are attracted to the case for stay of the trial court's proceedings pending before different forums since the aggrieved party has a right to move to the concerned court at the earliest possible opportunity for invoking the aforesaid provisions and the concerned court is also duty bound to take judicial notice of the said aspect at the first instance if so established. on the basis of the material on the record. 20. From the perusal of the observations of the apex court in its decisions as referred to above, it is clearly apparent that mere sending of communication by one counsel to another or exchange of correspondence between the learned counsel who act on instructions of their respective clients would by itself not tantamount to publication of a defamatory material since such communications are privileged communications which are protected under Section 129 of the Indian Evidence Act and it cannot be inferred that it tantamounts to publication of defamatory material as alleged. What is to be primarily seen is the intention of the party and manner of publication of the said communications which are purported as defamatory material and unless and until it is established on the record by way of positive evidence,, the ulterior motives of the party, who has sent the said communication on behalf of his client to the opposite counsel would not by itself establish the publication of a defamatory material. I am further of the view that the primary duty of the court in respect of a suit, which has been filed by a party claiming damages from the other on account of the publication of alleged defamatory material imperatively has to be examined by the court at the first glance of the pleadings itself before drawing any adverse inference against its author. The very intention of the party, who instituted the suit against another should be fully screened with a view to dispel any doubts which may arise in the mind of the concerned court as to whether the proceedings which have been instituted are genuine and fair and not sham, illusory and vexatious. It is only thereafter that the Presiding Office should proceed with the hearing of the suit by summoning the opposite party since any bogus litigation which may result in unnecessarily taxing the valuable time of the court should not only be discouraged and strictly avoided but at the same time the concerned court should.adopt stringent approach by penalising the bogus and professional litigants known as `court birds'. This will help in encouraging the genuine litigation and only the righteous claims of the parties should be entertained and the trial court should also heavily come down on such litigants whose intention is merely to fraudulently abuse the process of law, which should in all probability be discouraged by the respective courts dealing with such matters. 21. I am further of the view that the trial court in appropriate cases should also have a resort to the provisions of Section 35-A of CPC by imposing special compensatory costs and take deterrent action against the litigants, who are inspired by vexatious motives in filing frivolous suits, which may ultimately prove to be a futile exercise for the Court and such suits should be disposed of forthwith after giving immediate hearings to the parties concerned. 22. I am further of the view that the bar council of the State of Rajasthan should take appropriate action against the erring parties as soon as the decisions of the respective courts are brought to their Notice. This approach will also result in developing professional discipline and etiquette amongst the concerned members of the bar so that they may restrain themselves from encouraging such type of bogus, vexatious and frivolous litigation. 23. This approach will also result in developing professional discipline and etiquette amongst the concerned members of the bar so that they may restrain themselves from encouraging such type of bogus, vexatious and frivolous litigation. 23. As a result of the above discussion I am of the view that the petitioner deserves to succeed and the revision petition is allowed. Consequently the impugned order dated 14.1993 passed by the learned Chief Judicial Magistrate-cum-Civil Judge, Bharatpur, whereby he dismissed the petitioner's application under Order 7 Rule 11 read with Section 10 and Section 151 CPC is set-aside and the interim order dated 24.1.194 passed by this Court, whereby the proceedings pending before the learned Civil Judge, Bharatpur in Civil Suit No. 85/92 were stayed is made absolute.Revision Allowed. *******