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2000 DIGILAW 514 (KAR)

IN RE : APSARA THEATRE, BIJAPUR v. STATE

2000-07-24

G.C.BHARUKA, MANJULA CHELLUR

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G. C. BHARUKA, J. ( 1 ) THE petitioner has lodged the present caveat petition purporting to be under Sec. 148-A of the Code of Civil Procedure, 1908 (in short the 'code') read with Rule 39 of Part IV of the Writ Proceedings Rules, 1977 framed by this Court, without showing the name of any person or authority who is likely to file any application seeking any order from this Court adverse to the petitioner's interest. Instead, he has filed a separate application seeking permission to exempt him from issuing any prior notice in terms of Sec. 148-A (2) of the Code by relying on the judgment of a learned single Judge in the case of State of Karnataka v. Nil, ILR 1999 Kant 2986 : (AIR 2000 Kant 70) ( 2 ) ). The learned single Judge in the case of State of Karnataka (AIR 2000 Kant 70) (supra) after referring to sub-secs. (1) and (2) of Section 148-A of the Code and keeping in view the prayer (sic) the caveator that despite non disclosure the name of the applicant likely to file an application for seeking interim order against the (sic) has held that :". . . . . in cases where it is not possible, with reasonable certainty, to identify the person or persons who are likely to institute a suit or a proceedings and make an application in such a proceedings, in my view, still a caveat petition can be lodged and if such caveat petition is lodged, such a petition is required to be registered by the Court. Merely because sub-sec. (2) of Sec. 148-A provides for service of notice of such a caveat petition on a person, who is expected to institute a suit or a proceedings and the requirement of the said sub-sec. cannot be complied with, cannot be a ground to refuse to reject the caveat petition. Sub-sec. (2) of Sec. 148-A of the Code is required to be complied with when it is capable of being complied with. In cases where the person who is likely to institute a suit or proceedings cannot be ascertained with certainty, the question of complying with the requirement of sub-sec. (2) of Sec. 148a does not arise. In my considered view, the substantive right provided to lodge the caveat cannot taken away on the ground that the provisions of sub-sec. In cases where the person who is likely to institute a suit or proceedings cannot be ascertained with certainty, the question of complying with the requirement of sub-sec. (2) of Sec. 148a does not arise. In my considered view, the substantive right provided to lodge the caveat cannot taken away on the ground that the provisions of sub-sec. (2) of Sec. 148a cannot be complied with. The provisions of sub-sec. (2) of Sec. 148, in my view, must be understood as directory in nature. Wherever the requirement of the said provision is incapable of compliance, it will be within the discretion of the Court if valid grounds are made out for non-compliance of the said provision, to dispense with the compliance of sub-sec. (2) of Sec. 148a of the Code and direct the office to register the caveat. However, it is necessary to point out that when a caveat petition is lodged, the caveator should specify with certainty the subject matter of the dispute in a suit or proceedings likely to be instituted. If that is specified, as observed by me earlier, it is open to the Court before which the caveat is lodged in its discretion, to dispense with the requirement of sub-sec. (2) of Sec. 148a of the Code, if an application under Sec. 151 of the Code for dispensing with the requirement of sub-sec. (2) of Sec. 148a of the Code. Under these circumstances, the office was, in my view justified in raising an objection with regard to the maintainability of the caveat petition. " ( 3 ) SUBSEQUENTLY, in Caveat Petition No. 5136/99, Kumar Rajaratnam, J. disagreeing and doubting the correctness of the view taken in the case of State of Karnataka (AIR 2000 Kant. 70) (supra), has referred the matter to the Division Bench for reconsideration of the issues. According to him, apart from the provision contained under Sec. 148-A (2) being mandatory conferring no discretion on the Court to waive its requirement, the interpretation given in the reported judgment causes enormous practical difficulties for the Registry of this Court and Registries of all the Civil Courts in the State of Karnataka. ( 4 ) ACCORDING to the present caveator, he is the owner of Cinema Theatre 'apsara' situate at CTS No. 1761/d-1 Ward No. V on Stadium back Road, Bijapur. He intends to exhibit films in the said theatre. ( 4 ) ACCORDING to the present caveator, he is the owner of Cinema Theatre 'apsara' situate at CTS No. 1761/d-1 Ward No. V on Stadium back Road, Bijapur. He intends to exhibit films in the said theatre. According to him, he has already complied with all the statutory requirements necessitated for starting the said business except obtaining licence from the District Magistrate for which he has taken effective steps. However, apprehending that some persons inimical to him may obtain some ex parte interim order prohibiting him from starting the said business, he has opted to file the present caveat petition. But since he was not sure about the names of persons who may file such application seeking ex parte order detrimental to his interest, he could not array them as parties and as such it was not possible for him to comply with the requirement of service of notice on such persons as required under Sec. 148-A (2) of the Code. Therefore, he has sought exemption from compliance with the said provision by placing reliance on the order of the learned single Judge referred to above. ( 5 ) WE have heard the learned counsel appearing for the present caveator as well as in the connected caveat petitions and having given our anxious consideration to the intendment and purpose of incorporating Sec. 148-A (2) in the Code as also the rights and remedial measures statutorily available to the caveators and the workability of such remedial measures from pragmatic point of view. ( 6 ) BEFORE incorporation of Sec. 148-A in the Code, nobody had statutory right to lodge caveat in civil proceedings. This Section was inserted by the Central Act 104/76 w. e. f. 1-2-1977. The statement of objects and reasons for insertion of the said section read as under :-"clause 53.- Under the Code, sometimes a party obtains an ex parte order on an application without informing the other party of his intention to make such an application. Where a party, with a view to preventing such ex parte orders being passed, intimates to the Court of his intention to have notice of an intended application by the adverse party, he may be authorised to do so. New Sec. 148-A is being inserted to provide for a caveat. (Statement of objects and Reasons (Bill) Gazette of India, Ext. , dt. 8-4-1974, Pt. II, S. 2. P. 310 ). New Sec. 148-A is being inserted to provide for a caveat. (Statement of objects and Reasons (Bill) Gazette of India, Ext. , dt. 8-4-1974, Pt. II, S. 2. P. 310 ). " ( 7 ) TO understand the implications of the rights conferred by Sec. 148-A and its effective workability, we may first reproduce the relevant sub-sections of Sec. 148-A which reads thus.-Sec. 148-A. Right to lodge a caveat.- (1) Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof. (2) Where a caveat has been lodged under sub-sec. (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made under sub-sec. (1 ). (3) Where, after a Caveat has been lodged under sub-sec. (1), any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the caveator. (4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application. (5) *** ( 8 ) THE Parliamentary exercise of inserting the above section is well intended and salutary. It certainly serves duel purpose, namely, (i) it provides an opportunity to a vigilant person to resist an apprehended adverse order detrimental to his interest which is likely to be passed at his back, and, (ii) of avoiding multiplicity of proceedings in relation to interim orders, saving precious judicial hours. But, this precious right conferred by the statute can be permitted to be exercised only within the statutorily defined parameters and any transgression thereof has to be held as nullifying the very right. But, this precious right conferred by the statute can be permitted to be exercised only within the statutorily defined parameters and any transgression thereof has to be held as nullifying the very right. No doubt the said parameters by interpretative process can be stretched in order to effectively carry out the legislative intend but while doing so, the essential contents of the statutory provisions and its very workability cannot be put to a stake thereby nullifying the right of the applicant to the proceedings and virtually creating an impossibility for the Courts to comply with the legislative mandate contained under sub-sec. (3) of Sec. 148a of the Code. ( 9 ) THE above principle is clearly discernible from the precedents. In the case of State of Gujarat v. Chaturbhuj, AIR 1976 SC 1697 , Pr. 14, the Supreme Court has held that.-"it is well recognised that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision, comports best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system. "the same view has been expressed in the cases of Collector of Customs v. D. S. and W. Mills Ltd. AIR 1961 SC 1549 (1551, 1553), Chandra Mohan v. State of U. P. AIR 1966 SC 1987 (1993) and Chief Justice, A. P. v. L. V. A. Dikshitulu AIR 1979 SC 193 (205 ). ( 10 ) KEEPING in view the above cardinal principle of interpretation of statutes, let us examine the correctness of the view taken by the learned single Judge in the case of State of Karnataka (AIR 2000 Kant 70) (supra ). ( 11 ) CONSEQUENT upon (sic) of Sec. 148a in the Code, Chapter II-A title (sic) Caveat Petitions' containing rules 16-A and 16 (B) (2) 1967, which are framed by the High Court (sic) Sec. 122 of the Code. The said rules are reproduced hereunder.-Rule. 16-A. Caveat petitions filed under Sec. 148-A of the Code of Civil Procedure, 1908 shall be entered in a register in the form given hereunder.-CAVEAT REGISTER1. Number of Caveat2. Date of Lodging 3. Caveator's Name and Address4. Name and address of the Plaintiff applicant in suit or proceedings. 5. The said rules are reproduced hereunder.-Rule. 16-A. Caveat petitions filed under Sec. 148-A of the Code of Civil Procedure, 1908 shall be entered in a register in the form given hereunder.-CAVEAT REGISTER1. Number of Caveat2. Date of Lodging 3. Caveator's Name and Address4. Name and address of the Plaintiff applicant in suit or proceedings. 5. Date of filing application in a suit or proceeding in respect of which Caveat is filed. 6. Suit or proceedings number if any (with reference to application) in which the application is filed. 7. Date of destruction of the Caveat petition. 8. Remarks. Rule. 16 (B ). (1) When the application in a suit or proceeding to which the caveat pertains is or has been filed, the caveat shall be kept in the records of that suit or proceeding and corresponding entry in the Caveat Register shall be rounded off and the caveat shall stand disposed of. (2) In any case to which the above rule does not apply, when a caveat ceases to be in force in accordance with Sec. 148-A (5), the Code of Civil Procedure, 1908, the same shall be destroyed, after a lapse of one year from the date on which it has ceased to be in force. The date of destruction of the caveat shall be entered in the Caveat Register. ( 12 ) RULE 39 of Part IV of the Writ Proceedings Rules inter alia, provides that the provisions of Code of Civil Procedure, 1908 shall apply, as far as may be, to the proceedings under Article 226 and/or Article 227 of the Constitution of India and writ appeals in respect of matters for which no specific provision is made in the said rules. Since there is no specific provision under the Writ Proceedings Rules regarding filing of caveat, the provisions contained in Sec. 148-A of the Code become automatically applicable to the writ proceedings as well. This is how the caveats are being filed and entertained in the writ proceedings and writ appeals. Therefore, interpretation of Sec. 148-A regarding manner and right to file caveats and its entertainability will also govern the caveat petitions filed in writ proceedings as well. ( 13 ) NOW let us look at the scheme of Sec. 148-A of the Code. Sub-sec. Therefore, interpretation of Sec. 148-A regarding manner and right to file caveats and its entertainability will also govern the caveat petitions filed in writ proceedings as well. ( 13 ) NOW let us look at the scheme of Sec. 148-A of the Code. Sub-sec. (1) enables a person to lodge a caveat if he can claim a right to appear at the stage of hearing of an application for interim order. Therefore, this is a statutory right conferred on a person who apprehends passing of order which may be detrimental to his interest. Sub-sec. (2) requires that such a caveator is to serve notice of the caveat petition on a person by whom application for interim order has been or is expected to be made. This is a statutory obligation cast on the caveator. Sub-sec. (3) requires that the Court before passing any order on an application filed for interim order, shall ensure service of notice of it on the caveator. This is a mandate against the Court which it is obliged to carry out before passing of any interim order affecting interest of the caveator. Sub-sec. (4) makes it obligatory for the applicant to furnish to the caveator at latter's expense a copy of his application together with all documents filed or intended to be filed in support of his application. ( 14 ) FROM the above, it is clear that the scheme of Sec. 148-A does not create an absolute and unconditional right in favour of the caveator to file caveat with an assurance of his being heard rather it has been coupled with a corresponding duty on his part to serve notice on the applicant who must necessarily be a known person, who may try to seek an order detrimental to him. But for this, the caveator cannot in law exercise right flowing from sub-sec. (1) of Sec. 148-A of the Code. This is the plain and simple reading of Sec. 148-A. There is no occasion to dilute the same only because in some exceptional cases, the caveator may apprehend that some unknown person may move the court and seek ex parte order adverse to his interest. The word used in sub-sec. (2) is 'shall' which is always to be read as mandatory unless there are compelling reasons to read it as 'may' thereby making the provisions directory. The word used in sub-sec. (2) is 'shall' which is always to be read as mandatory unless there are compelling reasons to read it as 'may' thereby making the provisions directory. We find no reasons to resort to any such dilutory interpretation. ( 15 ) ON the other hand, any interpretation as suggested on behalf of the present caveators is bound to frustrate the very purpose and intendment of incorporation of Sec. 148-A itself. It is for the simple reason that Sec. 148-A, not only create a right coupled with a duty for the caveator but it also mandates the Court under sub-sec. (3) that before it proceeds to pass judicial order, as an interim measure, it must serve notice on the caveator of the proceedings before it. But it is a matter of day-to-day experience that unless name of the applicant is known, the caveat cannot be correlated with the proceedings filed or likely to be filed. For the sake of arguments, one may say that by referring to relief claimed, description of the property in dispute, its location, and/or residence of the caveator, one can by certain amount of meticulous efforts correlate the caveat petition with the proceedings already instituted or about to be instituted. Yes, logically it can be so done. But the laws are not laid down or interpreted to suit an isolated case or claim or right of an individual or handful of individuals. Procedural laws are to be interpreted in a manner so that it may effectively and meaningfully serve administration of justice even if it leads to some inconvenience or prejudice in exceptional cases. It is well settled that the larger interest has to prevail over that of an individual. ( 16 ) KEEPING in view with the limited man power, bulk of proceedings instituted before the Courts in the country and in the State, the caveats can be traced to the relevant proceedings only if caveator discloses name of the applicant who is likely to file application seeking orders adverse to the caveator. ( 17 ) IN keeping with the above practical aspect ensuring smooth working of the system in confirmity with the rights conferred under Sec. 148-A, the Parliament has specifically provided for service of notice of caveat on the person by whom an application for interim relief is filed or is expected to be filed. ( 17 ) IN keeping with the above practical aspect ensuring smooth working of the system in confirmity with the rights conferred under Sec. 148-A, the Parliament has specifically provided for service of notice of caveat on the person by whom an application for interim relief is filed or is expected to be filed. Rule 16a of the Karnataka Civil Rules of Practice, 1967 also specifically provides that in the Caveat Register there must be an entry of the name and address of the plaintiff/applicant in suit or proceedings to which the caveat petition can be traced. ( 18 ) FOR the aforesaid reasons, we overrule the view taken by the learned single Judge in the case of State of Karnataka v. Nil reported in ILR 1999 Kant 2986 : (AIR 2000 Kant 70 ). Accordingly, the I. As filed seeking exemption from service of notice under Sec. 148-A (2) of the Code are rejected. Consequently, the caveat petition filed without disclosing name of the applicant on whom notice is to be served under Sec. 148-A (2) is rejected as not maintainable. ( 19 ) LET a copy of this order be circulated to all courts in the State. --- *** --- .