Research › Search › Judgment

Andhra High Court · body

2003 DIGILAW 184 (AP)

Shareefuddin v. Syed Anwar Mohiuddin

2003-02-04

P.S.NARAYANA

body2003
P. S. NARAYANA, J. ( 1 ) HEARD Mr. Raj Kumar Rudra, the learned counsel for the appellants/respondents/ defendants. The learned Counsel had pointed out that an order of Status quo was ordered without recording reasons. The learned counsel with all vehemence had submitted that the learned Senior Civil judge at Medak noticing that a caveat had been lodged by one defendant against other defendant, had erred in making an order of status quo, without ordering notice. The learned counsel also had placed reliance on c. Seethaiah v. Govt. Andhra Pradesh. The learned counsel for the appellants while elaborating the submissions had pointed out that it is mandatory to record reasons while granting an ex parte order of status quo. The learned counsel also had placed strong reliance on M/s. Paro Food Products v. The hyderabad Metropolitan Water Supply and sewerage Board, Bacharaj Singhvi v. Hastimal kothari and Syed Shameer Makandar and others v. Syed Ahmed. ( 2 ) HEARD the counsel at length. ( 3 ) THE Civil Miscellaneous Appeal is filedunder Order 43 Rule 1 of the Code of Civil procedure (hereinafter referred to as code in short), aggrieved by an order of Status quo dated 29-1-2003 made in I. A. No. 35 of 2003 in O. S. No. 5 of 2003 on the file of the senior Civil Judge, Medak. The grievan~es of the appellants as ventilated by the learned counsel representing the appellants Mr. Raj kumar Rudra are of two fold. The first objection is that no reasons had been recorded while making ex parte order of status quo on 29-1-2003. The learned counsel had placed strong reliance on M/s. Paw Food products s case (2 supra), Bacharaj Singhvi s case (3 supra) and Syed Shameer Makandar s case (4 supra ). There cannot be any controversy relating to this aspect. The impugned order reads as follows,"suit is filed for declaration. Along with the suit the present petition is filed seeking interim injunction. Registered sale deed, prima facie substantiate the plaintiffs right to the property. Khasra pahanies filed substantiate the plaintiffs vendors rights in the property, prima facie. Now the plaintiffs are apprehending that the defendants are trying to interfere with their possession. In this case caveat is filed by one of the defendant, against the other defendant. The present plaintiff is not a party to the caveat application. Khasra pahanies filed substantiate the plaintiffs vendors rights in the property, prima facie. Now the plaintiffs are apprehending that the defendants are trying to interfere with their possession. In this case caveat is filed by one of the defendant, against the other defendant. The present plaintiff is not a party to the caveat application. Considering the circumstances of the case Status Quo is ordered to be maintained. Issue urgent notices to the respondents. Call on 10-2-2003. " ( 4 ) AS can be seen from the impugnedorder, it is clear that the learned Senior Civil judge at Medak, had applied his mind and recorded reasons referring to the registered sale deed, Khasra pahanies etc. Hence, it cannot be said that an ex parte order of Status quo had been made in this regard without recording reasons. Therefore, I am unable to agree with the first contention raised by the learned counsel representing the appellants. The second contention which had been urged with all vehemence is that when a caveat had been lodged relating to self-same subject matter, be that in between the plaintiffs and the defendants or in between the defendants inter se, the learned Judge had totally erred in making the ex parte order of Status quo. It is one thing to question the order on the ground of impropriety and it is yet another thing to question an order on the ground of illegality. It is no doubt true that in the impugned order it had been recorded that in this case caveat is filed by one defendant as against the other defendant. ( 5 ) SECTION 148 (A) of the Code reads ashere under, 148-A. Right to lodge a caveat- (1) Where an application is expected to be made, or has been made in a suit or proceeding 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-section (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, acknowledgment due, on the person by whom the application has been, or is expected to be, made under sub-section (1 ). (2) Where a caveat has been lodged under sub-section (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, acknowledgment due, on the person by whom the application has been, or is expected to be, made under sub-section (1 ). (3) Where, after a caveat has been lodged under sub-section (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) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period. ( 6 ) IN C. Seethaiah s case (1 supra) thedivision Bench observed at para 11 as follows,"in our view, when a caveat is lodged it becomes not only the duty of the court but also of the appellant/ petitioner and his counsel to bring to the notice of the court that caveat had been lodged and the matter may not be heard ex parte. Though no such obligation is imposed expressly by section 148-A, such an obligation must necessarily be implied having regard to what is contained in sub-sees (3) and (4) thereof and also the overall intendment of the provision. In the name of the 3rd respondent-caveator or his counsel were printed in the cause list that, in our opinion, would have constituted sufficient notice to the 3rd respondent. But that should have been preceded by furnishing of copies of petitions and documents on the 3rd respondent-caveator by the appellant-petitioner or his counsel. We, therefore, agree that our learned brother ramanujulu Naidu J, that the ex parte interim order of suspension deserves to be set aside on this very ground". But that should have been preceded by furnishing of copies of petitions and documents on the 3rd respondent-caveator by the appellant-petitioner or his counsel. We, therefore, agree that our learned brother ramanujulu Naidu J, that the ex parte interim order of suspension deserves to be set aside on this very ground". ( 7 ) IN the present case, it is not thegrievance of the appellants that they had lodged the caveat against the respondents/ plaintiffs who had obtained the order. The caveat lodged may relate to the same subject matter. The caveat in between the defendants inter se cannot be said to be operative as against the plaintiff who is a non-party to such a caveat. I had already observed that the propriety or impropriety of making an order is different from legality or illegality in passing an order. In the present case, since the legality of the order is questioned, on that ground, I am of the opinion that the learned Senior Civil Judge, medak had not committed any illegality in making the order, since, it is not in dispute that the caveat was lodged by one defendant as against the other defendant and the plaintiff was not a party to the caveat and the caveat was not lodged as against the plaintiff. ( 8 ) IN the light of the facts andcircumstances, I do not see any illegality in the impugned order made. However, coming to the propriety or impropriety of passing order, when the lodging of caveat relating to the same subject matter though plaintiffs are not parties to the caveat petition, had been brought to the notice of the Court, the Court could have as well ordered urgent notice but, however, certain reasons had been recorded, and ultimately an order of Status quo was made and urgent notices were issued. In the light of the facts and circumstances, the appellants are given liberty to approach the same Court for getting the order vacated. Since it is urged that there is urgency in the matter, on such an application being moved by the appellants, the learned Senior Civil, Judge at medak shall take up the application at the earliest point of time and dispose of the same as early as possible. Except making this observation no other relief can be granted to the appellants at this stage. Except making this observation no other relief can be granted to the appellants at this stage. ( 9 ) THE Civil Miscellaneous Appeal is disposed of accordingly. No costs.