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Andhra High Court · body

2009 DIGILAW 46 (AP)

Addanki Hanumantha Rao v. Addanki Srinivasa Rao

2009-02-09

P.S.NARAYANA

body2009
Judgment : 1. 1. Heard Sri C.Rama Chandra Raju, the learned Counsel representing the Revision petitioners and Sri M.S.N. Prasad, the learned Counsel representing the respondents. 2. 2. This Revision is coming up for Admission. This Revision is preferred by the Revision petitioners as against an order made by the learned II Additional District Judge, Ongole in C.M.A.No.31/2008 dated 6-1-2009. 3. 3. Sri C.Ramachander Raju, the learned Counsel representing the petitioners would maintain that the appellate Court in stead of allowing the Civil Miscellaneous Appeal by setting aside the order made by the trial Court in I.A.No.525/2008 in O.S.No.69/2008 on the file of Senior Civil Judge, Addanki, totally erred in dismissing the said Civil Miscellaneous Appeal. The learned Counsel also would maintain that both the Court of first instance and also the appellate Court totally ignored the object of Section 148-A of the Code of Civil Procedure (hereinafter in short referred to as "Code" for the purpose of convenience). The Counsel also would maintain that the Courts below failed to consider that when once a caveat had been lodged, it is a condition precedent to effect notice on the application of caveat before passing any order and unless the said condition is satisfied, the Courts are not expected to pass any interim orders affecting such caveators. Incidentally, the learned Counsel also would maintain that while granting interim order, recording of reasons being mandatory, as the same had not been complied with, even on that ground, the order made by the Court of first instance cannot be sustained. The learned Counsel also relied on certain decisions to substantiate his submissions. 4. 4. Per contra, Sri M.S.N. Prasad, the learned Counsel representing the respondents would maintain that in the light of the view expressed by this Court in a recent decision, the appellate Court after recording reasons in elaboration came to the conclusion that there are no merits in the Civil Miscellaneous Appeal and accordingly dismissed the Civil Miscellaneous Appeal with costs. The Counsel also would maintain that inasmuch as it is only an interim order to safeguard the interest of both the parties, the present Revision petitioners as well could have moved the Court praying for vacation of the said interim order in stead of preferring a Civil Miscellaneous Appeal or a further C.R.P. to this Court. The Counsel also would maintain that inasmuch as it is only an interim order to safeguard the interest of both the parties, the present Revision petitioners as well could have moved the Court praying for vacation of the said interim order in stead of preferring a Civil Miscellaneous Appeal or a further C.R.P. to this Court. The learned Counsel relied upon certain decisions and also would further maintain that in the interest of justice it would be just and proper to maintain the interim order and remit the matter to the Court of Court of first instance to decide the application on merits after affording opportunity to both the parties. The Counsel also pointed out that subsequent thereto the Revision petitioners also entered appearance before the Court of first instanced but had not chosen to file counter and this conduct also may have to be taken into consideration while deciding this Civil Revision Petition. 1. 5. Heard the Counsel on record, perused the order made by the Court of first instance and also the order made by the appellate Court in C.M.A.No.31/2008. 6. As already aforesaid, the present Civil Revision Petition is filed by the Revision petitioners as against an order made in C.M.A.No.31/2008 dated 6-1-2009 on the file of II Additional District Judge, Ongole. Several of the facts appear to be not in serious controversy. The learned Senior Civil Judge, Addanki while ordering urgent notice restrained both parties from making constructions ion I.A.No.525/2008 in O.S.No.69/2008. The learned Judge also recorded pendency of the caveats. The appellate Court in C.M.A.No.31/2008 aforesaid formulated the Point for consideration at para-6, relied on the decision of this Court in Rodde Chandraiah Vs. Rodde Madunamma 2007(5) A.L.D. 248 and came to the conclusion that in the facts and circumstances of the case, it may have by the taken that reasonable opportunity had been provided for and hence the order under challenge made by the Court of first instance would not suffer from any illegality and accordingly dismissed the aforesaid Civil Miscellaneous Appeal. Hence the present Civil Revision Petition had been preferred. 2. 7. In Dr.M.Mohan Babu Vs. Medasani Ananda Naidu and others 2005(2) A.L.D. 120 a learned Judge of this Court held that when a caveat is pending exparte order under Order XXVI Rule 9 of the Code also cannot be passed unless an opportunity of hearing is provided for. Hence the present Civil Revision Petition had been preferred. 2. 7. In Dr.M.Mohan Babu Vs. Medasani Ananda Naidu and others 2005(2) A.L.D. 120 a learned Judge of this Court held that when a caveat is pending exparte order under Order XXVI Rule 9 of the Code also cannot be passed unless an opportunity of hearing is provided for. The learned Judge at paras 11, 14, 16 and 20 observed: "Sub-section (3) of Section 148-A of the Code requires special attention whereby the Court is obligated to serve a notice of the application, filed seeking grant of an interim order, on the caveator. To put it in a different way, the caveator has a statutory right of notice and hearing on any interlocutory application before any such interim order is sought to be passed against the caveator. ... ....As already pointed out, a duty is cast on the Court, by virtue of the provisions of sub-section (3) of Section 148-A of the Code, to issue notice to the party who lodges a caveat, even if the party making the application for grant of any interim order fails to serve notice of such interim application on the caveator. .... If the Court passes any interim order without issuing notice to the caveator it would amount to violation and non-compliance of the mandatory requirement of law as envisaged in Section 148-A of the Code. In such an event, it must not only be held that the Court had ignored to discharge the statutory duty cast upon it but also failed to properly exercise the jurisdiction vested in it, and consequently any order so passed shall have to be attached with the disqualification of "nullity". .... ..... This submission of Mr.Meherchand Nori, the learned Counsel appearing for the plaintiff, cannot be countenanced for the simple reason that all subsequent events, viz., the execution of the Warrant of Commission and filing of his report into Court by the Advocate Commissioner are only in consequence to the impugned order w was passed in contravention of the specific mandatory provisions of Section 148-A of the Code, thereby rendering the same illegal. When the exercise of jurisdiction by the Court itself is defective, or in supine violation of the duty cast upon it, not only the impugned order but also all subsequent and consequential proceedings taken would be rendered nugatory and inconsequential". 8. When the exercise of jurisdiction by the Court itself is defective, or in supine violation of the duty cast upon it, not only the impugned order but also all subsequent and consequential proceedings taken would be rendered nugatory and inconsequential". 8. In Reserve Bank of India Employees Association and another Vs. The Reserve Bank of India and others 3 a learned Judge of this Court at paras 4 and 5 observed : "Now the question is whether that order of the learned Assistant Judge injuncting the present petitioners without giving a notice to the petitioners and hearing them is null and void or is it an order which stand till it is set-aside according to the procedure known the law. There is no doubt that the requirements of sub-sections (1), (2) and (4) of Section 148-A of the Code of Civil Procedure are fully satisfied in this case by the caveators as well as the plaintiffs. In fact in the case of sub-section .(4) they were even over fulfilled by the applicants. But it is the Court that failed to act in compliance with the statutory requirements of Section 148-A, sub-section (3). Under sub-section (3) of Section 148-A where a caveat had been lodged, it becomes the duty of the Court to serve a notice of that petition on the caveators. Although the words "notice of application" are not defined in the Civil Procedure Code, these words have a settled meaning under the regime of the Civil Procedure Code established through the Civil Rules of Practice. Under the Civil Rules of Practice a notice of interlocutory application is required to be given to the other party to the suit or other matter, not less than three days before the day appointed for the hearing of the application. That is always taken to include the date of hearing. In any case, in the context of sub-section (3) of Section 148-A the words "notice of application" cannot mean anything, if they do not refer to the exact date of hearing. It must, therefore, be taken that it is the duty of the Court under Section 148-A to give sufficiently reasonable and definite time to the caveators to appear and also to oppose the interlocutory application intended to be moved by the plaintiffs-applicants and the Court should give a specified date for hearing of the interlocutory application. It must, therefore, be taken that it is the duty of the Court under Section 148-A to give sufficiently reasonable and definite time to the caveators to appear and also to oppose the interlocutory application intended to be moved by the plaintiffs-applicants and the Court should give a specified date for hearing of the interlocutory application. This duty of the Court is clearly different and distinct from the duty of the parties described in sub-sections (2) and (4) of that section. The duty of the Court under sub-section .(3) is in addition to the other parts assigned to the other parties in the drama of litigation. The furnishing of copies of documents by the plaintiffs to the caveators on 27-10- 1980 and informing them of the date of their moving their interlocutory application cannot, therefore, be taken as acts constituting compliance with the specific duty assigned to the Court under sub-section (3) of Section 148-A. The duty of the applicants under sub-section (4) of Section 148-A is different and distinct from the duty of the Court under sub-section (3). I, therefore, entertain no doubt whatsoever in holding that the lower Court had erred in passing the impugned order of injunction on 30th Oct., 1980 against the caveators without giving them a notice of the date of hearing. If that is all, I would have allowed this C.R.P., without anything more. But, unfortunately, for the petitioners there is a lot more to be said against them in this case. The precise question that is now raised is whether the aforementioned failure of the Court to act in accordance with the requirements of sub-section (3) of Section 148-A is a failure relating to its jurisdiction or merely its procedure. If it is a jurisdictional fault, the order passed by the Court ignoring the requirements of sub-section (3) of Section 148-A would be a void order and would not be allowed to be operative for any purpose. On the other hand, if it is a procedural error, the order stands till it is set-aside in an appropriately constituted legal proceeding. The word "Caveat" has not been defined by the Civil Procedure Code. In fact, it has been introduced into it only recently. We have to take its ordinary meaning. On the other hand, if it is a procedural error, the order stands till it is set-aside in an appropriately constituted legal proceeding. The word "Caveat" has not been defined by the Civil Procedure Code. In fact, it has been introduced into it only recently. We have to take its ordinary meaning. Wharton's Law Lexicon which is a dictionary combined with a small commentary on each word has the following interesting entry describing the office of caveat: "In Scotland any one who expects certain proceedings to be taken by another, may lodge with the Clerk of the Court a "Caveat". He is then entitled to be informed by the Clerk if and when the proceedings are taken". Jowitt's Dictionary of English Law gives the meanings of the word 'caveat' as an entry made in the books of the office of a registry or Court to prevent a certain step being taken without previous notice to the person entering the caveat, who is called the caveator. What appears to me to be significant from the above two meanings taken out from the two well known legal dictionaries is the fact that none of these standard works puts the caveat so high as to act as a fetter on the exercise of power by the Court. In other words, they do not say that any action taken by the Court without giving prior notice to the caveator would be a nullity. The reason seems to me to be that the caveat has no effect on the exercise of powers by the Court. It follows, therefore, that the order passed by a Court without giving a notice to the caveator cannot be treated as a nullity. If a statute intends to demolish the ordinary powers of a Civil Court, it is well settled proposition of law that it can only be done by a direct piece of legislation enacted for that purpose and not by the effect of an indirect legislation as if it were by a side wind. The powers of a Civil Court are too sacrosanct to be allowed to be diluted or to be curtailed by a mere remote implication. The powers of a Civil Court are too sacrosanct to be allowed to be diluted or to be curtailed by a mere remote implication. I, therefore, hold that as there is no specific provision declaring any action taken by the Court contrary to its mandatory duty under sub-section (3) to give a notice would be void, the order passed by the Court below on 30-10-1980 is not a nullity. In other words, it appears to me that the mere lodgment of a caveat would not deprive the Court of its power to pass an order even if the caveator was not informed of the date of hearing of the matter. As the lodgment of a caveat is merely a right to be informed of the hearing date and it has no effect by way of curtailing the powers of a Civil Court to pass an appropriate order on the merits of the case, I hold that the order passed in this case on 30th October 1980 is not without jurisdiction and is, therefore, operative till it is set-aside in appropriate proceedings." 9. In C.Seethaiah Vs. Government of A.P. 4 a Division Bench of this Court had elaborately dealt with all the practical situations covering the issue and also further discussed this Court's ambit and object of Section 148-A of the Code and in fact the learned Division Bench had referred to the decision of the Karnataka High Court in G.C.Siddalingappa Vs. G.C. Veeranna 5 and ultimately emhasised on the fact that when once a caveat is filed it is a condition precedent for passing interim order to serve notice of the application on the caveator who is going to be affected by the interim order and unless that condition precedent is satisfied it is impossible for the Court to pass an interim order affecting the caveator. The learned Division Bench in fact at paras 5, 6, 7 and 11 observed : "By the Civil P.C. Amendment Act 1976 provision was made to lodge a caveat by insertion of Section 148-A, which reads as follows: 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, acknowledgement 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 is was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period." Whenever a caveat is lodged as laid down under sub-section (1) of Section 148-A, sub-section (2) makes it obligatory upon the caveator to serve a notice of the caveat by registered post, acknowledgement due, on the person by whom application has been or is expected to be made. The third respondent lodged the caveat as envisaged by sub-section (1) of Section 148-A and also served the notice contemplated by sub-section (2) thereof. Thereafter an obligation is imposed by sub-section (3) thereof upon the Court to serve notice of the application on the caveator. Sub-section (4) thereof casts a duty on the applicant on whom caveat has been served to forthwith furnish the caveator with a copy of the application made by him and also with copies of any papers or documents which have been or may be filed in support of the application. Of course, these copies shall be furnished at the expense of the caveator. The intention of the Legislature in making this provision is to enable the caveator-respondent to be heard before any orders are passed and no orders are passed by the Court ex parte. Of course, these copies shall be furnished at the expense of the caveator. The intention of the Legislature in making this provision is to enable the caveator-respondent to be heard before any orders are passed and no orders are passed by the Court ex parte. That this is the intention of the Legislature is also recognized by a Bench of the Calcutta High Court in Nirmal Chandra v. Girindra Narayan, ( AIR 1978 Cal. 492 ) in the following words (at p.494):- "The object of the introduction of the provision for lodging a caveat in the Civil P.C. seems to be to safeguard the interest of a person against an order that may be passed on an application filed or expected to be filed by a party in a suit or proceeding instituted or about to be instituted". In order to be entitled to such notice from the Court and the applicant, what all is required of a caveator is to lodge a caveat as laid down under sub-section (1) of Section 148-A and to serve a notice by registered post, acknowledgement due on the person who has or is likely to move Court as laid down in sub-section (2) of Section 148-A. If the requirements of sub-sections (1) and (2) are fulfilled by the caveator, then it becomes obligatory for the Court to give notice to the caveator and obligatory for the person intending to move the Court to furnish necessary papers to the caveator. The fact that copies of the petition and documents filed or intended to be filed in support of the petition may be furnished at the expense of the caveator does not imply that the caveator should further approach the applicant to supply him copies and documents and offer to pay the expenses. It is for the person intending to move the Court to furnish such copies and documents, and demand payment thereof. The intendment of the Legislature being that the respondent should be heard before any order is made on such petition in which caveat is lodged, that cannot be set at naught by the applicant under the pleas that the caveator has not approached him for furnishing of copies. In fact, the caveator would not be aware when the applicant would not be aware when the applicant would move the Court. That obligation is, therefore, rightly imposed by the Legislature upon the applicant. In fact, the caveator would not be aware when the applicant would not be aware when the applicant would move the Court. That obligation is, therefore, rightly imposed by the Legislature upon the applicant. The contention of Mr.M.R.K. Choudary on behalf of the appellant-writ petitioner that he was under no obligation to give notice of the date of hearing may be, warranted by the wording of sub-section (3) of Section 148-A for, that obligation is imposed upon the Court, but certainly the appellant-petitioner cannot be absolved of the obligation to furnish copies which itself puts the respondent-caveator on notice of the petition proposed to be moved in the Court. It is the practice of this Court to notify the parties concerned by printing and publishing cause lists of cases posted for hearing the following day, which cause lists are made available to one and all interested in knowing as to when a particular case is posted. All the Advocates, either by purchasing these cause lists or by perusing them in the Advocates' Association or in the registry get to know the date on which a particular case is posted. Numbers of the cases and the names of Counsel appearing for the respective parties are printed in those cause lists. That being the mode of notifying the dates of hearing to the parties and their counsel, once a caveat is lodged the parties and their counsel appear when the case is taken up before a particular Court. As rightly observed by the learned single Judge, it is unfortunate that in spite of the third respondent lodging the caveat through his counsel and also serving the same by registered post, the appellant-petitioner did not choose to furnish copies or notify the third respondent that he was filing the writ petition and seeking suspension of the order in favour of the third respondent. It was clearly in violation of the provisions of Section 148-A. In G.C. Siddalingappa Vs. G.C. Veeranna, AIR 1981 Kant. 242, a single Judge of the Karnataka High Court held (at p.244): "When once a caveat is filed, it is a condition precedent for passing an interim order to serve a notice of the application on the caveator who is going to be affected by the interim order. Unless that condition precedent is satisfied, it is impossible for the Court to pass an interim order affecting the caveator". Unless that condition precedent is satisfied, it is impossible for the Court to pass an interim order affecting the caveator". The learned Judge further held: "The Court would not absolve from serving a notice of the application on the caveator on the ground that he refused to receive the same. Even if the application was served on the caveator, unless the date and the time of hearing of the application was made known to the caveator or his counsel, the requirement of serving a notice of the application on the caveator could not have been dispensed with". In the instant case, the writ petitioner did not serve the copies of the petition on the caveator and he was not at all heard before the interim order of suspension was granted. Consequently, the ex parte order of suspension deserves to be set-aside on this simple ground. .......... ......... The matter came up for hearing before the Court when the third respondent caveator was not present and he could not be present because the 3rd respondent's name or the name of his counsel was not printed in the cause list. When the paws served with a notice of caveat having been lodged it was the duty of the pand his counsel to bring that fact to the notice of the Court before the matter was heard and any interim order was passed adverse to the caveator. 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 has 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-sections (3) and (4) thereof and also the overall intendment of the provision. If 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 with our learned brother Ramanujulu Naidu, J, that the ex parte interim order of suspension deserves to be set-aside on this very ground". 1. 10. 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 with our learned brother Ramanujulu Naidu, J, that the ex parte interim order of suspension deserves to be set-aside on this very ground". 1. 10. It is needless to say that the decision of the Division Bench of this Court referred to supra is binding on a single Judge unless it is brought to the notice of the learned single Judge that a different view had been expressed either by a Full Bench or a Larger Bench of this Court or by the Apex Court. Hence, it is needless to say that this Court is bound to follow the view expressed by the learned Division Bench in the decision referred (4) supra. .11. In MayuriGranites Vs. Venkateswara Granites 6 a learned Judge of this Court after referring to the decision of the Division Bench observed : ."The intention of the Legislature is that the caveator must be furnished with the copies of petitions and documents filed by the other side and must be heard before any orders are passed and for this purpose imposes duty on both the Court and the applicant under sub-sections (3) and (4) of Section 148-A CPC respectively and that no orders passed by the Court ex parte, when a caveat is filed. In the instant case neither the appellant served that copies of necessary documents on the caveator-respondent before filing the application nor the Court served the notice of the application filed by the appellant before passing the ex parte interim injunction. Therefore, the interim injunction order passed by this Court on 31-5-1995 is illegal." .12. In the light of the same, the order under challenge cannot be sustained since the Court of first instance having specifically recorded about the pendency of the caveats, had failed to see that the provisions of Section 148-A of the Code were complied with. In the light of the same, the petitioners are bound to succeed. However, in view of the fact that this Court is setting aside the interim order made by the Court of first instance, the matter is remitted to the Court of first instance to give opportunity to both the parties to advance submissions and pass appropriate orders in accordance with law. However, in view of the fact that this Court is setting aside the interim order made by the Court of first instance, the matter is remitted to the Court of first instance to give opportunity to both the parties to advance submissions and pass appropriate orders in accordance with law. The Civil Revision Petition is accordingly allowed to the extent indicated above as specified .supra. No costs. 2. 13. At this stage, Sri M.S.N. Prasad, the learned Counsel representing the respondents pleads urgency and in view of the same, let the Senior Civil Judge, Addanki make an endeavour to dispose of the application at the earliest point of time, preferably within a period of two weeks.