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2013 DIGILAW 4241 (MAD)

Muthu Jayanthi v. C. L. Mahadevan

2013-12-19

N.PAUL VASANTHAKUMAR, P.DEVADASS

body2013
JUDGMENT N. Paul Vasanthakumar, J. 1. This Original Side Appeal is filed against recalling of the Order dated 10.4.2013, granting Interim Injunction. The said Order of Interim Injunction was passed without noticing the Caveat papers filed before the Court by the Defendants/Respondents in the Interim Application. When the Original Application No.255 of 2013 came up for hearing on 22.11.2013, on noticing the fact that Caveat was filed by the Defendants after duly serving to the Plaintiff, the learned Single Judge recalled the Order dated 10.4.2013. Learned Counsel for the Appellant submits that the Caveat received by the Plaintiff in the Suit/Appellant was not brought to the notice of the Counsel and therefore, an endorsement was made as if no Caveat was filed. Learned Single Judge, considering the said plea that the Caveat was served on the Plaintiff on 1.2.2013, chose to recall the Interim Order passed, as the Appellant has not complied with the requirements as contemplated under Section 148-A, Clause (4) of Civil Procedure Code and directed the Respondents to file Counter. The contention of the learned Counsel that his client has not informed about the receipt of Caveat Notice cannot be a valid reason. The said statement reveals the suppression of fact by the Appellant. Thus, the Appellant moved the Interim Application by suppression of fact and obtained an Interim Order which is bound to be recalled. 2. The mandatory duty of giving Notice before hearing a Petition for Interim Order, if caveat is filed Section 148-A of Code of Civil Procedure Code, was considered in several decisions. In the decision reported in C. Seethaiah v. Government of Andhra Pradesh, AIR 1983 AP 443 the Division Bench of Andhra Pradesh High Court held that 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. The said Judgment was rendered by the Andhra Pradesh High Court by following the judgment of the Karnataka High Court reported in G.C. Sigadda Lingappa v. Veeranna, AIR 1984 Kar. 242. 3. The said Division Bench decision is reiterated in the subsequent decision of Andhra Pradesh High Court reported in Addanki Hanumantharao v. Addanki Srinivasarao, AIR 2009 NOC 1149. 4. The said Judgment was rendered by the Andhra Pradesh High Court by following the judgment of the Karnataka High Court reported in G.C. Sigadda Lingappa v. Veeranna, AIR 1984 Kar. 242. 3. The said Division Bench decision is reiterated in the subsequent decision of Andhra Pradesh High Court reported in Addanki Hanumantharao v. Addanki Srinivasarao, AIR 2009 NOC 1149. 4. This Court in the decision reported in Akbar Ali and others v. Alla Pitchai, 2000 (2) CTC 281 : 2001 (1) LW 842 held that non-service of notice of Interlocutary Application on Counsel has seriously prejudiced the case of the Petitioners. The lower Court has flouted all the Rules while granting an Interim Order. In the said case also, in spite of lodging Caveat, Interim Order was passed without serving Notice to the Caveator. 5. The Hon’ble Supreme Court in the decision reported in Mahadev Govind Gharge v. Special Land Acquisition Officer, Upper Krishna Project, 2011 (4) CTC 620 : 2011 (6) SCC 321 considered the very same issue and in Paragraph 49 held thus: “In terms of Section 148-A of the Code, a Caveator has a right to be heard mandatorily for the purposes of passing of an Interlocutary Order. The law contemplates that a Caveator is to be heard by the Court before any Interim Order can be passed against him. 6. Thus, giving Notice and hearing the Caveator before any Interim Order is passed in a Civil Suit is no longer res integra. If even after service of Notice, the Counsel for the Caveator failed to appear or argue the matter, then it cane be treated as a different situation, and in which event Court is entitled to pass an Interim Order, if there is a real urgency to pass an Interim Order for a limited period. 7. On the facts of this case and admittedly the Caveator was not served with Notice before moving and considering the Interim Application, the learned Single Judge is perfectly right in recalling the Order of Interim direction with direction to the Respondents to file Counter Affidavit. We do not find any reason to interfere with the Order passed by the learned Single Judge. The Original Side Appeal is dismissed. No costs. The connected Miscellaneous Petitions are closed.