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2016 DIGILAW 464 (UTT)

Om Dutt Sharma v. Ram Dutt Sharma

2016-08-11

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of present writ petition, the petitioner seeks following relief, among others: “Issue an appropriate order or direction setting aside/quashing the impugned order dated 23.7.2016 passed by Additional Commissioner Garhwal Mandal and order dated 29.7.2016 passed by learned CRC, so far it directs for maintaining status quo.” 2. Order impugned is being reproduced herein below for convenience: “Presented today, Caveat has been filed on behalf of the opposite party in the revision. Let caveator be informed on hearing on the maintainability of the revision. List on 10.8.2016. Till then the parties shall maintain status quo.” 3. The very purpose of filing a caveat is that the caveator should be heard before passing any interim order or otherwise. In the instant case, interim relief has been granted without prior notice to the caveator, which is not sustainable in the eye of law. 4. Sub-section (3) of Section 148A CPC says that 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. In the instant case, although the notice has been directed to be served on the caveator, but, before that an interim relief has been granted in favour of the respondents. 5. In M. Mohan Babu vs. Medasani Ananda Naidu, reported in [2004] 0 Supreme (AP) 1490, Hon’ble Andhra Pradesh High Court was observed in para-11, 12 & 13 of the judgment as below: “11. SUB-SECTION (3) of Section 148-A of the Code requires special attention whereby the Court is obligated to serve a notice to 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. 12. THIS situation has been dealt with by a Division Bench of this Court way back in the year 1983 in C. Seethaiah v. Govt. of A.P. The Division Bench had elaborately dealt with all the practical situations covering the issue and the purpose and object of Section 148-A of the Code. 12. THIS situation has been dealt with by a Division Bench of this Court way back in the year 1983 in C. Seethaiah v. Govt. of A.P. The Division Bench had elaborately dealt with all the practical situations covering the issue and the purpose and object of Section 148-A of the Code. Their Lordships relied upon the decision of a learned single Judge of the Karnataka High Court in G.C. Siddalingappa vs. G.C. Veeranna and extracted certain observations made by the learned Judge of the Karnataka High Court in G.C. Siddalingappa’s case (supra), which are re-extracted hereunder for ready reference: “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. 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 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”. 13. Again, a learned Single Judge of this Court in Mayuri Granites v. Venkateswara Granites, considering the provisions of sub-sections (3) and (4) of Section 148-A of the Code, and referring to the Division Bench decision of this Court in C. Seethaia’s case (1 supra), held thus: “Thus intention of the Legislature is that the caveator must be furnished with 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 C.P.C. respectively and that no orders passed by the Court ex parte, when a caveat is filed. In the instant case neither the appellant served the 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 order. Therefore the interim order passed by this Court on 31.5.1995 is illegal.” 6. In the instant case neither the appellant served the 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 order. Therefore the interim order passed by this Court on 31.5.1995 is illegal.” 6. It will also be appropriate to quote herein para-7 & 8 of the judgment rendered by Hon’ble Karnataka High Court in G.C. Siddalingappa vs. G.C. Veeranna, reported in [1981] 0 Supreme (Kar) 154 : “7. Section 148-A has been inserted in the Civil P.C., by the Central Act No. 104 of 1976. The object of inserting this provision in the Code is to afford an opportunity of hearing, before passing an interim order, to any person who is going to be affected by the interim order to be passed on an application which is expected to be made or has been made in a suit or proceeding instituted or about to be, instituted in a. Court. Therefore, any person who claims a right to be heard, before passing an interim order in any suit or a proceeding instituted or about to be instituted in a Court, has been given a right to lodge a caveat in respect thereof, by sub-section (1) of Section 148-A of the Civil P.C. As per sub-section (2) thereof, the person who files a caveat is required to serve a notice of the caveat on the person by whom the application has been or is expected to be made under sub-section (1) thereof. The service of notice as contemplated by sub-section (2) thereof, need not take place before or at the time of the filing of a caveat. The language of sub-section (2) does not call for such an interpretation in as much as it provides that the person by whom the caveat is lodged shall serve a notice’ of the-caveat, Therefore, the service of notice of the caveat can take place even after the caveat is filed. The language of sub-section (2) does not call for such an interpretation in as much as it provides that the person by whom the caveat is lodged shall serve a notice’ of the-caveat, Therefore, the service of notice of the caveat can take place even after the caveat is filed. What all the caveator is required to do is to produce a postal receipt along with the caveat for having sent the notice of the contemplated in sub-section (2) is relevant only for the purpose of sub-section (4) thereof which makes it obligatory on the applicant who seeks an interim order to furnish to the caveator a copy of the application and also the copies of any paper or document which the applicant wants to rely upon in support of his application. Thus, when once a caveat is filed under sub-section (1), irrespective of the fact as to whether or not the applicant or an intended applicant is served with the notice of the caveat as per sub-section (2) thereof, as per sub-section (3) thereof, it becomes obligatory on the part of the Court to serve a notice on the caveator of any application filed for an interim order affecting’ the caveator. The provision regarding service of notice as contained in sub-section (3) mandatory and non-compliance with it defeats the, very object of introducing Section 148-A. Consequently, it follows that the breach of sub-section (3) vitiates the order passed thereof. 8. In the instant case, it was not disputed that the caveat was filed on 25-2-81 along with the postal receipt for having sent a notice of the caveat to the respondent who was an applicant before the lower appellate Court in the application filed for an interim order. Therefore, when an application was filed on 28.2.1981 by the respondent for an interim order of stay, as per sub-section (3) of Section 148-A of the code the Court was required to serve a notice of the application, on the petitioner-caveator, before passing an interim order thereof. Admittedly no such notice was served upon the petitioner-caveator.” 7. Para-6 of the judgment rendered by Hon’ble Andhra Pradesh High Court in ‘C. Seethaiah vs. Government of A.P.’ reported in [1983] 0 Supreme (AP) 244, is also relevant for the purpose of present decision and the same is being quoted herein below: “6. The contention of Mr. Admittedly no such notice was served upon the petitioner-caveator.” 7. Para-6 of the judgment rendered by Hon’ble Andhra Pradesh High Court in ‘C. Seethaiah vs. Government of A.P.’ reported in [1983] 0 Supreme (AP) 244, is also relevant for the purpose of present decision and the same is being quoted herein below: “6. 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-sec (3) of s. 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 an 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. Number 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 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 loding 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 S. 148-A. In G.C. Veeranma, MANU/KA/0101/1981: AIR 1981 Kant 242, a single Judge of the Karnataka High Court held (at p. 244). It was clearly in violation of the provisions of S. 148-A. In G.C. Veeranma, MANU/KA/0101/1981: 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”. 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:’” 8. This Court need not reiterate what was held by the Hon’ble Courts in the aforesaid decisions. 9. In view of the aforesaid discussion, that part of the impugned order whereby parties have been directed to maintain status quo is set aside. However, it will be open to the learned Additional Commissioner, Garhwal Division, to pass an order in the same vein, but, only after hearing the caveator. 10. Writ petition stands disposed of. 11. Since present writ petition is being decided without notice to the respondents, therefore, they will be at liberty to move for recall of this order, if they feel aggrieved with the same.