G.C Siddalingappa v. G.C Veeranna .

ORDER

1. This civil revision petition is directed against the order dated 28-2-1981 passed by the learned Civil Judge, Tiptur, in M. A. 7. of 1981 granting an interim order of stay on I. A. No. 3 filed by the respondent in Misc.; Appeal No. 7 of 1981.

2. The matter arises in this way: The respondent has filed the suit bearing O. S. No. 102 of 1980 in the Court of the Munsiff at Chikkanayakanahalli for a declaration of title and for permanent injunction in respect of certain immoveable property. In that suit, an application for temporary injunction was filed and an ex parte order of temporary injunction was also passed. Thereafter, the petitioner-had filed 1. A. No. 7 for vacating the ex parte order of temporary injunction. The learned Munsiff, after hearing, both the sides, modified the order dated 16-41980 and vacated the order of temporary injunction in so far it related to 10 guntas of the suit land by the order dated 25-2-1981. On the very day, the petitioner has filed the caveat in the Court Of the Civil Judge, Tiptur, expecting that the respondent is likely to file an appeal against the aforesaid or&-r of the Munsiff modifying the order of, temporary injunction and seek an interim order. The caveat has been lodged after sending a copy of the same to the respondent by a registered post with acknowledgment due.

3. After the filing of the caveat on 25-2-1981, the respondent has filed an appeal in the aforesaid Court of the Civil Judge, Tiptur, and in that appeal an application for temporary injunction has also been filed. In view of the caveat filed by the petitioner, the Court had rightly directed issue of notice On the appeal as well as on the application 1. A. No. I - for temporary injunction on 25-2-1981 returnable by 6-3-1981. When that was the position, on 27-2-1981, the respondent filed an application 1. A. No. 2 for advan-0ing the case to 27-2-1981. Curiously, the learned Civil Court advanced -the Case to 28-2-1981 even though on 25-2-1981 he had directed issue of notice returnable by 6-3-1981 to the caveator (respondent in ft appeal) on the memorandum of appeal as well as on the application for temporary injunction. Accordingly, the appeal was brought before The Court on 28-2-1981.On that date, the respondent filed an application 1. A. 3 under 0. 4 1, R. 5 r/w S. 151 of the Civil P. C., for staying the operation of &e. order under appeal, passed by the trial Court. Along with the application, an affidavit was also filed stating 'that the petitioner's Counsel (respondent's counsel in the appeal) refused to receive the application which was tied to be served upon, him and further it was also stated that the notice of the caveat had not been served upon the respondent; therefore, it was not incumbent upon him to,save a copy of the application. On 28-2-1981, the learned Civil Judge has passed an interim order staying the operation of the order passed by the trial Court and has further directed notice to the petitioner (caveator-respondent in the appeal).' It is the correctness of this order that is challenged in this revision petitions

4. Sri G. Lingappa, learned Counsel for the petitioner, submits that the learned Civil Judge has acted illegally and without jurisdiction in passing an interim order without issuing notice to the petitioner who, has filed the caveat in respect of the subject matter of the appeal and the interim relief sought for therein. Therefore, it is submitted that the order granting stay is invalid and as such, it is liable to be set aside.

5. On the contrary, it was submitted by Sri Shantanu Patil for Miss. Pramila, learned Counsel for the respondent, that the notice of the caveat was not served upon the respondent, therefore, it was not incumbent upon him to serve a copy of the application nor it was incumbent upon the Court to issue notice to the petitioner. It was also f further submitted that after all it was an interim order and as such, it was open for the petitioner to file an application before the Court below for vacating the same.

6. The question that arises for consideration is: -

Whether the learned Civil Judge could have passed an ex parte order in a case where the vacant (caveat?) was filed.

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. 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 caveat by registered post with acknowledgment due. The service of notice as 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 25-24981 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 fled 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 saved upon the petitioner-caveator.

9. The fact that the. respondent who was an applicant before the lower appellate Court tried to serve a copy of the application on the counsel for the caveator and the counsel refused to receive the same (which fact is disputed) did not absolve the lower appellate Court from serving a notice of the application on the caveator. Even if it were to be accepted that the application was served on the counsel of 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. It was -not the case of the respondent that the caveator or his counsel was made known that the application for interim order would be taken up for hearing by the Court on a particular date and time. Therefore, the lower appellate~ Court, not only acted illegally and, in contravention of the -provisions contained in sub-section (3) of Section 148-A of the code, in passing an interim order without serving a notice of the application on, the petitioner caveator, but it also acted in excess of its jurisdiction. 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 not permissible for the Court to pass an interim order affecting the caveator, as otherwise it will defeat the very object of Section 148-A of the Civil P. C. Therefore, the interim order passed by the lower appellate Court on 28-2-1981 without serving a notice of the application on the petitioner caveator, is able to be set aside, as the learned Civil Judge could not have passed an ex parte ford r in a case where the caveat had been filed.

10. The learned Counsel for the petitioner has relied upon a decision of the High Court of Calcutta in the case of Nirmal Chandra Dutta v. Girindra Narayan Roy, . In the aforesaid decision, the object of introducing the provision for lodging a caveat, in the Civil P. C. has been dealt with.

11. The contention of Sri Sbantahu Patil, learned Counsel for the respondent, was that since the notice of the caveat was not served upon the respondent, he was not required to serve. a copy of the application on the petitioner-caveator. Of course, as per sub-section (4) of Section 148-A, it is only when a notice of the caveat is served on the applicant, he is required. to forthwith, furnish the caveator, at the expense, with a copy of the application made by him along with the copies of any order or documents which have been or may be filed by him in support of the application. But, as already pointed out, when once a caveat is filed as per sub-section (1) of Section 148-A of the Civil P. C., whether or not a notice of The caveat is served on the applicant as per subsection (2) thereof, it becomes necessary and obligatory on the part of the Court to serve a notice of the application filed in any suit or proceeding on the caveator because the filing of The caveat is complete as soon as the same is filed along with the postal receipt for having sent a notice of the caveat to the applicant by registered post acknowledgment due. Therefore, the contention of Sri Shantanu Patil based on sub-section (4) of Section 148-A does not, in any way, help the respondent to sustain the order. of the lower appellate Court.

12. For the reasons stated above, the civil revision petition is allowed. The order dated 28th February, 1981 passed by the learned Civil Judge, Tiptur, in M. A. No. 7 of 1981 granting an interim order of stay as prayed for in 1. A. No. 3 is set aside and 1. A. No. 3 is remitted to the Court below with a direction to consider the same in' accordance with law. The learned Civil Judge is also directed to dispose of the application within two months.

13. Let a copy of this order be despatched to the lower appellate Court, forthwith

14. Petition allowed.