(Section 148A of the Civil Procedure Code, 1908)
A Caveat is a Latin term which means, 'let a person beware' originated in the mid 16th century. In law, it may be understood as a notice, especially in probate, that certain actions may not be taken without informing the person who gave the notice. It may simply be understood as a warning. In the Civil Procedure Code of 1908 (hereinafter, the Code) it was inserted under section 148A by the recommendations of the Law Commission of India's 54th Report and was inserted by the CPC (Amendment) Act 104 of 1976.
The Section talks in brief about the caveat petition. A caveat petition is a precautionary measure which is undertaken by people usually when they are having a very strong apprehension that some case is going to be filed in the Court regarding their interest in any manner.
The word 'Caveat' is not defined in the Code. However, in the case ofNirmal Chand v. Girindra Narayan,the Court had defined the word Caveat, wherin it said, A Caveat is a caution or warning given by a person to the Court not to take any action or grant relief to the other side without giving notice to the caveator and without affording oppurtunity of hearing him.
The Section 148A of the Code reads as under,
148A. Right to lodge a caveat.
(1) Where an application is expected to be made, or has been made, in a suit or proceedings 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 was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.
There are five basic ingredients to the section, which are discussed in brief,
i. Who may lodge a Caveat? (Clause 1)
Any person claiming a right to appear before the Court,
·Where an application is expected to be made
·Where an application has already been made
·In a suit or proceeding instituted
·In a suit or proceeding which is about to be instituted
May lodge a caveat thereof. It is substantive in a nature.
ii. Duties of the Caveator (Clause 2)
This clause is directive in nature. The person by whom the Caveat has been lodged is called a Caveator. He shall,
·Serve a notice of the Caveat by registered post, acknowledgement due
·On the person by whom the application has been made
·On the person by whom the application is expected to be made
iii. Duty of the Court (Clause 3)
After a Caveat has been lodged under Clause 1, if any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the Caveator. This clause is mandatory in nature.
iv. Duties of the Applicant (Clause 4)
It is directive in nature and says that, where a notice of any Caveat has been served on the applicant, he shall furnish, at the expense of the Caveator,
·A copy of the application made by him.
·Copies of any paper or document which has been filed by him in support of his application.
·Copies of any paper or document which may be filed by him in support of his application.
v.Life of a Caveat Petition (Clause 5)
The life of the petition is 90 days, from the date on which it was lodged. The only exception is, if the application already exists, or has been made before the said period, the clause ceases to exist.
All the above five ingredients are vital to a Caveat petition all the above are to be followed austerely.
Object and Scope of the Section:
The object of this section is to safeguard the interest of the Caveator, who is ready to face the suit or proceedings which is expected to be instituted by his opponent, affording an opportunity to be heard, before an ex parte order is made. Also, to avoid multiplicity of proceedings, so as to save the costs and conveniences of the Courts.
The Scope of the section was laid down in various cases. In the case of Nirmal Chand the Court had said that any party affected by an interim order can file a Caveat petition. Also, in the case of Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma, the court opined that a person who is a total stranger to a proceeding cannot lodge a caveat.
Important cases under the Section:
A. Reserve Bank of India Employees association & Anr. V. The Reserve Bank of India and Ors.
In this case, the appellants had filed a Caveat, apprehending an application which may be filed by the respondent in the present case. It was a revision petition under section 115 of the Code. The application was for grant of an injunction against restraining them from holding any meeting or, staging any demonstration or resorting to any other form of direct action or playing musical instruments, beating of drums, using microphones, etc., within the premises of the Reserve Bank of India, Hyderabad Branch.
A caveat petition was filed on 01-10-1980 apprehending the above, for which a notice was served on the plaintiff on 08-10-1980. On 27-10-1980, copies of the intended application for interim relief, relevant papers and documents were served on the Caveators. The plaintiff's also informed the caveator's that they will be moving the application on 28-10-1980. The case was not heard on 28th and was just passed over. It was later heard on 30-10-1980, and an order of injunction was passed without giving any notice to the caveators.
Caveators contended that the interim orders of injunction passed by the court on 30.01.1980 was null and void, as it was passed without jurisdiction, contrary to section 148A of the CPC, 1908. The issues were that,
1. Whether the order of the learned Judge injuncting the present caveators without giving a notice is null and void ?
2. Whether the order stands till it is set aside according to the procedure known to law ?
It was argued that,
a) The term “notice of application” mentioned in clause(3) is not defined under the code.
b) However, it cannot relate to anything except the date of hearing, which is well established by a simple reading of the section.
c) The failure is a failure with respect to jurisdiction or merely its procedure?
d) If jurisdictional failure, the order is null and void.
e) If procedural failure, the order needs to be set aside in an appropriately constituted legal proceeding.
The court in the case at hand opined, 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 caveat or was not informed of the dale 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 30thOctober, 1980 is not without jurisdiction and is, therefore, operative till it is set aside in appropriate proceedings
B.Santhosh v. Jagat Ram & Anr.
Smt. Santosh is a widow who was fraudulently deprived of the properties of her husband, by her own brother-in-laws. Her husband died in 1985, while she was issueless. Daya Ram and Jagat Ram approached her for the settlement of properties and took her to Manhendragarh, making her believe that they would help her in mutating and registering the properties in her name. On 26.03.1985, original decree was passed wherein, she said that she was asked to give her thumb impressions on 3-4 papers and also was asked to say yes to any questions put forth. Later the respondents started to threaten her that the land was theirs and she had no right over it. She filed this appeal to her original suit, asking for the proper title. Respondents pleaded that the suit was barred by limitation. Court agreed that the decree dated 26.03.1985 was a result of a fraud. The respondents went for an appeal in the appellate court wherein the court said that it was a proper consent decree and did not involve fraud. Another appeal was also filed at the HC, which was subsequently dismissed, and later this present case was taken at the SC. Appellant contested that the consent decree was a classic example of fraud and the decree at the second appeal was a classic example of non-application of mind.
A caveat was filed by the respondents for which the appellant gave a reply which was filed, wherein she had accepted the decree and did not challenge it then. The trial court rightly held the fact that when the caveat was filed in 1985, the lady did not have an issue with respect to the challenging the decree. On 30.9.1985, this caveat was filed which is around 6 months after the original application was filed. The question was,' Whether on the basis of caveats, could summons be issued by the civil courts?' However, a summon was issued and other party had come to the court, on basis of a caveat.
Comments of the Court with respect to the Caveat:
§“Appellant was again brought to the Court in pursuance of the so-called summons served on her through Bailiff in the proceedings under Section 148A of the CPC and her statement was also got recorded. It is not known as to how a Caveat application was got registered and a summons was sent on the basis of a Caveat application, treating it to be an independent proceedings. Such is not the scope of a Caveat under Section 148A of the CPC.” (Para 10 Page 5)
§“Nothing has been shown to us in the nature of an order passed by the Court on the basis of the so-called Caveat. We are convinced that this was nothing, but a very poor attempt to get the fate of the appellant sealed by getting her statement recorded. Para 10 Page 5)
The Court in this case opined that, We are of the firm opinion that a whole suit No. 253 of 1985, decree passed thereupon on 26.3.1985 and the subsequent Caveat proceedings were nothing but a systematic fraud. There cannot be a better example of a fraudulent decree. We are anguished to see the attitude of the Court, who passed the decree on the basis of a plaint and a Written Statement, which were filed on the same day. We are also surprised at the observations made by the Appellate Court that such circumstance could not, by itself, prove the fraudulent nature of the decree. A fraud puts an end to everything. It is a settled position in law that such decree is nothing, but a nullity.”
C.G.C. Siddalingappa v. G.C. Veeranna
It is a Civil revision petition which is directed against an order dated 28.02.1981 granting an interim order of stay. The matter was, that the respondent filed a suit for declaration for title and for a permanent injunction with respect of a certain immovable property, along with which an application for interim injunction was filed. An ex-parte order of the temporary injunction was passed. Petitioner filed an application for vacating the ex-parte order of temporary injunction, which was granted on 25.02.1981. On the same day, the petitioner filed a caveat apprehending the respondent to filed an appeal after modification of the interim order. The caveat was lodged after sending a copy of the same to the respondent by a registered post with acknowledgement due.
As expected the respondent also had rightly filed an appeal along with an application for temporary injunction. The court also rightly server a notice on the caveator which was returnable by 06.03.1981. While this was the case, the appellant filed an application for advancing the case to 27.02.1981. The Court took the case on 28.02.1981, and also passed an interim order. On 28.02.1981, the respondent also filed an application under O.41 R.5 r/w S.115 of the CPC, 1908 for staying the order under appeal.
The issue is,
i. “Whether order dated 28.02.1981 is jurisdictionally valid?”
ii. “Whether the judge could have passed an ex-parte order in a case where a caveat was filed?
The petitioner contested that the interim order was illegal and without jurisdiction as the notice was not relied upon and an order was passed. The respondent argued that it was not compulsory for the court to serve the notice on the respondent. It was held that, “The provision regarding service of notice as contained in sub-section (3) is 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.”
The three cases give us a broad picture of the Courts approach towards this section. There is an predicament with respect to the interpretation of the section and its clauses. It is with the judiciary to decide in the nature of the clauses, as it differs from case to case.
The Court has said that a proceeding under article 226 of the Constitution of India, does not entertain a Caveat petition. It also applies for execution proceedings and proceedings under the Criminal Procedure Code. There is no doubt that the said parameters can be stretched by means of an imperative process, however, the very necessity of the provision cannot be put on stake by the Court due to the complications of the Court. The section should be followed scrupulously by the Courts.
# Nirmal Chand v. Girindra Narayan, AIR 1978 Cal 492.
# Supranote 1
# Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma, AIR 1991 Ker 411.
# Reserve Bank of India Employees association & Anr. V. The Reserve Bank of India and Ors.,AIR 1981 AP 246
# Supra note 4
# Santhosh v. Jagat Ram and Anr. (2010) 3 SCC 251
# Supra note 6
# G.C. Siddalingappa v. G.C. Veeranna, AIR 1981 Kant 242
# Harikrishnan v. Jacob, AIR 2005 Ker 220
# Jeyaram v. Ajjanna, ILR 1986 Kart 3583
# Nisha Priya Bhatia v. Union of India, (2010) INSC 51