Guidelines and Landmark Judgements on Caveat- Section 148A (CPC)

Ramyata Dass

The literal meaning of caveat is ‘let the person beware’. It is a Latin term the origin of which traces back to 16^th century. Under the Code of Civil procedure it is a kind of precautionary measure taken by the person who has a fear or apprehends that a case might be lodged against him in the court of law whereby by filing for a caveat petition he makes it aware to the court that such a step, if taken, should be made aware to him.

It is a petition which asks for due notice to be given to the caveator (who files a caveat petition) that no action or relief be granted to the applicant without a notice being given to the caveator.

The provision of Caveat is provided under section 148-A of the Code of Civil Procedure (hereafter referred as the Code). The word ‘Caveat’ has not been defined under the code but in the case of Nirmal Chandra Dutta v. Girindra Narayan Roy and Ors. AIR 1978 Cal 492 the court explained that Caveat is a caution or warning given to the court not to issue any grant or take step without providing notice to the party lodging the caveat. It is a precautionary measure taken against the grant of probate.

This provision was introduced on the recommendation of the 54^th law commission’s report by the Civil Procedure Code (Amendment) Act 104 of 1976.

The present article is an attempt to understand the concept of Caveat, basic elements, Scope and objective of caveat, Rights and duties of Caveator, applicant and the Court, Benefits of filing a caveat, Implications of non-implementation of a Caveat, the limitation period, also in what cases a caveat petition is non maintainable and ratio decidendi of Case laws for a better understanding.

OBJECTIVE AND SCOPE OF CAVEAT

The main aim of section 148 A is to safeguard and protect the interest of the person filing the caveat as he has a fear or uneasiness in his mind regarding a probable case. This is to avoid any Ex-Parte decision against him.

The caveator seeks through lodging of a caveat that he can get a fair opportunity of being heard. This is in consonance with the one of the principles of Natural justice i.e. Audi Alteram Partem. This is done also to avoid multiplicity of cases and to save the expenses and inconvenience caused to the courts.

In the case of Kattil Vayalil Parkkum Koiloth vs Mannil Paadikayil Kadeesa Umma AIR 1991 Ker 411 the court clearly stated that a third party or a total stranger, someone who does not have an interest in the matter cannot file an application of caveat.

Also in the Nirmal Chandra case (supra) the court said that a petition of caveat can also be filed a party who feels he is affected by any interim order of the court.

BASIC ELEMENTS OF A CAVEAT PETITION

Section 148-A explains who can file a caveat petition. This is provided under clause 1 of section 148 A whereby a person who claims to hold a right of appearing before the court can file a petition of caveat in the following circumstances:

1. Where there is an apprehension of application.
2. Where an application has already been made.
3. In a suit which is apprehended that it will be made against him.
4. In a suit which is already instituted.

In these circumstances a caveat maybe lodged.

DUTIES OF CAVEATOR

Caveator is a person who files the petition for caveat. He is imposed with certain duties under the law, which is provided in clause 2 of section 148 A of the code.

1. The cavaetor is directed to give due notice of the caveat by way of registered post, acknowledgement due-
2. on the person by whom the application has been
3. And on the person who is expected to be, made, under sub-section (1).

DUTY OF THE COURT

This section poses duty on the court also which is provided in clause 3. It says that after a caveat has been lodged under clause 1 the court shall serve a notice of the application on the Caveator in case any application is filed. This is a mandatory directive of the provision.

DUTY OF THE APPLICANT

Duty of the applicant is provided in clause 4 of the provision. This duty is only directive as against the duty of the court which is mandatory. It says that in case where a notice of any caveat has been served on the applicant, he is directed to furnish at the expense of the caveator :

1. Due copy of the application made by him.
2. The copies of any document or paper which has been filed by him in support of his application
3. The copies of paper and document which may be filed by him in support of his application

IMPLICATION OF NON SERVING OF NOTICE BY COURT

The result of the situation where notice has not been served by the court was explained in the case of C. Seethaiah v. Govt. of A.P (1) AIR 1983 AP 443. It was held that an order that is passed by the court without giving notice to the caveator shall be illegal though not nullity.

The intention of the legislature is clear in the words of the provision that the caveator must be furnished with copies of petitions and documents filed by the other side and should be duly heard before the court can pass any order. It is for this purpose that the legislature imposes a duty on both the court and the applicant under sub section (3) and (4) respectively.

Further to make it more it more clear, the case of G.C. Siddalingappa vs. G.C. Veeranna AIR 1981 Kar. 242 the court highlighted the scope of section 148 A. The court said that the object of inserting this provision in the code is to give a proper opportunity of being heard before an interim order could be passed. This right is given to any person who might be affected by the interim order.

Therefore any person who claims to be affected by the interim order of the court is given the right to lodge a caveat under the provisions of the code. It was also observed that after filing of a caveat, this becomes 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 the condition precedent (notifying the caveator) is satisfied, it is impossible for the Court to pass the interim order which in turn may affect the caveator.

In a landmark case of Reserve Bank of India Employees Association and Another v. The Reserve Bank Of India And Others AIR 1981 AP 246 the question of law before the court was whether an order of stay that is made without hearing the caveator is unenforceable or is a nullity.

The court held that an order that is passed without giving due notice to the caveator cannot be held as a total nullity. It was said that if the legislator’s intent was to curtail the ordinary powers of a civil court it could have done so by a direct legislation rather than by an indirect one. The powers of a Civil Court are too sacrosanct for it to be allowed to be altered or diluted or even curtailed by a remote implication.

It was held in this case that a mere lodgment of a caveat petition will not curtail the power of the court even if the caveator was not informed of the date of hearing of the matter. Caveat is merely a right of the person to be notified but this cannot bar the court from passing interim order on the merits of the case.

Further the same stance was seen to be taken in the case of K. Rajasekaran v. K. Sakunthala & Ors 2008(5) CTC 319 and also in Kendriya Vidyalaya Sangthan & Ors v. M.L. Mudgal 1995 AIHC 2793

ADVANTAGES OF FILING A CAVEAT PETITION

1. It safeguards the basic right of being heard of the caveator.
2. An ex parte order can be made against the caveator from the time he files for a caveat petition.
3. It avoids multiplicity of cases and also avoids inconvenience to the courts
4. The interim order so passed is unenforceable if it passed ex parte.

WHERE CAN A CAVEAT PETITION BE FILED

A person who has an interest in the order passed by the court may file for a caveat at any civil court of original jurisdiction, appellate jurisdiction, high court, or Supreme Court.

This can be filed when a caveator apprehends that some legal proceeding can be filed against him. Here civil courts may also choose to the inclusion of Tribunals, Forums, Courts of Small Causes, and Commissions.

CASES WHERE CAVEAT IS NON MAINTENABLE

In Harikrishnan v. Jacob (2005 (2) KLT 488) a case under Article 226 of the constitution of India it was held that a caveat petition is not maintainable. This view was also reiterated in a case in 2008 between the Secretary, Ministry of Health and Family Welfare V Aswathy Elsa Mathew (2008 (2) KLT 670 : ILR 2008 (2) Ker. 298).

An important observation was made by the court that the principles stated in the code can act as a vade mecum or guide in the exercise of authority under article 226 and 227 but the procedural checks which are given under the code cannot place an obstruction or impediment in the exercise of jurisdiction of the high courts.

It was noted that the constitutional powers under Article 226 and 227 of the constitution are not controlled by any Code of Procedure, and it will be a wrong interpretation if it is contended that the supervisory jurisdiction of the High court under Art. 227 of the Constitution of India is regulated by one or other provisions covered by the Code.

TIME LIMIT THAT CAVEAT STAYS IN FORCE

According to clause (5) a caveat shall remain in force for not more than 90 days from the date of its filing. After the period of 90 days a fresh caveat can be filed.

PROCEDURE TO FILE A CAVEAT PETITION

An affidavit with the caveat petition is to be attached and both the caveat and the affidavit should be duly signed by the caveator. Further if there are any impugned order, vakalatnama when he is accompanied by his advocate and a proof of notice of caveat should be submitted to the court with the relevant documents.

Whereby the caveat formed should be registered in a caveat registry of the courts in the form of a petition. This registrar contains the date of caveat, name and address of the caveator, name of the plaintiff and defendant, number of proceedings filed by the caveator. A copy should always be attached to the caveat plus there should be a postal proof and an explaining application to the court that a copy has been sent to all the parties and thereby the court is not required to do the same.

It has been seen that the court charges a nominal fee of Rs. 100 for filing of a caveat although this may vary from court to court.

Furthermore, a format of caveat for the assistance of people.

CONCLUSION

The right to file a caveat is bestowed to persons having an interest in the order of the court and fears that an order can be passed against him. It has been seen that the courts can have a different viewpoint from case to case which can make the nature of each clause of section 148-A different.

Also according to clause (5) it is seen that the caveat shall not remain in force after the expiry of 90 days on 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.