Chandrajit and anr. Vs. Smt. Ganeshiya and ors. - Court Judgment

Excerpt:
civil - caveats - section 148-a of code of civil procedure,1908 - whether caveats can be lodged in proceedings other than suits such as in appeals, revisions etc. - held, application of section 148-a not restrictive and is wide. - - the relevant provision in the supreme court rules (order xix, rule 2) is intended for cases where no appeal is pending, but a similar provision, modified so as to be applicable to cases where a suit is pending as well as to those where a suit is about to be instituted would be helpful. 5. after the enforcement of section 148-a, the high court started accepting caveates in first and second appeals as well as other analogous proceedings till a learned single judge of this court upheld in second appeal no. normally, better justice is likely to be done if the two sides are heard. , air 1966 sc 1888, the supreme court held that the expression 'civil proceedings' in section 141 is not necessarily confined to an original proceeding like a suit or application for appointment of a guardian etc.k.c. agarwal, j. 1. on a reference made by the hon'ble the chief justice, this application filed by the plaintiff-respondents in the second appeal for acceptance of caveat has been listed before us.2. the controversy in a nut shell is whether section 148-a of the code of civil procedure is applicable to appeals. section 148-a providing for a 'right to lodge a caveat' has been inserted by the code of civil procedure (amendment) act, 1976 (104 of 1976). recommending this new provision, the law commission in its 54th report observed :'in order that a party who wishes to indicate his intention to have notice of an intended application by an adverse party may be authorised to do so, a provision for caveat may be, in our view, useful. the relevant provision in the supreme court rules (order xix, rule 2) is intended for cases where no appeal is pending, but a similar provision, modified so as to be applicable to cases where a suit is pending as well as to those where a suit is about to be instituted would be helpful.'3. sub-section (5) of section 148-a provides that a caveat lodged under sub-section (2) shall not remain in force after the expiry of ninety days.4. the object of the introduction of section 148a for caveat in the code is to afford an opportunity of hearing to a person as against whom a proceeding is likely to be instituted this is obviously with a view to avoid multiplicity of proceedings.5. after the enforcement of section 148-a, the high court started accepting caveates in first and second appeals as well as other analogous proceedings till a learned single judge of this court upheld in second appeal no. 720 of 1987, pheru singh v. nayadar, a preliminary objection of the appellant that the respondent did not have any right to file a caveat and to claim hearing on its basis at the time of admission of the appeal. while rejecting the caveat, the learned judge held that till the appeal was not admitted, the respondent could not claim any hearing.6. we have already noted above the object with which section 148-a was inserted. it , was to give an opportunity to the person as against whom proceedings have been lodged in the court of hearing so that injustice was not done to him and an order was not obtained or procured by hiding the facts which may have a relevance on the decision of the controversy. this was done with a view to prevent ex parte orders being passed.7. order xli, rule 11 of the c.p.c. does not in terms grant a right of hearing at the admission stage to a party as against whom an appeal has been filed. but, the powers of the court to hear the opposite party or respondent, where ends of justice require, are unlimited. normally, better justice is likely to be done if the two sides are heard. at the stage where the caveat is filed before admission, the court does not issue any notice. it only hears both the sides and passes appropriate orders. something is done by the court before granting a stay order under order xli, rule 5 of the c.p.c. at that stage, the court has the discretion to give such opportunity to the respondent as ends of justice may require before granting or giving stay orders. judiciary has a discretion in these matters, sometime large and sometime limited, and restricted, but it is never without it. the judicial discretion is neither caprice, nor whim, nor extrinsic, but a complex and inherent process where the reasons combine with experience, law and justice.8. a caveat is only an intimation to a judge or officer notifying that the opposite party be given an opportunity to be heard before any action is taken on the application or proceeding initiated by the other side. it is a request which, if attended to, will help the court in doing justice in between the parties. there is not so much question of entitlement of right of the person filing the caveat to be heard at the admission of such a hearing or granting of the stay order as it is the desirability of making a provision on the lines of the supreme court rules by enacting section 148-a the experience was that stay orders used to be obtained by not disclosing all or correct facts. since this is the idea behind the provision of section 148-a, one should not confuse the same with the right or entitlement of a person of hearing under order xli, rule 11, c.p.c.9. sub-section (1) of section 148-a provides for lodging of a caveat in a suit or proceeding already instituted or about to be instituted in a court by any person. section 148-a has to be read along with section 141, c.p.c. the words 'as far as it can be made applicable' in section 148-a make it clear that in applying the provisions of the code to proceedings, other than those of a suit, the court must take into account the nature of these proceedings and the reliefs sought. if the nature of the proceedings are such to which section 148-a could be applied, there would be no difficulty in doing so. the use of the expression 'appeal' in the context of the present suit and law was not necessary or conclusive for coming to the decision that section 148-a could not be applied to appeals.10. in ram chandra agarwal v. state of u.p., air 1966 sc 1888, the supreme court held that the expression 'civil proceedings' in section 141 is not necessarily confined to an original proceeding like a suit or application for appointment of a guardian etc., but it applies also to a proceeding which is not an original proceeding.11. the intention behind section 148-a could not be that it will only apply to suits and not to other proceedings such as appeals. this restricted interpretation would not be permissible in the background and context in which section 148-a was enacted.12. we are unable to restrict the meaning of the expression 'civil proceeding' while applying the provisions of section 148-a to appeals. if two sections, that is, sections 148-a and 141, are read together, there would be no difficulty in finding that caveats can be filed even in civil appeals. whether a person has a right to be heard before admission or before granting of stay order is wholly immaterial for the said purpose. the filing of caveat would assist the court in disposing of or deciding a case expeditiously. the law's delays have been intolerable. they have lasted so long as to turn justice sour.13. consequently, we are of opinion that provisions of section 148-a can be applied to appeals, first, second, execution or any other appeal filed under the code of civil procedure or any other enactment. the caveats would be entitled to be entertained at the time an appeal is submitted for reporting. the stamp reporter will make a note, if the caveat has already been filed before him, about the same.14. for what we have said above, we are unable to subscribe to the view taken by the learned single judge in pheru singh v. nayadar (second appeal no. 720 of 1987). as in our opinion the said decision does not lay down the correct law, we overrule the same.