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Reserve Bank of India Employees Association and anr. Vs. the Reserve Bank of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 5994 of 1980
Judge
Reported inAIR1981AP246
ActsCode of Civil Procedure (CPC), 1908 - Sections 115, 115(2), 148A, 148A(1), 148A(2), 148A(3) and 148A(4)- Order 39, Rule 1 - Order 43, Rule 1
AppellantReserve Bank of India Employees Association and anr.
RespondentThe Reserve Bank of India and ors.
Appellant AdvocateK.G. Kannabhiran, Adv.
Respondent AdvocateC. Poornaiah, Adv.
DispositionPetition dismissed
Excerpt:
civil - notice - sections 115 and 148-a (3), order 39 rule 1 and order 43 rule 1 (r) of code of civil procedure, 1908 - caveat lodged under section 148-a - notice given to plaintiffs by petitioner defendant - reliable applications and documents also served to caveators - information regarding interlocutory application also given - ex parte order of injunction against caveators passed - notice of hearing prescribed under section 148-a (3) not given - held, order not sustainable as violative of provisions of section 148-a. - - and they were clearly necessary parties, there could be no question that they were the parties entitled to be heard and therefore entitled to file a caveat under section 148-a of the civil procedure code, which they had filed as mentioned above. therefore,..........of the reserve bank of india, hyderabad branch, lodged a caveat under section 148-a of the civil procedure code with the city civil court. this lodgment was done on 1st oct., 1980. the caveat so lodged was numbered as 47 of 1980. thereafter, the two petitioners gave notice on 8-10-1980 to the plaintiffs informing them that a caveat had been entered against any application that the plaintiffs might move affecting the petitioners. on 27-10-1980, the plaintiffs served the two caveators copies of their intended application for the grant of interim relief and also copies of other relevant papers and documents. the plaintiffs also informed the caveators that they were moving their application for grant of an injunction on 28-10-1980 and the matter would be heard by the court on that.....
Judgment:
ORDER

1. The two petitioners before me are defendants 5 and 6 in O. S. No. 3623 of 1980 on the file of the Second Assistant Judge, City Civil Court, Hyderabad. They along with some others, apprehending that the plaintiffs in the aforesaid suit might apply for grant of an injunction against them re-straining them from holding any meeting on Staging any demonstration or resorting to any other form of direct action by playing musical instruments, beating of drums, using microphones, etc., within the premises of the Reserve Bank of India, Hyderabad branch, lodged a Caveat under Section 148-A of the Civil Procedure Code with the City Civil Court. This lodgment was done on 1st Oct., 1980. The caveat so lodged was numbered as 47 of 1980. Thereafter, the two petitioners gave notice on 8-10-1980 to the plaintiffs informing them that a Caveat had been entered against any application that the plaintiffs might move affecting the petitioners. On 27-10-1980, the plaintiffs served the two Caveators copies of their intended application for the grant of interim relief and also copies of other relevant papers and documents. The plaintiffs also informed the Caveators that they were moving their application for grant of an injunction on 28-10-1980 and the matter would be heard by the Court on that day. But on 28-10-1980 the plaintiff's I. A. No. 1303 of 1980 filed for the purpose of obtaining interim relief was not heard. On that day the I. A. was merely allotted to the second Assistant Judge. Thereafter the second Assistant Judge without giving any notice to the Cavealors, passed an order of injunction as prayed for on the 30th October, 1980 restraining the respondents to the I. A. from holding any meeting or staging any demonstrations or resorting to any other form of direction, etc., in the premises of the Reserve Bank of India, Hyderabad branch, pending further orders on that application. Against this order of the second Assistant Judge, City Civil Court, Hyderabad, the Cavealors filed the present C. R. P.

2. The contention of the petitioners is that the interim orders of injunction passed by the second Assistant Judge on 30th Oct., 1980 was null and void as it was passed without jurisdiction because it was passed contrary to the newly added provisions of Section 148-A of the Code of Civil Procedure and more particularly Sub-section (3) of that section. Section 148-A of the Code of Civil Procedure, which was inserted into the Civil Procedure Code by a recent enactment of the Parliament reads as follows :

'148-A. Right to lodge a caveat:

(1) Where an application is expected to be made, or has been made, in a suit or proceeding 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, acknowledgment 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 cavea-low.

(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.'

3. Sub-section (1) of Section 148-A provides for the lodging of a caveat in a suit or proceeding already instituted or about to be instituted in a Court by any person. But that sub-section prescribes a qualification for the person, who intends to lodge a caveat. He must be a person claiming a right to appear before the Court on the hearing of the application, which the plaintiff might move for the grant of an interim relief. The language of Sub-section (1) of Section 148-A is wide enough to take in not only a necessary party but even a proper party. As the present petitioners were directly sought to be affected by the aforesaid I. A. and they were clearly necessary parties, there could be no question that they were the parties entitled to be heard and therefore entitled to file a caveat under Section 148-A of the Civil Procedure Code, which they had filed as mentioned above. The lodging of the caveat by the petitioners is. therefore, clearly regular and lawful. Now, under Sub-section (2) of Section 148-A once a party is admitted to the status of a caveator he is clothed with certain rights and duties and it becomes his duty to serve a notice of the caveat lodged by him by registered post on the person or persons by whom the application against the gaveator was going to be moved. This legal task the caveators had fulfilled in this case by serving a notice of lodgment of the caveat on the plaintiffs on 8-10-1980. Then Section 148-A divides and distributes the duties of the applicants for the interlocutory application and the Court between the two Sub-sections (3) and (4) of Section 148-A. Under Sub-section (4) the plaintiffs-applicants should furnish the caveators a copy of the application made by the applicants and also copies of papers and documents on which they are about to rely. This they did on 27-10-1980. They did even more. They informed the caveators that they were moving the Court on 28-10-1980 by their interiocutory application for grant of an injunction. The requirement of Sub-section (4) of Section 148-A of the Civil Procedure Code may, therefore, be taken to have been satisfied. In this case, it is the Court that failed to do its part of the statutory duty imposed by Sub-section (3) of Section 148-A. Under that sub-section the Court is required to serve 'a notice of application on the caveator'. This duty has been cast on the Court obviously for the purpose of enabling the caveator to appear and oppose the granting of an interim relief in favour of the applicant. Sub-section (3) requires the Court to give a notice of application. This the Court never did. Instead the learned Judge passed an ex parte order of injunction on 30-10-1980 against the caveators.

4. Now the question is whether that order of the learned Assistant Judge injuncting the present petitioners without giving a notice to the petitioners and hearing them is null and void or is it an order which stand till it is set aside according to the procedure known to law. There is no doubt that the requirements of Sub-sections (1), (2) and (4) of Section 148-A of the Code of Civil Procedure are fully satisfied in this case by the caveators as well as the plaintiffs. In fact in the case of Sub-section (4) they were even over fulfilled by the applicants. But it is the Court that failed to act in compliance with the statutory requirements of Section 148-A, Subsection (3). Under Sub-section (3) of Section 148-A where a caveat had been lodged, it becomes the duty of the Court to serve a notice of that petition on the caveators. Although the words 'notice of application' are not defined in the Civil Procedure Code, these words have a settled meaning under the regime of the Civil Procedure Code established through the Civil Rules of Practice. Under the Civil Rules of Practice a notice of interlocutory application is required to be given to the other party to the suit or other matter, not less than three days before the day appointed for the hearing of the application. That is always taken to include the date of hearing. In any case, in the context of Sub-section (3) of Section 148-A the words 'notice of application' cannot mean anything, if they do not refer to the exact date of hearing. It must, therefore, be taken that it is the duty of the Court under Section 148-A to give sufficiently reasonable and definite time to the caveators to appear and also to oppose the interlocutory application intended to be moved by the plaintiffs-applicants and the Court should give a specified date for hearing of the interlocutory application. This duty of the Court is clearly different and distinct from the duty of the parties described in Sub-sections (2) and (4) of that section. The duty of the Court under Sub-section (3) is in addition to the other parts assigned to the other parties in the drama of litigation. The furnishing of copies of documents by the plaintiffs to the caveators on 27-10-1980 and informing them of the date of their moving their interlocutory application can-not, therefore, be taken as acts constituting compliance with the specific duty assigned to the Court under Sub-section (3) of Section 148-A. The duty of ihe applicants under Sub-section (4) of Section 148-A is different and distinct from the duty of the Court under Sub-section (3). I, therefore, entertain no doubt whatsoever in holding that the lower Court had erred in passing the impugned order of injunction on 30th Oct., 1980 against the caveators without giving them a notice of the date of hearing. If that is all. I would have allowed this C. R. P., without anything more. But, unfortunately, for the petitioners there is a lot more to be said against them in this case. The precise question that is now raised is whether the afore-mentioned failure of the Court to act in accordance with the requirements of Sub-sec-tion (3) of Section 148-A is a failure relating to its jurisdiction or merely its procedure. If it is a jurisdictional fault, the order passed by the Court ignoring the requirements of Sub-section (3) of Section 148-A would be a void order and would not be allowed to be operative for any purpose. On the other hand, if it is a procedural error, Ihe order stands till it is set aside in an appropriately constituted legal proceeding.

5. The word 'Caveat' has not been defined by the Civil Procedure Code. In fact il has been introduced into it only recently. We have to take its ordinary meaning. Wharton's Law Lexicon which is a dictionary combined with a small commentary on each word has the following inleresting entry describing the office of caveat :

'In Scotland any one who expects certain proceedings to be taken by another, may lodge with the Clerk of the Court a 'Caveat'. He is then entitled to be informed by the Clerk if and when the proceedings are taken.'

Jowitt's Dictionary of English Law gives the meaning of the word 'caveat' as an entry made in the books of the offices of a registry or Court lo prevent a certain step being taken without previous notice to the person entering the caveat, who is called the cavealor. What appears to me to be significant from the above two meanings taken out from the two. well known legal dictionaries is the fact that none of these standard works puts the caveat so high as to act as a fetter on the exercise of power by the Court. In other words, they do not say that any action taken by the Court without giving prior notice to the caveator would be a nullity. The reason seems to me to be that the caveat has no effect on the exercise of powers by the Court. It follows, therefore, that the order passed by a Court wilhout giving a notice to the caveator cannot be treated as a nullity. If a statute intends to demolish the ordinary powers of a Civil Court, it is well seltled proposition of law that it can only be done by a direct piece of legislation enacted for that purpose and not by the effect of an indirect legislation as if it were by a side wind. The powers of a Civil Court are too sacrosanct to be allowed to be diluted or to be curtaited 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, il appears to me that the mere lodgement of a caveat would not deprive the Court of its power to pass an order even if the caveator was not informed of the dale of hearing of the matter. As the lodgement 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 lhat the order passed in this case on 30th October, 1980 is not without jurisdiction and is, therefore, operative till it is set aside in appropriate proceedings.

6. This leads me to consider the question whether the present revision filed under Section 115 of the Civil Procedure Code is an appropriate proceeding. It must be noted that against an order of injunction passed by the Court below under Order 39, Rule 1, C. P. C., the petitioners have a statutory right of appeal under Order 43, Rule 1, Clause (r) of the Civil Procedure Code. Under Section 115(2), C. P. C., the High Court is debarred from varying or reversing any decree or order against which an appeal lies either to Ihe High Court or to any Court subordinate to it. As I hold that the order passed by the Court below is one passed not without jurisdiction, it follows that the order passed on 30-10-1980 is an appealable order and therefore, cannot be interfered With in a revision.

7. It is argued by Mr. K. G. Kannabhiran that this revision petition is filed not against the merits of the order passed but about the correctness of the procedure adopted by the Court below. This argument in substance means that the Court below had no jurisdiction to pass the order under revision without giving a notice to the petitioners and that, therefore, the prohibition contained in Section 115, C. P. C., against entertaining any revision where an appeal is provided, would not apply. But, whatever may be the merits of that matter where an order is one passed totally without jurisdiction and is, therefore, for that reason a nullity, it will have no application to a case like the pre-rent one where the order is act a nullity but is only irregular. Accordingly, I hold that this revision petition should fait merely for the reason that it is not maintainable under Section 115 of the Code of Civil Procedure forbidding the entertaining of any revision against an order or decree, which is appealable either to the High Court or to any Court subordinate to it.

8. In view of my conclusion on the maintainability of this Civil Revision Petition, no other question need be considered.

9. The Civil Revision Petition is accordingly dismissed with costs.


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