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C. Seethaiah Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit appeal No. 505 of 1983
Judge
Reported inAIR1983AP443
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC), 1908 - Sections 148-A
AppellantC. Seethaiah
RespondentGovernment of Andhra Pradesh and ors.
Appellant AdvocateM.R.K. Choudary, Adv.
Respondent AdvocateGovernment pleader for Revenue and ;E. Manohar, Adv.
Excerpt:
.....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 impossible for the court to pass an interim order affecting the caveartor'.the learned judge further held: choudary strenuoulsy contended that the obligation to give notice having been imposed on the court for the failure of printing the name of the caveator's counsel in the cause list he cannot be held responsible this contention ignores the fact that the appllant-petitioner failed to serve copies of the writ petition and the miscellaneous petition seeking suspension of the impugned order on the caveator in spite of notice of lodging the caveat..........of the government that notice was received by the appellant on 14-3-1983 however without serving a notice of writ petition or miscellaneous petition seeking suspension of the operation of the impugned order on either the third respondent or his ocunsel sri e. manohar the appellant filed the writ petition and obtained orders of interim suspension on 25-3-1983. the third respondent herein moved wvmp 305 of 1983 for vacating that interim order our learned brother ramanujulu naidu j. has allowed the petition observing that it is unfortunate that no notice of the writ petition and miscellaneous petition was given to sri. e. manohar counsel for the third respondent as required under sec. 148-a (3) of the civil p.c. and holding that the conduct on the part of th petitioner is reprehensible' the.....
Judgment:

K. Madhava Reddy, C.J.

1. This writ appeal is directed against the Judgment of our learned borther Ramanujulu naidu J. In WVMP 305 of 1983 vacating the interim suspension granted in WPMP 3430 of 1983 pending writ petition.

2. The appellant herein seeks writ of certiorari or any other appropriate writ to quash the order of Government of andhra pradesh in G.O. Rt. No. 383 revenue (H) Department dt 8-3-1983 by which the Government refused to interfere in revision with the orders of the commissioner land revenue and rejected the same.

3. Due tot he death of the permanent village karnam a permanent vacancy of the Karnam's post of pavanivarikandrika village arose on 19-7-1977. A notification was issued calling for applications to fill up the said post on 10-11-1980. The appellant and the third respondent herein were the only applicants for the said post. On thedate when the vacancy arose the appellant who belongs to scheduled caste was aged 20 years and had studied 10th class. He underwent karnam's training in the year 1977 and passed karnam's test. Part II However he did not pass Karnam's test. Part I the third respondent who belongs to a backward class though aged 42 years on the date when the vacancy arose as qualified for appointment to the said post. The Revenue Divisional officer by his order dt. 5-1-1981 held that the third respondent being over 35 years of age was not eligible to be appointed. He considered the claim of the appellant for appointment to the said post subject to his passing Karnam's Test part I with one year'. He was also of the view that the appellant being a scheduled caste candidate has a better claim than the other candidate who is a overage and not a scheduled caste candidate'. Accordingly he appointed the appellant to the post of Karnam. The third respondent carried the matter in appeal to the collector who confirmed the order of the revenue divisional officer and dismissed the appeal. The third respondent carried the matter in second appeal to the commissioner alnd revenue who by his order dt 14-8-1981 held that the rule made IN G.O. Ms. No. 1349 Revenue Department dt 1-8-1978 prescribing the age limit by way of insertion of sub-cl. (F) to R. 10 (2) (ii) is prospective and could not be applied in filling up the vacancy which arose on 19-7-1977. In that view of the matter he held that the third respondent is eligible for appointment as Karnam. He also held that against the reserved vacancy both scheduled caste. Scheduled Tribe and Backward class candidates could be considered for appointment on the basis of their relativemerit. He then proceeded to consider the relative merits of the two candidates and found that while the third respondent was fully qualified to hold the post the appellant not having passed karnam's Test. Part I could not be preferred tothe third respondent accordingly he set aside the orders of the collector and the Revenue divisional officer and directed appointment of the third respondent herein as Karnam. It is that order that now holds the field and the appellant who was unsuccessful before the Government in revision has invoked the Jurisdiction of this Court under Art. 226 of the Constitution.

4. Anticipating that the unsuccessful revision petitioner would move this Court the third respondent herein lodged a caveat on 11-3-1983 through sri E. Manohar advocate practising in the High Court sri E. Manohar also sent a notice dt. 11-3-1983 to the appellant by registered post acknowledgment due informing the appellant that he had lodged a caveat in the Court and calling upon him to serve copies of proposed writ petition and other miscellaneous petitions questioning the order of the Government that notice was received by the appellant on 14-3-1983 However without serving a notice of writ petition or miscellaneous petition seeking suspension of the operation of the impugned order on either the third respondent or his ocunsel sri E. Manohar the appellant filed the writ petition and obtained orders of interim suspension on 25-3-1983. The third respondent herein moved WVMP 305 of 1983 for vacating that interim order our learned brother Ramanujulu Naidu J. Has allowed the petition observing that it is unfortunate that no notice of the writ petition and miscellaneous petition was given to sri. E. Manohar counsel for the third respondent as required under sec. 148-A (3) of the civil P.c. and holding that the conduct on the part of th petitioner is reprehensible' the learned Judge further observed that the writ petitioner having thus come to this Court with polluted hands is not entitled to any indulgence. Accordingly. He vacated the interim order of suspension. Dismissed WPMP 3430 of 1983 and allowed WVMP. 305 of 1983.

5. By the civil P.C. Amendment Act 1976 provision was made to lodge a caveat by insertion of sec. 148-A which reads as follows:-

'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 daveat in respect thereof.

(2) Where a caveat has been lodged under sub-sec (1) the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a ntice of the caveat by registered post acknowledgment due on the person by whom the application has beenor is expected to be made under sub-sec (1).

(3) where after a caveat has been lodged under sub-sec (1), any application is filed in any suit or proceeding, the Court shall serve a noticeof the application on the caveator.

(4) where a noticeof any caveat has been served onthe 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 cocument which has been or may be filed by him in support of the application.

(5) where a caveat has been lodged under sub-sec. (1) such caveat shall not remain in force after the expiry of ninety days fromthe date on which it was lodged unless the application referred to in sub-sec. (1) has been made before the expiry of th said period'. Whenever a caveat is lodged as laid donw under sub-sec (1) of sec 148-A sub sec. (2) makes it obligatiory upon the caveator to serve a notice of the caveat by registered post, acknowledgment due on the person by whom application has been or is expected to the made. The third respondent lodged the caveat as envisaged by sub-sec (1) os sec. 148-A and also served the notice contemplated by sub-sec (2) thereof Thereafter an obligation is imposed by sub-sec. (3) thereof upon the Court to serve notice of the application on the caveator sub-sec. (4) thereof casts a duty on the applicant on whom caveat has been served to fothwith furnish the caveator with a copy of the application made by him and also with copies of any papers or documents which have been or may be filed in support of the application of course. These copies shall be furnished at the expense of the caveator. The intention of the legislature in making this provision is to enable the caveator-respondent to be heard before any orders are passed and no orders are passed by the Court ex parte that this is the intention of the legislature is also recognised by a Bench of the calcutta High Court in Nirmal chandra v. Girindra narayan, : AIR1978Cal492 in the following words (at p. 494):-

'the object of the introduction of the provision for lodging a caveat in the civil p. C. Seems to be to safeguard the interest of a person against an order that may be passed on an application filed or expected to be filed by aprty in a suit or proceeding instituted or about to be instituted'.

In order to be entitled to such ntoice fromthe Court and the applicant what all is required of a caveator is to lodge a caveat as laid down under sub-sec. (1) of sec. 148-A and to serve a notice by registered post acknowledgment due on the person who has or is likely to move Court as laid down in sub-sec. (2) of sec. 148-A and to serve a notice by registered post. Acknowledgment due onthe person who has or is likely to move Court as laid down insub-sec (2) of sec. 148-A if the requirement s of sub-secs. (1) and (2) are fulfilled by the caveator then it becomes obligatory for the Court to give notice tothe caveator and obligatory for th person intending to move the Court to furnish necessary papers to the caveator. The fact that copies of the petition and documents filed or intended to be filed in support of the petition may be furnished at the expense of the caveator should further approach the applicant to supply him copies and documents and offer to pay the expenses. It is for the person intending to move the Court to furnish such copies and documents and demand payment thereof the intendment of the legislature being that the respondent should be heard before any order is made on such petition in which caveat is lodged. That cannot be set a naught by the applicant under the pleas that the caveator has not approached him for furnishing of copies. In fact the caveator would not be aware when the applicant would move the Court. That obligation is therefore rightly imposed by the legislature upon the applicant.

6. The contention of Mr. M.R.K. choudary on behalf of the appellant writ petitioner that he was under no obligation to give notice of the date of hearing may be warranted by the wording of sub-sec (3) of s. 148-A for, that obligation is imposed upon the Court but certainly the appellant-petitioner cannot be absolved of the obligation to furnish copies which itself puts the respondent-caveator on notice of the petition proposed to be moved in the Court. It is the practice of this Court to notify the parties concerned by printing and publishing cause lists of cases posted for hearing the following day, which cause lists are made available to one and all interested in knowing as to when a particular case is posted All the advocates either by purchasing these cause lists or by perusing them in the Advocates' Association or in the registry get to know the date on which a particular case is posted. Number of the cases and the nemes of counsel apparing for the respective parties are printed in those cause lists. That being the mode of notifying the dates of hearing to the parties and their counsel appear when the case is taken up before a particular Court. As rightly observed by the learned single Judge, it is unfortunate that in spite of the third respondent loding the caveat through his counsel and also serving the same by registered post. The appellant petitioner did not choose to furnish copies or notify the third respondent that he was filing the writ petition and seeking suspension of the order in favour of the third respondent. It was clearly in violation of the provisions of S. 148-A. In G.C. siddalingappa v. G.C. Veeranna : AIR1981Kant242 , a single Judge of the karnataka High Court held (at p. 244).

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 impossible for the Court to pass an interim order affecting the caveartor'.

The learned Judge further held:

The Court would not absolve from serving a notice of the application on the caveator on the ground that he refused to receive the same. Even if the application was served on 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:'

7. In the instant case the writ petitioner did not serve the copies of the petition on the caveator and he was not at all heard before the interim order of suspension was granted consequently the ex parte order of suspension deserves to be set aside on this simple ground.

8. Mr. M.R. K. Choudary strenuoulsy contended that the obligation to give notice having been imposed on the Court for the failure of printing the name of the caveator's counsel in the cause list he cannot be held responsible this contention ignores the fact that the appllant-petitioner failed to serve copies of the writ petition and the miscellaneous petition seeking suspension of the impugned order on the caveator in spite of notice of lodging the caveat being served on the appellant-petiioner. The fact remins that the caveator had no notice of th posting and hearing of the writ petition and miscellaneous petition and had no opportunity to oppose the petitioner's request for suspension of the impugned order on 25-3-1983. A single Judge of this Court in R. B. 1 Employees association v. Reserve Bank of India, : AIR1981AP246 has held that it is the duty of the Court under S. 148-A to give sufficiently reasonable and definite time to the caveator to appear and also oppose an interlocutory application intended to be moved by plaintiffs applicants and the Court should give a specified date for hearing of the interloctuory application.

9. The learned single Judge also held that the Court would be in error in passing an order of injunction against the caveators without giving them a notice of the date of hearing at the same time he observed : the caveat has no effect on the exercise of powers by the Court therefore the order passed by a Court without giving a notice to the caveator cannot be treated as a nullity. If a statute intends to demolist the ordinary powers of a civil Court it is well-settled 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 sidewind. The powers of a civil Court are too sacrosanct to be allowed to be diluted or to be curtailed by a mere remote implication.....There is no specifiprovisions declaring any action taken by the Court contrary to its mandatory duty under sub-sec (30 to give a notice would be void.............the mere lodgment of a caveat would not deprive the Court of its power to pass an order even if the caveator was not informed fo the date of hearing of hte 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 the order passed in this case is not without jurisdiction and is therefore operative till it is set aside in appropriate proceedings We find ourselves in agreement with this view.

10. Mr. M.R.K. Choudary sought to contend that the order made by the Court ex parte even in a case where caveat wa served is not a nullity and therefore that order should not have been set aside. To say that an order is a nullity is to proceed ont eh footing that it is non est. But where mandatory requirement albeit of procedure is ignored that order even if it were not a nullity is certainly illegal and could be set aside by that very Court on the fround of illegality. The interim order made by the Court without compliance of the above mandatory requirements of S. 148-A rightly deserves to be set aside.

11. The matter came up for hearing before the Court when the third respondent caveator was not present and he could not be present because the 3rd respondent name or the name of his counsel was not printed ain the cause list. When the petitioner was served with a notice of caveat having been lodged it was the duty of the petitioner and his counsel to bring that fact to thenotice of the Court before the matter was heard and any interim order was passed adverse to the caveator. In our view when a caveat is lodged it becomes not only the duty of the Court but also of the appellant-petitioner and his counsel to bring to the notice of the Court that caveat has been lodged and the matter may not be heard ex parte Though no such obligation is imposed expressly by S. 148-A such an obligation must necessarily be implied having regard to what is contained in sub-secs (3) (4) thereof and also the overall intendment of the provision. If the name of the 3rd respondent-caveator or his counsel were printed in the cause list that in our opinion would have constituted sufficient notice to the 3rd respondent. But that should have been preceded by furnishing of copies of petitions and documents on the 3rd respondent-caveator by the therefore agree with our learned brother Ramanujulu Naidu J, that the exparte interim order of suspension deserparte interim order of suspension deserves to be set aside on this very ground.

12. The order not being a nullity but being merely illegal would be operative until it is set aside. As the order was made without hearing the caveator and without considering whether it was a fit case in which interim stay should be continued or not that order must be set aside. Even after findig that the interm order was made without hearing the caveator the Court ourght to have considered whether it was a fit case in which stay should be granted or not Therefore we prceed to consider the same.

13. The learned counsel Mr. M.R.K. Choudary then canvassed before us the merits of the appellant's claim to be appointed as village Karnam in thepermanent vacancy that arose in 1977. Sri E. Manohar learned counsel for the 3rd respondent placed before us the facts referred to above to contend that admittedly the 3rd respondent-caveator was fully qualiffied to be appointed to the said post while the appellant-petitioner admittedly did not passone of the tests to make him eligible for the post. We do not think it necessary to go into the merits of the rival contentions as to whether the 3rd respondent was ineligible for being considered due to his being over 35 years of age on the date when the vacancy arose and whether the appellant not being fully qualified to hold the post could not be considered at all by the appointing authority. These are matters to be considered in the main writ petition Granting of stay or suspending the impugned order is a matter of discretion of the Court. When the commissioner land Revenue on a consideration of the relative merits has found the 3rd respondent-caveator more suitable to be appointed to hold the said post and when both the candidates could be appointed only a selection made by competent authority, we think it wholly inadvisable in the circumstances of the case to suspend the order of the commissioner, Land Revenue and allow the person who is not selected by him to discharge the functions of the village Kanam. Apart from the fact that interim order of suspension should no have been granted ex parte and deserved to be set aside, on that ground itself. We also hold that it is not a fit case to suspend the impugned order pending disposal of the writ petition.

14. This writ appeal is accordingly dismissed. No costs. Advocate's fee Rs. 150/-

15. Appeal dismissed.


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