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H.G. Shanker Narayan Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 2126 of 1983
Judge
Reported inAIR1985Raj156; 1983()WLN780
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 141 and 148A; ;Code of Civil Procedure (CPC) (Amendment) Act, 1976; Rajasthan High Court Rules, 1952 - Rules 123(1), 123(2) and 159
AppellantH.G. Shanker Narayan
RespondentState of Rajasthan and ors.
Appellant Advocate M.R. Calla, Adv.
Respondent Advocate G.S. Singhvi, Adv.
DispositionPetition dismissed
Cases ReferredPachupati Nath Arora v. Registrar Co
Excerpt:
.....his rights. moreover, there is nothing in rule 159 to preclude the applicability of the said rule to proceedings under article 226 of the constitution. in our opinion, therefore, the provisions of rule 159 with regard to filing of a caveat are applicable to proceedings under article 226 of the constitution.;(b) rajasthan high court rules - rule 159 & civil procedure code--sections 148a and 141 and constitution of india--article 226--caveat--proceeding under article 226 are not civil proceedings--held, provisions of section 148a are not applicable to proceeding under article 226.;after the enactment of section 148a, cpc, rule 159 of the rules in so far as it relates to civil proceedings, would be subject to the provisions contained in section 148a and the person filing a caveat..........these proceedings. we are further of the opinion that there should be a time limit during which a caveat filed in particular matter may remain effective and if no proceedings under article 226 are initiated within a particular period, the caveat should be treated to have lapsed and in that event it may be open to the caveator to file a fresh caveat. in our view a period of ninety days would be a reasonable period during which a caveat may remain effective and if no proceedings under article 226 of the constitution are initiated within the period of ninety days from the date of lodging of the caveat, the caveat should be treated to have lapsed and the caveator may renew the caveat by filing a fresh caveat.7. in the present case, we find that the caveat that was filed by respondent no. 3.....
Judgment:

Agarwal, J.

1. This matter comes up before us on a reference by a learned Single Judge (Bhargava J.). The reference has been made in the following circumstances :

The petitioner H.G. Shankar Narayan filed a writ petition in this court on Oct. 19, 1983 wherein he prayed that an appropriate writ, order or direction may be issued directing the State of Rajasthan, respondent 1 to the said writ petition, to make appointments against the vacancies of Additional Chief Engineer in the Public Works Department in the Government of Rajasthan available temporarily on the basis of Rule 27 of the Rajasthan Service of Engineers (B & R) Rules, 1954. In the said writ petition it was also prayed that the record of the Departmental Promotion Committee, which met in Nov. 1982 for making selections for the post of Additional Chief Engineer, be called and examined and the order dt. Sep. 24, 1983 leading to the appointment of Shri P.C. Panchariya and Shri Harbinder Singh, respondents 2 and 3 to the writ petition, be declared illegal and be quashed and set aside. The aforesaid writ petition was put up for admission before the learned Single Judge on Oct. 27, 1983, on which date the writ petition was admitted. Thereafter on Nov. 14, 1983, an application was moved by Harbinder Singh, respondent 3 in the writ petition, for recalling the order dt. Oct. 27, 1983, and for re-hearing the writ petition for the purposes of admission on the ground that the said respondent had filed a caveat in this court on Sep. 23, 1983 and that the said writ petition was heard on Oct. 27, 1983 without any notice being given to the said respondent about the filing of the writ petition by the petitioner and about the fixation of the date of hearing in the said writ petition. The said application filed by the respondent No. 3 came up for orders before Bhargava J. on Nov. 21, 1983. On behalf of the respondent No. 3 reliance was placed on the judgment of Mudal J. in Hari Ram v. Ratan Lal 1979 Raj LW 589: (AIR 1979 Raj 82). The petitioner on the other hand opposed the said application of respondent No. 3 and placed reliance on the judgment of G.M. Lodha J. in Pachupati Nath Arora v. Registrar Co-operative Societies, Jaipur 1982 Raj LW 572. The learned single Judge (Bhargava J.) felt that there was conflict between the judgments of two learned single Judges of this court in the judgment referred to above and further that caveats are being filed in most of the cases and such a situation can arise on several occasions and he considered it proper to refer to the division bench for authoritative pronouncement.

2-3. We have heard Shri M.R. Calla, learned counsel for the petitioner and Shri G.S. Singhvi, learned counsel for respondent 3.

4. The first question which arises for our consideration is as to whether a caveat can be entertained in respect of proceedings under Article 226 of the Constitution of India. Shri Calla has submitted that under the Rajasthan High Court Rules (hereinafter referred to as 'the Rules') a separate procedure is laid down in respect of proceedings under Article 226 of the Constitution other than petitions for writs in the nature of Habeas Corpus, in Chapter XXII which falls in Part IV of the Rules and that in that said Chapter no provision has been made with regard to filing of a caveat. The submission of Shri Calla was that Rule 159 of the Rules which makes provision for filing of caveats in civil proceedings has no application to the proceedings under Article 226 of the Constitution because Rule 159 falls in Chapter XI which forms part of Part II relating to Civil jurisdiction and the said Rule has no application to proceedings under Article 226 of the Constitution of India In our view, the aforesaid contention of Shri Calla cannot be accepted in view of the provisions contained in Rule 123 of the High Court Rules. Sub-rule (2) of Rule 123 lays down that subject to the provisions of Sub-rule (1), the Rules contained in Part II shall, so far as may be and with necessary modifications and adoptations, also apply to proceedings under Parts III, IV, V and VII. In view of the aforesaid sub-rule, the rules contained in Part II of the Rules have been made applicable to proceedings under Part IV in proceedings for issuance of directions, orders or writs under Article 226 of the Constitution other than writs in the nature of Habeas Corpus. Shri Calla has also submitted that even if it is held that in view of Rule 123(2) the Rules contained in Part II can be made applicable to proceedings under Article 226 of the Constitution, the provisions of Rule 159 relating to filing of caveat cannot be made applicable to proceedings under Art 226 of the Constitution for the reason that Rule 159 contemplates the filing of a caveat only in proceedings instituted in this court against orders passed by the lower courts and since in writ petition filed under Article 226 the proceedings are not instituted against orders passed by the lower courts, the provisions of Rule 159 relating to filing of caveat, can have no application to proceedings under Article 226. We are unable to agree with the aforesaid submission of Mr. Calla. A caveat is a caution or warning giving notice to the court not to issue any grant or take any step without notice being given to the party lodging the caveat. It is a precautionary measure which is generally taken against the grant or probate or letters of administration, as the case may be, by the person lodging caveat. But now it has also been extended to other civil proceedings. The Rules contemplate the filing of a caveat in civil proceedings in Rule 159 which falls in Chap. XI of Part II as well as in testamentory proceedings under Rule 777 which falls in Chap. XXX. This would show that apart from proceedings instituted in this court against the orders passed by the lower courts, caveats can also be entertained in respect of other matters like succession. It is, therefore, not correct to say that caveats can only be filed in proceedings instituted against orders of the lower courts. As pointed out earlier the object of a caveat is to enable the person lodging the caveat to appear before the court before an order is passed to his prejudice and on ad interim orders can be passed ex parte by the court in proceedings under Article 226 of the Constitution also. By filing a caveat, a person likely to be affected by the ad interim order would be able to protect his rights. Moreover, there is nothing in Rule 159 to preclude the applicability of the said rule to proceedings under Article 226 of the Constitution. In our opinion, therefore, the provisions of Rule 159 with regard to filing of a caveat are applicable to proceedings under Article 226 of the Constitution.

5. The next contention urged by Shri Calla was that after the addition of Section 148A, in the Civil P. C. by the Civil P. C (Amendment) Act, 1976 an express provision has been made in the Civil P. C. with regard to filing of a caveat in the civil proceedings and the aforesaid provision contained in Section 148A, C.P.C. will override the provision contained in Rule 159 of the Rules and that a caveat which is filed in respect of proceedings under Article 226 of the Constitution must satisfy with the requirements of Section 148A, C.P.C. On a comparison of the provisions contained in Sub-rules (3) and (4) of Rule 159, with the provisions contained in Section 148A, C.P.C., we find that the aforesaid provision differ in certain respects. In Sub-rule (3) of Rule 159, the caveator is required to give a notice about the filing of the caveat to the appellant/petitioner or applicant as the case may be, if appeal, petition or application has been lodged before the filing of the caveat, whereas under Section 148A(2), C.P.C, the person by whom the caveat has been lodged, is required to serve a notice of caveat by registered post A.D. on the person by whom the application has been or is expected to be made under Sub-section (1). In other words under Sub-rule (3) of Rule 159 the caveator is not required to give a notice about his filing the caveat on the appellant/petitioner in cases where the caveat has been filed before the filing of the appeal, petition or application but such a notice is required to be given under Sub-section (2) of Section 148A, C.P.C Furthermore, under Sub-section (5) of Section 148A, it is provided that the 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 is no similar provision contained in Rule 159 of the High Court Rules. After the enactment of Section 148A, C.P.C. Rule 159 of the Rules in so far as it relates to civil proceedings, would be subject to the provisions contained in Section 148A and the person filing a caveat in civil proceedings would be required to comply with the provisions of Section 148A C.P.C. also. But the explanation that has been added to Section 141, C.P.C vide C.P.C (Amendment) Act, 1976, makes it clear that proceedings under Article 226 of the Constitution are not civil proceedings for the purpose of Section 141 C.P.C. This means that the provisions of Section 148A, C.P.C. are not applicable to proceedings under Article 226 of the Constitution and in so far as these proceedings are concerned, the provisions contained in Rule 159 would continue to apply.

6. The next question which arises for consideration is as to whether any modification or adaptation is necessary for the purpose of applying Rule 159 to proceedings under Article 226 of the Constitution. In respect of civil proceedings covered by Part II of the Rules, the caveator is required to give particulars of the parties as well as the case and the date of the order against which the appeal, petition or application is to be filed in this court in which the caveat is being lodged. In respect of proceedings under Article 226 of the Constitution, the person filing the caveat must be required to give particulars of the parties to t he proceedings and in case the proceedings involve quashing of orders of courts or tribunals, the particulars of the proceedings before the court or tribunal and the date of impugned order and in cases where the orders sought to be quashed are administrative orders, the particulars of the order which is impugned in the writ petition including the date and number of the said order, the authority which has passed the said order and the subject-matter of the said order so that it may be possible for the office to connect the caveat with the writ petition that has been filed or that may be filed with regard to the impugned order. We do not propose to lay down exhaustively the particulars which must be given by the caveator in the caveat which is filed in proceedings under Article 226. We are, however, of the view that the caveat must contain sufficient particulars with regard to the order under challenge in the proceedings under Article 226 so that the caveat can be linked up with the concerned proceedings. Apart from giving the particulars referred to above, the caveator must also give a notice about his filing the caveat to the person who has filed or is likely to file the proceedings under Article 226 of the Constitution in which the caveat has been filed so that the petitioner in the proceedings under Article 226 of the Constitution may be aware of the fact of the filing of the caveat and may supply copy of the petition and the papers to the caveator in sufficient time. In cases where the proceedings under Article 226 have not been instituted till the date of lodging of caveat, such a notice must be given to the petitioner who is likely to institute the proceedings under Article 226 and in cases where the proceedings under Article 226 have already been instituted in this court on the date of lodging of caveat, the notice may be served on the counsel for the petitioner in these proceedings. We are further of the opinion that there should be a time limit during which a caveat filed in particular matter may remain effective and if no proceedings under Article 226 are initiated within a particular period, the caveat should be treated to have lapsed and in that event it may be open to the caveator to file a fresh caveat. In our view a period of ninety days would be a reasonable period during which a caveat may remain effective and if no proceedings under Article 226 of the Constitution are initiated within the period of ninety days from the date of lodging of the caveat, the caveat should be treated to have lapsed and the caveator may renew the caveat by filing a fresh caveat.

7. In the present case, we find that the caveat that was filed by respondent No. 3 in this court on Sep. 23, 1983 only indicated that it was being filed in the proposed writ petition which was likely to be filed by Shri H. G. Shankar Narayan against the State of Rajasthan. Harbinder Singh and P. C. Panchariya in other words, the only particulars that were given in the said caveat were with regard to the cases of parties to the proposed writ petition. No particulars with regard to the nature and subject-matter of the order/orders impugned in the proposed writ petition was mentioned in the caveat. On the basis of the said caveat the office could not be in a position to know as to whether the caveat related to the matter relating to promotion on the post of Additional Chief Engineer. The notice about the filing of the caveat was also not given by the caveator to the petitioner in the proposed writ petition. In the circumstances the caveat which was filed by the respondent No. 3 in this court must be held to be a defective caveat. On the basis of such a defective caveat no notice could be given to the caveator by the Registry with regard to the filing of the writ petition and of the date fixed for the admission of the writ petition and the failure on the part of the Registry to give such a notice to respondent 3 or his counsel would not entitle respondent 3 to seek the recall of the order that was passed by this court in the writ petition on Oct. 27, 1983 whereby the writ petition was admitted. In our opinion, therefore, the application filed by the respondent 3 on Nov. 14, 1983 for recalling the order dt. Oct. 27, 1983 must be dismissed and is hereby dismissed.

8. Before concluding, it may be observed that the High Court Rules are at present under revision by the Rules Committee. It is directed that a copy of this order may be sent to the O. S. D. (Rules) High Court, Jodhpur for placing it before the Rules Committee for consideration so that appropriate provisions with regard to filing of caveat in proceedings under Article 226 of the Constitution may be made in the revised Rules.


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