Caveat under the CPC, 1908

Introduction:

A term with Latin roots of etymology, Caveat simply translated stands for “let the person beware”. Enshrined in the Code of Civil Procedure (CPC), Section 148A introduces the right of an individual to avoid any ex-parte judgments or orders for the purpose of quick redressal. An ex-parte decree is a decree that is passed by the court when it deems that “the respondent has absented himself, missing the date of hearing in the court.”[1] A Caveat petition allows the petitioner to be notified of an application and to be heard prior to any interim decree or order is passed by the court subsequent to the application filed by the applicant. This article elaborates on the different aspects of the caveat petition, who can file the petition and the various duties and rights prescribed to the person that is a party to the suit.

The word caveat is not defined within the CPC, however, the Supreme Court defined caveat as a sort of warning or caution that an individual gives the court that it cannot grant any relief or pass any decree or order to the caveatee prior to allowing the caveator a chance to be heard in a civil dispute which involves his interests.[2] The individual filing the petition is the caveator and the individual likely to institute the proceeding is known as the Caveatee.[3]

Legislative History

Originally, a provision in order to lodge a caveat was used in testamentary proceedings within the scope of the Indian Succession Act 1925[4] which was allowed for all civil suits only in 1976. Before 1976, a caveat petition was filed in the Supreme Court as a practice only, where any person having knowledge of a suit to be instituted or already instituted which he can contest can file the caveat.[5] The duration of the petition was only 90 days and the court had no power to extend the same, which is now given under CPC. For this petition, the caveator had to, using postal service, give notice of caveat and on service of notice.

After that, a copy of the application filed by the caveatee and all other supplementary documents must be provided to him at his expense. Because of this practice, even though the individual has the best interest, his presence was considered premature and had no locus standi. Therefore, the 54^th Law Commission Report recommended that this provision be introduced in CPC thereby allowing a caveat petition in all the lower courts also, allowing the individual to contest and appear even at the initial stage of the suit or matter.[6] Subsequently, this change was made to the code through the 1976 amendment.

Section 148A is a salutary or beneficial procedure and has two main objects:

1. Safeguarding interests of an individual against an order that could be passed in an instituted suit or a suit about to be instituted and to avoid orders passed ex-parte. The section intends to enable the caveator to put forth his interest before passing any order.[7]
2. To save the time of the judiciary by avoiding multiple suits on the same issue. Where the individual’s interests are affected, rather than new or subsequent proceeding to specifically address the same, a caveat is lodged. The legal provision that allows individuals to take legal action to get rid of an order adversely affecting a party can be found in the rules of the Supreme Court.[8]

Extent and Applicability

This petition can be lodged in any dispute of a civil nature or even before labor and industrial courts[9] and in insolvency proceedings as well.[10] Once a caveat is lodged, sending the caveator a notice of the application before the court passes any interim order is an essential prerequisite.[11] An interim order issued without notifying a caveator is liable to be set aside on that ground.[12]

However, it doesn’t curtail the power vested with the judiciary to grant relief in matters where a prima facie case can be made out favoring the caveatee.[13] During the proceedings of the Nirmal Chandra case,[14] it was declared that “the ground on which the right of the caveator arises to appear must be stated to the court for a valid caveat petition.” The legal system of a caveat through codification is said to be “an evolution of the sound judicial practice of hearing an opponent before passing any interlocutory order.”[15]

How to file a Caveat Petition?

A caveat can be filed by any person irrespective of whether or not he is a party to the suit, as long as the caveator has a right to be present or appear before the court to hear the application, which the applicant has been filed to move the court to grant any interim relief.[16] He need not be a necessary part to file a caveat, a proper party to a suit can also file the petition.[17]  However, since the primary purpose of a caveat petition is to save the time of the judiciary, no caveat filed by an individual who is a total stranger to the dispute is accepted.[18]

A petition under Section 148A may be lodged either during an ongoing suit in which the application is made or is about to be submitted or for a suit that will be instituted in the future in which the application would be submitted.[19] The petition can be instituted in any civil court, with original jurisdiction or appellate jurisdiction, in High courts, or even in the Supreme Court. However, this provision of caveat is applicable only in disputes of civil nature and no caveat may be filed against writ petitions under article 226 of The Constitution or criminal proceedings.[20] A caveat can be lodged only to oppose the application and not in support of it.[21]

A caveat petition must be signed by the petitioner or caveator and registered in the caveat register maintained by civil courts which contains the date, name, and address of the caveator and the details of the plaint or suit and the plaintiff.[22] Any caveat petition must contain the following details:[23]

1. Caveator’s name
2. His address to which notice must be sent
3. The Court where caveat was petitioned
4. The suit number or the appeal number is already instituted
5. For a future proceeding, a brief description of the dispute
6. Details of the plaintiff and respondents in a suit already lodged suit and probable parties in a suit that is about to be instituted.

Clause 2 of the section mandates the caveator to serve a notice to the applicant by post about the caveat lodged.[24] Even the court is obligated to inform the applicant when a caveat on the suit or application is filed. The petition is valid for 90 days when it will be in force and if not renewed, the caveator’s right ceases.

Duties and Rights of the Parties

The code enlists various duties that the parties are obligated to fulfill, and rights bestowed upon the caveator and the applicant who intends an interim grant or caveatee and also the court.

Caveator’s Rights:

• a caveator has a right to be mandatorily be heard before any interim order is passed, held in Mahadev Govind Gharge v. LAO[25].
• He is entitled to a copy of the application along with other documents submitted under O.2.R.2 of CPC.[26]
• When the caveat is lodged for a proceeding about to be instituted, he must be informed when it is instituted
• It is the duty of the petitioner to notify the applicant of the caveat lodged opposing his application by the means of the postal service. Since this duty is the only directory in nature and not a mandatory duty in times of uncertainty as to who the applicant would be, this duty may be waived off by the court.[27]

Caveatee’s Duties and Rights:

A duty rests upon the applicant to furnish an application copy along with the documents relied upon, at the expense of the caveator. The proceedings would not move forward until an affidavit on behalf of the caveatee stating that he posted the copies.

Role of the Judiciary:

• There exists a duty on not just the caveator but also the court to issue a notice to the applicant of the caveat lodged. This enables the caveator to appear and oppose the application.[28]
• There is an obligation on part of the civil court to give a caveator sufficient time, to appear and oppose the filed application.[29] Non-compliance with this duty essentially defeats the impetus of the caveat lodged.[30]
• When a caveat is lodged against an application that is to be filed there lies a duty of the court to notify when the application has been successfully filed.[31]

Conclusion

The petition was introduced as a measure of precautionary nature. A caveat is essentially a precautionary measure and Section 148A bestows a right to caveat, aimed to protect the interests of third parties or a proper party to be heard before an order for relief which may be against his interest be passed. This process avoids multiple proceedings on one matter and saves the time of the court and the caveator without having to file fresh proceedings to quash the relief granted regarding the application filed. An order passed without allowing the caveator, a right to be heard can be set aside.

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References:

[1] Civil Procedure Code, Order IX (1908).

[2] Reserve Bank of India Employees’ Association v. Reserve Bank of India, AIR 1981 AP 246 (249).

[3] 2, C.K.Thakker, Code of Civil Procedure, 1908 (EBC Publishing, 2014). (e-version, last visited on Nov. 12, 2020, 19:45).

[4] Indian Succession Act, § 284 (1925).

[5] Suranjan Chakraverti & Bholeshwar Nath, Cases and Materials on Code of Civil Procedure (5^th ed. Justice M.L. Singhal, EBC Publishing, 2011). (e-version, last visited on Nov. 12, 2020, 19:48).

[6] Hindushree, A Detailed Analysis of Caveat Petition under the CPC, 1908, Legal Services India, http://www.legalservicesindia.com/article/2124/Caveat-Petition.html. (Last visited on Nov. 12, 2020, 19:52).

[7] Seethaiah v. Government of A.P., AIR 1983 AP 443.

[8] Supreme Court Rules, 1996, Order XIX, Rule 2.

[9] Ram Chandra v. State of U.P., AIR 1966 SC 1888.

[10] Radheshyam Agrawal v. Hariom Trading Co. & Ors., AIR 1992 MP 168, 176.

[11] Siddalingappa v. Veeranna, AIR 1981 Karn (242).

[12] Addanki Hanumantha Rao v. Addanki Srinivasa Rao., (2009) 1 AP LJ 315, 324.

[13] K. Rajasekaran v. K. Sakunthala, (2008) 5 CTC 319.

[14] Nirmal Chandra Dutta v. Girindra Narayan Roy, AIR 1978 Cal 492.

[15] Mahadeo Sitaramji v. Maharshtra State Road Transport Corporation, AIR 1992 Mah LJ 31.

[16] Civil Procedure Code, § 148A (1), (1976).

[17] Supra 3.

[18] AIR 1991 Ker 411.

[19] Supra 16.

[20] Deepak Khosla v. Union of India, (2019) SCC OnLine Del 8857.

[21] Supra 14 at p. 495.

[22] Mariya Paliwala, Elaboration of Caveat under CPC, iPleaders Blog (Dec. 17, 2019), https://blog.ipleaders.in/caveat-under-civil-procedure-code/.

[23] Chandrajit v. Ganeshiya, AIR 1987 All 360.

[24] Civil Procedure Code, § 148A (2), (1976).

[25] (2011) 6 SCC 321.

[26] (2009) 2 CTC 395, 400 (Mad).

[27] State of Karnataka v. Nil, (1999) 5 Karn LJ 637.

[28] Kandla Port Trust v. Mulraj (1986) 27 (1) GLR 442 (449).

[29] Supra 2.

[30] Id.

[31] Civil Procedure Code, § 148A (3), (1976).

Other Sources:

1. 2, C.K.Thakker, Code of Civil Procedure, 1908 (EBC Publishing, 2014).
2. Suranjan Chakraverti & Bholeshwar Nath, Cases and Materials on Code of Civil Procedure (5^th ed. Justice M.L. Singhal, EBC Publishing, 2011)
3. Civil Procedure Code, 1908 (37^th Ed., EBC Publishing, 2020).
4. Mariya Paliwala, Elaboration of Caveat under CPC, iPleaders Blog (Dec. 17, 2019), https://blog.ipleaders.in/caveat-under-civil-procedure-code/.
5. Caveat under CPC, Lawnotes4u (Feb. 22, 2020), https://www.lawnotes4u.in/2020/02/caveat-under-cpc-sec-148-A.html.
6. Hindushree, A Detailed Analysis of Caveat Petition under the CPC, 1908, Legal Services India, http://www.legalservicesindia.com/article/2124/Caveat-Petition.html. (Last visited on Nov. 12, 2020, 19:52).