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1999 Supreme(Mad) 2737
High Court of Judicature at Madras
C.R.P.No.1801 of 1999
Marappa Gounder & Others
Versus
Peramandampalayam Panchayat rep. by its President Paravia Gounder
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
Decided On :Decided on: 06-12-1999
For the Petitioners:R Sekar for M/s. Sarvabhuman, Associates Advocates.
For the Respondent:M.M. Sundaresh, Advocate.
The subject matter of the suit is not a relevant factor to be considered while filing a caveat. The only material factor that has to be stated in the caveat application is whether the proposed suit is filed by a person mentioned in the caveat.
Headnote:
CAVEAT - RIGHT TO LODGE CAVEAT - SECTION 148A CPC - SUMMARY
Fact of the Case:
The petitioners filed a suit for a permanent prohibitory injunction restraining the respondent from interfering with their possession over the scheduled property. The respondent filed a suit against the petitioners for a different survey number. The petitioners had filed a caveat in respect of the subject matter of the suit filed by them. The respondent's counsel made an endorsement that there was no caveat in respect of the subject matter of the suit and moved an application for injunction. The lower Court accepted the endorsement and passed an interim order of injunction.
Finding of the Court:
The Court held that the procedure adopted by the lower Court and the respondent's counsel was not proper. The Court observed that the object of Section 148A of the Code of Civil Procedure is to safeguard the interests of a person against an order that may be passed on an application filed or expected to be filed by a party to the suit or proceeding instituted or about to be instituted. The Court further held that the subject matter of the suit is not a matter to be stated in the caveat. Whether the proposed suit is filed by a person mentioned in the caveat is the only material factor that has to be stated in the caveat application.
Issues: 1. Whether the lower Court was justified in accepting the endorsement of the respondent's counsel that there was no caveat in respect of the subject matter of the suit? 2. Whether the subject matter of the suit is a relevant factor to be considered while filing a caveat?
Ratio Decidendi: 1. The Court held that the lower Court was not justified in accepting the endorsement of the respondent's counsel without verifying the same from the Registry. The Court observed that it is the duty of the Court to verify the endorsement from the Registry and mere reliance on the endorsement of the counsel is not correct. 2. The Court held that the subject matter of the suit is not a relevant factor to be considered while filing a caveat. The Court observed that a person filing a caveat is only apprehending a suit and cannot be expected to state the subject matter of the proposed suit.
Final Decision: The Court allowed the revision petition and set aside the order of the lower Court. The Court directed the lower Court to pass final orders on the interim application within two weeks from the date of receipt of the order.
The defendants in O.S. No. 226 of 1998 on the file of the District Munsif-cum-Judicial Magistrate, Peramathi are the revision petitioners.
2. The petitioners herein filed a suit O.S. No. 165 of 1998 on the file of the same Court for a permanent prohibitory injunction restraining the respondent herein from interfering with the possession over the scheduled property. The subject matter of the suit O.S. No. 165 of 1998 is S.F. No. 398/2, having an area of 1.64 acres. The reason for filing the suit was that the defendant, who is a local authority, has threatened the plaintiff to form a metal road along with bund over which he claims absolute title. It is also stated therein that the local authority came to the suit property and attempted to damage the same, which was resisted by the plaintiff. The plaintiff also apprehended that the defendant may file a suit against him and therefore, filed a Caveat No. 140 of 1998 on the next day of filing the suit. The suit was filed on 10.9.1998 and the caveat was filed on 11.9.1998. The Caveat was received by the respondent. In the Caveat, apart from saying that the defendant is about to file a suit against the petitioner, he also stated that he is expecting a litigation in S.F. No. 398/2. He, therefore, wanted the notice to be issued to him before any order is passed in the suit proposed to be filed by the respondent.
3. On 23.11.1998, the respondent herein filed O.S. No. 229 of 1998 and the counsel appearing for the respondent made an endorsement “There is no Caveat in respect of subject matter of the suit” and moved an application for injunction. The lower Court accepted the endorsement and passed an interim order of injunction. The fourth petitioner filed a memo on 4.12.1998 informing the lower Court that an interim order has been issued in spite of the caveat and therefore, the same is to be vacated. An objection was raised by the respondent herein stating that the caveat was only in respect of S.F. No. 398/2 and they have filed a suit only in respect of S.F. No. 398/1 and therefore, the lower Court is justified in passing the interim order and the endorsement made by him was also true. It is further submitted that while the caveat was only in respect of another survey number, there is no necessity for them to give notice in the suit and no ground is made out to vacate the interim order.
4. After hearing both sides, the lower Court by an order dated 10.2.1999, rejected the memo on the ground that the subject matter of both the suits is different and hence, the fourth petitioner cannot insist that he should have been given notice on the interlocutory application before any order is passed. The same is challenged in this revision petition.
5. Notice of motion was ordered and the learned counsel for the respondent herein also entered appearance, After hearing both sides, I feel that the procedure adopted by the lower Court as well as the learned counsel for respondent before the Court below is not proper.
6. Section 148A of the Code of Civil Procedure was newly inserted as per the Amended Act, 1976 to the Code of Civil Procedure. It reads thus:
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, acknowledgement 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 caveator.
(4) Where a notice of any caveat has been serve
