1. Heard Sri Dilip Kumar Pandey, learned counsel for the appellants and Sri Asit Srivastava, learned counsel for the respondents.
2. ''Supplementary Reply to the Supplementary Objection filed by the opposite parties' filed by Sri Dilip Kumar Pandey and ''Additional Supplementary Affidavit/objection by the respondents/defendants filed by Sri Asit Srivastava are taken on record.
3. This First Appeal From Order under Order 43 Rule 1 of the Code of Civil Procedure, 1976 (C.P.C.) has been filed against the order dated 09.08.2021 passed by the learned Civil Judge (Senior Division), Fast Track Court, Lucknow, in Original Suit No. 1018 of 2021 (Akhilesh Kumar Jaiswal and others Vs. Karunesh Kumar Jaiswal and others) on the application of the defendant-respondents, under Order 39 Rule 4 C.P.C.. By order dated 09.08.2021, the order dated 30.07.2021 granting ad interim temporary injunction on the appellants' application 6-C, has been set aside.
4. The plaintiff-appellants filed regular Suit No. 1018 of 2021 for permanent injunction in which they filed an application for grant of temporary injunction under Order 39 Rule 1 of C.P.C.. The suit was instituted in the Court of Civil Judge (Junior Divisoin), South, Lucknow on 30.07.2021. As the valuation of the Suit was Rs. 20,00,000/- (Twenty Lacs), beyond the pecuniary jurisdiction of the Civil Judge (Junior Division), South, Lucknow, the Suit was transferred to the Court of Civil Judge (Senior Division), Fast Track, Lucknow on 30.07.2021, itself, where an order of ad interim temporary injunction dated 30.07.2021 was passed ex-parte after hearing the plaintiff-appellant only.
5. On 02.08.2021, the defendant-respondents moved an application before learned District Judge, Lucknow stating that they had filed caveat on 29.07.2021 but without giving notice and affording an opportunity of hearing to them the order dated 30.07.2021 was passed. Upon the said application the learned District Judge, Lucknow by order dated 2.8.2021 called for the comments of both the court concerned.
6. On 2.08.2021 the respondent-defendant filed another application C-10 supported with affidavit C-11 upon which the Court of Civil Judge (Senior Division) Fast Track, Lucknow fixed 3.8.2021 for disposal of temporary injunction application pre-poning the date 06.08.2021 which was earlier fixed vide order dated 30.07.2021. On 03.08.2021, the matter was fixed for 4.08.2021 and then for 06.08.2021 and thereafter for 09.08.2021 on which date the order, under challenge in appeal was passed.
7. This Court, considering the seriousness of the allegations and the counter-allegations as regards filing and reporting of the caveat, in view of the submissions advanced, on 13.09.2021 had passed the following order:-
"1. Heard Sri Dilip Kumar Pandey, learned counsel for the appellants and Sri Asit Srivastava,learned counsel for the respondents.
2. C.M.Application No. 116790 of 2021 along with the appellant's reply to the objection of the respondents is taken on record.
3. Supplementary affidavit/objection filed along with an application dated 13.09.2021 in Court filed by the respondents is also taken on record. The office shall allot number to this application.
4. Learned counsel for the appellants submits that in the Suit for permanent injunction being original Suit No. 1018/2021: Akhilesh Kumar Jaiswal and others Vs. Karunesh Jaiswal and others, filed by the plaintiff-appellants, learned Civil Judge (Senior Division), Fast Track, Lucknow on 30.07.2021, granted ad interim temporary injunction. On 02.08.2021 the defendent-respondents filed an application before the District Judge, Lucknow that they had filed caveat but the copy of the plaint of the suit and the application for temporary injunction was not served upon them and the ad interim order was granted, upon which learned District Judge, Lucknow asked for comments. The defendant-respondents also filed an application under Order 39 Rule 4 C.P.C. upon which the order dated 30.07.2021 has been set aside on 09.08.2021, on the ground that the copy of plaint etc. was not served on the caveator-defendant-respondents. Against this order dated 09.08.2021 the present appeal has been filed.
5. Learned counsel for the appellants submits that no caveat was filed as it was not registered nor any copy thereof was served to the appellants prior to filing of the suit.
6. Learned counsel for the respondents, however, submits that the caveat was filed on 29.07.2021 in both the courts below i.e. Civil Judge (Junior Division), Lucknow as well as Civil Judge (Senior Division), Fast Track, Lucknow. The suit considering its pecuniary jurisdiction ought to have been filed before Civil Judge (Senior Division) Lucknow, but it was filed before Civil Judge (Junior Division), Lucknow, from where it was sent to the Court of Civil Judge (Senior Division), Fast Track, Lucknow on 30.07.2021 itself. However, at neither place the caveat was reported by the concerned.
7. From the submissions advanced by the learned counsels for the respective parties what transpires is that there is dispute on the point of filing of the caveat, the date of its filing i.e. whether it was filed on 29.07.2021 or on 30.07.2021 as also service of the caveat on the plaintiff-appellants prior to filing of the suit on 30.07.2021.
8. In view of the aforesaid, it is considered necessary to see the copy of the caveat application as also the document C 24/1 mentioned in the order dated 09.08.2021 at internal page No.2 thereof.
9. Learned counsels for the parties pray for and are granted 3 days time to file copy of the aforesaid documents along with affidavit.
10. Learned counsel for the appellants has submitted that the learned District Judge, Lucknow vide order dated 02.08.2021, had called for comments from both the Courts concerned i.e. Civil Judge (Junior Division), Lucknow as well as Civil Judge (Senior Division), Fast Track, Lucknow and directed to put up the matter with comments of the courts concerned.
11. In view of the order dated 02.08.2021 passed by the learned District Judge, Lucknow as also the seriousness of the allegations and the counter-allegations, it is also considered appropriate that the learned District Judge, Lucknow shall submit his report on the aforesaid and in particular the date of filing of caveat; the date of its registration in the records where caveats are lodged; if there are different dates in filing and registering caveat, the reason therefore, with respect to both the caveats filed before the two courts mentioned above. He shall also submit report as to what is the procedure if a case filed in one court is transferred to another court, as in the present case, whether in the transferred court, the caveat is required to be checked.
12. Learned District Judge, Lucknow shall submit the report in a sealed cover to the Court on the next date through Senior Registrar of this Court.
13. Let a copy of this order be sent through Special messenger to the District Judge, Lucknow, within 24 hours.
14. List on 17.09.2021 as fresh."
8. By means of the order dated 13.09.2021, the learned District Judge, Lucknow was asked to submit the report in a sealed cover and in compliance the District Judge, Lucknow has sent the report dated 15.09.2021 in sealed cover to this Court, which has been opened in the Court.
9. In the report dated 15.09.2021, paragraphs 8 and 9, the learned District Judge, Lucknow has returned the following findings:
"8. From the aforesaid facts and circumstances, it transpires that the caveat was filed in the Court on 29.07.2021 and it was sent to computer center for registration and it got registered on e-portal as caveat No. 83/2021 on 29.07.2021. Thereafter, file got transferred to Civil Judge (S.D.)/F.T.C., Lucknow and due to mistake of clerk concerned i.e. Sri Ram Prasad Gupta, the same could not be enclosed alongwith the Suit. The transferee court having not received caveat, issued ex-parte ad-interim injunction on 30.07.2021. It is noteworthy that when a case is transferred from one Court to another Court, the Transferee Court should check for Munsarim Report where caveat, if filed, is endorsed by Munsarim.
9. The final departmental inquiry was initiated vide No. 15/2021 dated 02.08.2021 was initiated against the concerned clerk Sri Ram Prasad Verma and Sri Yogendra Ram Gupta, learned A.D.J.-3, Lucknow has been nominated as Inquiry Officer and in the said Final Departmental Inquiry, charge has been framed against the delinquent employee."
10. From the above report it is clear that the caveat was filed in Court on 29.07.2021 and it was sent to the Computer Center for registration and it was got registered on e-portal as caveat No. 83/2021 on 29.07.2021. Thereafter, the file was got transferred to the Civil Judge (S.D.)/F.T.C., Lucknow and due to mistake of Clerk concerned the caveat could not be enclosed along with the plaint and the transferee court having not received caveat, issued ex-parte ad-interim injunction on 30.07.2021. The report states that when a case is transferred from one Court to another Court, the transferee Court should check for Munsarim Report, whether caveat if filed is endorsed by Munsarim.
11. Sri Dilip Kumar Pandey submits that on 06.08.2021, due to the lawyers abstaining from judicial work, no one appeared from the side of the respondents and on the next date 09.08.2021, the case was called out in the morning but on the request on behalf of the respondents, it was fixed at 2.30 p.m.. The lawyers were abstaining from judicial work on that date also, but the strike was suddenly called off from noon at 1.00 p.m. on the resolution of the Bar Association of the District Court, and the order dated 09.08.2021 was passed in the afternoon.
12. Sri Dilip Kumar Pandey, submits that the appellants have filed application under Section 24 C.P.C./Order 39 Rule 2A C.P.C. No. 80 of 2021, in this Court, in view of the misuse of power and position by the certain office bearers/members of the Bar Association of the District Court, for transfer of the suit to nearby district, in which this Court passed the following order on 10.08.2021.
"Heard Sri Virendra Mishra, learned counsel for the petitioners.
This is an application for transfer of the suit proceedings.
It is vehemently argued that the office bearers with the support of members of the bar are not allowing the court to proceed in the matter. The demands made by the members of the bar are no less than an obstruction in the process of law.
This is a sad state of affairs.
It is submitted that the objectionable behaviour of the members of the bar is influenced by the defendants in the suit proceedings who are private parties.
Issue notice.
The District Judge is directed to submit a report for the reason that the grievance raised in the present application filed under Section 24 of the Code of Civil Procedure is exceptional and serious.
List in the week commencing 06.09.2021."
13. Sri Dilip Kumar Pandey further submits that even if caveat was filed on 29.07.2021 but as it was not reported and as copy thereof was not served on the plaitiff/appellants, there was no fault on the part of the plaintiff/appellants in filing Suit without serving copy of the plaint etc and consequently the ex-parte order of ad-interim injunction dated 30.07.2021 could not be set aside on the ground that in spite of caveat the defendent-respondent was not heard. He submits that in terms of the proviso to Order 39 Rule 4 C.P.C. if a party has knowingly made a false or misleading statement in relation to a material particular and consequent thereupon the injunction was granted, without giving notice to the opposite party, then only the Court shall vacate the injunction. He further submits that even in such a case, it is not always mandatory for the Court to vacate the injunction, as, if the Court considers it is not necessary to do so, in the interest of justice, the Court shall not vacate the injunction order for the reasons to be recorded.
14. In support of his submission, Sri Dilip Kumar Pandey placed reliance upon Order 39 Rule 4 C.P.C. which is being reproduced as under:
"4. Order for injunction may be discharged, varied or set aside.-Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:
[Provided that if in an application for temporary injunction or in any affidavit supporting such application a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:
Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless Court is satisfied that the order has caused undue hardship to that party.]
(i) after the words "by the Court", insert the words "for reasons to be recorded, either or its own motion, or";
(ii) at the end, insert the following proviso, namely:-
"Provided that if at any stage of the suit it appears to the Court that the party in whose favour the order of injunction exists is delaying the proceedings or is otherwise abusing the process of Courts, it shall set aside the order of injunction."
[Vide Uttar Pradesh Act 57 of 1976, sec. 13 (w.e.f. 1-1-1977).]"
15. Sri Asit Srivastava relying on Section 148A C.P.C. submits that it provides for filing of caveat and in view of sub-section (3) thereof, where, after a caveat has been lodged if any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator. He submits that it is the duty of the Court to serve notice of the application on the caveator and if in spite of filing of the caveat, the same was not endorsed and consequently notice of the plaint etc. was not served to the defendant-respondents, it was the mistake on the part of the Court for which the defendant-respondents cannot be made to suffer. He has placed reliance on the judgments of this Court in the case of Raj Bahadur and another: Civil Judge (J.D.) Musafirkhana Sultanpur and three others in Writ Petition No. 6380 (MS) of 2014 decided on 20.11.2014 and Maharaja Dharmendra Prasad Singh and another Vs. Vivek Agarwal and others in Civil Misc. Application No. 31058 of 2009 in First Appeal From Order No. 303 of 2009, decided on 06.04.2009 (DB).
16. I have considered the submissions advanced by the learned counsels for the parties and perused the material on record.
17. So far as the submissions of learned counsel for the appellants, as noted in paragraphs 11 and 12 are concerned, this Court in Application under Section 24 and/or 39 Rule 2 A C.P.C. No. 80 of 2021 is already seized of the matter in which a report has also been called from the District Judge, Lucknow, and as such this Court is not entering into that controversy. But, is expressing its concern for administration of justice in view of the facts that though the caveat was registered on 29.07.2021 it was not reported by the Munsarim of the Court concerned when the suit was filed on 30.07.2021. Again, the suit itself was filed in the Court having no pecuniary jurisdiction. The valuation of the suit as valued by the plaintiff-appellant was Rs. 20,00,000/- (Twenty Lacs). It should have been filed in the Court of Civil Judge (Senior Division), Lucknow, but, the suit was filed in the Court of Civil Judge (Junior Division), (South), Lucknow, from where it was transferred, on the same date i.e. 30.07.2021, and even in the transferee Court the Munsarim of the Court concerned did not notice about the caveat. The exparte ad interim injunction was passed on 30.07.2021. The report of the learned District Judge, Lucknow, dated 15.09.2021 reproduced above, notes that when the case is transferred from one Court to another Court, the transferee Court should check for Munsarim report where caveat if filed is endorsed by the Munsarim.
18. Without observing anything further, the Court confines itself to the legal issue involved in view of the submissions advanced, with respect to the legality or otherwise of the order dated 09.08.2021 under challenge.
19. It is clear that the caveat was filed on 29.07.2021. The Suit was filed thereafter on 30.07.2021. The notice of the Suit/plaint etc. was not served on the defendant-respondents and the ad-interim injunction was granted ex-parte, without providing any opportunity of hearing to the defendant-respondents.
20. Section 148A of the C.P.C. deals with right of a person to lodge a caveat. It provides as under:
"148A. 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 caveator.
(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.]"
21. A bare reading of Section 148A C.P.C. shows that any person claiming a right to appear before the Court on the hearing of an application, expected to be made or has been made in a Suit or other proceeding instituted or about to be instituted in a Court may lodge a Caveat for such appearance and hearing of the application before the Court. Sub-Section (3) of Section 148A provides that if any application is filed in any Suit or proceeding, after the caveat has been lodged, the Court shall serve a notice of the application on the caveator.
22. Section 148A, C.P.C. thus provides for an opportunity of hearing to any person claiming such right to defend himself before passing of any order, from which he might be affected, and to ensure it, where the person files caveat, the Court has to serve a notice of the application on the caveator, which is a duty cast upon the Court.
23. Section 148-A (4) also cast duty on the applicant, who has been served with a notice of caveat, to forthwith furnish copy of the application with complete documents filed in support of the application to the caveator.
24. The duty cast under sub-Section (3) is on the Court where caveat has been lodged and the duty cast under Sub-section (4) is on the applicant, filing application in a Court, who has been served with a notice of caveat. Sub-Section (2) provides for service of notice of caveat on the applicant by the caveator.
25. In S.S.Barathokey Vs. Chairman U.P.Seed and Tarai Development Corporation Limited and another 1993(11) LCD 486, where, a caveat was filed but notice of the writ petition was not served upon the caveator's counsel before filing the writ petition and an ex-parte interim order was passed, upon the application for recall of that order on the very ground of no service of notice of the writ petition in spite of caveat, this Court, after considering the provisions of Chapter XXII Rule 1 (4) of the Allahabad High Court Rules, Section 148A of C.P.C. and various authorities on the point, held that the ex-parte interim order without hearing the caveator's counsel deserved to be recalled and the opposite parties were entitled to be given a right of hearing on the application for interim relief.
26. It is appropriate to reproduce paragraphs 7 and 10 to 15 of S.S.Barathokey (supra) as under:
"7. A perusal of the above Rule 5 will go to show that where an application is expected to be filed, the person claiming the right to oppose such an application, may file a caveat in the Court. Sub-rule (2) provides that the service of the notice of the caveat shall be made upon the other side by registered post acknowledgment due. Sub-rule (3) provides that after the caveat has been filed and the notice thereof has been served on the applicant's counsel, the applicant shall forthwith furnish to the caveator or his counsel copy of the application as well as any miscellaneous application for interim relief. The date of motion is also necessary to be indicated to the caveator's counsel.
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10. A reference has also been made to Section 148-A of the Code of Civil Procedure. In the case of Chandrajit v. Ganeshiya (AIR 1987 All 360) a Division Bench of this Court has held that the provisions of Section 148-A can be applied to appeals, first, second, execution or any other appeal filed under the Code of Civil Procedure or any other enactment. The caveats would be entitled to be entertained at the time an appeal is submitted for reporting. The Stamp Reporter will make a note, if the caveat has already been filed before him, about the same. In para 8 of this case the intention as to why caveat is filed has been made clear as under:-
"8. A caveat is only an intimation to a Judge or officer notifying that the opposite party be given an opportunity to be heard before any action is taken on the application or proceeding initiated by the other side. It is a request which, if attended to, will help the court in doing justice in between parties."
11. In the case of G. C. Siddalingappa v. G C. Veeranna (AIR 1981 Karnataka 242) after considering the provisions of Section 148-A of the Code of Civil Procedure that Court came to the conclusion that the provision regarding service of notice as contained in sub-section (3) is mandatory and non-compliance with it defeats the very object of introducing Section 148-A. Consequently it follows that the breach of sub-section (3) vitiates the order passed thereof. Once is caveat a 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. Once a caveat is filed it becomes the duty of the Stamp Reporter to report that such and such counsel for the opposite parties or one of the opposite parties has filed a caveat and it becomes the duty of the Court to hear that counsel before an interim order is passed in the case.
12. This question was also raised for consideration in the case of Pashupati Nath Arora v. The Registrar, Cooperative Societies Jaipur and other (AIR 1983 Rajasthan 191). In that case the provisions of Section 148-A of the Code of Civil Procedure and the Rajasthan High Court Rules, (Rule 159), were interpreted. In that case the High Court held that in order to make the caveat effective, the analogy of provisions 148-A,CPC can be applied to the caveats which are filed before the Court.
13. A single Judge of this Court in the case of Nainital Bank Limited V. Munsif, Nainital and others (1992(1) LDR 70) has held that an interim order which has been passed in absence of a party who has put in appearance, is to be recalled. In that case also the power had been filed in the Court by the counsel for the opposite parties. The filing of caveat in the court is equivalent to filing of power on behalf of opposite parties and once it is known that a caveat has been filed the office should report this fact.
14. The Hon ble Supreme Court in Jang Singh v. Brij Lal (AIR 1966 SC 1631), has observed in para 6 as under :-
"It is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be ful-filled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensúre that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: "Actus curiae neminem gravabit."
15. Thus from the perusal of these cases and the Rules of the Courts and Section 148-A of the Code of Civil Procedure it becomes quite apparent that in the present case when a caveat had already been filed it was the duty of the Stamp Reporter to make an endorsement to this effect on the writ petition. In the present case it was not the fault of the opposite parties. At the same time it was also the duty of the learned counsel for the petitioner to have served the notice of the writ petition before filing it in the Court because Sri D. P. Singh, Advocate was the Standing Counsel of the U. P. Seeds and Tarai Development Corporation, the opposite party in the present case. As the petitioner did not serve copy of the writ petition on the counsel for the opposite parties the exparte interim order passed in the present case is liable to be recalled and the matter to be heard again. In this case the exparte interim order has been passed by the Court on the fault of the learned counsel for the petitioner for not serving Sri D. P. Singh, learned counsel for the opposite parties who was also their Standing Counsel. The office of the Stamp Reporter is also to be blamed equally for not reporting about the filing of the caveat in the above case. It is a serious matter which requires consideration. The Stamp Reporter should be vigilant while making reports and see whether a caveat has been filed by the other party while reporting on the writ petitions. Dereliction of duty on the part of the Stamp Reporter and his office has resulted in harassment of the parties and wastage of precious time of the Court."
27. In S.S.Barathokey (supra) this Court placed reliance on the judgment of the Hon'ble Supreme Court in the Case of Jang Singh Vs. Brij Lal, AIR 1966 SC 1631, in which it was held that "there is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: "Actus curiae neminem gravabit.".
28. In the case of Maharaja Dharmendra Prasad Singh (supra), the Division Bench of this Court, held that once a caveat is filed, it shall always be incumbent upon the Stamp Reporter to verify the facts with regard to filing of the caveat, go throughout the record not only on the basis of names of the parties but also on the basis of case number of regular suit, the date of order passed by the subordinate Courts/Tribunals and quasi judicial authorities, or other identifying numbers, if any. It also referred that no one should suffer for the fault of the Court as any act of the Court of law shall prejudice no man in the basic concept of administration of justice.
29. In Maharaja Dharmendra Prasad Singh (supra), where also there was negligence on the part of the Stamp Reporter, who failed to make an endorsement with regard to filing of the caveat, such slackness or negligence on the part of the Stamp Reporter or Registry of the Court was considered as amounting to negligence on the part of the Court.
30. In the Case of Raj Bahadur (supra), this Court held that "the provisions for giving a notice or for providing a copy of the application and document to the caveator are in conformity with the principles of natural justice. Any violation thereof renders any judicial process adopted by any authority, specially by a judicial authority, nugatory. The relevant part of Raj Bahadur (supra) reads as under:
"The provisions for lodging a caveat are found in Section 148-A of the C.P.C. Sub-Section (3) of Section 148-A specifically provides that where, after a caveat has been lodged under sub-section (1), if any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator. Sub-section (4) casts a duty on the applicant to forthwith furnish a copy of the application to the caveator and also copies of any paper or document which has been, or may be, filed by the applicant in support of the application. Sub-sections (3) and (4) of Scction 148-A of the C.P.C. are quoted below:
"(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 served on the applicant 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."
Sub-section (3) of Section 148-A, CPC thus makes it mandatory for the Court to serve a notice on the caveator.
Right to lodge caveat under Section 148-A of the C.P.C. has been conferred on a person who apprehends or expects any impending legal action against him. The provisions for giving a notice or for providing a copy of the application and document to the caveator are in conformity with the principle of natural justice. Any violation thereof renders any judicial process adopted by any authority, specially by a judicial authority, nugatory".
31. In view of the above, the order dated 30.7.2021 has rightly been set aside by the learned court below vide order dated 09.08.2021.
32. The submission of Sri Dilip Kumar Pandey that there was no fault on the part of the plaintiff-appellant as neither caveat was reported nor copy thereof was served on the appellants and as such ''they had not knowingly made a false and misleading statement in relation to a particular matter' and therefore, the condition under Order 39 Rule 4 C.P.C. for vacating the injunction order dated 30.07.2021 was not fulfilled, cannot be accepted in view of the law laid down in Maharaja Dharmendra Prasad Singh (supra), where due to fault on the part of the Stamp Reporter the caveat was not reported. Here also, the Munsarim did not report caveat which had already been registered on 29.07.2021.
33. It is the right of the caveator of being heard if a caveat is filed and it is the duty of the Court to afford him opportunity of hearing and not passing any order without affording opportunity of hearing to the caveator which needs be protected it being a right recognized by the statute, even if there is no fault on the part of the applicant. If due to some negligence, mistake or otherwise of the registry/Munsarim, caveat is not reported and without affording opportunity of hearing order is passed, the order shall be liable to be recalled and the caveator would be entitled to be restored to the position of hearing of the application afresh, on the principle that an act of Court of law, in administration of justice should prejudice no man.
34. While considering an application for vacation of the order of temporary injunction under order 39 Rule 4 C.P.C. or any other provision, the Courts can not ignore the mandate of Section 148-A (3) C.P.C.
35. Before, concluding, this court deems it appropriate as also a duty in the interest of proper administration of justice to issue following directions as well:
1) In every Civil Court, Munsarim is the Chief Ministerial Officer. He is appointed to receive plaints or other papers under the Code and to see that the actual date of presentation is entered upon the plaint, memorandum of appeal, cross-objection or any other paper filed and also upon the labels on such papers.
2) It shall be incumbent as also the duty upon the Munsarim of the Court concerned to verify the facts on the basis of case number of regular suit, date of the order passed by the subordinate court, the name of the parties or other identifying numbers, if any with regard to the filing of a caveat;
3) When an application/plaint or/and is filed in Civil Court the Munsarim of that court shall mandatorily make an endorsement on such plaint/application, if any caveat has been filed or not.
4) If caveat has been filed the same shall be reported without any failure;
5) If a plaint/application is filed in one Court but is transferred to another Court, for any reason either at the time of institution or thereafter, the Munsarim of the transferee Court shall also ensure if there is reporting of the caveat or not and in the absence of any such reporting the Munsarim of the transferee Court, shall submit his report to the transferee Court about the caveat and if required, report to that affect shall also be asked from the Munsarim of the Court from where the case has been received on transfer, which report shall be submitted by the Munsarim of the Court from where the file has been received from transfer without any delay so that in cases of urgency, the disposal of the application may not be unnecessarily delayed.
6) Any slackness, negligence or mistake on the part of the Munsarim of the Court concerned for any reason whatsoever would amount to interference in the administration of justice, rendering him liable for appropriate action being taken in addition to the disciplinary proceedings.
7) The above directions are in addition to any other provision or directions etc, if exist, on the above subject.
8) learned District Judges of the District Courts in the State of Uttar Pradesh shall ensure that the caveat lodged is reported and is not missed by any slackness or negligence or mistake or otherwise on the part of the Munsarim and to ensure it necessary order shall be issued as per the above directions.
36. In view of the aforesaid the appeal lacks merit and deserves to dismissed at the admission stage.
37. The appeal is dismissed.
38. The report of the learned District Judge, Lucknow dated 15.09.2021 shall again be kept in the sealed cover in the records of this appeal.
39. The Registrar General of this Court shall send/circulate copy of this judgment to all the District Judges of the State of Uttar Pradesh, for necessary action at their end.
Order Date :- 17.9.2021 Arvind (Ravi Nath Tilhari, J.)