Heard Sri Anjani Kumar Dvivedi, learned counsel for the petitioners, Sri Ajay Pratap Singh, learned counsel appearing for the respondent Nos. 2 to 4. Sri U.N. Misra has also been heard, who has been instructed by the appropriate authority of this Court and instructions have also been received by him from the District Judge, Sultanpur.
Though, the subject matter of this writ petition appears to be trivial, however, at the outset I may observe that the same is quite disturbing.
A suit for permanent injunction was filed by the respondent Nos. 2 to 4 against the petitioners which was presented for registration on 01.08.2014. Along with the suit, an application for grant of ad interim injunction under Order 39 Rules 1 and 2, C.P.C. was also filed, on which, an order was passed by the learned trial court for issuing notices to the petitioners. The matter was listed on 18.08.2014 which was a holiday and hence, the case was taken up on next day i.e. 19.08.2014.
On 19.08.2014, learned trial court passed an order directing both the parties to the suit that they will maintain status-quo in respect of the land in suit and will not change the nature of the suit property till the next date.
While passing the aforesaid ex parte ad interim injunction order on 19.08.2014, the learned trial court has made an observation that the plaintiffs were present with their counsel and the application for grant of ad interim injunction order was pressed and further that plaintiffs had tried to serve the defendants through special messenger. However, nothing has been observed by the learned trial court in the said order as to whether the notices on the defendants were served or the notices were returned back unserved.
Against the aforesaid order dated 19.08.2014, a writ petition bearing Writ Petition No. 5453(MS) of 2014 was filed by the petitioners which was finally disposed of on 03.09.2014. It was urged in the aforesaid writ petition that though the petitioners had lodged caveat on 01.07.2014 in respect of the impending suit, which they were apprehending to be filed by the plaintiffs, however, before passing the order dated 19.08.2014, no notices or summons of the application for interim injunction was served on the petitioners, neither the same was served on their counsel. It was also urged by the petitioners before this Court in the aforesaid writ petition that the court officials had also not reported lodging of the caveat by the petitioners.
In view of the submissions advanced by the petitioners in the aforesaid writ petition, this Court finally disposed of the writ petition by means of the order dated 03.09.2014 providing therein that since the trial court had fixed 11.09.2014 as the next date, the petitioners may file an objection as well as affidavit before the trial court for vacation of the ex parte interim injunction order and it would, thus, not be proper for this Court to interfere in the matter at that stage. It was further provided by this Court in its order dated 03.09.2014 that in case trial court is satisfied that caveat lodged by the petitioners was overlooked, then it may recall the order dated 19.08.2014 and after hearing the parties, decide the injunction application, in accordance with law. The operative portion of the order dated 03.09.2014, passed by this Court runs as under:-
"Since the Trial Court has fixed 11.9.2014, the petitioner may file an objection as well as affidavit before the Trial Court for vacation of the interim order dated 19.8.2014 and it is not proper for this Court to interfere in the matter at this stage.
In case the Trial Court is satisfied that caveat filed by the petitioner has been overlooked, then it may recall the order dated 19.8.2014 and after hearing the parties, decide the injunction application, in accordance with law.
In case for any reason, the case is adjourned on 11.9.2014, then the injunction application, in any case, be decided within three weeks thereafter.
During this period, the plaintiff shall not interfere with the repair work of the petitioner over the land in dispute. However, in the garb of repair work, no fresh construction shall be raised.
With the aforesaid observations, the writ petition is disposed of."
It has been submitted on behalf of the petitioners that the order dated 03.09.2014 was filed along with application dated 05.09.2014 by the petitioners before the trial court with the prayer to recall the order dated 19.08.2014. The said application was taken on record and posted for hearing by the learned trial court on 08.09.2014. Thereafter, on 11.09.2014, the application was disposed of. It is this order dated 11.09.2014 which is the subject matter of challenge in these proceedings instituted by the petitioners under Article 226 of the Constitution of India.
There is no dispute that while hearing the application moved by the petitioners dated 05.09.2014, the learned trial court was very well aware of the order passed by this Court on 03.09.2014 in Writ Petition No. 5453 (MS) of 2014. The manner in which the order dated 11.09.2014 has been passed cannot be appreciated. The learned trial court has observed that the case is fixed for hearing on the application for grant of interim injunction order, however, defendants (petitioners herein) have not filed any objection to the said application. Learned trial court further proceeds to note the submission made on behalf of the defendants that caveat was lodged and that ignoring the caveat, the order dated 19.08.2014 was passed and hence, the said order was not lawful for the reason that it was passed without adhering to the procedure of noting the caveat lodged by the defendants. Learned trial court further observes that the purpose of lodging caveat is to give opportunity to the caveators at the time of passing of the order and the defendants are well aware of the proceedings of the suit including the proceedings of the application seeking ad interim injunction order under Order 39 Rules 1 and 2, CPC and, hence, if in view of the defendants, the application moved by the plaintiffs for grant of interim injunction (6 Ga) was not liable to be allowed, then it was open to the defendants to have filed objection to the said application and press for hearing on the same. Learned trial court further observes in the said order that object of the defendants should be to get the application for grant of interim injunction (6 Ga) disposed of on its merit and, thus, there is no justification or basis for hearing the application for grant of interim injunction (6 Ga) and the application moved by the defendants for recall of the order dated 19.08.2014 separately. The learned trial court has also instructed the defendants that they must understand the difference between the judicial work and administrative work and also that in case any mistake had occurred (by not reporting the caveat), then the same has been caused by the office and not by the court and hence, no judicial order can be said to be unlawful in these circumstances.
After making aforesaid observations, the defendants were directed by the learned trial court to file objection on the application moved by the plaintiffs for grant of interim injunction (6 Ga).
The terms of the order passed by this Court on 03.09.2014 is abundantly clear. This Court unambiguously stated in the said order that in case the trial court is satisfied that the caveat filed by the petitioners has been overlooked, then it may recall the order dated 19.08.2014 and after hearing the parties, decide the injunction application, in accordance with law.
Thus, from the tenor of the order dated 11.09.2014, it is clear that the learned trial court was satisfied that the caveat lodged by the defendants was overlooked while passing the order dated 19.08.2014. May be, by mistake or for any other reason of the office or any official in the judgeship, the caveat may not have been pointed out to the learned trial court. However, the fact remains that while passing the order dated 11.09.2014, the learned trial court was satisfied that the caveat was lodged before 19.08.2014 and on the date of passing of the order dated 19.08.2014, the caveat was overlooked (may be because of the reason that it was not reported to the trial court by the office of the judgeship). In such circumstances, without recalling the order dated 19.08.2014, the learned trial court, in my considered opinion, could not have proceeded any further. Once it came to the notice of the learned trial court that the caveat was ignored or overlooked on 19.08.2014 when the order of status-quo was passed, the first consideration which ought to have been made by the learned trial court was for vacation of the order dated 19.08.2014 and passing the order afresh for disposal of the application made by the plaintiffs for grant of interim injunction (6 Ga), as per the order passed by this Court on 03.09.2014.
It has also been brought to the notice of the Court that after passing of the order dated 11.09.2014, the objections to the application 6 Ga have been filed by the defendants and the said application has also been disposed of on 30.10.2014 by the learned trial court.
The directions given by this Court while disposing of the writ petition on 03.09.2014 were not only binding on the learned trial court but any escape therefrom by the learned trial court, cannot, as observed above, be appreciated. The exercise of power by this Court under Article 226 read with Article 227 of the Constitution of India is not to, in any way, control the judicial discretion of the courts below, however, at the same time it should not be lost sight of by the courts below that this Court exercises power of superintendence over all courts and tribunals falling within its territorial jurisdiction.
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 Section 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.
Keeping in view the aforesaid principle of law, this Court had directed the learned trial court to apply its mind for recalling the order dated 19.08.2014, if it was satisfied that caveat lodged by the petitioners was overlooked while passing the order dated 19.08.2014. Learned trial court, it appears, has completely failed to appreciate the tenor and direction of this Court embodied in the order dated 03.09.2014. After noticing that caveat was overlooked, the order dated 19.08.2014 ought to have been set aside first and the application 6 Ga should have been decided thereafter. In the application dated 05.09.2014 the petitioners have clearly made a mention of the order passed by this Court on 03.09.2014 in Writ Petition No. 5433 (MS) of 2014, however, to my utter dismay, the learned trial court in its order dated 11.09.2014 has not even noticed the terms of the said order dated 03.09.2014. The learned trial court failed to make even a mention of the order dated 03.09.2014; what to say of any discussion of its import.
As observed above, the learned trial court was legally bound by and under mandate of this Court's order dated 03.09.2014, and ignorance thereof speaks volumes of the manner in which the learned trial court appears to have proceeded to pass the order dated 11.09.2014 Looking into the entire facts and circumstances of the case, specially the manner in which the learned trial court has proceeded to pass the order dated 11.09.2014, despite being fully aware of the order dated 03.09.2014, passed by this Court, I find it expedient in the interest of justice to quash not only the order dated 11.09.2014 but also the order dated 13.10.2014 whereby the application for grant of interim injunction (6Ga) has been decided.
Accordingly, the writ petition is allowed and the aforesaid orders dated 11.09.2014 and 13.10.2014, passed by the learned trial court are hereby quashed.
At this juncture, learned counsel appearing for the respondent Nos. 2 to 4 submitted that in this petition there is no challenge to the order dated 13.10.2014 and further that the order dated 13.10.2014 has been passed taking into consideration the objection filed by the defendants to the application moved by the plaintiffs for grant of interim injunction, as such, it would not be appropriate to quash the order dated 13.10.2014.
The aforesaid arguments made by the learned counsel appearing for the respondent Nos. 2 to 4, on consideration, are found only to be rejected for the reason that any proceedings not in conformity with the direction issued by this Court in its order dated 03.09.2014 and the orders passed by the trial court ignoring the same cannot be permitted to be sustained. Thus, the said argument advanced by the learned counsel appearing for the respondent Nos. 2 to 4 merits rejection, which is hereby rejected.
Now, since the order dated 13.10.2014 has been quashed by this order, the application moved by the plaintiffs for grant of interim injunction (6 Ga) shall be decided by the learned trial court taking into consideration the objection filed thereto by the defendants, strictly in accordance with law and without being influenced by any of the observations made in this order. The observations made in this order are confined only to test the validity of the order dated 11.09.2014 and the procedure adopted by the learned trial court ignoring the mandate of this court contained in its order dated 03.09.2014.
It is further directed that the learned trial court shall take a decision in accordance with law on the application moved by the plaintiffs for grant of interim injunction (6 Ga) after providing appropriate opportunity of hearing to the parties to the suit within a month from the date of production of certified copy of this order. However, till disposal of the aforesaid application, the parties are directed to maintain status-quo on the spot as it exists today. It is further provided that parties to the suit shall not seek any unnecessary adjournments.
However, there will be no order as to costs.
Order Date :- 20.11.2014 Sanjay