Whether Caveat Application is legally permissible to be filed under Section 148(a)?

Abstract:

The article is to analyse and understand the Caveat Application process and its validity. To understand why, how and for what the Caveat Application is filed. Caveat means “a warning or caution, beware”. The article helps us to understand how section 148(A) of CPC can be used as notice. The notice is provided as the formal notice from the interested party to a court or judge in opposition to certain acts within their power and jurisdiction. The Court of Law explains Caveat as the warning or caution given by a person to the court that the court should not pass any judgment as ex-parte order or any order before giving notice for hearing the person who is the Caveator.

Keywords: Section 148(A), Caveat Application, CPC and warning.

Introduction:

The Latin word ‘Caveat’ originated in the mid-16th century; it means ‘let the person beware’. It is considered as a notice which states that certain actions may not be taken without informing the person who gave the notice.

The concept of Caveat Application or Petition to file is provided under Section 148(A) under the Code of Civil Procedure, 1908. Section 148(A) was enacted based upon the recommendations of the Law Commission of India’s 54th Report by the Civil Procedure Code (Amendment) Act 104 of 1976.[1]

According to the dictionary meaning, a “caveat” is an official request that a court should not take a particular action without issuing notice to the party lodging the caveat and without an opportunity given to hear him out.[2]

The person filing or lodging a caveat is known as “Caveator”.

Objectives and purpose of the caveat: –

·       The purpose of the section was introduced for the protection of the Caveator interest, who may face legal proceedings filed by the opponent.

·       This section is essential for the court of law to save the cost and time in order to avoid multiplicity of the case for the same reason.

Section 148(A) of CPC provides the provision for lodging of a caveat: –

1.     A caveat can be filed by any party who is going to be affected by an interim order to be passed on the application made in a suit before the court.

2.     It is essential that the person who lodged the caveat to service the notice on the person against whom the application is been made.

3.     The court of law shall serve the notice to Caveator about their application as it is mandated in nature.

4.     The applicant may need to serve the application copy, other paper copies, document etc to the Caveator at his expense.

5.     The caveat application has a directive clause in nature.

6.     The caveat lodged shall remain in force for 90 days.

When Caveat may be lodged?

A caveat shall be lodged after the judgment is pronounced or order is to be passed. Additionally, whenever a person anticipates that any legal suit will be filed against him, he can lodge a caveat petition in any of the civil courts which includes small court and tribunals subject to their original jurisdictions and limit.

When Caveat does not lie?

Section 148A of the CPC application is limited to civil proceedings. The applicant cannot file an application in any criminal proceedings filed under Article 226 of the Constitution of India.[3]

This section cannot be incorporated in cases where the Code does not fit to file the notice. Thus, it would be inconsistent with the objective laid for the said section.

Rights and duties:

Sub-sections (2), (3) and (4) of section 148(A) provides the rights and duties of the Caveator who lodges a caveat, of the applicant who intends to obtain an interim order and of the court.

1.     Of Caveator:

Under sub-section of Section 148(A), once the party has admitted to the status of caveator, he is bound with certain rights and duties. It is his duty to serve the notice of the caveat lodged by him through registered post to the applicant for an interim order has been or is expected to be made.

2.     Of Applicant:

Under sub-section (4) of section 148-A states the duty of the applicant to furnish to the Caveator forthwith at the caveator’s expense a copy of the application made by him along with the copies of papers and document on which he replies.

3.     Of Court:

Once a caveat is lodged as per sub-section (3), it is the duty of the court of law to issue a notice of that application on the Caveator. This duty has been imposed for the purpose to enable the Caveator to appear and oppose the grant of an interim relief in the favour of the applicant.

Important process and document requirement for a lodge of Caveat

1.     Caveat application needs to be signed by the Caveator. If Advocate is representing the Caveator, it can be signed by the advocate if Vakalatnama needs to be accompanied.

2.     The Caveator which has been presented before the court shall be registered in the Caveat register in the form of a suit. The caveat register includes the number of proceedings and dated which is maintained by the court.

3.     It is mandatory to file caveat to the court along with the copy of the application, discharge proof and explanation to the court that a duplicate copy of the petition has been dispatched to the parties at the suit.

4.     Normally, the court fee Rs 100 is charged to lodge Caveat.

The question of whether Caveat application is legally permissible to be filed under Section 148-A of the CPC?

Yes, the caveat application is legally permissible to be filed under Section 148A of the CPC. It is common in testamentary proceedings. It is legally permissible as used for a precautionary measure taken against the grant of probate or as the case may be by the person lodging caveat.

It is legal as long as it is a matter within the definition and over of the civil procedure code.

Conclusion:

 Caveat application is the petition filed as a precautionary measure to prevent any order by the court against him without considering his view and legal position. It is supported by the legal maxim “Audi alteram partem” i.e. let the other party be heard.  If the other party is not heard and order is passed by the court, it is a violation of the Principles of natural justice in terms of equality.

Thus, the caveat application is legally permissible to maintain rule of law in the Indian courts.  


[1] Law Commission of India, Fifty-Fourth Report on Civil Procedure Code 1908, Page 110-111 (February, 1973). https://lawcommissionofindia.nic.in/51-100/Report54.pdf

[2] C.K. Takwani, Civil Procedure, 34, Eighth Edition, 2017 publication. 

[3] Deepak Khosla vs Union of India & Ors., WP(C) No. 12787/2009.

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