Karnataka High Court
Nova Granites (India) Ltd. vs Coach Kraft (Bangalore) Pvt. Ltd. on 1 December, 1993
Equivalent citations: ILR1994KAR52, 1993(4)KARLJ661
ORDER
39 RULES 1 & 2 & ORDER 43 RULE 1 - Order on merits should give basis thereof : else, not possible for Appellate Court to conclude whether view unjust or improper - Order without reason, unsustainable; liable to be set at naught on this ground.
It is needless to say that an appellate Court whenever an order is passed by the Court below should be in a position to know as to whether the learned Judge who decided such an application had applied his mind, to the different aspects to which he is required to apply his mind. It is only in those cases where an appellate Court comes to the conclusion that the order passed by the Court below is absurd, capricious or unreasonable, the appellate Court would be competent to reverse or set aside the order of the learned Judge who passed the order in the first instance... An order which purports to be one on merits should necessarily give an indication as to on what basis the learned Judge passes such an order. Otherwise it is not at all possible for an appellate Court to reach a conclusion as to whether the view taken by the learned Judge is unjust or improper... In the instant case, as can be seen from the impugned order, the learned Judge has not given any reason muchless cogent reason. Under these circumstances, the order is not at all sustainable...the impugned order is liable to be set at naught on this ground.
SUM UP:
Whenever a Caveat is filed through a Lawyer and when the address for service is given as his address, notice of application for interim order should be served on the Lawyer. However, the failure to serve the notice on him will not by itself render the order null and void, if the notice in fact served on the party no prejudice is caused to the party on that count in the facts and circumstances of a particular case. However, it is the duty of the Court to see that the notice of such an application should be served to the Advocate for Caveator as long as that Caveat Petition is alive.
JUDGMENT N.D.V. Bhat, J
1. This Civil Revision Petition is preferred against the order dated 21-10-1993 passed by the Additional City Civil Judge on I.A.I in Original Suit No. 5406 of 1993. By the said order, the learned Judge has issued temporary injunction after treating the defendants ex-parte on acceptance of the endorsement of the process server that the summons and notice were refused by both the defendants. The learned Single Judge of this Court before whom the Revision came up for admission, has referred this matter to the Division Bench since according to him, the procedure relating to the issue of notice of application for an interim order when a Caveat Petition is filed and the maintainability of a Revision petition against an interim order without notice to the Lawyer representing the caveator are required to be thrashed out once for all by the Division Bench.
2. The facts relevant for the disposal of this Petition briefly stated are as under:- Plaintiff-respondent-1 filed a suit at Original Suit No. 5406 of 1993 before the lower Court against the petitioner and another (respondent-2 since deleted) praying for a decree for perpetual injunction restraining them from interfering with plaintiff's possession and enjoyment of the property. In the said suit, the plaintiff also filed an application at I.A.I under Order 39 Rules 1 and 2 read with 151 CPC praying for temporary injunction. It appears that the instant petitioner had filed a Caveat Petition under Section 148A of CPC praying that the Court be pleased to issue notice of any application that may be filed by the respondents either jointly or severally against the petitioner (instant petitioner) before any interim orders were passed thereon. The learned trial Judge by an order dated 8-10-1993 directed issue of notice on I.A.I and sent summons under emergent process.
3. The suit summons and the notice were returned by the Serving Officer as 'refused'.
4. The learned Judge by an order dated 21-10-1993 issued temporary injunction after holding that the defendants were treated ex-parte. It is also stated therein that he has heard the Counsel for the plaintiff and perused I.A.I and the affidavit. The matter was posted thereafter to ex-parte evidence on 24-11-1993. Being aggrieved by the order of injunction, the petitioner has preferred this Revision.
5. We have heard the arguments of the learned Counsel Sri Udaya Holla and Sri Shekar Shetty appearing on either side.
6. In the context of the submissions made at the Bar, the following Points arise for Consideration:-
1. Whether a Civil Revision Petition against the impugned order is maintainable and if not whether the same can be treated as an appeal under Order 43(1)(r) CPC?
2. Whether the lower Court has erred in issuing notice of I.A.I to the defendant instead of sending notice to the Advocate for the caveator whose address was given in the Caveat Petition?
3. Whether the order under Revision is bad on any other grounds? .
4. What Order?
7. POINTS 1 and 2:- Since Points 1 and 2 are inter-linked, they are taken up together for discussion.
8. It is noticed that a Caveat Petition No. 3600 of 1993 was lodged in the lower Court on 10.8.1993. There is no dispute about this aspect. The same is also recorded in the order sheet dated 4.9.1993. Further it is noticed that the caveator had pasted two postal receipts to evidence the factum of having sent the registered notice.
9. Sri Shekar Shetty, the learned Counsel appearing for the respondents submitted with reference to Section 148A that the Caveat Petition contains a wrong address of the plaintiff-respondent. In fact he juxtaposed the address reflected in the plaint and the Caveat Petition and submitted to the Court that the caveat petitioner was misleading every one by giving a wrong address of the plaintiff in the Caveat Petition. Further, according to Sri Shekar Shetty, there is also no proof as regards the service of the notice by the caveator. In this connection, the learned Counsel pointedly invited the attention of this Court to the language reflected in Section 148A(2) CPC particularly to the words "shall serve a notice of the caveat". The learned Counsel dilating on this aspect submitted that unless and until service is actually effected, the Caveat Petition loses its significance and the caveator cannot avail himself of the advantage conferred upon him under Section 148A CPC.
10. Ordinarily we would have dealt with in greater detail on the aspect touched upon by Sri Shekar Shetty, learned Counsel for respondent. However, in our view, this aspect now has become academic since the fact that Caveat Petition has been lodged is reflected in the order sheet dated 4.9.1993. It is therefore clear that on the date on which notice of I.A.No.I and suit summons were ordered, the learned Judge had had the knowledge of Caveat Petition having been lodged. However, the learned Judge is shown to have issued notice and summons to the defendants.
11. Sri Udaya Holla, learned Counsel for the petitioner submitted that the notice of I.A.No.I ought to have been issued to the Advocate for defendants as prayed for in the Caveat Petition. Continuing his submission, the learned Counsel argued that if in such a situation notice is issued to the party, it is likely to create complications and likely to give scope for trick and stratagem. In this connection, the learned Counsel has relied on Rule 19 of the Karnataka Civil Rules of Practice, 1967. On the other hand, Sri Shekar Shetty, learned Counsel for respondent submitted that Section 148A of CPC contemplates notice to caveator and not to the Lawyer for the Caveator. Dilating on this aspect, the learned Counsel took us to certain provisions like Order 3 Rule 3, Order 5 Rule 7, Order 5 Rule 15 of CPC to contend that wherever and whenever the Legislature thought that the notice could be served either on the party or on the Lawyer, the same was incorporated as such in the relevant provisions. It is pointed out by Sri Shekar Shetty, learned Counsel that there is no such incorporation in Section 148A of CPC. In this connection, Sri Shekar Shetty relying on the Decision in MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION AND ANR. v. PARITOSH BHUPESH KURMARSHETH ETC., contended that when the language of the provision is plain the same cannot be stretched beyond the meaning flowing from the same simply on the ground that if it is not done so, hardship may be caused on the one party or the other.
12. We have given our anxious consideration to the submissions made by the learned Counsel on either side on the aspect touched upon immediately hereinabove.
13. In our considered view, when the proposed defendant has chosen a Lawyer and lodged a Caveat stating therein that the address for service of such an application is that of his Advocate, notice should be served on him. That is so because, if notice is not served on the Advocate it may lead to certain complications and injustice in certain cases. In a given case, it may so happen that the defendants to whom notice is actually served may labour under the impression that since they have already entrusted the matter to their Lawyer for the purpose of opposing the interim application by filing a Caveat, may not choose to appear before Court at all. In such a situation if notice is not given to the Lawyer, it may lead to injustice. It is true as rightly pointed out by Sri Shekar Shetty, learned Counsel that Section 148A of CPC does not speak of a notice of interim application in a suit to a Counsel. However, when a party himself has appointed a Lawyer who in law is his agent for the purpose for which he is appointed, it is obvious that a notice to such a Lawyer will be a valid notice to the party also with reference to that purpose. If inspite of a notice being given to a Lawyer in such a situation the Lawyer does not appear before Court and takes care of the interests of his client, he does so at the peril of his own client for which his client should thank himself. It is true that in certain provisions of Code of Civil Procedure a reference is made to the agent of the party. However, that does not mean that whenever and wherever a reference is not made to a Counsel or an agent a notice to an agent or a Counsel is bad in law. It is necessary to remember here that Section 148A of CPC cannot be read in a closed jacket or in isolation; the same will have to be read in conjunction with the provisions reflected in Order 3 Rules 1, 5, 6 of CPC as also Rule 19 of Civil Rules of Practice. At this juncture, it would be indeed refreshing to refer to the provisions reflected in Rule 19 of Civil Rules of Practice. Rule 19 reads as under:
"19.(1) Every Interlocutory application, shall, after presentation, be numbered and posted before the Court for orders:
Provided that, when any party likely to be affected by it has already entered appearance by pleader, no such application shall be so posted, unless such pleader has been served with notice of the application by delivering to him a copy of the supporting affidavit or memorandum of facts, and the written acknowledgment over the signature of each such pleader or his registered clerk is taken either by an endorsement on the application or otherwise and is filed into Court along with the application.
(2) If, however, the applicant's pleader makes an endorsement on the application that such service on pleader was either refused to be accepted or could not be effected inspite of due diligence, the Court may direct that the application be numbered and posted.
(3) Whenever it is intended to move the application as an emergent application, the copy of the application served on every pleader under this rule shall contain an endorsement stating that the application is intended to be moved as an emergent application on the day specified in the endorsement".
We hasten to add here that Rule 19 is not a rule specifically referable to Section 148A of CPC as such. However, the said Rule cannot be ignored even in the context of the provisions of Section 148A of CPC. Looked at from any point of view, we are of the view that a notice to the Lawyer of the caveator should be given. Further, it is also necessary to remember that if that course of action is not followed status of a Lawyer who is an Officer of the Court is likely to be diluted. However, we hasten to add here that in a given case instead of issuing a notice to the Advocate, a notice is given, in fact, to the party, the same cannot be considered as bad in law if it has not otherwise prejudiced him in the context of the circumstances referred to by us earlier. At the same time, we make it clear that it should be the duty of 'the Court to cause the notice of the application on the Lawyer.
14. It is therefore necessary at this juncture to see as to whether notice, in fact, can be said to have been served on the defendants to the suit, that is to say, the instant petitioner and respondent-2 (since deleted). If really notices were sought to be served on them and notices were refused by them the same would be valid. We may also point out here that Sri Holla, learned Counsel for the petitioner fairly submitted that he would not go to the extent of saying that if in a given case notices are actually served on the defendants, the fact that notice is not served on the Lawyer would render the order null and void. At this juncture, it is necessary to see as to whether the notices have been, in fact, validly served. We may point out here that the service said to have been effected in the instant case is under Order 5 Rule 17 of CPC. In other words, notices sought to be served on the petitioner and respondent-2 (since deleted) are shown to have been refused by them. The learned Additional City Civil Judge has accepted the endorsement of refusal by the Process Server and has held that the notice is sufficient. It is therefore necessary to see as to whether the materials on record are such as would not warrant such a finding.
15. Sri Shekar Shetty, learned Counsel for the respondent submitted that all the conditions reflected in Order 5 Rule 17 are complied with. Sri Udaya Holla, learned Counsel for the petitioner, on the other hand, submitted that none of the conditions referred to in Order 5 Rule 17 of CPC is complied with. In order to appreciate the submissions made on either side in this behalf it is necessary to set out the provisions of Order 5 Rule 17 of CPC which reads as under:
"Procedure when defendant refuses to accept service, or cannot be found:-
Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer after using all due and reasonable diligence cannot find the defendant who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed".
A careful perusal of the aforesaid provision would go to show that if the serving officer finds that the person who is required to be served refuses the summons and notice, he shall affix a copy of the same on the outer door or some other conspicuous part of the house in which such defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.
In the instant case, the summons and the notice to defendants returned by the Bailiff with his endorsement are available in the records received from the lower Court. It is noticed that the summons and notice to defendant-1 are available at pages 59 and 61 respectively of the lower Court records. Similarly, summons and notices to defendant-2 are available at pages 58 and 60 respectively of the lower Court records. We have perused the endorsement made by the Process Server. The endorsement made by the Process Server would go to show that the respective defendants were shown by the plaintiff. Further, the endorsement also would go to show that the same were affixed to the outer doors of the respective offices. Further it is noticed that both regarding the summons as also the notice sought to be served upon the defendants, the names of the witnesses and their addresses are also given. Further it can be gathered that the summons and notice are affixed to the respective outer doors of the offices concerned. Further it is seen that the return made by the Process Server is verified by the affidavit of the Process Server. At this juncture it is necessary to point out here that the term 'affidavit' is not defined in the Evidence Act. The inclusive definition of the same can be had in Section 3(3) of the General Clauses Act. In short, an affidavit is a statement or a declaration in writing on oath or affirmation before the person having authority to administer oath on affirmation. In this regard a useful discussion can be seen in Appendix-A in Sarkar's Evidence Act. However, for the purpose of this case, it is not necessary to dilate on that aspect any further. It will suffice if it is noticed that the return of summons and the notice by the Process Server is verified by him and sworn to by him before the Sheristedar of the City Civil Court.
16. Sri Udaya Holla, learned Counsel for the petitioner raised a point that the affidavit is not in Form No. 11 Appendix-B. It is also argued by the learned Counsel that the same Process Server purported to serve two persons at the same time (at about 4.00 p.m) at different places situated at quite some distance from each other and argued that the said circumstance by itself would cast a serious doubt on the genuineness relating to the service of notice. Further the learned Counsel also argued that the names of the persons who are said to have identified the house are also not given. In support of his submission referred to immediately hereinabove, the learned Counsel for the petitioner mainly relied on two Decisions, viz., the Decision in BHAGWAN SINGH AND ORS. v. RAM BALAK SINGH AND ANR. , and the Decision in ELLAPPA NAICKER v. ARUMUGA SERVAI AND ANR. . It was also argued by the learned Counsel Sri Holla that the provisions of Order 5 Rule 17 will have to be strictly construed.
17. In the Decision in PARAMESWARAN TAMPI v. MADHAVAN PILLAI , among other things, it is pointed out by the High Court of Madras that procedure, when defendant refuses to accept service or cannot be found, if not followed the summons cannot be said to be duly served and the defendant in such a situation is entitled to get the exparte decree passed against him set aside on that count. We may point out here that it is not quite clear from the said Decision as regards as to what the infirmities were there. But it is laid down in the said Decision by way of general proposition that the procedure relating to service of summons under Order 5 Rule 17 if not followed the defendant is entitled to get the decree set aside. We may also point out here that there is an observation in the said case that the procedure under Order 5 Rule 17 of CPC was not followed. It was in that context, that proposition appears to have been made in the way and manner as referred to hereinabove by the High Court of Madras. In the Decision in Bhagwan Singh's case, it is noticed that affirmation relating to the return of summons was made by the Nazir of the Court and not by the Process Server. Further it is also noticed in the said case by Their Lordships that the affidavit was not in the special form prescribed. In that context, Their Lordships took the view that the provisions relating to service of summons particularly, the provisions of Order 5 Rule 19 cannot be said to have been complied with.
18. In the Decision in Ellappa Naicker v. Arumuga Servai and Anr. it is noticed that the summons was sought to be served on the defendant when he was boarding a bus. Further it is noticed in the said case that the defendant-petitioner has stated to the Process server that he was going on urgent business and had no time. It was further noticed that the summons was affixed two days later without making any further attempt at personal service. It was in the context of these circumstances that the High Court of Madras found that the service was bad.
19. On a careful consideration of the submissions made at the Bar particularly by the learned Counsel for the petitioner and the circumstances leading to the proposition reflected in the Decisions alluded to earlier, we are of the view that the said proposition reflected in the said Decisions do not quite fit into the facts of the instant case. Further in so far as the submission relating to the service of summons on two persons at the same time situated at two different places is concerned, the learned Counsel Sri Holla submitted that the said two places are at a distance of 15 Kms. from each other whereas the learned Counsel appearing for the respondent submitted that the distance is hardly 5 Kms. However, we do not propose to go into that aspect having regard to the fact that defendant-2 who is added in the instant case, as a party respondent-2 (since deleted) has not chosen to challenge the order. Further, we are also not inclined to accept the submission of Sri Holla that the fact that the affidavit is not exactly in the form prescribed in Appendix-B Form-11 would by itself vitiate the service of summons. We do agree with the submission made by the learned Counsel that the provisions of Order 5 Rule 17 of CPC will have to be strictly construed. We are not prepared to stretch that proposition to the extent of holding that one should be hyper-technical in considering Order 5 Rule 17 CPC. If on a careful perusal of the return verified by the Process Server and sworn to before the authority competent to administer oath or affirmation, one can say that all the conditions are complied with, it would be wrong to say that the service is bad simply because, it is not exactly in the form prescribed in the Appendix to the Code of Civil Procedure. Under these circumstances, we do not agree with the submission made by Sri Holla that the service is bad in law. Further the learned Additional City Civil Judge has chosen to accept the endorsement and the return verified before the Officer competent to administer oath or affirmation and we do not, in this proceeding, think it proper to take a view different from the one taken by the learned trial Judge. Under these circumstances, we are not inclined to accept the submission made by the learned Counsel for the petitioner that the mode of service adopted in the instant case cannot be said to be a service at all. At the same time, we also affirm our view taken earlier that a notice was required to be given to the Advocate whose address was given in the Caveat Petition for the reasons already recorded above. However, having regard to the totality of our finding given hereinabove, the order passed by the Court below will have to be considered as an order with notice subject to the observations we have made earlier.
20. If that be so, the next Point to be considered is as to whether the Revision Petition is maintainable. Sri Shekar Shetty, learned Counsel for the respondent vehemently contended that the Revision Petition is not maintainable in the nontext of the Decision of this Court in PARIJATHA AND ANR. v. KAMALAKSHA NAYAK AND ORS . In the said case, a Division Bench of this Court has held that the right of appeal against an order must depend upon the amplitude of the provisions creating that right; that the permissibility and right of appeal against an order ought not to depend upon whether an order gives reasons or not; a distinction resting merely on whether the order is a reasoned or unreasoned one, cannot be decisive on the question of appeal ability. It is further pointed out that no appeal lies against an ex-parte interim order of injunction granted under Order 39 Rule 1 or 2 of CPC and the remedy of aggrieved person, even if he be a stranger to the suit or proceeding, is to move trial Court under Order 39 Rule 4 in the first instance. On a careful consideration of the said Decision we are indeed of the view that the said Decision has no application to the facts of this case. That Decision would come into operation in a case where an order is passed ex-parte, that is to say, without notice to the other side in the first instance. Under these circumstances, it is not necessary for us to dilate on that aspect. In this case we have already taken the view that the lower Court has issued notices and thereafter it has passed the impugned order. In the instant case, we have held that it is not possible for us to say that the service effected under Order 5 Rule 17 is not effective service. Even otherwise, when the learned Judge purports to pass an order presumably after notice to the parties on the basis that the notice is effective, that order will have to be considered as an order which is appealable under the provisions of Order 43 Rule 1 (r) CPC. Under these circumstances, we are indeed of the view that the said Decision has no application to the facts of this case.
21. If that be so, what is the remedy of the petitioner in the instant case as regards such an order is the question to be considered by this Court. We would say that the remedy of the petitioner is in such a situation to prefer an Appeal and not to prefer a Revision Petition. Since this position is well-settled, it is not necessary for us to dilate any further on this aspect.
22. Sri Holla, learned Counsel for the petitioner submitted that if this Court comes to the conclusion that the remedy of the petitioner were to prefer an appeal and not a revision, the instant Revision Petition may be treated as an Appeal having regard to the fact that the Court-fee paid is more than what it would have been had an Appeal been preferred. Further it was argued by Sri Holla, learned Counsel that the fact that no notice was given to the Advocate is also a circumstance which misled the parties to prefer a Revision Petition instead of an Appeal. It is also argued by him that Authorities are not wanting where Revision Petition filed in peculiar circumstances were treated as miscellaneous appeal or even the return for the proper presentation, if an appeal were filed in some other Court than the High Court. In this connection, the learned Counsel mainly placed reliance on the two Decisions of this Court, viz., the Decision in AKKANAGAMMA AND ORS. v. R. NAGESWARIAH AND ANR 1968(1) Mys.L.J. 288 . and the Decision in VISHNUMOORTHI BHAGWATHA AND ANR. v. RUDRA SHEDTHI AND ANR.1973(2) Mys.L.J. 395. On the other hand, Sri Shekar Shetty, learned Counsel for the respondent pressed into service two Decisions viz., the Decision in N. BANSIDHAR v. DWARAKALAL AIR 1974 Karnataka 117 and the Decision in KANINGAMANNA MELATHIL KARNAVAN RAMA KURUP AND ANR. v. THIRUNAVAYA KALATHIL VEETTIL'S CHILDREN KUNHIPATHUMMA AND ORS.AIR 1942 Madras 657. We may also point out here that Sri Shekar Shetty has invited our attention to the Decision of the Supreme Court in MOHANLAL ANAND v. DELHI ADMINISTRATION to highlight the distinction between an appeal and a revision petition.
23. We have given our careful consideration to the submissions with reference to the different Decisions, In the Decision In Akkanagamma's Case, this Court took the view that there should not be legal impediment in the facts and circumstances of the case dealt with by it to treat the revision as an appeal. In the Decision in Vishnumoorthi's case, this Court took the view that the revision petition could be returned to the revision petitioner for being presented as a memorandum of appeal to the Court to which the appeal would lie. In the Decision in N. Bansidhar's case, this Court, however, took a wholly different view therein saying that it may not be permissible to return the revision petition to be presented as a memorandum of appeal in some other Court. We find that the Decision in Vishnumoorthi's case and the Decision in Bansidhar's case have no direct bearing. On the other hand, we find that the Decision in Akkanagamma's case appears to be on all fours and the learned Single Judge who decided the said case has, among other things, at paras-4 to 7 held as under:
"4. The first objection raised on behalf of the respondent-plaintiff is that these revision petitions are not maintainable. The learned Counsel for the petitioner states that revision petitions came to be filed because in the concluding portion of his appellate judgment, the Civil Judge has stated that the suit was being remanded under Section 151 CPC.
5. It appears to me that the reference to Section 151 CPC., is mistaken. As long ago as in 1959, this High Court had amended Rule 23 of Order 41, CPC. bringing within its scope the power to remand not only in cases where the trial Court had disposed of the suit on a preliminary issue but also in all cases in which the appellate court while setting aside the decree of the trial court considers it necessary in the interest of justice to remand the case. Hence, the source of the power to make a remand order is Rule 23 of Order 41 CPC. The mistaken reference to Section 151 CPC does not make any difference to the substance of the matter.
6. What follows from this conclusion is that the order was clearly appealable as an order under Clause (u) of Rule 1 of Order 43 CPC. Hence, the proceeding before this Court should have been not a revision petition but an appeal. As, however, such an appeal is also one which can be heard and disposed of by a single Judge under Section 9 of the Mysore High Court Act, 1961 and as the maximum court fee payable in respect of such an appeal namely, Rs. 10/- has been paid on each of these two revision petitions the learned Counsel for the petitioner requests that I may treat these revision petitions as appeals under Rule 1 (u) of Order 43 of CPC, and dispose of the same on merits.
7. It appears to me, the request made is, in the circumstances, a reasonable one and that it would be to the interest of both the parties to treat these matters as Miscellaneous Appeals and to dispose of them."
The learned Single Judge in the course of the same Judgment at para-18 has also observed as under:
"The Court fee paid on these revision petitions now converted into appeals will be refunded to the petitioner, i.e., the appellant. Parties will bear their own costs in this Court."
Having regard to the Decisions of this Court, it is not necessary for us to refer to the Decision of the Madras High Court in greater detail. It will suffice if it is observed that we are in complete agreement with the view taken in Akkanagamma's case. We hasten to add here that it is not as if in every case the request should be allowed. It is the discretion of the Court and in the instant case we have already held earlier that a notice was required to be given to the Advocate concerned whose address was given in the Caveat Petition as the address for service for the purpose of interim application. Under these circumstances, we are indeed of the view that this is a fit case where the request of the learned Counsel for the petitioner will have to be granted and there is no impediment to treat this Revision Petition as a Miscellaneous First Appeal. Further it is necessary to state here that a Misc. First Appeal against an order passed by the City Civil Court will lie to this Court and though ordinarily it is the jurisdiction of a learned Single Judge to hear such an appeal, having regard to the fact that the entire matter is referred to this Bench and having regard to the fact that certain points are reflected for recording a finding of the Division Bench, we are indeed competent to hear this matter treating it as an Appeal. Looked at from any point of view, we do not find any legal impediment to do so. If that be so, the next question for consideration is as to whether the order passed by the Court below is sustainable. The order passed by the Court below reads as under:
"Both the defendants are called out. Absent, today also. Service of summons is held sufficient on refusal. Defendants are placed exparte. Heard Counsel for plaintiff, perused plaint, I.A.I, support of affidavit and documents. Prima facie satisfied as to the prayer in I.A.I. Issue T.I order as prayed in I.A.I. For exparte evidence Call on 24.11.1993."
24. A careful perusal of the order would go to show that it does not reflect any reason. Further it purports to be a final order in so far as an application under Order 39 Rule 1 or 2 CPC on merits after notice. It is needless to say that an appellate Court whenever an order is passed by the Court below in such a situation should be in a position to know as to whether the learned Judge who decided such an application, had applied his mind, to the different aspects to which he is required to apply his mind. It is only in those cases where an appellate Court comes to the conclusion that the order passed by the Court below is absurd capricious or unreasonable, the appellate Court would be competent to reverse or set aside the order of the learned Judge who passed the order in the first instance. In the instant case, as can be seen from the impugned order, the learned Judge has not given any reason muchless cogent reason. Under these circumstances, in our view, the order is not at all sustainable. Sri Shekar Shetty, learned Counsel for the respondent, however, invited our attention to a Decision of the Calcutta High Court in SMT. MUKTAKESI DAWN AND ORS. v. HARIPADA MAZUMDAR & ANR. , to contend that eventhough the order may be bald, if the same can be supported from the materials on record, the fact that the order is bald will not make any difference to the issue and that order cannot be set aside on the ground that the same does not contain the reasons for the conclusion reached. In the Decision pressed into service by Sri Shekar Shetty, it is pointed out that it is true that the relevant Proviso to Rule 3 as inserted by the Amendment Act, 1976, mandates recording of reasons for granting ad interim exparte injunction and that for good reasons. It is further pointed out that firstly such recording of reasons would operate as a check against a too easy granting of exparte injunction and may inspire confidence and disarm objections and secondly since an appeal lies against such an exparte order of injunction, such record of reasons would go a very long way to help the appellate Court to ascertain as to whether the discretion granted under the Rule to grant exparte injunction has been properly exercised. After observing so, however, it is held that even then the mandate in the Proviso to Rule 3 to record reasons is not that mandatory to warrant reversal of an order solely on the ground of omission to record reasons. It is further held that if there are materials on record to show that there were good reasons to pass an exparte injunction order, the order cannot be set at naught solely on the ground that the Court, while making the order, did not record the reasons for proceeding exparte. We may point out here that the said Decision has no application to the facts of this case since we have held that the order purports to be one on merits after treating the defendants as served but not on person. Under these circumstances, the ratio laid down therein does not appear to have any application to the facts of this case.
25. Sri Shekar Shetty though has submitted that he had produced certain documents like the injunction order which the plaintiff had obtained on an earlier occasion, the same is not even remotely referred to by the learned Judge. As pointed out earlier by us an order which purports to be one on merits should necessarily give an indication as to on what basis the learned Judge passes such an order. Otherwise it is not at all possible for an appellate Court to reach a conclusion as to whether the view taken by the learned Judge is unjust or improper. Under these circumstances, we are of the view that this is a fit case where the order is liable to be set at naught on the ground that it is not a considered order and does not contain any reasons whatsoever for the conclusion reached by the learned Judge. Under these circumstances, we have no hesitation whatsoever in holding that the impugned order is liable to be set at naught on this ground. We may also add here that the fact that the Advocate concerned was not caused to be served with the notice of the application for interim injunction is also a circumstance which should enter into the Judicial verdict.
26. Before we conclude it is also necessary to dispose of an application praying for amendment of the cause title. It is noticed that in the cause title the Company is purported to be represented by the Director, Vimal Chand. However, the vakalath that is filed by the Lawyer and the affidavit accompanying the application for interim order for stay is that of another Director by name, P.K. Thyagi. Now the application is for the substitution of P.K. Thyagi for Vimal Chand. We may point out here that in the application for amendment the exact amendment sought for reads as under:
"In the cause title substitute the name of Vimal Jain with the name P.K. Thyagi."
It is obvious that Vimal Jain is an inadvertent typographical mistake for Vimal Chand because in the appeal memo the person who represents the appellant as it is is Vima! Chand. Under these circumstances, we are not inclined to attach much importance to the typographical mistake. The only question that we have to consider is as to whether P.K. Thyagi can be substituted in the place of Vimal Chand. The circumstances under which the mistake is required to be rectified are reflected in the application for amendment. The application is stoutly opposed by Sri Shekar Shetty, learned Counsel for the respondent. The objections are there as they are. In our view, having regard to the provisions of Order 29 Rule 1 CPC the Company can be represented by any Director and having regard to the fact that it is only because the vakalath is that of Thyagi, the amendment is sought for. It is not as if Vimal Chand cannot represent the appellant Company as such. Under these circumstances, we are of the view that the amendment sought for with reference to the cause title cannot be said to be unjust and improper. Under these circumstances, we allow the application for amendment and the learned Advocate for the petitioner to amend the cause title accordingly.
27. From what is stated hereinabove, the following position would emerge. Whenever a caveat is filed through a Lawyer and when the address for service is given as his address, notice for application for interim order should be served on the Lawyer. However, the failure to serve the notice to him will not by itself render the order null and void, if the notice is in fact served on the party no prejudice is caused to the party on that count in the facts and circumstances of a particular case. However, it is the duty of the Court to see that the notice of such an application should be served to the Advocate for Caveator as long as that Caveat Petition is alive. In the instant case, we have noticed that the party was served with notice under Order 5 Rule 17. We are not inclined to take a view different from the one taken by the lower Court with reference to the sufficiency of service on the basis of the materials now before Court. In that view of the matter, we have taken the view that the Revision Petition is not maintainable.
28. We have also taken the view that there is no legal impediment to treat the Revision Petition as an appeal in the facts and circumstances of this case and for the reasons recorded in detail by us. However, we have taken the view that since the order is not a speaking order and does not indicate the reasons for the issue of interim injunction the same is liable to be set aside more so since the same purports to be an order on merits. The Points reflected in the order of the learned Single Judge by way of Reference stand answered as above.
29. For the reasons stated hereinabove, the Appeal is allowed. Treating this Revision Petition as a Miscellaneous First Appeal, we set aside the order dated 21.10.1993 passed by the learned Additional City Civil Judge in O.S.No. 5406/1993 on I.A.No. 1. In other words, the temporary injunction order issued by the Court below is set aside. The matter is remitted back to the lower Court for fresh disposal of the application for temporary injunction according to law after giving an opportunity to the defendants to put in their objections if any and after hearing them. Since the matter appears to be urgent we direct both the parties to appear before the learned XXI Additional City Civil Judge(C.H.5), Bangalore on 10.12.1993. We may make it clear that it is not necessary to send any separate notice to defendant-2 since we have already held that the notice was sufficient and since he had not filed a Caveat Petition and since he has not challenged the order of the Court below also.
30. Before we close we would also like to make a mention of thy -submission made on behalf of the respondent that status quo be directed to be maintained by both the parties. It is not proper for this Court to make any such order at this stage. However, we would like to make it clear that the said submission be made before the Court below to that effect and if such a submission is made the learned Judge may consider that request according to law.
31. It was submitted on behalf of the respondent that it may be made clear that there is no injunction against either party. It is obvious that there is no injunction against either party and what is obvious need not be elaborated.
32. In the facts and circumstances of this case, we direct both the parties to bear their own costs.
33. The office is also directed to give a separate Miscellaneous First Appeal Number to this matter forthwith since this Revision Petition is treated as Miscellaneous First Appeal.