Madras High Court
M. Krishnappa Chetty And Anr. vs P.E. Chandrasekaran @ Chandran on 5 November, 1992
Equivalent citations: (1993)1MLJ18
ORDER Srinivasan, J.
1. This revision has been filed against an order dated 16.8.1991 in I.A. No. 13577 of 1991 in O.S. No. 5731 of 1991 on the file of the 18th Assistant Judge, City Civil Court, Madras. The said order is one granting interim injunction. Originally the matter was posted to 2.9.1991 for service of notice. Again, the interim order was extended and the matter was being adjourned from time to time. Ultimately, on 22.10.1991 the order passed was, Hearing advanced from 29.10.1991 to to-day. as per order in I.A. No. 16229 of 1991. Counter filed, Stayed by P.O. in C.M.P. No. 1341 of 1991 till 8.11.1991 All that happened in the court of the Fourth Assistant Judge, City Civil Court, Madras. Thereafter the proceedings were transferred to the file of the 18th Assistant Judge by order of the Principal Judge, City Civil Court, Madras. Then onwards the matter was being adjourned from time to time without any reasons being recorded by the Judge for such adjournments. It is now stated by learned Counsel for the respondent that there is no interim order as the injunction order was not continued after 29.10.1991. As at present, the interlocutory application stands posted to 13.11.1992, the said application shall be disposed of immediately. Though there is no interim order, it is in the interests of justice that the court hears both parties and disposes of the application which is one under Order 39, Rules 1 and 2, C.P.C. Hence with the consent of parties who are appearing before me, I direct the 18th Judge, City Civil Court, Madras, to hear I.A. No. 13577 of 1991 on 13.11.1992 and if necessary, on subsequent dates continuously and pass appropriate orders in accordance with law. Orders shall be passed in the said application on or before 30.11.1992 and a report thereof submitted to this Court.
2. The petitioners have got another grievance which is more important than the grievance set out earlier. That is this. The petitioners had entered caveat in the proceedings and as per the provisions of Section 148-A and Order 52, C.P.C. the respondent before filing the suit and the interlocutory application for injunction had served copies thereof on the petitioners' counsel. But at the stage neither the suit nor the application was numbered and no date had been fixed with the result that the copies served on the petitioners' counsel did not contain the number of the suit and the number of the interlocutory application. Petitioners were not, therefore, in a position to know the date to which the suit and the application were posted; nor were they informed by the respondent's counsel that he would be moving the application for orders on a particular date.
3. Under Section 148-A(3) and Rule 6 of Order 52 of the C.P.C., where after a caveat has been lodged, any application is filed in a suit, appeal or revision or any other proceeding the court shall serve a notice of the application on the pleader for the caveator, if any, or the caveator in the manner provided for service on defendant, respondent or opposite party of summons to appear and all provisions applicable to such summons shall apply to the service of such notice. Thus the rule imposes a duty on the court to serve a notice of the application on the caveator's pleader or caveator just in the same manner as a summons would be served. In this case, the court did not serve any notice on the caveator's counsel or the caveator after fixing the date for the hearing of the application in the first instance. The court passed an order of interim injunction on 16.8.1991 and directed notice to the defendants-respondents. The procedure adopted by the court is clearly erroneous and in violation of Section 148-A(3) and Rule 6 of Order 52, C.P.C.
4. The proper procedure to be adopted in all cases where caveat has been filed is for the plaintiff/ petitioner to serve copies of the plaint and application on the caveator's counsel or the caveator before filing them in court. He must inform the caveator or his counsel as the case may be, the date on which he will move the application before court. He must also file acknowledgments of the receipt of copies obtained from the caveator's counsel or the caveator as the case may be, in court along with the application. On receiving such papers the office of the Court shall, while fixing the date for the first hearing of the application prepare a note and bring it to the notice of the presiding officer concerned that caveat has been entered and the caveator's counsel or the caveator has been served with copies of plaint and the application. Then the presiding officer shall direct the office of the court to issue notice to the caveator's counsel or the caveator, as the case may be, specifying the date on which the matter will be heard in the first instance. The court shall inform the petitioner's counsel also of the said date and on that date both sides shall be heard before any interim order is passed. It shall not pass any order before a notice is served on the caveator or his counsel as per Rule 6 of Order 52, Civil Procedure Code. This procedure shall be strictly followed by all the subordinate courts; otherwise the purpose of introduction of Section 148-A and Order 52, Civil Procedure Code will be lost. There shall be no lapse in following this procedure.
5. There is no necessity for the caveator's counsel to file a separate vakalat in the suit or the application once again. The vakalat filed by the counsel for the caveator in the caveat will hold good for the main suit as well as the application filed therein unless the caveat has expired before the filing of the suit and application. The office of the court shall enter the number of the suit and the application on such vakalat and kept it on record.
6. It is brought to my notice that sometimes the caveator's counsel refuses to receive notice in the application or evades service deliberately with a view to delay the matter. Such conduct on the part of counsel will amount to grave dereliction of duty and wilful obstruction in the administration of justice. I hope no lawyer will adopt such dilatory tactics. In such cases the court can record a finding as to such wilful evasion and proceed to pass interim orders in the application and direct notice to the party himself. In all such cases, such counsel shall file fresh vakalat in the main proceedings if they want to appear therein.
7. With the above directions, this civil revision petition is dismissed and as directed earlier the 18th Assistant Judge, City Civil Court, Madras, shall pass orders on I.A. No. 13577 of 1991 on or before 30th November, 1992 and report to this Court. No costs.