(..19..)
MISCELLANEOUS[1]
QUESTION BANK
Q.1. Explain fully ‘Caveat’.
Q.2. Explain the provision about the transfer of cases.
Q.3. Explain in detail the inherent powers of courts.
SHORT NOTES
- Caveat.
- Transfer of cases.
- Restitution.
- Reference.
SYNOPSIS
- A) ‘Caveat’ (S. 148A)-
- a) Right to lodge a caveat (S. 148 A)-
- b) Object of S. 148 A-
- c) Nature and scope-
- d) Who may lodge caveat-
- e) Form of caveat-
- f) Duration of effect of caveat-
- B) TRANSFER OF CASES (Ss. 22 to 24)-
1) Power to transfer suits which may be instituted in more than one Court (S. 22)-
2) General power of the High Court and the District Court of transfer and withdrawal (S. 24)-
3) Power of the Supreme Court to transfer suits etc. (S. 25)-
- C) RESTITUTION-
- D) INHERENT POWERS OF COURTS.
1) Enlargement of time (S. 148)-
2) Payment of Court-Fees (S. 149)-
3) Saving of inherent powers of the Court (S. 151)-
4) Amendment of judgment, decree, orders, etc. (S. 152, 153 and 153 A)-
A) ‘Caveat’[2] (S. 148A)-
A ‘caveat’ is an intimation given by a party to a Court not to take any action or to grant any relief to the applicant without notice to the party lodging the caveat.
In other words, a caveat is lodged before the Court’s office as a precautionary measure so that no order can be passed ex parte[3] against the person lodging the caveat.
Usually, a caveat is filed before the Court where the Caveator.[4] fears that action may be taken against him by the opposite party, ex-parte, which may affect his interest adversely.
- 148 A of the C. P.C. makes provision for lodging caveat.
a) Right to lodge a caveat (S. 148 A)-
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.
The Caveator shall serve a notice of the caveat by registered post, acknowledgment due on the person by whom the application has been made.
The Court shall serve notice upon such Caveator if any application, suit, etc, is filed against him by the Caveatee.[5] subsequently, the Caveat, after service of notice of caveat upon him, will forthwith furnish to the Caveator, at the Caveator’s expense, a copy of the application made by him and also with copies of any paper or document which has been (or maybe), filed by him in support of the application.
The caveat lodged above can remain in force for ninety days.
b) Object of S. 148 A-
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.
The main purpose of lodging a caveat is to protect the interest of the caveator, so he should get an opportunity to hear and place his case before the Court in respect of any application on which the Court may pass the order in his absence had the caveat not been filed.
c) Nature and scope-
When a party files a caveat under S. 148-A of C. P.C., the Court has to allow a hearing him if it has to pass an order that would go against him.
d) Who may lodge caveat-
A person who might be adversely affected by the action of the opposite party and against whom the Court may order ex-parte may lodge a caveat.
e) Form of caveat[6]–
The C.P.C has not provided any specific form of caveat. However, a caveat may be filed as a petition in which the caveator should mention the matter which is expected to come up before the Court, and the caveator should also assert his right of appearance in that connection.
f) Duration or effect of caveat-
A caveat remains in force for ninety days from the date of its filing.
B) TRANSFER OF CASES[7] (Ss. 22 to 24)-
Ss. 22 to 24 of the C.P.C. deals with the transfer of cases. The provisions for the transfer of civil cases are as follows-
1) Power to transfer suits which may be instituted in more than one Court[8] (S. 22)-
In the case where the suit can be instituted in any one of the two or more courts, it is instituted in one of those courts by the plaintiff. The defendant, after notice to the other party, can at the earliest opportunity and in all cases (at or before the settlement of issues) apply to have the suit transferred to another Court, and the Court to which such application is made (after considering the objections of the other parties), may transfer the suit to any one of those Courts.
- 23 lays down a procedure through which applications under S. 22 are to be made. This S. 23 is supplementary to S. 22.
Ss. 23 and 25 lays down the rules as to the Court in which the application for transfer lies-
(i) Where the several Courts having jurisdiction are subordinate to the same appellant Court – an application for transfer shall be made to that appellate Court.
(ii) where such courts are subordinate to different appellate Courts but to the same High Court, – the application for transfer is to be made to said High Court.
(iii) where such Courts are subordinate to different High courts, the application for transfer is to be made to such High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situated.
2) General power of the High Court and the District Court of transfer and withdrawal (S. 24)-
On the application of any party to the suit or on its own, after notice to the parties and after hearing such of them (as desired to be heard) or even without notice, the High Court or the District Court can-
(i) transfer any suit, appeal or other proceedings (pending before it, for trial or disposal) to any Court subordinate to it and competence to try or dispose of the same; or
(ii) withdraw, try or dispose of any suit, appeal or other proceedings pending in any Court subordinate to it.
- 24 is the general provision empowering the High Court or the District Court to try, withdraw, dispose of, or transfer any suit, appeal, or proceeding on the application of any party or its own motion.
- 24 has not laid down the grounds on which the suit can be transferred, tried, withdrawn, or disposed of. However, Courts have, from time to time, evolved some principles on which such a transfer is to be made.
3) Power of the Supreme Court to transfer suits, etc. (S. 25)-
The Supreme Court can transfer any suit appeal or proceeding from one High Court to another High Court or from one civil Court in the state to another civil Court in another state.
The Supreme Court can do so if it is expedient for the ends of justice.
C) RESTITUTION[9]–
According to Webster’s Dictionary, ‘Restitution’ means ‘giving back to the rightful owner of anything that has been lost, or taken away”. In the legal parlance ‘restitution’ means “where the property has been handed over to decree-holder, and that decree is, ultimately reversed or varied in appeal, revision or review, the person benefited should hand over to the person all that he had received from him”.
In other words, a person should not be allowed unjust enrichment due to the court’s erroneous judgment. Restitution restores the entitled person to the thing or loss caused by the wrong judgment.
- 144 of the Code incorporates the principle of ‘restitution’. It lays down that upon the ultimate reversal or variation of a judgment or order, it is the duty of the trial Court to see that the party who received the benefit of erroneous judgment shall make restitution to the other party for which he was deprived of in execution of the decree or otherwise. To carry on the above-mentioned purpose, the Court is empowered to make any order, including a refund of costs, interests, damages, etc.
The proceeding for ‘restitution’ is an independent proceeding with a separate procedure, and the determination of any question in a decree is appealable.
D) INHERENT POWERS OF COURTS[10].
‘Inherent powers’ are powers inherent in the Court to do justice and undo injustice. ‘Inherent powers of the Court are in addition to the powers conferred by the Code upon the Court. These powers are given to the Court to meet the ends of justice.
Provisions as to inherent powers run through Ss. 148, 149, 151, 153 and 153-A. The inherent powers of the Court are as follows-
1) Enlargement of time (S. 148)-
Where any period is fixed or granted by the Court for the doing of any act, the Court has the power to enlarge the said period even though the original period fixed has expired. However, the period cannot be extended beyond 30 days at a time.
2) Payment of Court-Fees (S. 149)-
Where the whole or any part of any fee (prescribed for any document by the law for the time being in force relating to Court fees) has not been paid, the Court may, at its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court fee; and upon such payment, the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
3) Saving of inherent powers of the Court[11] (S. 151)-
- 151 provides that nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the Court’s process.
The scope of the section’s power is very wide. Under this power, the Court can order to set aside ex-parte orders, add or delete any party to the suit, recall its own orders and correct mistakes; temporarily issue an injunction, review the execution application, take notice of subsequent events in the pending suit, hold the trial in camera, permit amendment of pleading, etc.
Inherent powers can also be used to prevent either party’s abuse of the process of a Court.
4) Amendment of judgment, decree, orders, etc. (S. 152, 153 and 153 A)-
Ss. 152, 153, and 153-A provide for amendments in decrees, orders, judgments, etc. According to these sections, clerical or arithmetical mistakes in judgment, decrees, orders, or errors arising therein from any accidental slip or omission may be corrected by the Court, either on its own motion or on the application of any other party.
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[1] इतर किरकोळ तरतुदी [अन्य छोटे प्रावधान]
[2] सावधानपत्र [चेतावनी प्रपत्र]
[3] Without hearing the other party.
[4] ‘Caveator’ is the person who lodges the caveat.
[5] ‘Caveatee’ is the person against whom caveat is lodged.
[6] कॅवेट का नमुना
IN THE HIGH CORURT OF JUDICATURE AT BOMBAY
CIVIL APPPELLATE JURISDICTION.
CAVEAT APPLICATION NO. OF 2015.
IN
PROPOSED FIRST APPEAL NO. OF 2015
DIST. SATARA.
Shri. Jitendra Shivrajirao Deshmukh … Caveator
(Prop. Respondent)
R/o. Saigaon, Tal- Koregaon,
Dist. Satara.
Vs.
General Manager …. Caveatee
(Prop. Appellant)
XYZ Suger Mill, Ltd.
Songaon, Tal. Jawali,
Dist- Satara.
Application under S. 148 A of the C.P.C-
MOST RESPECTFULLY SHEWETH;
- The Caveator (The proposed Respondent) named hereinabove, pray that no orders, interim or ad-interim, may be passed by this Hon’ble Court in respect of proposed appeal filed or likely to be filed against the judgment or order passed by Hon’ble 2nd Joint Civil Judge, Senior Division, Satara in the proceeding bearing special Civil Suit No. 111/15 dated 08/04/2015, unless and until the Caveator is duly heard in this regard.
- The Caveator undetakes to serve a copy of the Caveat on the other side by R. P.A.D.
- The Court Fee Stamp of Rs……….is affixed to this caveat.
- The copy of the petition may be furnished on the Caveator on the following address.
| Shri Jitendra Shivajirao Deshmukh
|
At. Post.- Saigaon
Tal- Koregaon Dist.- Satara.
|
MUMBAI.
DATED: Advocate for the Caveator.
[7] दावे वर्ग करणे [दावों का वर्गीकरण करें]
[8] एकापेक्षा जास्त न्यायालयात दावे दाखल केलेले असल्यास दावे वर्ग करण्याचा अधिकार [दावों को वर्गीकृत करने की शक्ति यदि दावे एक से अधिक न्यायालयों में दायर किए जाते हैं]]
[9] प्रत्यास्थापनाध् योग्य व्यक्तीकडे परत करणे [प्रतिस्थापन को उपयुक्त व्यक्ति को लौटा दें]
[10] न्यायालयाचे मूळ अधिकारध् अंगभूत अधिकार] [न्यायालय की मूल शक्तियों में निहित शक्तियाँ]
[11] न्यायालयाचअंगभूत अधिकारांचा संरक्षण [न्यायालयों के संवैधानिक अधिकारों का संरक्षण]