# Akhilesh Kumar Jaiswal & Ors v. Karunesh Jaiswal & Ors

- **Citation:** (2021) 9 ILRA 731
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-17
- **Case number:** F.A.F.O. No. 166 of 2021
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-jaiswal-ors-v-karunesh-jaiswal-ors-47390
- **Pages:** 13

## Headnote

Impugned order set aside ad interim
temporary injunction-Order of temporary
injunction

was
passed
exparteDefendant-respondents objected stating
they have filed caveat-no opportunity of
hearing-it is right of caveator of being
heard and it is duty of Court to afford the
caveator opportunity of hearing-this right
recognized by statute-impugned order not
illegal-specific direction issued in case of
caveat has been lodged.

Appeal dismissed. (E-9)

List of Cases cited:

1.Raj Bahadur & anr. Civil Judge (J.D.)
Musafirkhana Sultanpur & 3 ors. in Writ Petition
No. 6380 (MS) of 2014 decided on 20.11.2014

## Text

_Characters 0–39,975 of 40,829. This is a partial read: ask again with offset=39975 for what follows._

9 All Akhilesh Kumar Jaiswal & Ors. Vs. Karunesh Jaiswal & Ors.
731
is not passed because applicants/claimants
are neither illiterate nor rustic villagers.

12. Record, if any be sent back to the
Tribunal.

Order on Correction Application

Correction as prayed for be made in
paragraph-2 of the judgment by substituting
the word 'not' in place of 'also' and further
in paragraph-10 of the judgment by
substituting the word 'U.P.S.R.T.C.' in
place of 'Insurance Company'.

The
application
is
allowed,
accordingly.

We are thankful to Sri Pankaj Rai,
Advocate, for pointing out typographical
error under our order dated 11.08.2021.
----------
(2021)09ILR A731
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.09.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

F.A.F.O. No. 166 of 2021

Akhilesh Kumar Jaiswal & Ors.
 ...Appellants
Versus
Karunesh Jaiswal & Ors. ...Respondents

Counsel for the Appellants:
Akhilesh Kumar, Dilip Kumar Pandey

Counsel for the Respondents:
Asit Srivastava, Jyotiresh Pandey

Impugned order set aside ad interim
temporary injunction-Order of temporary
injunction

was
passed
exparteDefendant-respondents objected stating
they have filed caveat-no opportunity of
hearing-it is right of caveator of being
heard and it is duty of Court to afford the
caveator opportunity of hearing-this right
recognized by statute-impugned order not
illegal-specific direction issued in case of
caveat has been lodged.

Appeal dismissed. (E-9)

List of Cases cited:

1.Raj Bahadur & anr. Civil Judge (J.D.)
Musafirkhana Sultanpur & 3 ors. in Writ Petition
No. 6380 (MS) of 2014 decided on 20.11.2014

2. Maharaja Dharmendra Prasad Singh & anr. Vs
Vivek Agarwal & ors. in Civil Misc. Application
No. 31058 of 2009 in First Appeal From Order
No. 303 of 2009, decided on 06.04.2009 (DB).

3. S.S.Barathokey Vs Chairman U.P.Seed and
Tarai Development Corporation Limited & anr.
1993(11) LCD 486

4. Jang Singh Vs Brij Lal, AIR 1966 SC 1631

(Delivered by Hon'ble Ravi Nath Tilhari, J. )

1. Heard Sri Dilip Kumar Pandey,
learned counsel for the appellants and Sri
Asit Srivastava, learned counsel for the
respondents.

2. ''Supplementary Reply to the
Supplementary Objection filed by the
opposite parties' filed by Sri Dilip Kumar
Pandey and ''Additional Supplementary
Affidavit/objection
by
the
respondents/defendants filed by Sri Asit
Srivastava are taken on record.

3. This First Appeal From Order
under Order 43 Rule 1 of the Code of Civil
Procedure, 1976 (C.P.C.) has been filed
against the order dated 09.08.2021 passed
by the learned Civil Judge (Senior
Division), Fast Track Court, Lucknow, in
Original Suit No. 1018 of 2021 (Akhilesh
732 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar Jaiswal and others Vs. Karunesh
Kumar
Jaiswal
and
others)
on
the
application of the defendant-respondents,
under Order 39 Rule 4 C.P.C.. By order
dated
09.08.2021,
the
order
dated
30.07.2021 granting ad interim temporary
injunction on the appellants' application 6C, has been set aside.

4. The plaintiff-appellants filed
regular Suit No. 1018 of 2021 for
permanent injunction in which they filed an
application
for
grant
of
temporary
injunction under Order 39 Rule 1 of C.P.C..
The suit was instituted in the Court of Civil
Judge (Junior Divisoin), South, Lucknow
on 30.07.2021. As the valuation of the Suit
was Rs. 20,00,000/- (Twenty Lacs), beyond
the pecuniary jurisdiction of the Civil
Judge (Junior Division), South, Lucknow,
the Suit was transferred to the Court of
Civil Judge (Senior Division), Fast Track,
Lucknow on 30.07.2021, itself, where an
order of ad interim temporary injunction
dated 30.07.2021 was passed ex-parte after
hearing the plaintiff-appellant only.

5. On 02.08.2021, the defendantrespondents moved an application before
learned District Judge, Lucknow stating
that they had filed caveat on 29.07.2021 but
without giving notice and affording an
opportunity of hearing to them the order
dated 30.07.2021 was passed. Upon the
said application the learned District Judge,
Lucknow by order dated 2.8.2021 called
for the comments of both the court
concerned.

6. On 2.08.2021 the respondentdefendant filed another application C-10
supported with affidavit C-11 upon which
the Court of Civil Judge (Senior Division)
Fast Track, Lucknow fixed 3.8.2021 for
disposal
of
temporary
injunction
application pre-poning the date 06.08.2021
which was earlier fixed vide order dated
30.07.2021. On 03.08.2021, the matter was
fixed for 4.08.2021 and then for 06.08.2021
and thereafter for 09.08.2021 on which date
the order, under challenge in appeal was
passed.

7. This Court, considering the
seriousness of the allegations and the
counter-allegations as regards filing and
reporting of the caveat, in view of the
submissions advanced, on 13.09.2021 had
passed the following order:-

"1. Heard Sri Dilip Kumar
Pandey, learned counsel for the appellants
and Sri Asit Srivastava,learned counsel for
the respondents.

2. C.M.Application No. 116790 of
2021 along with the appellant's reply to the
objection of the respondents is taken on
record.

3.
Supplementary
affidavit/objection filed along with an
application dated 13.09.2021 in Court filed
by the respondents is also taken on record.
The office shall allot number to this
application.

4. Learned counsel for the
appellants submits that in the Suit for
permanent injunction being original Suit
No. 1018/2021: Akhilesh Kumar Jaiswal
and others Vs. Karunesh Jaiswal and
others, filed by the plaintiff-appellants,
learned Civil Judge (Senior Division), Fast
Track, Lucknow on 30.07.2021, granted ad
interim
temporary
injunction.
On
02.08.2021 the defendent-respondents filed
an application before the District Judge,
Lucknow that they had filed caveat but the
copy of the plaint of the suit and the
9 All Akhilesh Kumar Jaiswal & Ors. Vs. Karunesh Jaiswal & Ors.
733
application for temporary injunction was
not served upon them and the ad interim
order was granted, upon which learned
District
Judge,
Lucknow
asked
for
comments. The defendant-respondents also
filed an application under Order 39 Rule 4
C.P.C. upon which the order dated
30.07.2021
has
been
set
aside
on
09.08.2021, on the ground that the copy of
plaint etc. was not served on the caveatordefendant-respondents. Against this order
dated 09.08.2021 the present appeal has
been filed.

5. Learned counsel for the
appellants submits that no caveat was filed
as it was not registered nor any copy
thereof was served to the appellants prior
to filing of the suit.

6. Learned counsel for the
respondents, however, submits that the
caveat was filed on 29.07.2021 in both the
courts below i.e. Civil Judge (Junior
Division), Lucknow as well as Civil Judge
(Senior Division), Fast Track, Lucknow.
The
suit
considering
its
pecuniary
jurisdiction ought to have been filed before
Civil Judge (Senior Division) Lucknow, but
it was filed before Civil Judge (Junior
Division), Lucknow, from where it was sent
to the Court of Civil Judge (Senior
Division),
Fast
Track,
Lucknow
on
30.07.2021 itself. However, at neither place
the caveat was reported by the concerned.

7. From the submissions advanced
by the learned counsels for the respective
parties what transpires is that there is dispute
on the point of filing of the caveat, the date of
its filing i.e. whether it was filed on
29.07.2021 or on 30.07.2021 as also service
of the caveat on the plaintiff-appellants prior
to filing of the suit on 30.07.2021.

8. In view of the aforesaid, it is
considered necessary to see the copy of the
caveat application as also the document C
24/1
mentioned
in
the
order dated
09.08.2021 at internal page No.2 thereof.

9. Learned counsels for the
parties pray for and are granted 3 days
time to file copy of the aforesaid documents
along with affidavit.

10. Learned counsel for the
appellants has submitted that the learned
District Judge, Lucknow vide order dated
02.08.2021, had called for comments from
both the Courts concerned i.e. Civil Judge
(Junior Division), Lucknow as well as Civil
Judge (Senior Division), Fast Track,
Lucknow and directed to put up the matter
with comments of the courts concerned.

11. In view of the order dated
02.08.2021 passed by the learned District
Judge, Lucknow as also the seriousness of
the
allegations
and
the
counterallegations,
it
is
also
considered
appropriate that the learned District
Judge, Lucknow shall submit his report
on the aforesaid and in particular the date
of filing of caveat; the date of its
registration in the records where caveats
are lodged; if there are different dates in
filing and registering caveat, the reason
therefore, with respect to both the caveats
filed before the two courts mentioned
above. He shall also submit report as to
what is the procedure if a case filed in one
court is transferred to another court, as in
the
present
case,
whether
in
the
transferred court, the caveat is required to
be checked.

12.
Learned
District
Judge,
Lucknow shall submit the report in a
734 INDIAN LAW REPORTS ALLAHABAD SERIES
sealed cover to the Court on the next date
through Senior Registrar of this Court.

13. Let a copy of this order be
sent through Special messenger to the
District Judge, Lucknow, within 24 hours.

14. List on 17.09.2021 as fresh."

8. By means of the order dated
13.09.2021, the learned District Judge,
Lucknow was asked to submit the report in
a sealed cover and in compliance the
District Judge, Lucknow has sent the report
dated 15.09.2021 in sealed cover to this
Court, which has been opened in the Court.

9. In the report dated 15.09.2021,
paragraphs 8 and 9, the learned District
Judge, Lucknow has returned the following
findings:

"8. From the aforesaid facts and
circumstances, it transpires that the caveat
was filed in the Court on 29.07.2021 and it
was
sent
to
computer
center
for
registration and it got registered on eportal
as
caveat
No.
83/2021
on
29.07.2021.
Thereafter,
file
got
transferred to Civil Judge (S.D.)/F.T.C.,
Lucknow and due to mistake of clerk
concerned i.e. Sri Ram Prasad Gupta, the
same could not be enclosed alongwith the
Suit. The transferee court having not
received caveat, issued ex-parte ad-interim
injunction on 30.07.2021. It is noteworthy
that when a case is transferred from one
Court to another Court, the Transferee
Court should check for Munsarim Report
where caveat, if filed, is endorsed by
Munsarim.

9. The final departmental inquiry
was initiated vide No. 15/2021 dated
02.08.2021 was initiated against the
concerned clerk Sri Ram Prasad Verma
and Sri Yogendra Ram Gupta, learned
A.D.J.-3, Lucknow has been nominated as
Inquiry Officer and in the said Final
Departmental Inquiry, charge has been
framed against the delinquent employee."

10. From the above report it is clear
that the caveat was filed in Court on
29.07.2021 and it was sent to the Computer
Center for registration and it was got
registered on e-portal as caveat No.
83/2021 on 29.07.2021. Thereafter, the file
was got transferred to the Civil Judge
(S.D.)/F.T.C., Lucknow and due to mistake
of Clerk concerned the caveat could not be
enclosed along with the plaint and the
transferee court having not received caveat,
issued ex-parte ad-interim injunction on
30.07.2021. The report states that when a
case is transferred from one Court to
another Court, the transferee Court should
check for Munsarim Report, whether
caveat if filed is endorsed by Munsarim.

11. Sri Dilip Kumar Pandey submits
that on 06.08.2021, due to the lawyers
abstaining from judicial work, no one
appeared from the side of the respondents
and on the next date 09.08.2021, the case
was called out in the morning but on the
request on behalf of the respondents, it was
fixed at 2.30 p.m.. The lawyers were
abstaining from judicial work on that date
also, but the strike was suddenly called off
from noon at 1.00 p.m. on the resolution of
the Bar Association of the District Court,
and the order dated 09.08.2021 was passed
in the afternoon.

12. Sri Dilip Kumar Pandey, submits
that the appellants have filed application
under Section 24 C.P.C./Order 39 Rule 2A
C.P.C. No. 80 of 2021, in this Court, in
view of the misuse of power and position
9 All Akhilesh Kumar Jaiswal & Ors. Vs. Karunesh Jaiswal & Ors.
735
by the certain office bearers/members of
the Bar Association of the District Court,
for transfer of the suit to nearby district, in
which this Court passed the following order
on 10.08.2021.

"Heard Sri Virendra Mishra,
learned counsel for the petitioners.

This is an application for transfer
of the suit proceedings.

It is vehemently argued that the
office
bearers
with
the
support
of
members of the bar are not allowing the
court to proceed in the matter. The
demands made by the members of the bar
are no less than an obstruction in the
process of law.

This is a sad state of affairs.

It
is
submitted
that
the
objectionable behaviour of the members of
the bar is influenced by the defendants in
the suit proceedings who are private
parties.

Issue notice.

The District Judge is directed to
submit a report for the reason that the
grievance raised in the present application
filed under Section 24 of the Code of Civil
Procedure is exceptional and serious.

List in the week commencing
06.09.2021."

13. Sri Dilip Kumar Pandey further
submits that even if caveat was filed on
29.07.2021 but as it was not reported and
as copy thereof was not served on the
plaitiff/appellants, there was no fault on the
part of the plaintiff/appellants in filing Suit
without serving copy of the plaint etc and
consequently the ex-parte order of adinterim injunction dated 30.07.2021 could
not be set aside on the ground that in spite
of caveat the defendent-respondent was not
heard. He submits that in terms of the
proviso to Order 39 Rule 4 C.P.C. if a party
has knowingly made a false or misleading
statement in relation to a material particular
and consequent thereupon the injunction
was granted, without giving notice to the
opposite party, then only the Court shall
vacate the injunction. He further submits
that even in such a case, it is not always
mandatory for the Court to vacate the
injunction, as, if the Court considers it is
not necessary to do so, in the interest of
justice, the Court shall not vacate the
injunction order for the reasons to be
recorded.

14. In support of his submission, Sri
Dilip Kumar Pandey placed reliance upon
Order 39 Rule 4 C.P.C. which is being
reproduced as under:

"4. Order for injunction may be
discharged, varied or set aside.-Any order
for an injunction may be discharged, or
varied, or set aside by the Court, on
application made thereto by any party
dissatisfied with such order:

[Provided
that
if
in
an
application for temporary injunction or in
any affidavit supporting such application
a party has knowingly made a false or
misleading statement in relation to a
material particular and the injunction was
granted without giving notice to the
opposite party, the Court shall vacate the
injunction unless, for reasons to be
recorded, it considers that it is not
necessary so to do in the interests of
justice:
736 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided further that where an
order for injunction has been passed after
giving to a party an opportunity of being
heard, the order shall not be discharged,
varied or set aside on the application of
that party except where such discharge,
variation or setting aside has been
necessitated
by
a
change
in
the
circumstances, or unless Court is satisfied
that the order has caused undue hardship
to that party.]

(i) after the words "by the Court",
insert the words "for reasons to be
recorded, either or its own motion, or";

(ii)
at
the
end,
insert
the
following proviso, namely:-

"Provided that if at any stage of
the suit it appears to the Court that the
party in whose favour the order of
injunction
exists
is
delaying
the
proceedings or is otherwise abusing the
process of Courts, it shall set aside the
order of injunction."

[Vide Uttar Pradesh Act 57 of
1976, sec. 13 (w.e.f. 1-1-1977).]"

15 . Sri Asit Srivastava relying on
Section 148A C.P.C. submits that it
provides for filing of caveat and in view of
sub-section (3) thereof, where, after a
caveat has been lodged if any application is
filed in any suit or proceeding, the court
shall serve a notice of the application on
the caveator. He submits that it is the duty
of the Court to serve notice of the
application on the caveator and if in spite
of filing of the caveat, the same was not
endorsed and consequently notice of the
plaint etc. was not served to the defendantrespondents, it was the mistake on the part
of the Court for which the defendantrespondents cannot be made to suffer. He
has placed reliance on the judgments of this
Court in the case of Raj Bahadur and
another:
Civil
Judge
(J.D.)
Musafirkhana
Sultanpur
and
three
others in Writ Petition No. 6380 (MS) of
2014
decided
on
20.11.2014
and
Maharaja Dharmendra Prasad Singh
and another Vs. Vivek Agarwal and
others in Civil Misc. Application No.
31058 of 2009 in First Appeal From Order
No. 303 of 2009, decided on 06.04.2009
(DB).

16. I have considered the submissions
advanced by the learned counsels for the
parties and perused the material on record.

17. So far as the submissions of
learned counsel for the appellants, as noted
in paragraphs 11 and 12 are concerned, this
Court in Application under Section 24
and/or 39 Rule 2 A C.P.C. No. 80 of 2021
is already seized of the matter in which a
report has also been called from the District
Judge, Lucknow, and as such this Court is
not entering into that controversy. But, is
expressing its concern for administration of
justice in view of the facts that though the
caveat was registered on 29.07.2021 it was
not reported by the Munsarim of the Court
concerned when the suit was filed on
30.07.2021. Again, the suit itself was filed
in
the
Court
having
no
pecuniary
jurisdiction. The valuation of the suit as
valued by the plaintiff-appellant was Rs.
20,00,000/- (Twenty Lacs). It should have
been filed in the Court of Civil Judge
(Senior Division), Lucknow, but, the suit
was filed in the Court of Civil Judge
(Junior Division), (South), Lucknow, from
where it was transferred, on the same date
i.e. 30.07.2021, and even in the transferee
Court the Munsarim of the Court concerned
did not notice about the caveat. The exparte
9 All Akhilesh Kumar Jaiswal & Ors. Vs. Karunesh Jaiswal & Ors.
737
ad interim injunction was passed on
30.07.2021. The report of the learned
District Judge, Lucknow, dated 15.09.2021
reproduced above, notes that when the case
is transferred from one Court to another
Court, the transferee Court should check
for Munsarim report where caveat if filed is
endorsed by the Munsarim.

18. Without observing anything
further, the Court confines itself to the legal
issue involved in view of the submissions
advanced, with respect to the legality or
otherwise of the order dated 09.08.2021
under challenge.

19. It is clear that the caveat was filed
on
29.07.2021.
The
Suit
was
filed
thereafter on 30.07.2021. The notice of the
Suit/plaint etc. was not served on the
defendant-respondents and the ad-interim
injunction was granted ex-parte, without
providing any opportunity of hearing to the
defendant-respondents.

20. Section 148A of the C.P.C. deals
with right of a person to lodge a caveat. It
provides as under:

"148A. Right to lodge a caveat.-
(1) 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.

(2) Where a caveat has been
lodged under sub-section (1), the person by
whom
the
caveat
has
been
lodged
(hereinafter referred to as the caveator)
shall serve a notice of the caveat by
registered post, acknowledgment due, on
the person by whom the application has
been, or is expected to be, made under subsection (1).

(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, 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.

(5) Where a caveat has been
lodged under sub-section (1), such caveat
shall not remain in force after the expiry of
ninety days from the date on which it was
lodged unless the application referred to in
sub-section (1) has been made before the
expiry of the said period.]"

21. A bare reading of Section 148A
C.P.C. shows that any person claiming a
right to appear before the Court on the
hearing of an application, expected to be
made or has been made in a Suit or other
proceeding instituted or about to be
instituted in a Court may lodge a Caveat for
such appearance and hearing of the
application before the Court. Sub-Section
(3) of Section 148A provides that if any
application is filed in any Suit or
proceeding, after the caveat has been
lodged, the Court shall serve a notice of the
application on the caveator.

22. Section 148A, C.P.C. thus
provides for an opportunity of hearing to
any person claiming such right to defend
himself before passing of any order, from
738 INDIAN LAW REPORTS ALLAHABAD SERIES
which he might be affected, and to ensure
it, where the person files caveat, the Court
has to serve a notice of the application on
the caveator, which is a duty cast upon the
Court.

23. Section 148-A (4) also cast duty on
the applicant, who has been served with a
notice of caveat, to forthwith furnish copy of
the application with complete documents
filed in support of the application to the
caveator.

24. The duty cast under sub-Section
(3) is on the Court where caveat has been
lodged and the duty cast under Sub-section
(4) is on the applicant, filing application in a
Court, who has been served with a notice of
caveat. Sub-Section (2) provides for service
of notice of caveat on the applicant by the
caveator.

25. In S.S.Barathokey Vs. Chairman
U.P.Seed
and
Tarai
Development
Corporation
Limited
and
another
1993(11) LCD 486, where, a caveat was filed
but notice of the writ petition was not served
upon the caveator's counsel before filing the
writ petition and an ex-parte interim order
was passed, upon the application for recall of
that order on the very ground of no service of
notice of the writ petition in spite of caveat,
this Court, after considering the provisions of
Chapter XXII Rule 1 (4) of the Allahabad
High Court Rules, Section 148A of C.P.C.
and various authorities on the point, held that
the ex-parte interim order without hearing the
caveator's counsel deserved to be recalled and
the opposite parties were entitled to be given
a right of hearing on the application for
interim relief.

26. It is appropriate to reproduce
paragraphs
7
and
10
to
15
of
S.S.Barathokey (supra) as under:

"7. A perusal of the above Rule 5
will go to show that where an application is
expected to be filed, the person claiming
the right to oppose such an application,
may file a caveat in the Court. Sub-rule (2)
provides that the service of the notice of the
caveat shall be made upon the other side by
registered post acknowledgment due. Subrule (3) provides that after the caveat has
been filed and the notice thereof has been
served on the applicant's counsel, the
applicant shall forthwith furnish to the
caveator or his counsel copy of the
application as well as any miscellaneous
application for interim relief. The date of
motion is also necessary to be indicated to
the caveator's counsel.

xxxx

xxxxx

10. A reference has also been
made to Section 148-A of the Code of Civil
Procedure. In the case of Chandrajit v.
Ganeshiya (AIR 1987 All 360) a Division
Bench of this Court has held that the
provisions of Section 148-A can be applied
to appeals, first, second, execution or any
other appeal filed under the Code of Civil
Procedure or any other enactment. The
caveats would be entitled to be entertained
at the time an appeal is submitted for
reporting. The Stamp Reporter will make a
note, if the caveat has already been filed
before him, about the same. In para 8 of
this case the intention as to why caveat is
filed has been made clear as under:-

"8. 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. It is a request which, if attended
9 All Akhilesh Kumar Jaiswal & Ors. Vs. Karunesh Jaiswal & Ors.
739
to, will help the court in doing justice in
between parties."

11. In the case of G. C.
Siddalingappa v. G C. Veeranna (AIR
1981 Karnataka 242) after considering the
provisions of Section 148-A of the Code of
Civil Procedure that Court came to the
conclusion that the provision regarding
service of notice as contained in subsection
(3)
is
mandatory
and
noncompliance with it defeats the very object
of introducing Section 148-A. Consequently
it follows that the breach of sub-section (3)
vitiates the order passed thereof. Once is
caveat a filed, it is a condition precedent
for passing an interim order to serve a
notice of the application on the caveator
who is going to be affected by the interim
order. Once a caveat is filed it becomes the
duty of the Stamp Reporter to report that
such and such counsel for the opposite
parties or one of the opposite parties has
filed a caveat and it becomes the duty of the
Court to hear that counsel before an
interim order is passed in the case.

12. This question was also raised
for consideration in the case of Pashupati
Nath Arora v. The Registrar, Cooperative
Societies Jaipur and other (AIR 1983
Rajasthan 191). In that case the provisions
of Section 148-A of the Code of Civil
Procedure and the Rajasthan High Court
Rules, (Rule 159), were interpreted. In that
case the High Court held that in order to
make the caveat effective, the analogy of
provisions 148-A,CPC can be applied to
the caveats which are filed before the
Court.

13. A single Judge of this Court
in the case of Nainital Bank Limited V.
Munsif, Nainital and others (1992(1) LDR
70) has held that an interim order which
has been passed in absence of a party who
has put in appearance, is to be recalled. In
that case also the power had been filed in
the Court by the counsel for the opposite
parties. The filing of caveat in the court is
equivalent to filing of power on behalf of
opposite parties and once it is known that a
caveat has been filed the office should
report this fact.

14. The Hon ble Supreme Court
in Jang Singh v. Brij Lal (AIR 1966 SC
1631), has observed in para 6 as under :-

"It is, therefore, quite clear that if
there was an error the Court and its
officers largely contributed to it. It is no
doubt true that a litigant must be vigilant
and take care but where a litigant goes to
Court and asks for the assistance of the
Court so that his obligations under a
decree might be ful-filled by him strictly, it
is incumbent on the Court, if it does not
leave the litigant to his own devices, to
ensúre that the correct information is
furnished. If the Court in supplying the
information
makes
a
mistake
the
responsibility of the litigant, though it does
not altogether cease, is at least shared by
the Court. If the litigant acts on the faith of
that information the Courts cannot hold
him responsible for a mistake which it itself
caused. There is no higher principle for the
guidance of the Court than the one that no
act of Courts should harm a litigant and it
is the bounden duty of Courts to see that if
a person is harmed by a mistake of the
Court he should be restored to the position
he would have occupied but for that
mistake. This is aptly summed up in the
maxim: "Actus curiae neminem gravabit."

15. Thus from the perusal of these
cases and the Rules of the Courts and
Section 148-A of the Code of Civil
740 INDIAN LAW REPORTS ALLAHABAD SERIES
Procedure it becomes quite apparent that
in the present case when a caveat had
already been filed it was the duty of the
Stamp Reporter to make an endorsement to
this effect on the writ petition. In the
present case it was not the fault of the
opposite parties. At the same time it was
also the duty of the learned counsel for the
petitioner to have served the notice of the
writ petition before filing it in the Court
because Sri D. P. Singh, Advocate was the
Standing Counsel of the U. P. Seeds and
Tarai
Development
Corporation,
the
opposite party in the present case. As the
petitioner did not serve copy of the writ
petition on the counsel for the opposite
parties the exparte interim order passed in
the present case is liable to be recalled and
the matter to be heard again. In this case
the exparte interim order has been passed
by the Court on the fault of the learned
counsel for the petitioner for not serving
Sri D. P. Singh, learned counsel for the
opposite parties who was also their
Standing Counsel. The office of the Stamp
Reporter is also to be blamed equally for
not reporting about the filing of the caveat
in the above case. It is a serious matter
which requires consideration. The Stamp
Reporter should be vigilant while making
reports and see whether a caveat has been
filed by the other party while reporting on
the writ petitions. Dereliction of duty on the
part of the Stamp Reporter and his office
has resulted in harassment of the parties
and wastage of precious time of the Court."

27. In S.S.Barathokey (supra) this
Court placed reliance on the judgment of
the Hon'ble Supreme Court in the Case of
Jang Singh Vs. Brij Lal, AIR 1966 SC
1631, in which it was held that "there is
no higher principle for the guidance of
the Court than the one that no act of
Courts should harm a litigant and it is
the bounden duty of Courts to see that if
a person is harmed by a mistake of the
Court he should be restored to the
position he would have occupied but for
that mistake. This is aptly summed up in
the maxim: "Actus curiae neminem
gravabit.".

28. In the case of Maharaja
Dharmendra Prasad Singh (supra), the
Division Bench of this Court, held that
once a caveat is filed, it shall always be
incumbent upon the Stamp Reporter to
verify the facts with regard to filing of the
caveat, go throughout the record not only
on the basis of names of the parties but also
on the basis of case number of regular suit,
the date of order passed by the subordinate
Courts/Tribunals
and
quasi
judicial
authorities, or other identifying numbers, if
any. It also referred that no one should
suffer for the fault of the Court as any act
of the Court of law shall prejudice no man
in the basic concept of administration of
justice.

29. In Maharaja Dharmendra
Prasad Singh (supra), where also there
was negligence on the part of the Stamp
Reporter,
who
failed
to
make
an
endorsement with regard to filing of the
caveat, such slackness or negligence on the
part of the Stamp Reporter or Registry of
the Court was considered as amounting to
negligence on the part of the Court.

30. In the Case of Raj Bahadur
(supra),
this
Court
held
that
"the
provisions for giving a notice or for
providing a copy of the application and
document to the caveator are in conformity
with the principles of natural justice. Any
violation thereof renders any judicial
process adopted by any authority, specially
by a judicial authority, nugatory. The
9 All Akhilesh Kumar Jaiswal & Ors. Vs. Karunesh Jaiswal & Ors.
741
relevant part of Raj Bahadur (supra) reads
as under:

"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. Subsection (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
Scction 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".

31. In view of the above, the order
dated 30.7.2021 has rightly been set aside
by the learned court below vide order dated
09.08.2021.

32. The submission of Sri Dilip
Kumar Pandey that there was no fault on
the part of the plaintiff-appellant as neither
caveat was reported nor copy thereof was
served on the appellants and as such ''they
had not knowingly made a false and
misleading statement in relation to a
particular
matter'
and
therefore,
the
condition under Order 39 Rule 4 C.P.C. for
vacating
the
injunction
order
dated
30.07.2021 was not fulfilled, cannot be
accepted in view of the law laid down in
Maharaja Dharmendra Prasad Singh
(supra), where due to fault on the part of
the Stamp Reporter the caveat was not
reported. Here also, the Munsarim did not
report caveat which had already been
registered on 29.07.2021.

33. It is the right of the caveator of
being heard if a caveat is filed and it is the
duty of the Court to afford him opportunity
of hearing and not passing any order
without affording opportunity of hearing to
the caveator which needs be protected it
being a right recognized by the statute,
even if there is no fault on the part of the
applicant. If due to some negligence,
mistake
or
otherwise
of
the
registry/Munsarim, caveat is not reported
and without affording opportunity of
hearing order is passed, the order shall be
liable to be recalled and the caveator would
742 INDIAN LAW REPORTS ALLAHABAD SERIES
be entitled to be restored to the position of
hearing of the application afresh, on the
principle that an act of Court of law, in
administration of justice should prejudice
no man.

34. While considering an application
for vacation of the order of temporary
injunction under order 39 Rule 4 C.P.C. or
any other provision, the Courts can not
ignore the mandate of Section 148-A (3)
C.P.C.

35. Before, concluding, this court
deems it appropriate as also a duty in the
interest of proper administration of justice
to issue following directions as well:

1)
In
every
Civil
Court,
Munsarim is the Chief Ministerial
Officer. He is appointed to receive plaints
or other papers under the Code and to see
that the actual date of presentation is
entered upon the plaint, memorandum of
appeal, cross-objection or any other paper
filed and also upon the labels on such
papers.

2) It shall be incumbent as also
the duty upon the Munsarim of the Court
concerned to verify the facts on the basis of
case number of regular suit, date of the
order passed by the subordinate court, the
name of the parties or other identifying
numbers, if any with regard to the filing of
a caveat;

3) When an application/plaint
or/and is filed in Civil Court the Munsarim
of that court shall mandatorily make an
endorsement on such plaint/application, if
any caveat has been filed or not.

4) If caveat has been filed the
same shall be reported without any failure;

5) If a plaint/application is filed
in one Court but is transferred to another
Court, for any reason either at the time of
institution or thereafter, the Munsarim of
the transferee Court shall also ensure if
there is reporting of the caveat or not and in
the absence of any such reporting the
Munsarim of the transferee Court, shall
submit his report to the transferee Court
about the caveat and if required, report to
that affect shall also be asked from the
Munsarim of the Court from where the case
has been received on transfer, which report
shall be submitted by the Munsarim of the
Court from where the file has been received
from transfer without any delay so that in
cases of urgency, the disposal of the
application may not be unnecessarily
delayed.

6) Any slackness, negligence or
mistake on the part of the Munsarim of the
Court
concerned
for
any
reason
whatsoever would amount to interference
in the administration of justice, rendering
him liable for appropriate action being
taken in addition to the disciplinary
proceedings.

7) The above directions are in
addition
to
any
other
provision
or
directions etc, if exist, on the above subject.

8) learned District Judges of the
District Courts in the State of Uttar Pradesh
shall ensure that the caveat lodged is
reported and is not missed by any slackness
or negligence or mistake or otherwise on
the part of the Munsarim and to ensure it
necessary order shall be issued as per the
above directions.

36. In view of the aforesaid the appeal
lacks merit and deserves to dismissed at the
admission stage.
9 All Smt. Neelam Gupta & Ors. Vs. United India Insurance Co. Ltd. & Ors.
743

37. The appeal is dismissed.

38. The report of the learned District
Judge, Lucknow dated 15.09.2021 shall
again be kept in the sealed cover in the
records of this appeal.

39. The Registrar General of this
Court shall send/circulate copy of this
judgment to all the District Judges of the
State of Uttar Pradesh, for necessary action
at their end.
----------
(2021)09ILR A743
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

F.A.F.O. No. 545 of 2021

Smt. Neelam Gupta & Ors. ...Appellants
Versus
United India Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Ankur Mehrotra

Counsel for the Respondents:
Sri Amit Singh

Motor
accident
claim-quantum
of
compensation amount and negligence of
deceased is in question-No amount under
the head of future loss of income grantedtruck came from the right side- as
deposed by the eye witness-driver of
other vehicle did not sustained any injurydeceased to be held 20% negligentIncome
of
the
deceased
wrongly
assessed-50% income has to be added as
future
loss
of
prospects-amount
of
compensation modified.
Appeal prtly allowed. (E-9)

List of Cases cited:

1. National Insurance Co. Ltd. Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 1050

2. Vimal Kanwar & ors. Vs Kishore Dan & ors.,
AIR 2013 SC 3830

3. Sandeep Khanduja Vs Atul Dande & ors.,
(2017) 3 SCC (Crl) 178

4.National Insurance Co. Ltd.Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 1050

5. FAFO No.199 of 2017, National Insurance Co.
Ltd. Vs Luv Kush & anr.

6.