1981 (3) TMI 259 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the interim injunction order passed without notice to the caveators.
2. Compliance with Section 148-A of the Civil Procedure Code.
3. Jurisdictional vs. procedural error in passing the injunction order.
4. Maintainability of the revision petition under Section 115 of the Civil Procedure Code.

Issue-wise Detailed Analysis:

1. Validity of the Interim Injunction Order Passed Without Notice to the Caveators:
The petitioners contended that the interim injunction order passed on 30th October 1980 by the Second Assistant Judge was null and void as it was issued without jurisdiction. They argued that the order was contrary to the provisions of Section 148-A of the Civil Procedure Code, particularly Sub-section (3), which mandates the Court to serve a notice of the application on the caveators. The Court failed to comply with this requirement, thereby passing an ex parte order of injunction without giving notice to the caveators.

2. Compliance with Section 148-A of the Civil Procedure Code:
The Court examined the compliance with Section 148-A, which provides the right to lodge a caveat. Sub-section (1) allows any person claiming a right to appear before the Court to lodge a caveat. The petitioners, being directly affected by the interlocutory application, were entitled to file a caveat, which they did lawfully. Sub-section (2) requires the caveator to serve a notice of the caveat on the applicant, which the petitioners fulfilled. Sub-section (4) mandates the applicant to furnish the caveator with copies of the application and supporting documents, which the plaintiffs complied with on 27-10-1980. However, the Court failed to fulfill its duty under Sub-section (3) to serve a notice of the application on the caveators, leading to the ex parte order.

3. Jurisdictional vs. Procedural Error in Passing the Injunction Order:
The Court deliberated whether the failure to serve notice under Sub-section (3) of Section 148-A was a jurisdictional error or a procedural one. It was concluded that the omission was a procedural error rather than a jurisdictional fault. The Court held that the lodging of a caveat does not deprive the Court of its power to pass an order. The order passed without notice to the caveator is not a nullity but stands until set aside in appropriate proceedings. The Court emphasized that the powers of a Civil Court are sacrosanct and cannot be diluted by indirect legislation.

4. Maintainability of the Revision Petition Under Section 115 of the Civil Procedure Code:
The Court considered whether the revision petition filed under Section 115 of the Civil Procedure Code was maintainable. It was noted that the petitioners had a statutory right of appeal against the order of injunction under Order 43, Rule 1, Clause (r) of the Civil Procedure Code. Section 115 (2) prohibits the High Court from varying or reversing any decree or order against which an appeal lies. Since the order was not passed without jurisdiction but was only irregular, it was deemed an appealable order. Consequently, the revision petition was not maintainable under Section 115.

Conclusion:
The Civil Revision Petition was dismissed with costs, as it was not maintainable under Section 115 of the Civil Procedure Code. The Court concluded that the interim injunction order, although procedurally irregular, was not a nullity and remained operative until set aside through appropriate legal proceedings.