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MISCELLANEOUS
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
1. Caveat.
2. Transfer of cases.
3. Restitution.
4. Reference.
SYNOPSIS
a. Right to Lodge (S. 148A(1)):
b. Duty of the Caveator (S. 148A(2)):
c. Duty of the Court (S. 148A(3)):
d. Duty of the Applicant/Caveatee (S. 148A(4)):
e. Duration of Caveat (S. 148A(5)):
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a. Power to Apply (Section 22):
b. Procedural Mandate:
c. Forum for Application (Section 23):
a. Suo Motu or Application:
b. Scope of Power: Transfer:
Withdrawal:
Grounds for Transfer under Section 24:
a. Scope:
b. Criterion:
b. Protection against Vexatious Applications:
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A caveat is a formal intimation or notice given by a party (the Caveator) to a Court, requesting the Court not to take any action or grant any interim relief to an applicant (the Caveatee) without prior notice to the Caveator and giving them an opportunity to be heard.
In other words, a caveat is lodged in the Court's registry as a precautionary measure to ensure that no ex parte order is passed against the interests of the person lodging it. It is typically filed when a person reasonably anticipates that a suit or legal proceeding may be instituted against them, and an interim application might be moved to secure adverse orders without their knowledge.
a. Right to Lodge (S. 148A(1)): Where an application is expected to be made, or has already 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 at the hearing of such application may lodge a caveat.
b. Duty of the Caveator (S. 148A(2)): Once the caveat is lodged, the caveator must forthwith serve a notice of the caveat by registered post (acknowledgment due) or approved courier on the person by whom the application has been made or is expected to be made.
c. Duty of the Court (S. 148A(3)): Where a caveat has been lodged and an application is subsequently filed in any suit or proceeding, the Court is statutorily mandated to serve a notice of the application upon the caveator.
d. Duty of the Applicant/Caveatee (S. 148A(4)): Once the applicant is served with a notice of the caveat, they must immediately furnish the caveator, at the caveator’s expense, with a copy of the application along with copies of all documents, papers, and affidavits filed in support of it.
e. Duration of Caveat (S. 148A(5)): A caveat remains operational for a life span of ninety (90) days from the date it is lodged. After the expiry of 90 days, it lapses unless a fresh caveat is filed.
The primary objective of Section 148A is twin-fold:
a. To safeguard the rights and interests of the caveator against sudden, prejudicial ex parte interim orders.
b. To avoid a multiplicity of proceedings by ensuring the Court hears both sides before granting discretionary reliefs like temporary injunctions or stay orders, thereby conserving judicial time.
The phrase “any person claiming a right to appear before the Court” has been interpreted broadly. A person does not need to be a necessary party to the main suit; it is sufficient if they are a proper party whose interests would be directly or adversely affected by any interim order passed in that proceeding. A stranger to the suit who has no right to appear cannot lodge a caveat.
The CPC does not prescribe a rigid, statutory form for a caveat. However, it must be presented as a formal petition containing:
a. The name and address of the Caveator.
b. The names and addresses of the expected applicants/plaintiffs (Caveatees).
c. The nature and details of the suit, appeal, or application anticipated.
d. A clear assertion of the Caveator's right of appearance and interest in the matter.
Landmark Judgments
Reserve Bank of India v. Ashis Chakraborty (AIR 1991 Cal 71)
The Supreme Court observed that the entry of a caveat ensures transparency. The Court cannot summarily ignore a caveat when it is active on the registry, and compliance with Section 148A is mandatory once the conditions therein are satisfied.
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Sections 22 to 25 of the CPC govern the territorial transfer of civil suits, appeals, and other proceedings from one court to another to ensure the fair administration of justice.
a. Power to Apply (Section 22): Where a suit can be lawfully instituted in two or more courts (due to overlapping territorial or pecuniary jurisdictions under Sections 16 to 20), and the plaintiff chooses one, the defendant may apply to have the suit transferred to another competent court.
b. Procedural Mandate: The defendant must make this application at the earliest possible opportunity, and strictly at or before the settlement of issues. Prior notice of the application must be given to the opposite party.
c. Forum for Application (Section 23):
i. If the courts are subordinate to the same Appellate Court, Application lies to that Appellate Court.
ii. If the courts are subordinate to different Appellate Courts but the same High Court, Application lies to that High Court.
iii. If the courts are subordinate to different High Courts, Application lies to the High Court within whose local jurisdiction the court where the suit was originally brought is situated.
Section 24 vests wide, discretionary administrative-cum-judicial powers in the High Court and the District Court.
a. Suo Motu or Application: The High Court or District Court can exercise this power either on the application of a party (after giving notice and an opportunity of hearing) or suo motu (on its own motion) without notice.
b. Scope of Power: Transfer: Send any suit, appeal, or proceeding pending before it to any subordinate court competent to try it.
Withdrawal: Withdraw any suit, appeal, or proceeding pending in any subordinate court and either try it itself, transfer it to another subordinate court, or retransfer it to the court from which it was withdrawn.
Grounds for Transfer under Section 24: While the section does not explicitly list grounds, judicial precedents have established that transfers are granted based on: a reasonable apprehension of bias, balance of convenience of the parties/witnesses, avoidance of conflicting judgments in cross-suits, or questions of systemic public importance.
a. Scope: The Supreme Court possesses the overarching power to transfer any suit, appeal, or other proceeding from a High Court or civil court in one State to a High Court or civil court in another State.
b. Criterion: The Supreme Court must be satisfied that such an order is expedient for the ends of justice.
b. Protection against Vexatious Applications: If the Supreme Court dismisses an application under Section 25 and deems it frivolous or vexatious, it may order the applicant to pay compensation (up to ₹2,000) to the respondent.
Landmark Judgments
N.C.V. Aishwarya v. A.S. Saravana Karthik Sha (2022 SCC OnLine SC 1199):
In matrimonial disputes, the Supreme Court held that the convenience of the wife must be given primary consideration and preferential weightage while deciding transfer applications under Section 24 or 25 of the CPC.
The term restitution denotes the act of restoring to the rightful owner what has been taken away or lost due to an erroneous judgment or order of a Court.
Section 144 incorporates the equitable doctrine of jus ibi remedium and is founded on the famous Latin maxim:
“Actus curiae neminem gravabit” — An act of the Court shall prejudice no man.
If a party takes a benefit under a decree or order which is subsequently reversed, modified, or varied on appeal, revision, or review, the law imposes an obligation on the party who received the unjust benefit to restore the opposite party to the position they would have occupied had the erroneous order never been passed.
To invoke the provisions of Section 144, three essential conditions must be met:
The application for restitution must be made to the Court of first instance (the trial court that passed the original erroneous decree). The Court has wide powers to fashion appropriate reliefs, including:
a. Ordering the refund of costs paid.
b. Ordering the payment of interest, damages, mesne profits, or compensation directly linked to the dispossession.
Section 144(2) explicitly bars the filing of a separate, independent regular civil suit for obtaining any restitutionary relief that can be claimed via an application under Section 144(1). Furthermore, an order determining an application for restitution under Section 144 is explicitly included within the definition of a "Decree" under Section 2(2) of the CPC, making it a regular appealable order.
Landmark Judgments
Kavita Trehan v. Balsara Hygiene Products Ltd. (1994) 5 SCC 380
The Supreme Court Section 144 CPC embodies only a part of the general law of restitution and is not exhaustive. The power of restitution is inherent in every court and may be exercised under Section 151 CPC whenever justice requires, particularly to restore parties to the position they would have occupied but for an act or order of the court and to prevent unjust enrichment.
South Eastern Coalfields Ltd. v. State of M.P. (2003) 8 SCC 648:
The Supreme Court held that no one shall suffer by an act of the court. The successful party must be placed in the same position they would have been in but for the operation of the interim/erroneous order, which includes compensating them for the time value of money (interest).
The inherent powers of a court are those powers that are deeply rooted in its very constitution as a court of justice. They do not owe their origin to any specific legislative enactment but exist natively to enable the court to do complete justice and prevent the abuse of its judicial processes.
Where a specific period is fixed or granted by the Court for doing any act prescribed by the Code, the Court has the discretionary power to enlarge/extend that period.
a. Important Restriction: The Court can extend this period even if the original timeline has expired; however, such an extension cannot exceed thirty (30) days in total.
b. Exception: The Supreme Court has clarified that the 30-day cap is directory and not an absolute embargo if it causes a severe miscarriage of justice.
If a party fails to pay the requisite court fees on any document (plaint, memorandum of appeal, etc.) at the time of filing, Section 149 empowers the Court to allow the party to pay the deficit court fee at any subsequent stage of the proceeding.
Effect: Once the deficit court fee is paid within the time allowed by the Court, the document is treated as retroactively valid, carrying the same force and effect as if the full fee had been paid at the very first instance (thus saving the suit from being barred by limitation).
Section 151 State: "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
Section 151 does not create or confer any new power; it merely recognizes and safeguards the existing, native power of civil courts.
a. Scope and Limitations:
i. It is exercised when there is no specific, express provision covering the issue in the Code (interstitial use).
ii. It cannot be used to bypass or override express prohibitions or statutory mandates contained within the CPC or other legislation.
b. Typical Applications: Issuing temporary injunctions outside Order 39, setting aside ex parte orders where Order 9 does not strictly apply, consolidating cross-suits for a joint trial, or striking out scandalous or abusive pleadings.
a. Section 152 (Clerical or Arithmetical Mistakes): Clerical or arithmetical errors in judgments, decrees, or orders arising from an accidental slip or omission may be corrected by the Court at any time, either suo motu or on the application of any party.
b. Section 153 (General Power to Amend): The Court has the overarching power to amend any defect or error in any proceeding in a suit to determine the real question or controversy between the parties.
c. Section 153A: Clarifies that where an appellate court dismisses an appeal summarily under Order 41 Rule 11, the power to amend the original decree under Section 152 remains exercisable by the Court of first instance.
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