Maharaja Dharmendra Prasad Singh and another vs Vivek Agarwal and others

This is an application for recall of the exparte order dated 6.3.2009 passed by this Court.

Present appeal has been preferred against the impugned order dated 24.2.2009 passed by the Civil Judge, Malihabad (Senior Division), Lucknow by which application for temporary injunction has been allowed. After hearing learned Counsel for the appellant, exparte interim order dated 6.3.2009 was passed. Feeling aggrieved against the aforesaid order present application has been moved for recall of the stay order.

It has been submitted by Sri P.C. Aganval, learned Counsel for the respondents that in the formal order names of the parties have been given along with Regular Suit No. 78 of 2009. The submission of Sri P.C. Agarwal is that he had filed a caveat on 25.2.2009. The appeal was passed by the Stamp Reporter on 4.3.2009 but it does not indicate with regard to filing of the caveat in the registry of the Court. It has been further submitted by Sri P.C. Agarwal that in the regular suit the name of the appellant has been used as Dharmendra Pratap Singh. The prefix ''Maharaja" is missing. Accordingly, it was incumbent upon the appellant to use the same name as was indicated in the plaint in its letter and spirit.

After hearing learned Counsel for the parties with regard to slackness on the part of the Stamp Reporter, on 30.3.2009, we had directed the Joint Registrar (Listing) to submit a report. The Joint Registrar (Listing) submitted his report on 1.4.2009 after making necessary enquiry. It has been stated by the Stamp Clerk that when the present appeal was seen in the computer it had not indicated with regard to filing of the caveat because of use of prefix Maharaja. The mistake occurred due to variation in name of the appellants. However, Joint Registrar (Listing) while submitting his report has indicated that even if, because of use of word ''Maharaja'' as prefix, while preferring the present appeal the computer has not shown the name, it was incumbent upon the Stamp Reporting Section to verify the fact with regard to filing of the caveat. It has been submitted by the Joint Registrar (Listing) that while riling caveat the caveator had given regular suit number as well as date of passing of the impugned order. The observation made by the Joint Registrar (Listing) seems to be correct that Sri Santosh Kumar Srivastava has not checked the fact with regard to filing of the caveat properly.

Attension of this Court has been invited towards a judgment of this Court reported in 1993 LCD 486; S.S. Barathokey v. Chairman. U.P. Seeds and Tarai Development Corporation Ltd.

In the case of S.S. Barathokey (supra), Hon''ble Single Judge discussed the provision contained in Chapter XXII Rule 1 (4) of the High Court Rules as well as Rule 5 of Chapter XXII. The Hon''ble Single Judge also discussed the provision contained in Chapter XII Rule 10 of Code of Civil Procedure (sicHigh Court Rules) and the provision contained in Section 148A of Code of Civil Procedure, which makes it mandatory to the Registry to report with regard to filing of a caveat. Section 148A(3) of Code of Civil Procedure further provides that it shall be mandatory on the part of the petitioner or appellant to serve a notice on the Caveator. The relevant paragraphs from the judgment of S.S. Barathokey (supra) are reproduced as under:

"5. Learned Counsel for the opposite parties, Sri D.P. Singh, has referred to the Rules of the Court. Subrule (4) of Rule 1 under Chapter XXII of the Allahabad High Court Rules reads as under:

"(4) Where the Government or an officer or department of the Government, or a Court or a Tribunal, Board, Commission or other body appointed by the Government is an opposite party named in the application, the applicant shall before presenting the application serve notice of motion upon the Government Advocate, criminal matters and upon Standing Counsel, if he is authorized to receive notice on behalf of such opposite party in other matter along with as many copies of the application, affidavit and otherpapers accompanying it as may be equal to the number of parties to be presented by the Government Advocate or the Standing Counsel, as the case may be, and one extra copy for the use of the Government Advocate or the Standing Counsel naming therein the day for the making of the motion. The application shall indicate that such notice of motion has been served. There be at least twenty four hours between service of notice of motion and the day named therein for the making of the motion except where the matter is one of urgency and permission of the Court is obtained for making such motion earlier.

(Note: The word Government, in the above subrule also refers to those departments of the Union of India for which a Standing Counsel has been duly appointed.)"

When a Standing Counsel has been appointed by a Corporation then before filing a writ petition against that corporation notice of motion should be served upon the Standing Counsel and the matter would be taken up after 24 hours of such notice 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 to, will help the Court in doing justice in between the parties."

In view of above, once a caveat is filed in this Court, it shall always be incumbent upon the Stamp Reporter to verify the facts on the basis of case number of regular suit as well as the date of order passed by the subordinate Courts. A caveat is filed by the interested party against the decision taken or passed by the, subordinate Courts or tribunals. Accordingly, the Stamp Reporter should have verified the facts keeping in view the regular suit number as well as the date of order passed by the learned Civil Judge. There appears negligence on the part of the Stamp Reporter, who failed to make an endorsement with regard to filing of a caveat.

It is very well settled law that no one should suffer for the fault of the Court. Any slackness or negligence on the part of the Stamp Reporter or Registry of the Court amounts to negligence on the part of the Court.

According to a Legal Maxims "Actus Curiae Neminem Gravabit", i.e. an act of the Court shall prejudice no man means whenever some prejudice is caused to litigants because of overlong pendency of matter in the Court or some wrong is committed by the Registry or Court then because of such instances the litigants could not be put to suffer. The act of a Court of law should not prejudice any person in the basic concept of administration of justice. Hobart Broom in his famous treatise Legal Maxims observed as under:

"The preceding examples will probably be sufficient to illustrate the general doctrine, which is equally founded on common sense and on authority, that the act of a Court of law shall prejudice no man; and in conformity with this doctrine, it has been observed, that, as long as there remains a necessity, in any stage of the proceedings in an action, for an appeal to the authority g of the Court, or any occasion to call upon it to exercise its jurisdiction, the Court has, even if there has been some express arrangement between the parties, an undoubted right, and is, moreover, bound to interfere, if it perceives that its own process or jurisdiction is about to be used for purposes which are not consistent with justice."

In the case of S.S. Barathokey (supra), Hon''ble Single Judge had relied upon a judgment of Hon''ble Supreme Court reported in AIR 1966 SC 1631: Jang Singh v. Brij lal. Relevant portion is reproduced 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 askes for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure 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 cause. 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 the Courts to see that if a person is hated 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".

In view of the statutory provision u contained in the Code of Civil Procedure as well as High Court Rules it shall always be incumbent upon the Stamp Reporter while verifying the facts with regard to filing of a caveat go through the record not only on the basis of names of the parties but also on the basis of date of order and judgment passed by the subordinate Courts, tribunals and quasijudicial authorities as well as regular suit number/application number or other identifying numbers, if any.

The Registrar General of this Court is directed to issue appropriate orders or circulars to Stamp Reporters with regard to filing of caveat and consequential endorsement on the applications/petitions filed in this Court keeping in view the observation made herein above. Stamp Reporter/Officer concern is warned to remain cautious in future.

In view of above, the application is allowed. Interim order dated 6.3.2009 is recalled.

List/put up on 15.4.2009 for hearing afresh, the application of interim relief.