Problems With Existing Law & Justifications For Reform:
Legal practitioners and litigants in general face the seemingly-perennial problem of delay in courts everyday. As has been discussed by many before, frivolous litigation is a core cause for such delays. The Law Minister’s encouraging comments and commitments to reducing delay in courts must be commended. I have from my practice faced a problem when my counterpart, being the defendants in Title Suit no. 327 of 2004 preferred to file Civil Revision nos. 3962 of 2007 and Civil Revision no. 4606 of 2009 in the High Court Division against an order of the trial court rejecting the defendant’s application for rejection of plaint under O7 R11 of CPC made on two separate occasions on very similar vexatious and frivolous grounds. In another related case being Title Suit no. 352 of 2005, the same defendants preferred to file Civil Revision nos. 3962 of 2007 and Civil Revision no. 4606 of 2009 on the self-same grounds as above. In all the occasions, the applications under O7 R11 as well the ensuing Civil Revisions were decided to have been without merit and was decided in favour of my client. In my humble submission, it is clear that the applications and the Civil Revisions were filed with the ulterior purpose of delaying the disposition of the aforementioned Title Suits. The High Court Division, without any intimation to the Respondents (in this case my clients), granted Rule and stayed the proceedings of the aforementioned Title Suit till the disposition of the Civil Revisions in all the cases.
As applications brought under the revisional jurisdiction of the court pursuant to Section 115 CPC are discretionary upon the court to admit, the Law of Caveats could have prevented the aforementioned delay in the Title Suits and therefore merits discussion here. This law is absent in our Code of Civil Procedure. India has amended its Code of Civil Procedure to incorporate this law in 1996. It has been frequently seen that when a litigant loses a case in the lower court he takes the matter to the higher court and obtains a stay order without the winner of the case being given the chance of being heard in the matter. Caveat is an application made by a party addressed to the court to allow the party to be heard at the time that the opposing party may approach the said court to obtain an ex-parte order in its favour from the court. Caveat applications ensure that both parties are heard by the court at the time that the case is considered for further legal process. This in itself minimizes frivolous cases sent to the higher courts on flimsy grounds where the only objective of the petitioner is to achieve delay. It is to be noted that a system of filing caveats in matters brought before the Appellate Division is already provided for and allowed by the High Court Rules.
As to possible ways to reform the law, the Indian Act no. 104 of 1976 which has incorporated necessary amendments to the Indian Code of Civil Procedure 1908 (As amended) may be considered. By dint of the aforementioned Act of 1976, a new Clause no. 148A was incorporated into the Indian Code of Civil Procedure 1908, which is as follows:
“148A. Right to lodge a caveat:
(1) Where an application is expected to be made, or has been made, in a suit or proceedings 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, acknowledgement due, on the person by whom the application has been or is expected to be, made, under sub-section (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 reman 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.”
(The write-up above was submitted by me to the Law Commission on 04.09.2011 seeking to draw their attention to the matter and inviting them to propose necessary steps to the legislators in this respect. I am yet to hear from them regarding this.)