Code of Civil Procedure, 1908 (CPC)
Caveat and Injunction Distinguished
The two are discussed together because they answer the same danger from opposite sides. An ex parte injunction obtained behind a party's back can cause real damage before he ever hears of the case. Section 148A of the Code of Civil Procedure, 1908 lets him lodge a caveat, which obliges the court to give him notice before making any order. But a caveat is only a right to be heard; an injunction under Order XXXIX is a relief that decides something. These notes compare them.
The caveat standing between the application and the order
1. Section 148A
§ Section 148A, CPC 1908 (in substance) (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, the person by whom it has been lodged 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. (3) Where, after a caveat has been lodged, 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 and of any paper or document filed in support of it. (5) Where a caveat has been lodged, it shall not remain in force after ninety days from the date on which it was lodged, unless the application has been made before the expiry of that period. |
2. What a Caveat Is, and Is Not
§ Five propositions • It is a right to be heard, not a relief. The caveator asks for nothing except notice and an opportunity to oppose. • It decides nothing. The court remains free to grant, refuse or modify whatever relief is sought; the caveat only ensures the caveator is present when it does. • It requires a claim to a right to appear. A stranger with no interest in the proceeding cannot lodge one. • The obligation runs both ways. The caveator must serve notice on the expected applicant under sub-section (2), and the applicant must furnish him with the papers under sub-section (4). • It has a life of ninety days, and no appeal lies from its lodging or from any refusal to entertain it, since nothing has been adjudicated. |
3. The Two Compared
Basis | Caveat, Section 148A | Temporary injunction, Order XXXIX |
|---|---|---|
What it is | A procedural right to be heard before an order is made | A substantive interim relief operating against a party |
Who lodges or seeks it | A person claiming a right to appear on the hearing of an expected application | A party to the suit seeking to restrain or compel an act |
What it requires | A claim to a right to appear, and service of notice on the expected applicant | The triple test: prima facie case, balance of convenience, irreparable injury |
What it produces | Notice, and an opportunity to oppose | An order restraining or directing a party |
Does it decide anything? | No | Yes: the party is restrained or directed pending the suit |
Breach or disregard | An order made in ignorance of a caveat is liable to be recalled | Order XXXIX Rule 2A: attachment of property and detention up to three months |
Duration | Ninety days, unless the application is made earlier | Until the disposal of the suit or further orders |
Appeal | None lies | Order XLIII Rule 1(r) |
4. Where They Meet: The Ex Parte Injunction
§ Two provisions working towards the same end Section 148A(3). Once a caveat is on record, the court shall serve notice of the application on the caveator. The purpose is that no interim order should be made against him without his being heard. Order XXXIX Rule 3. Independently of any caveat, the court shall, before granting an injunction, direct notice to the opposite party, except where it appears that the object of granting the injunction would be defeated by the delay; and in that case it shall record the reasons for its opinion and require the applicant to serve the papers immediately. The consequence of ignoring either. An interim order obtained by concealing a caveat on record, or without complying with Rule 3, is liable to be recalled, and the conduct may be treated as an abuse of the process of the court. And Order XXXIX Rule 4. An injunction shall be vacated where it was obtained by the applicant through a false or misleading statement in relation to a material particular. |
5. Landmark Points
- Section 148A(1). A person claiming a right to appear on the hearing of an expected application may lodge a caveat.
- Section 148A(2) and (4). The caveator serves notice on the expected applicant, who must then furnish him with the application and supporting papers.
- Section 148A(3). The court shall serve notice of any application on the caveator.
- Section 148A(5). A caveat lapses after ninety days unless the application is made within that period.
- A caveat is a right to be heard, not a relief, and decides nothing about the merits.
- Order XXXIX Rule 3. Notice before an injunction is the rule; an ex parte order requires recorded reasons and immediate service of the papers.
- Order XXXIX Rule 4. An injunction obtained on a false or misleading statement in a material particular shall be vacated.
6. Frequently Asked Questions
What is a caveat under Section 148A?
A notice lodged by a person claiming a right to appear on the hearing of an application expected to be made in a suit or proceeding, which obliges the court to serve notice of any such application on him before making an order.
Is a caveat a relief?
No. It is a procedural right to be heard. It decides nothing, and the court remains free to grant, refuse or modify whatever relief is sought once the caveator has had his opportunity to oppose.
How long does a caveat last?
Ninety days from the date on which it was lodged, unless the application in respect of which it was lodged has been made before the expiry of that period. After ninety days a fresh caveat must be lodged.
What must the applicant do once he receives notice of a caveat?
Under Section 148A(4) he must forthwith furnish the caveator, at the caveator's expense, with a copy of the application and of any paper or document filed in support of it.
What happens if an injunction is obtained despite a caveat?
The order is liable to be recalled, since the court was obliged by Section 148A(3) to serve notice on the caveator. Obtaining an order by concealing a caveat on record may also be treated as an abuse of the process of the court.
Does the Code require notice before an injunction even without a caveat?
Yes. Order XXXIX Rule 3 requires the court to direct notice to the opposite party before granting an injunction, except where the object would be defeated by delay, in which case reasons must be recorded and the papers served immediately.
7. Related Topics in This CPC Series
- Section 148A: Caveat
- Order XXXIX: Temporary Injunctions and Interlocutory Orders
- Temporary Injunction and Stay Order Distinguished
- Abuse of the Process of Court under the CPC