In India, the term “proceedings-in-camera” refers to court proceedings that are conducted in private, away from the public and the media. This is often done to protect the privacy of the parties involved, especially in cases involving sensitive matters such as sexual offenses, matrimonial disputes, or cases involving minors.
An “in-camera” proceeding is a type of legal meeting conducted in private, typically in a judge’s chambers or a specially designated courtroom, where only specific individuals are allowed to attend. This form of proceeding is distinct from the usual open court hearings where the public, media, and other interested parties can be present.
Here are some key points about “in-camera” proceedings:
Purpose: The primary purpose of conducting proceedings in-camera is to protect sensitive, confidential, or private information that could be detrimental if disclosed publicly. This is particularly relevant in cases involving issues like national security, trade secrets, personal privacy, or sensitive family matters.
Participants: Only certain individuals, such as the parties directly involved in the case, their legal representatives, witnesses, and court officials, are permitted to attend the in-camera proceeding. The judge or magistrate presiding over the case determines who can attend based on the nature and sensitivity of the information to be discussed.
Confidentiality: In-camera proceedings ensure that sensitive information is discussed and reviewed in a confidential setting, away from the public eye. This helps maintain the integrity of the information and protects the privacy and rights of the parties involved.
Legal Framework: In India, as previously mentioned, various statutes like the Code of Criminal Procedure (CrPC), Family Courts Act, Protection of Children from Sexual Offences (POCSO) Act, and others provide for the conduct of in-camera proceedings in specific cases to safeguard the interests and privacy of the parties.
Judicial Discretion: The decision to conduct proceedings in-camera rests with the presiding judge or magistrate, who determines the necessity and appropriateness of holding the meeting privately based on the facts and circumstances of the case.
In-camera proceedings play a crucial role in ensuring fair, impartial, and effective administration of justice by protecting sensitive information, safeguarding the interests of the parties, and upholding the principles of privacy and confidentiality in legal proceedings. The principle of “in-camera” proceedings is recognized and governed by various statutes and rules in India. Some of the important acts and sections related to “in-camera” proceedings are:
The Code of Criminal Procedure, 1973 (CrPC):
Section 327: This section provides for the power of the courts to hold proceedings in-camera in certain cases, such as cases involving rape or offenses under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Section 228A: This section deals with the confidentiality of the identity of the victim of certain offenses, and it prohibits the publication of the name or any matter that could reveal the identity of the victim in any manner.
Protection of Children from Sexual Offences (POCSO) Act, 2012:
Section 33: This section mandates that the trial of offenses under the POCSO Act shall be conducted in-camera and the child should not be exposed to the accused at the time of giving evidence.
The Juvenile Justice (Care and Protection of Children) Act, 2015:
Section 37: This section provides that the inquiry concerning a juvenile in conflict with the law shall be conducted in-camera and the child should not be exposed to the public.
The Family Courts Act, 1984:
Section 11: This section provides that proceedings before a Family Court shall be held in-camera and the public shall not have access to such proceedings.
Protection of Women from Domestic Violence Act, 2005:
Section 23: This section allows the Magistrate to ensure that the proceedings under the Act are conducted in-camera to protect the privacy and interests of the aggrieved woman.
The Guardians and Wards Act, 1890:
Section 11: This section provides that the court may direct that the proceedings under the Act be held in-camera if it deems it necessary for the welfare of the minor.
The Marriage Laws Amendment Act 1976 introduced Sec. 22(1) in Hindu Marriage Act 1955, which provides as follows:-“Every proceeding under this Act shall be conducted In Camera and it shall not be a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.” The proviso to Section 327 (1) of the Criminal Procedure Code 1973 contains a provision similar to that in the proviso to Section 153-B of C.P .C. The Sub-Section (2) also makes it mandatory to try cases in camera. It reads as follows: – “Not withstanding anything contained In Sub-Section (1), the inquiry Into and trial of rape or an offence u/s. 376, Sec. 376A, 376 B, Sec. 376-C or Section 376-D of the I.P.C. shall be conducted in camera.”
Important Case Laws:
Gaurav Nagpal vs. Sumedha Nagpal: In this landmark case, the Supreme Court held that proceedings in matrimonial matters should be conducted in-camera to protect the privacy of the parties and to encourage amicable resolution of disputes.
Ritaben Deepakbhai Patel vs. Deepakbhai Prabhudas Patel: The Gujarat High Court emphasized the need for conducting proceedings in-camera in matrimonial disputes to safeguard the interests and privacy of the parties involved.
Kanubhai vs. Meena: The Supreme Court reiterated the importance of holding proceedings in-camera in matrimonial cases to ensure that the parties can freely express themselves without any fear of public exposure or humiliation.
Reena Banerjee vs. State of West Bengal: The Calcutta High Court held that in-camera proceedings should be conducted in cases involving custody of minors to protect the interests and welfare of the child.
State of Punjab v. Ramdev Singh: In this case, the Supreme Court held that in-camera proceedings are necessary in cases involving sexual offenses to protect the dignity and privacy of the victim.
State of Karnataka v. Puttaraja: The Supreme Court reiterated the importance of conducting in-camera proceedings in cases involving sexual offenses and emphasized the need to protect the identity and privacy of the victim.
Nipun Saxena v. Union of India: The Delhi High Court emphasized the importance of maintaining confidentiality and conducting in-camera proceedings in cases involving child victims to protect their rights and interests.
It is important to note that the above-mentioned acts and sections are not exhaustive, and the applicability of in-camera proceedings may vary depending on the specific facts and circumstances of each case. Additionally, the courts in India have the inherent power to order in-camera proceedings to ensure the fair and proper administration of justice. The applicability of in-camera proceedings in family law cases may vary based on the specific facts and circumstances of each case. Additionally, the courts in India have the inherent power to order in-camera proceedings to ensure the fair and proper administration of justice in family law matters.
Injunctions under the Civil Procedure Code (CPC) refer to judicial orders that restrain a party from performing a certain act or compel a party to perform a certain act. These orders are issued by courts to preserve the status quo or prevent irreparable harm during the pendency of a civil suit. Injunctions serve as a preventive measure to ensure justice and fairness in legal proceedings.
An injunction is a legal remedy granted by a court that serves as a preventive measure. It is an equitable remedy aimed at either compelling a party to take specific actions or restraining them from engaging in certain behaviors. In essence, it prevents a defendant from performing certain actions that may cause harm or nuisance to the plaintiff.
When a court issues an injunction, the parties involved are legally obligated to comply with its terms. Failure to adhere to the injunction can result in severe consequences, including monetary penalties or even imprisonment in some cases.
Injunctions can take various forms, including interim orders or final orders, depending on the circumstances of the case. They are commonly used in situations such as:
Preventing someone from publishing content online or offline, or requiring the removal of already published content.
Halting further construction on a piece of land or preventing the sale or transfer of any property in question.
Granting a search order to facilitate legal proceedings.
preventing someone from leaving a particular place or country.
Injunctions are powerful tools wielded by courts to not only prevent individuals from violating others’ rights but also to enforce the rights of individuals. They are rooted in the historical development of equitable principles, originating from Roman law and evolving through the equity jurisprudence of England.
The need for injunctions arises when irreparable harm would result from a party’s actions, and no other remedy can adequately address the situation. They are essential for enforcing and protecting individuals’ rights, preventing breaches of obligations, and maintaining the status quo in legal disputes.
Courts must carefully consider the circumstances and merits of each case before granting an injunction. They must record the reasons for their decision, ensuring that the delay does not defeat the purpose of the law. Injunctions are typically issued against the party directly involved in the case and not against third parties.
In addition to restricting certain actions, injunctions can also be granted to ensure the specific performance of certain acts, tailored to the facts and circumstances of each case. Ultimately, injunctions aim to undo any irreparable harm suffered by the parties involved, restoring equity and fairness in legal proceedings.
Laws governing injunctions:
Under the legal framework provided by the Code of Civil Procedure, 1908, various provisions govern the institution of suits for declarations and injunctions. Section 91 specifically allows for the institution of suits for declarations and injunctions in cases of public nuisance or other wrongful acts affecting or which may affect the public. Such suits can be initiated by the Advocate-General or two or more persons with the court’s permission. Additionally, Sections 94 and 95 empower courts to grant temporary injunctions to meet the ends of justice and provide compensation against the plaintiff for obtaining an injunction on insufficient grounds. Rule 32 of Order XXI deals with the enforcement of decrees for specific performance or injunctions, while Order XXXIX specifically addresses temporary injunctions and interlocutory orders.
The Specific Relief Act, 1963, supplements the procedural framework provided by the CPC by offering various remedies for the protection and enforcement of parties’ rights. These remedies include:
Recovery of possession of property
Specific performance of contracts
Rectification or cancellation of instruments
Rescission of contracts
Declaratory decrees
Injunctions
Injunctions, as preventive reliefs, are provided under the Specific Relief Act, 1963. The Act delineates three types of injunctions: temporary, perpetual, and mandatory. Temporary injunctions, similar to those under the CPC, are interim measures, while perpetual injunctions are permanent in nature and are granted through a decree. Mandatory injunctions compel a party to perform a specific action to enforce another’s rights, such as destroying infringing copies.
Part III of the Specific Relief Act focuses on preventive reliefs, with Chapter VII addressing injunctions generally. Section 36 provides for preventive relief through temporary and perpetual injunctions at the court’s discretion, while Section 37 elaborates on these types of injunctions. Chapter VIII deals specifically with perpetual injunctions, outlining the cases in which courts can grant them (Section 38) and the conditions for mandatory injunctions (Section 39). Furthermore, Section 40 allows for damages to be awarded in lieu of or in addition to injunctions, as claimed by the plaintiff, while Section 41 specifies circumstances where injunctions cannot be granted. Section 42 empowers courts to grant injunctions to enforce negative agreements when they cannot compel specific performance of affirmative agreements within a contract.
Additionally, the Code of Criminal Procedure, 1973, also addresses injunctions in certain cases of nuisance. Sections 133, 142, and 144 of the CrPC provide for the grant of injunctions by the court to address nuisance-related matters.
Kinds of Injunctions:
In the realm of legal remedies, the Specific Relief Act, 1963 delineates various types of injunctions, each serving distinct purposes and catering to different circumstances. These injunctions aim to prevent future harm to the plaintiff, with the consequences falling upon the plaintiff should relief be denied. The key types of injunctions under the Act are:
1. Temporary Injunction: Temporary injunctions, governed by Section 37 of the Specific Relief Act, are granted for a specified period or until further order of the court. These injunctions serve to safeguard the interests of the plaintiff or the subject property until a final judgment is rendered. The court considers several factors before granting such injunctions, including the prima facie case, balance of convenience, and the potential irreparable harm to the plaintiff if the injunction is not granted. Notable cases, such as Union of India v. Bhuneshwar Prasad (1962), illustrate the court’s application of these principles.
Examples of scenarios where temporary injunctions may be granted include instances where property is at risk of destruction or disposal, where a defendant threatens harm or dispossession to the plaintiff, or to prevent a breach of contract. The court must ensure due process, issuing notices to affected parties and providing reasons for urgent injunctions. However, all suits involving injunctions must be disposed of within thirty days, with reasons specified for any delays.
2. Perpetual Injunction: Perpetual injunctions, as outlined in Section 37(2) of the Act, are granted through a final judgment and dispose of the injunction suit conclusively. Unlike temporary injunctions, perpetual injunctions provide permanent relief and are granted after a thorough inquiry into the merits of the case. Section 38 specifies the circumstances under which courts may grant perpetual injunctions, such as to prevent breaches of duty or invasions of property rights.
In cases where the defendant’s actions infringe upon the plaintiff’s legal rights, perpetual injunctions may be sought. Courts may grant such injunctions when the plaintiff can demonstrate the breach of obligation and rightful possession of the subject property. Notably, lawful possession, rather than ownership, is a crucial determinant in these cases, as illustrated by legal precedents like Walter Louis Franklin v. George Singh (1996).
3. Mandatory Injunction: Section 39 of the Specific Relief Act empowers courts to grant mandatory injunctions to prevent breaches of obligations, compelling defendants to perform specific actions enforceable by the court. Unlike interim reliefs, mandatory injunctions are final remedies granted in exceptional cases to prevent irreparable harm or injury not compensable by monetary means.
For courts to grant mandatory injunctions, certain conditions must be met, including the defendant’s obligation to perform an act and the enforceability of the requested relief by the court. Precedents such as Dorab Cawasji Warden v. Coomi Sorab Warden (1990) establish the stringent criteria for granting mandatory injunctions, requiring a strong case from the plaintiff, evidence of irreparable harm, and a balance of convenience in favor of the plaintiff.
In cases where defendants breach obligations, courts may grant mandatory injunctions to restore the status quo ante. Legal precedents such as Laxmi Narain Banerjee v. Tara Prosanna Banarjee (1904) demonstrate the court’s grant of mandatory injunctions to rectify encroachments or damages caused by defendants.
These injunctions, encompassing temporary, perpetual, and mandatory forms, serve as vital legal instruments in safeguarding rights, preventing harm, and ensuring justice in civil disputes.
Other type of injunctions mentioned under Specific Relief Act, 1963
In addition to the injunctions provided under the Specific Relief Act, 1963, our legal system recognizes various other types of injunctions that can be granted by courts to address specific circumstances and legal issues. These injunctions serve as vital tools in ensuring justice and preserving rights in civil disputes. Let’s explore some of these injunctions:
1. Interlocutory Injunction: An interlocutory injunction, akin to a temporary injunction, is granted by the court during the pendency of a case, aiming to maintain the status quo until a final order is issued. It is sought when the plaintiff’s legal rights are disputed. Courts consider factors such as the prima facie case, balance of convenience, and the potential irreparable harm to the plaintiff before granting or denying such injunctions. Notably, interlocutory injunctions differ from interim injunctions in that they are granted after hearing both parties.
2. Preliminary Injunction: Similar to a temporary or interlocutory injunction, a preliminary injunction, also known as an ad-interim injunction, is granted before the conclusion of a trial. It aims to maintain the status quo until the final determination of the case.
3. Prohibitory Injunction: A prohibitory injunction, governed by Section 38 of the Specific Relief Act, 1963, prohibits an individual from engaging in specific acts that would infringe upon the rights of another individual. It is also referred to as a restrictive injunction.
4. Permanent Injunction: A permanent injunction, also known as a perpetual injunction, is granted by the court as a decree after the conclusion of a trial. Through this decree, the defendant is permanently restrained from engaging in acts contrary to the plaintiff’s rights. While not provided for in the Code of Civil Procedure, 1908, Sections 37(2) and 38 of the Specific Relief Act, 1963, govern the granting of permanent injunctions.
5. Quia Timet Injunction: Originating from English jurisprudence, a Quia Timet injunction is granted by courts when there is an apprehension or threat of a violation of an individual’s rights, even if the violation has not occurred yet. It may be temporary or perpetual, prohibitory or mandatory, depending on the circumstances. Notably, Indian courts, in cases like Mars Incorporated v. Kumar Krishna Mukherjee and Ors. (2003), have recognized and granted Quia Timet injunctions to prevent potential infringements.
6. Dynamic Injunction: In the digital realm, dynamic injunctions are granted against rogue websites and URLs, particularly to protect intellectual property rights. These injunctions, exemplified in cases like UTV Software Communication Ltd. v. 1337X.TO and Ors (2019), are not static but automatically apply to mirror websites created by infringers.
7. Anton Piller Order: Anton Piller orders allow one party to access and search the premises of another party to seize infringing materials as evidence. In Indian law, similar provisions, such as John Doe Orders or Ashok Kumar Orders under Rule 1 of Order XXX of the Code of Civil Procedure, 1908, enable parties to seek relief when copyright infringement or other violations occur.
8. Mareva Injunction: A Mareva injunction, granted to prevent a party from dissipating assets that could satisfy a prospective judgment, is commonly used in cases involving asset misappropriation. This injunction, akin to an attachment before judgment under Rule 5 of Order XXXVIII of the Code of Civil Procedure, was recognized in cases like Nippon Yusen Kaisha v. Karageorgis (1975).
These diverse injunctions, tailored to specific legal contexts and exigencies, play a crucial role in upholding justice and protecting rights in civil litigation.
Difference between temporary and mandatory injunction
Here are a few case laws illustrating the application of injunctions under the CPC:
Here’s a comprehensive comparison between temporary injunctions and mandatory injunctions based on various parameters:
Time Period:
Temporary Injunction: These injunctions continue for a specified period or until further order of the court.
Mandatory Injunction: The principle of mandatory injunction is used to grant final relief and not interim relief. It provides a permanent solution rather than a temporary one.
2. Provisions:
Temporary Injunction: Discussed under Section 37 of the Specific Relief Act, 1963.
Mandatory Injunction: Discussed under Section 39 of the Specific Relief Act, 1963.
3. Purpose:
Temporary Injunction: The essential purpose is to secure the interests of an individual or the property of the suit until the final judgment is passed.
Mandatory Injunction: The essential purpose is to control exceptional or exemplary cases like saving a life, restoring wrongful acts, etc.
4. Essentials:
Temporary Injunction: Factors considered include whether the plaintiff has a prima facie case, if the balance of convenience favors the complainant, and whether the plaintiff would suffer irreparable damages before the judgment is passed.
Mandatory Injunction: Two conditions are required: (a) the defendant must be obliged to perform an act, and any breach of this act must be claimed by the plaintiff; (b) the reliefs asked for must be enforceable by the court, requiring the defendant to restore the wrongful act committed.
5. Relevant Judgement:
Temporary Injunction: Illustrated by the case of Union of India v. Bhuneshwar Prasad (1962), where a railway employee filed a suit against his removal from service, seeking interim relief until the case was decided.
Mandatory Injunction: Exemplified by the case of Laxmi Narain Banerjee v. Tara Prosanna Banarjee (1904), where the plaintiff sought a mandatory injunction to stop the defendant from damaging the building foundation with tree roots. The court granted the injunction as the defendant was obliged to prevent such damage and the damages were enforceable in court.
In summary, while temporary injunctions provide interim relief until a final judgment is rendered, mandatory injunctions offer permanent solutions to specific breaches of obligation, aiming to restore rightful acts or prevent irreparable harm.
Differences between temporary and permanent injunctions
Here’s a detailed comparison between temporary injunctions and permanent injunctions based on various parameters:
Application or Suit:
Temporary Injunction: Only an application is filed for a temporary injunction.
Permanent Injunction: A suit is filed for a permanent injunction.
2. Time Period:
Temporary Injunction: It is continued for a specified period or until further orders of the court but not after the case.
Permanent Injunction: It can only be granted by the decree made at the hearing and upon the merits of the case.
3. Order or Decree:
Temporary Injunction: An order is passed for a temporary injunction.
Permanent Injunction: The conclusion of the trial results in a decree in the case of a permanent injunction.
4. Another Name:
Temporary Injunction: It can also be called an interlocutory injunction.
Permanent Injunction: It is also known as perpetual injunction.
5. Stage:
Temporary Injunction: The order for a temporary injunction is passed during the pendency of the suit.
Permanent Injunction: The order for a permanent injunction is passed at the end of and upon the merits of the case.
6. Provisions:
Temporary Injunction: It is given under the Code of Civil Procedure (Order XXXIX) as well as the Specific Relief Act (Section 37(1)).
Permanent Injunction: The provisions regarding permanent or perpetual injunction are given under the Specific Relief Act (Section 37(2) and 38).
Illustration:
Temporary Injunction: For instance, if A is continuously constructing on B’s plot of land, the Court can issue the order of a temporary injunction till the final order of perpetual injunction so that B could be stopped from continuing the construction till the final orders.
Permanent Injunction: In the same illustration, when the Court on the final disposal of the case grants a permanent injunction against A, the case will fall under this type of injunction.
In summary, temporary injunctions provide interim relief during the pendency of the suit, while permanent injunctions offer a final solution upon the conclusion of the trial, aiming to prevent future violations of rights or property.
Breach of an order of injunction
The breach of an injunction order necessitates remedies to protect the complainant’s rights. The remedies available for such breaches include:
Attachment of Property and Detention in Civil Prison: According to Order 39 Rule 2A of the Civil Procedure Code (CPC), the court can order the attachment of property belonging to the individual guilty of disobedience of the injunction. The court may also detain the individual in civil prison for a period not exceeding three months. However, the attachment cannot last for more than a year, after which the attached property may be rented out. Any compensation awarded to the injured party shall be paid from the attached property.
Seizure of Property: Order 21 Rule 32 of the Civil Procedure Code allows the court to seize the property of a defendant who fails to comply with the decree. Initially, the defendant forfeits their right of ownership, and later the court may seize their property at its discretion.
Damages in Addition to or in Lieu of Injunction: Section 40 of the Specific Relief Act, 1963, permits the court to award damages in addition to or in substitution for an injunction. The plaintiff may claim such damages in a suit for perpetual or mandatory injunction, provided they have asserted the claim in the plaint.
Furthermore, Section 41 of the Specific Relief Act, 1963, outlines the grounds for refusal to grant injunctions. These include:
When an injunction would stop a person from prosecuting a judicial proceeding pending at the institution of the suit, unless necessary to prevent multiplicity of proceedings.
When it aims to restrain a person from applying to any legislative body.
When the plaintiff lacks personal interest in the case.
When it seeks to restrain proceedings in a criminal matter or in a court not subordinate to the one from which the injunction is sought.
When the conduct of the plaintiff disentitles them from the assistance of the court.
When equally efficacious relief is available through other means, except in cases of breach of trust.
When granting the injunction would hamper or delay the completion of any infrastructure project or interfere with relevant facilities or services related to that project.
In summary, breach of injunctions can lead to legal consequences such as attachment of property, detention in civil prison, seizure of property, and payment of damages in addition to or in lieu of the injunction. Additionally, there are specific grounds under which courts may refuse to grant injunctions.
Case Laws:
American Cyanamid Co. v. Ethicon Ltd. (1975): This landmark case laid down the principles governing the grant of interim injunctions. The court emphasized the importance of balancing the risk of injustice to both parties while considering the grant of an interim injunction. It highlighted factors such as the strength of the plaintiff’s case, the balance of convenience, and the adequacy of damages as relevant considerations.
Mariam Begum v. Mohammad Afsar and Ors. (2012): In this case, the court granted a permanent injunction restraining the defendants from interfering with the plaintiff’s possession of the property. The court held that the plaintiff had established her title and possession over the property, and the interference by the defendants would cause irreparable harm to her rights.
Satya Saran & Ors. v. Ram Lakhan & Ors. (2008): In this case, the court granted a temporary injunction restraining the defendants from constructing a boundary wall on the disputed property. The court observed that the plaintiff had made out a prima facie case, and the balance of convenience favored granting the injunction to prevent irreparable harm during the pendency of the suit.
These cases demonstrate how injunctions are applied in civil suits to protect the rights of parties and ensure justice. They highlight the significance of establishing a prima facie case, the balance of convenience, and the potential irreparable harm while seeking injunction relief under the CPC.
Indeed, the term “caveat” within the Civil Procedure Code (CPC) plays a crucial role in safeguarding the interests of individuals and entities involved in legal proceedings. It serves as a protective shield, offering a preemptive measure to ensure that no actions are taken without notifying the caveator. This preemptive legal notice acts as a cautionary measure, alerting the parties and the court that certain rights and interests are at stake and must be considered before proceeding further.
In the intricate and complex landscape of the Civil Procedure Code, where legal proceedings can often be convoluted and lengthy, a caveat serves as a valuable tool for those navigating through the system. By lodging a caveat, individuals and entities can assert their interest in a matter and ensure that they are given an opportunity to be heard before any decisions or actions are taken. This proactive approach not only protects their rights but also helps in maintaining fairness and transparency in the legal process.
Without the protection afforded by a caveat, there is a risk that parties may suffer prejudice or injustice if decisions are made without their knowledge or input. Therefore, the provision for lodging a caveat under the CPC is crucial in upholding the principles of justice, equity, and due process.
Illustration:
Certainly, here’s an illustration to help clarify the concept of a caveat in the context of legal proceedings:
Illustration:
Suppose Mr. Smith and Mr. Johnson are business partners who jointly own a piece of valuable property. However, their business relationship turns sour, and Mr. Johnson decides to file a lawsuit against Mr. Smith, claiming sole ownership of the property.
Anticipation of Lawsuit: Mr. Smith becomes aware of Mr. Johnson’s intentions to file a lawsuit seeking sole ownership of the property.
Decision to Lodge a Caveat: Concerned about protecting his rights and interests in the property, Mr. Smith decides to lodge a caveat in the relevant court. By doing so, he is preemptively notifying the court that he has a significant interest in the property and wishes to be heard before any decisions are made regarding its ownership.
Filing of Lawsuit by Mr. Johnson: Subsequently, Mr. Johnson files a lawsuit in the court, seeking a declaration of sole ownership of the property.
Notice to Mr. Smith: Upon receiving the lawsuit filed by Mr. Johnson, the court acknowledges the caveat lodged by Mr. Smith. As per the provisions of the Civil Procedure Code, the court is obligated to give notice to Mr. Smith before proceeding with the case, ensuring that he has an opportunity to present his side of the argument and defend his interest in the property.
Opportunity to Be Heard: As a result of lodging the caveat, Mr. Smith is notified of the lawsuit and is given the opportunity to appear before the court, present evidence, and contest Mr. Johnson’s claims. This allows him to actively participate in the legal proceedings and protect his rights as a co-owner of the property.
Fair Adjudication: With both parties having the chance to present their arguments and evidence, the court can make a fair and informed decision regarding the ownership of the property. Mr. Smith’s rights and interests are safeguarded through the process, thanks to the caveat he lodged earlier.
In this illustration, the caveat serves as a crucial tool for Mr. Smith to protect his rights and interests in the property amidst a legal dispute initiated by Mr. Johnson. It highlights the importance of proactive measures in legal proceedings to ensure fairness and justice for all parties involved.
The term “caveat,” derived from Latin, signifies “let a person be aware.” In legal parlance, it functions as a formal notification urging parties not to take specific actions without prior notification to the issuer of the caveat.
Within civil procedure law, Section 148A of the Civil Procedure Code (CPC) addresses the concept of a caveat. While the CPC itself does not furnish a precise definition for “caveat,” judicial precedent, exemplified by the case of Nirmal Chand v. Girindra Narayan, elucidates that a caveat under the CPC essentially serves as a cautionary notice from an individual to the court. This notice stipulates that no orders or judgments should be issued without duly informing the party who lodged the caveat or affording them an opportunity to present their case.
The individual who submits a caveat is termed the “Caveator,” while the party initiating or intending to initiate legal proceedings is denoted as the “caveatee.” The primary objective of a caveat is to prevent the court from making decisions in the absence of a crucial party, thereby averting “ex parte” orders, and safeguarding the interests of the Caveator.
Moreover, a caveat filed under the CPC serves to streamline the court’s workload and may expedite the resolution of legal disputes by consolidating proceedings. However, it is noteworthy, as elucidated in the case of Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma, that a caveat cannot be filed by an individual lacking direct involvement in the lawsuit. This underscores the caveat’s intended purpose of being cost-effective and conducive to judicial efficiency.
When do I lodge a caveat in CPC?
According to Section 148A, individuals retain the right to lodge a caveat when they suspect that legal action has been taken or will be taken against them in any court. A caveat under the CPC can be submitted in the form of a petition under the following circumstances:
During an ongoing lawsuit or legal proceeding, where an application has already been submitted or is expected.
When a lawsuit is imminent, it is anticipated that an application will be filed within that lawsuit.
In essence, a caveat always pertains to an application within a lawsuit or legal proceeding. Furthermore, the lawsuit or proceeding may either be ongoing (already initiated) or anticipated in the future, where a lawsuit has not yet commenced but is expected to. In all such scenarios, the right to lodge a caveat is applicable.
Who May Lodge a Caveat under CPC?
Section 148A of the Civil Procedure Code (CPC) confers the right to lodge a caveat upon individuals who anticipate or are involved in legal proceedings. This provision allows any person with a stake in a potential application or lawsuit to lodge a caveat, ensuring they have the opportunity to appear before the court concerning the matter. However, it’s imperative that the caveator has a legitimate interest in the specific lawsuit, and caveats cannot be lodged by those with no meaningful connection to the case, as established in the case of Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma.
The section delineates the procedure for lodging a caveat:
Lodging the Caveat: If an individual expects or is aware of an application to be made or has been made in a court proceeding, they can lodge a caveat to ensure they are heard in the matter.
Serving Notice: The caveator must serve a notice of the caveat by registered post, acknowledgment due, to the party expected to make the application.
Court’s Obligation: Upon lodging the caveat, if an application is filed in any suit or proceeding, the court is obligated to serve a notice of the application on the caveator.
Providing Copies: The applicant must furnish the caveator, at the caveator’s expense, with a copy of the application and any supporting documents.
Duration of Caveat: A caveat remains valid for ninety days from its lodging date, unless the application referred to in the caveat is made within this period.
Where Can a Caveat be Lodged?
Caveats under CPC can be lodged in various courts, including Civil Courts, Appellate Courts, High Courts, and the Supreme Court, where individuals anticipate legal proceedings. However, it’s crucial to note that caveats under Section 148A are exclusive to civil proceedings and cannot be filed against petitions under the Criminal Procedure Code or petitions made under Article 226 of the Constitution of India, as established in Deepak Khosla v. Union of India & Ors.
How to File a Caveat under CPC?
To file a caveat under Section 148A, the caveator or their advocate must sign the document. The caveat is then registered in a designated caveat register maintained by the courts. Supporting documents, such as a Vakalatnama (authorization for representation), impugned orders, and proof of service of notice of the caveat, must accompany the petition.
In the Delhi High Court, the process involves preparing a petition and affidavit, attaching supporting documents, and submitting them to the court, ensuring compliance with procedural rules and formats.
What Does a Caveat contain?
A caveat, functioning as a notice to the court regarding specific actions that should not proceed without informing the caveator, typically comprises the following information:
Name of the Caveator: The individual or entity lodging the caveat.
Address of the Caveator: The designated address for sending notifications.
Name of the Court: The specific court where the caveat is being lodged.
Suit and Appeal Information: If applicable, details such as the suit number and appeal number.
Brief Description of the Suit or Appeal: A succinct overview of the anticipated lawsuit or appeal.
Names of Potential Plaintiffs/Appellants and Respondents: Identification of individuals or parties likely to initiate legal action and those who may be on the opposing side.
Notice of Caveat in CPC
Once a caveat is filed, the court typically serves a notice to the caveator, acknowledging the caveat application. Subsequently, it becomes the responsibility of the applicant (the party initiating legal action) to furnish the caveator (the individual who lodged the caveat) with a copy of the application submitted, along with any accompanying documents. The caveator bears the expenses associated with this notification process.
Failure to adhere to these notification protocols can carry significant ramifications. If the court or the applicant disregards the caveat in CPC, neglecting to inform the caveator as mandated, any subsequent judgment or decree issued may be deemed null and void. This underscores the critical importance of observing the rules and procedures concerning caveats in legal proceedings, ensuring equitable participation and presentation of cases for all involved parties.
Time Period of Caveat
Caveats are typically lodged after a court has issued a judgment or order. They serve as a precautionary measure by a party anticipating potential legal action from another party following the court’s decision. However, in exceptional circumstances, caveats can be filed in CPC before the judgment is pronounced or an order is passed. This proactive approach is taken when there’s a strong belief that such a judgment or order is imminent, and the caveator seeks to ensure their participation in the proceedings.
Once filed, a caveat in CPC remains effective for 90 days from its filing date. After this initial period, the caveator has the option to file a fresh caveat petition if necessary. This provision allows the caveator to sustain their notification and involvement in the legal proceedings.
The ability to file a fresh caveat petition is crucial for protecting the caveator’s interests, especially in prolonged legal disputes. It ensures ongoing notification and participation in the proceedings, enabling the caveator to stay informed and assert their rights as required.
Rights and Duties
Let’s delineate the rights and duties of the caveator, the court, and the applicant when a caveat is filed:
Rights and Duties of the Caveator under CPC As per Clause (2) of the section, the caveator must serve a notice of the caveat to the individual expected to make an application relevant to the caveat in CPC.
When lodging the caveat, the caveator specifies one of the following: either there is a current suit with an anticipated application, an ongoing application within a suit where representation is sought, or a future suit with an expected application where representation is desired.
Before being entitled to notice, the caveator must send a notice to the individual from whom they anticipate the relevant application. This notice, sent via registered post, alerts the applicant that a caveat under CPC has been filed.
Rights and Duties of the Court Upon lodging a caveat and serving notice upon the applicant, the court’s duty is activated. According to Clause (3) of the Section, if any application is subsequently filed in any suit or proceeding within the next 90 days, the court must serve notice on the caveator.
This implies that if an application is made within the next 90 days after filing the caveat under CPC, the court must inform the caveator by serving them notice, affording the caveator the right to be heard concerning the application.
Rights and Duties of the Applicant Besides the court providing notice, the applicant is responsible for serving a notice to the caveator, informing them of an application related to the filed caveat in CPC.
Clause (4) of the section mandates the applicant to furnish the caveator with a copy of the application made, along with any other supporting documents filed in support of their application.
The court cannot proceed with the application unless the applicant submits an affidavit confirming that they have served notice to the caveator.
Case Laws on Caveat under CPC In the case of Smt. Gangamma vs. Sri G. Dayanandha on November 28, 2017, in the Karnataka High Court, it was established that discrepancies between the properties listed in the plaintiff’s schedule and those mentioned in the caveat petition rendered the defendant’s petition ineffective. The court rejected the defendant’s memorandum, viewing it as an attempt to safeguard the caveat petition’s scheduled property from potential interference or danger.
In the case of Yaseen and 4 Others vs. Mahendra Yadav, Naib Tehsildar, on October 7, 2020, the Allahabad High Court clarified that the 90-day period during which caveats filed under Section 148-A of the Civil Procedure Code remain in force should exclude any period affected by lockdowns or disruptions in the functioning of courts and tribunals. This ruling acknowledges that external factors such as lockdowns and court disruptions can affect the time limitations associated with caveats and thus, these periods should not be counted toward the 90 days.
Can a caveat application be used in criminal cases to challenge the request of an accused seeking an interim order?
In the case of Deepak Khosla Vs. Union of India & Others, a Division Bench of the High Court scrutinized the provisions of the Civil Procedure Code, 1908, and the Code of Criminal Procedure, 1973. The court emphasized that Section 148A of the CPC is a component of the Code of Civil Procedure, tailored to regulate civil suits adjudicated by civil courts, which deal with matters of a civil nature. The court concurred with the judgments of the Kerala High Court and the Rajasthan High Court in the cases of Harikishan Vs. Jacob and Sahab Ram & Anr., respectively. These judgments underscored that the CPC and CrPC are distinct legal codes governing procedures for civil and criminal proceedings, respectively, as delineated in their respective codes.
Crucially, the provision for caveat is expressly delineated in the Civil Procedure Code, detailing the procedure and prerequisites for lodging caveats in civil cases. However, the legislature has not incorporated similar provisions pertaining to caveats in the Code of Criminal Procedure (CrPC).
Consequently, the court in this instance concluded that filing a caveat in a criminal proceeding is neither viable nor maintainable because the legal framework for caveats is established within the civil domain through the CPC, with no corresponding provisions existing in the CrPC for criminal proceedings. This verdict underscores the distinction in procedures and legal principles between civil and criminal cases, emphasizing the necessity of adhering to the specific legal provisions applicable to each type of case.
Conclusion:
A caveat in the CPC functions as a preemptive legal notice filed in anticipation of potential legal actions. Its primary purpose is to serve as a precautionary measure, signaling to the court that no decisions or actions should proceed without prior notification to the caveator.
By lodging a caveat, individuals or entities involved in legal proceedings safeguard their rights and interests, ensuring they have a fair opportunity to present their case before any judgments or orders are issued. This mechanism plays a crucial role in upholding transparency, fairness, and due process within the legal system. It empowers parties to protect their positions and actively participate in resolving disputes effectively.
The framing of the problems is likely the most crucial phase of a civil lawsuit’s trial. The right and accurate issues must be framed in order to get the best decision in the quickest amount of time. Issues that are inaccurate and wrong could waste precious court time.
Siddhi Chunilal vs. Suresh Gopkishan (2009(6) BCR 857 In this case, it was observed that if correct and accurate issues were not framed, it leads to gross injustice, delay and waste of the court’s valuable time in deciding the matter. If defendant makes no defense, framing and recording issue by the Court does not arise, in such a case, a Court need not frame and record issue in as much as the defendant makes no defense at the first hearing of the suit.
What are the issues or definition of issues:- Issues mean a single material point of fact or law in litigation that is affirmed by one party and denied by the other party to the suit and that subject of the final determination of the proceedings. When issues arises? Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other party to the suit.
What are the material propositions:- According to Rule 1(2) material propositions are those propositions of fact or law which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defense.
Why issues are framed? (Object of framing of issues) The main object of framing issues is to ascertain the real dispute between the parties by narrowing down the area of conflict and determine where the parties differ.
Duty of the court ;The duty in relation to framing of the issue is that of the court which it has to discharge because it has to try the suit and it has to give notice to parties to lead evidence with the context of the issues framed.
Objective of Framing Issues:
Fiza Developers & Inter-Trade (P) Ltd. v. Amci (I) (P) Ltd., (2009) 17 SCC 796 :“The object of issues is to focus upon the questions on which evidence has to be led and to indicate the party on whom the burden of proof lies.”
Kinds of issues: As per the Order 14 Rule 1(4) of the C.P.C. issues are of two kinds.
A. Issues of fact , B. Issues of Law.
A question of law on which no evidence is to be brought in by the parties can be tried as a preliminary issue. It is being done when the issue involves a question of law alone. To decide to try anything as a preliminary issue is a matter of discretion for the court, but it is not an obligation (O XIV R 2(2).
When determination of a ‘question of law’ depends on a ‘question of fact’, then the issue of law should not be tried as a preliminary issue. The plea of limitation, estoppel, res judicata etc, raised in the beginning of a case can be tried as preliminary issue.
Importance of issues
To decide a case properly the framing of the issue should be appropriate.
Framing of issue helps the parties to lead necessary evidence in support of the claims and the reliefs. It will give the other party to confront or construct the case to bring home his defence.
Issues are the lamp post which enlightens the parties, the trial and the appellate court as to what the controversy is, what the evidence must be, and where the truth in the dispute lies.
When issues are framed?:-
According to rule 1, issues are framed and recorded by the court at the first hearing after reading the plaint, written statement, examining and hearing of parties and their pleaders.
The issues are to be framed by the court from the following sources:-
Allegations of parties or their behalf on oath
Allegations made in the pleadings/interrogatories
The contents of documents produced by both parties.
Postponement of framing of issues. If the court determines that the questions cannot be properly formulated without the examination of a party who is not present or without the review of a document which has not been presented in the lawsuit, the framing of the issues may be postponed for a maximum of seven days.
How issues are framed? Or What materials are required for framing of issues?:-
issues may be framed by the Court from all or any of the following materials—
1. Allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
2. Allegations made in the pleadings or in answers to interrogatories delivered in the suit;
3. The contents of the documents produced by either party.
Court cannot refuse to decide issues
The court cannot refuse to decide any issue if the issue is framed and evidence is given, even though the point finds no mention in the pleadings.
The court should not frame any issue which does not arise in the pleadings. The issue must be confined onto the material questions of fact or law.
Amendment of issues framed:-
Order 14 Rule 5, C.P.C. gives the court the authority to change the issues it has set forth or to set forth new issues at any point in the course of proceedings. It does not, however, believe that this authority must be used when an application is made; rather, it places a duty on the Court to use this authority suo moto “for determining the matters in controversy between the parties” if it were necessary to do so.
Court adjudicates on issues
It is on the issues that the court applies its mind and decides which issue should be decided in whose favour.
The judgment is the application of the court’s mind on the issues that the court initially frames. That means the issues run as a thread from the first day of hearing of a case to the last day of its judgment.
When lower court omits framing any issue
When the lower court omitted to frame an issue before trying a matter in controversy, the appellate court can frame the issue and refer it for trial to the lower court. There is no need to remand the entire case. Then the lower court should try such issues and return the evidence and its decision to the appellate court (please see Section 25 of the CPC and the Order XLI Rule 24)
Conclusion:- Finally, with the conclusion of this section, it can be said that the issues are of great importance not only to the parties but also to the Court. Parties are required to prove or disprove the issues framed by the court, not the pleading. On the other side, the court is also bound to give decision on each framed issue. Therefore, the Court is not to decide those matters on which no issues have been framed.
Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by the person who is aware of the facts and circumstances which have taken place. The person who makes and signs is known as ‘Deponent’. The deponent makes sure that the contents are correct and true as per his knowledge and he thereby concealed no material therefrom. After signing the document, the affidavit must be duly attested by the Oath Commissioner or Notary appointed by the court of law.
The person who gives attestation to the affidavit shall make sure that the sign of the deponent is not forged. The affidavit shall be drafted as per the provisions of the code. It must be paragraphed and numbered properly.
Even though the “affidavit” has not been defined in the code, it basically means “a sworn statement in writing made specifically under oath or affirmation before an authorized officer or Magistrate.”
Essentials
There are some basic essentials which are required to be fulfilled while submitting the affidavit in the court:
It must be a declaration by a person.
It shall not have any inferences, it shall contain facts only.
It must be in the first person.
It must be in writing.
It must be statements which are taken under oath or affirmed before any other authorized officer or a Magistrate.
Contents of affidavit
As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware off as true to his personal knowledge. However, interlocutory applications can be filed wherein he can admit his belief.
Important points about Affidavits:-
I. A Court may order that any fact may be proved by affidavit. Ordinarily, a fact has to be proved by oral evidence.
II. The definition of the affidavit is not defined under S. 3 of the Evidence Act. It can be used as evidence only if, for sufficient reason, the court invokes the provisions of Order 19 of the code.
III. Rule 1 is a sort exception to this rule and empowers the court to make an order that any particular fact may be proved by affidavit, subject, however, to the right of the opposite party to have the deponent produced for cross-examination.
IV. An affidavit should be confined to such facts as the deponent is able to prove to his personal knowledge except on interlocutory applications on which statements of his belief may be admitted. (R. 3)
V. Unless affidavits are properly verified and are in conformity with the rules, they will be rejected by the court. But, instead of rejecting an affidavit, a court may give an opportunity to a party to file a proper affidavit.
VI. Ordinarily interlocutory applications such as interim injunctions, the appointment of the receiver, etc, can be decided on the basis of an affidavit.
Evidence on affidavit
Affidavits are not regarded as evidence under Section 3 of the Evidence Act. Oral evidence is typically considered by the court when it is necessary to prove the facts. But when the Court determines that it is necessary to issue an order for a specific fact that can be established through affidavit, Rule 1 Order 19 is used. The opposing counsel has the right to cross-examine or reply-in-affidavit if someone submits evidence under affidavit.
In addition, only facts about which the individual giving the affidavit has genuine firsthand knowledge should be included. He must cite the real source if he makes a comment that is not based on his own understanding. The deponent will be advised by the counsel to ensure that he presents facts rather than what he believes.
The court can reject the affidavit if it is not properly verified and not in conformity with the rules of the code. At the same time court can also give an opportunity to the party to file the affidavit properly.
In the interlocutory applications like interim injunctions, the appointment of receiver, attachment of property wherein the rights of the parties are not determined conclusively, can be decided on the basis of the affidavit.
False affidavit
Filing a false affidavit is illegal according to IPC 1860 Sections 191, 193, 195, and 199. Giving a lenient opinion will diminish the document’s value, hurt the proceedings, and do the parties no justice. The person who submits fraudulent affidavits in a court of law may face criminal contempt of court charges from the court. Public officials who submit fraudulent affidavits face harsh penalties.
In accordance with IPC Section 193:
Anyone who fabricates or willfully provides false testimony during a legal hearing will be sentenced to seven years in jail and a fine;
And in any other situation, anyone who knowingly provides or fabricates false evidence faces a fine and a period of imprisonment of either kind that may last up to three years.
Conclusion
The CPC’s procedures are so crucial that if they are not followed correctly, the parties could suffer. Under Orders 11, 12, 13, and 19, the court has the ability to issue whatever order it sees fit to decide a case equitably. The parties must also abide by the timelines and processes specified so that the case can be resolved swiftly and efficiently.
Section 6 of the Indian Evidence Act: ‘Facts which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different time and place.’
The Latin term for this doctrine is Res Gestae, which translates to “things done.” It explains a spontaneous statement made by someone soon after an occurrence, before the human mind has a chance to make up a fake story. A statement made under Res Gestae is one that is made on the spot, that is, during or immediately after the conduct of the crime. There is extremely little opportunity for uncertainty or doubt as a result. Res Gestae is a doctrine that places a proclamation in such close proximity to the event’s commission that there is almost no opportunity for confusion or incorrect interpretation.
‘Res Gestae’ basically means a transaction (thing done/ subject matter).
The test of admissibility of evidence – as a part of Res Gestae is whether the Act, declaration or exclamation is an intimately interwoven or connected with the principal facts.
‘Facts forming part of same transaction’ – This includes both physical acts and words spoken whether by person doing such acts, the person to whom such acts, the person to whom such acts are done or any other person(s).
It is a general rule – The evidence of connected precedent or surrounding circumstances is proper to show the probability that the principal fact has happened in all cases where it may naturally be assumed that a connection exists between main fact and subordinate fact.
The act or transmission may be completed in a moment of time, or may extend through a period of days or weeks, or even months.
Pre-Conditions to Res Gestae:
Statement must explain and characterize the incident in some manner.
Statement must be a statement of fact and not opinion.
Statement must be spontaneous and not merely narrative of the past.
Statement must include participants of transaction; In criminal: Victim, accused, eye-witness; In civil: Attesting witnesses and concerned parties
Statements made by bystanders provided their presence on the spot is established.
Note: Filing of FIR forms part of Res Gestae.
A TRANSACTION
The term “transaction,” as used in this section, is defined by a single name as any unlawful act, contract, wrongdoing, or other possible area of inquiry. A suitable distance from the time, pace, and cause and effect, it includes both the immediate cause and effect of an act or event as well as its collection of pertinent circumstances, the other required antecedents of its occurrence, connected with it.13The proximity of time, unity or proximity of place, continuity of acts, and community of purpose or design are reliable indicators of what kind of transaction it is.
BYSTANDER
All the people present at the time of the incident are referred to as bystanders in section 6. When several others arrived at the scene shortly after a murder and were informed by the eye witnesses who the two perpetrators were, their testimony is important. Therefore, the declaration must try to show and explain the event at issue and be mostly contemporaneous with it.
TEST FOR ADMISSION OF EVIDENCE UNDER RES-GESTAE
The judge’s first consideration is whether the likelihood of fabrication or distortion can be discounted. The judge must first take into account the circumstances surrounding the specific statement in order to be convinced that the incident was so extraordinary, jarring, or fanatical as to dominate the victim’s thoughts and that the victim’s utterance was an instinctive response to that incident, leaving no real room for thoughtful reflection. If the statement was delivered under circumstances of approximate but not exact contemporaneity, the judge would be permitted to draw the conclusion that the event’s involvement or pressure would rule out any possibility of fabrication or distortion.
STATEMENT SHOWING MOTIVE AND INTENTION
The declaration of someone’s intention to do something is not admissible as proof that they really did it. Investigating what someone says he is intending to do to determine if he carried out his claimed intention is a completely different subject from examining what someone says when his intention is at stake. In order to establish the motivation behind a behavior, evidence of the comments that accompany the behavior may be provided. Because the declarant may change his opinion between the declaration and the act, statements that are not contemporaneous with the act cannot identify the motivation behind it.
Expansion of the Doctrine of Res Gestae
Courts have gradually expanded this section’s application to include situations including domestic abuse, kid witnesses, etc. Domestic abuse and assault cases invariably have a shocking event, which frequently involves the problem of ecstatic speech. Only the victims in these situations can name the suspected offender. Therefore, it is necessary to accept such victim evidence. Rape cases typically happen alone. Therefore, there is no eyewitness to such an event. Rape and domestic violence cases are distinct from all other crimes.
Gentela Vijayavardhan Rao v. State of A.P., (1996) 6 SCC 241:
The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman [(1896) 2 QB 167 : (1895-99) All ER Rep 586] a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. [(1952) 2 All ER 447]
In Bishna vs State of West Bengal AIR 2006 SC 302, where the two witnesses reached the place of occurrence immediately after the incident had taken place and found the dead body of Prankrishna and injured Nepal in an unconscious state. One of them found the mother of Prannkrishna and Nepal weeping and heard about the entire incident from an eye-witness and the role played by each of the appellants, their testimony was held to be admissible under section 6 of the Evidence Act. In all the cases mentioned above the test applied to make the evidence admissible was to consider that was the statement was made at the spur of the moment without an opportunity to concoct and fabricate anything.
“The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement.”
Conclusion:
When evidence cannot be presented under another part of the Indian Evidence Act, it is typically presented under res gestae. Legislators wanted to prevent unfairness, or cases being rejected for lack of proof. Any statement that is not accepted under Section 6 may nonetheless be admitted under Section 157 as corroboration.
This doctrine shouldn’t ever be extended to infinity, according to court precedent. Because of this, Indian courts have always taken into account the “continuity of the transaction” test. According to section 6 of the evidence statute, no statement that was made a long time after the incident and that wasn’t in response to it is admissible. However, because there was adequate evidence that the victim was still experiencing tension and excitement following the purchase, the courts have allowed some statements that were made a significant amount of time after the transaction had taken place. As a result, whatever was said was a response to the event. Sec. 6’s strength is in how ambiguous it is.
Order VI of the Code deals with the Pleadings. According to Rule 1, Pleading means plaint or written statement. According to P. C. Mogha, pleading are statements in writing draw up and filed by each party to a case stating what his contention will be at trial and giving all such details as his opponents needs to know for his defense.
Pleading are Plaint and Written Statement This rule declares that the pleading are the plaint filed by the plaintiff and the written statement filed by the defendant and thus the stage of pleading would mean the institution of plaint till the submission of a written statement. Therefore, pleading are statement of parties to communicate their contention to be adjudicated in trial. This process is the primary process in the Civil Procedure
Object of Pleading:
The object of pleading was explained by the Supreme Court in Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484. Pleading has following objects: a) To give each side, intimation of the case of the other so that they are not taken by surprise. b) To enable the court to determine the issues between the parties. c) To diminish expenses and delay in conduct of suits. In Thorp v. Holdsworth(1876) LR 3 Ch D 637 , the court held that the whole object of pleading is to narrow down parties to definite issues.
In line with Section 148 of the Civil Process Law, the caveat petition has been submitted. A caveat typically means “a warning or caution, cautious.” It is a phrase that is frequently used in law to alert someone to the possibility of a hidden issue. Under the Law of Civil Procedure, a warning
According to the law, it is a formal notice or warning that is issued to a judge, ministerial officer, or court by a party with a stake in the outcome to express disagreement to a specific action that is within that person’s scope of authority. The Court understands a caveat as a caution or warning given to the court by a person that the court should not make any judgement or an ex-parte order/order without first notifying or hearing the person who is known as the caveator. also learn more about the caveat legal notice
Need for Caveat Under the Code of Civil Procedure
It is described by law as a formal notice or warning delivered to a judge, minister, or court by an interested party in opposition to a specific action within his or her authority. The Court understands a caveat to be a caution or warning given to the court by a person that the court should not render any judgement or ex parte order/order without prior notice or without hearing the person who is known as the caveator. also learn more about the legal notice for caveat
The filing of such a caveat gives Raj the right to receive notice from the court and Mr. Aniket of any application that has been or will be filed, and any order made by the court without such notice is void. You can be aware Online Caveat Petition for Businesses: What it Is.
Content to Be included in a Caveat
The format for submitting a Caveat varies depending on the norms and practices of the various courts of law. However, the following details are typically included in the fundamental framework of a Caveat Application:
The caveat’s effective date.
The caveator’s name and address.
Particulars about the complaint filed or likely to be filed, such as the names of the Plaintiff and Defendant, as well as the number of cases filed before the court of law Action.
Vakalatnama.
A copy of the contested order (if applicable).
An affidavit in support of the lodged Caveat.
A copy, postal evidence, and an application stating that the notice was duly served on all persons involved must be attached to the application. Both the petition and the Affidavit must be signed.
Court fees, normally not exceeding a hundred rupees, have to be paid simultaneously with the application, subject to the rules imposed by the each court.
Caveat application under Section 148A of CPC
A legal strategy for defending a party’s interest in an appeal proceeding is to file a caveat application under Section 148A of the CPC.
A party can make sure they are informed prior to the entry of any order or judgement in an appeal case by submitting a caveat in accordance with Section 148A.
How to break the caveat petition ?
A Warning An application to vacate or withdraw the caveat may be filed to violate the Code of Civil Procedure.
2. The application must be submitted to the proper court and include precise justifications for removing or vacating the caveat.
3. The court will take into account the arguments made in the application and, if necessary, it may vacate or withdraw the caveat.
4. Before making any moves to void or withdraw a caveat, it is important to consult a legal expert because breaking a caveat petition can be a difficult process.
Public discomforts are common in the current era, including loudspeaker noise, construction noise, excessively honking horns, blocking sunlight in public parks, etc. Public nuisance and private nuisance are the two subcategories of nuisance.
We will solely talk about the lawsuit involving the public nuisance here. Section 91 of the CPC, which outlined the process for instituting a civil lawsuit for the offence of public nuisance, is where the term “public nuisance” originates. This provision allows for the filing of a lawsuit in the event of a public nuisance or any other wrongdoing that negatively affects the general public. It continues to be possible to file a lawsuit for a declaration, an injunction, or other relief that may be appropriate given the facts of the case.
Meaning of Public Nuisance
The Code of Civil Procedure does not define “public nuisance.” However, in accordance with section 268 of the IPC, it can be said to be an act or omission that generally causes harm, danger, or annoyance to the public or to those who live in the area or own property there, or that must inevitably harm, obstruct, pose a danger to, or annoy those who may have the need to use public rights. Examples of public nuisances include the clogging of public rivers, the sound of loudspeakers, blocking of a public motorway, daytime and nighttime horn honking, etc.
Who may sue?
A suit may be instituted by the following persons, relating to a public nuisance or other wrongful act;
1. By Advocate General;
2. By two or more persons with the leave of the court; or
3. By any private person if he has sustained special damage.
What are the remedies?
There are some remedies which are available against public nuisance as follows:-
1. A person committing a public nuisance may be punished under section 290 of the Indian Penal Code;
2. Magistrates may remove public nuisance in certain case circumstances by exercising summary power under section 133 and 143 CRPC;
3. A suit can be instituted for the declaration, injunction or other appropriate relief without proof of separation damage under section 91(1) CPC.
4. A suit may also be filed by a private individual, where he has sustained special damages under section 91 (1) CPC.
Appeal:- An appeal lies against an order refusing to grant leave to file a suit for public nuisance or other wrongful act affecting the public, section 104 CPC.
The provisions relating to appointment of Commissioner is set out in Civil Procedure code. Under “Incidental proceedings” section 75 and Order XXVI Rules 1 to 22 of the Code deal with it.
Commission refers to person or body of persons appointed to carry out the functions that are delegated to them by the court. They act as agents of the court to perform those functions that courts of law ordinarily cannot perform. The Commissioner in effect is a projection of the Court appointed for a particular purpose. 1The law regarding issuance of commission is provided by section 75 to 78 of The Code of Civil Procedure (CPC) and Order 26 of CPC. While Section 75 to 78 lay down the powers of the court and the circumstances in which commissions are issued, Order 26 gives detailed procedure regarding the same. various purposes for which commissions are issued are as follows: _ ● To examine a person, ● To make local investigation, ● To carry out partition, ● To examine accounts, ● To hold scientific, technical or expert investigation ● To carry out sale of property which is in the custody of the court and subject to speedy decay, ● To perform ministerial act. Although, the powers of the court to issue commission have been statutorily laid down, these purposes are very wide in nature. This leads to creation of grey areas in many circumstances and it becomes imperative to analyze the authorities on this topic and reasoning provided in the same to enable us to establish principles that govern the appointment of court commissioners
Object and scope:
The object of “section 75 and Order 26 Rule 9 “of Civil Procedure Code is to elucidate any matter in dispute. In any suit where there is just and proper cause for elucidating any matter in dispute as the case may be, the court can appoint Commissioner. The scope of appoint of Commissioner is not to assist any party to collect evidence. From various judgments in appointment of Advocate Commissioner the aspects to be considered are that : 1) Total pleadings of both parties; 2) Relief claimed in suit; 3) Appointment of advocate commissioner for specific purpose at interlocutory stage shall not amount to grant pre-trial decree; and 4) Necessity to appoint advocate commissioner to decide real controversy between parties.
Purpose of appointment of Advocate – Commissioner:-Commission cannot be appointed for making an enquiry about factum of possession. The appointment of Advocate Commissioner for making enquiry about the factum of possession of the property in dispute is improper. Legal prepositions where Appointment of Commissioner is deem proper:
In a Suit for injunction, there is no absolute bar on appointment of Commissioner. It is not the business of the Court to collect evidence in favour of one party.
Advocate-Commissioner should not be appointed to gather evidence to prove the case of parties.
Prior notice in case of Appointment of advocate Commissioner : Without notice: Though Order 26 Rule 9 CPC per does not envisage notice to the opposite party, the order containing unilateral direction without notice to the other side is perceived as somewhat unusual and contrary to the convention and practice for, it cannot be said that an application for appointment of an Advocate-Commissioner for the said purpose does not broke delay in issuing notice to the other side and hearing them.
Exparte orders in Appointment of advocate Commissioner:- Even ex-parte and without issuing notice to the other side, an Advocate Commissioner can be appointed.
When appointment of commissioner becomes Pre-trial decree:- When the plaintiff sought for Appointment of advocate Commissioner to survey schedule property with the help of Surveyor and fix boundary stones to his land, Appointment of advocate commissioner by trial court for demarcating schedule property and to fix boundary stones to the land of respondents amounts to granting pre-trial decree.
Appointment of Advocate-Commissioner for the second time. Unless there is ambiguity in the earlier report or not executed as per order of court, second time Advocate-Commissioner can be appointed. When the court is not satisfied can set aside report by recording reasons and then appoint new advocate commissioner. However, the Court has discretion to appoint second commissioner depending on facts and circumstances of the case before it. But the discretion of court must be judicious for the purpose of elucidating facts in respect of any matter in dispute where the circumstances render it expedient in the interest of justice to do so, the Court has power, which is discretionary in nature, to appoint Commissioner for the purpose of ascertaining, certain facts, to make it clear intelligible and to throw light upon the matter in issue, relating to the main case as well as the facts leading to the dispute.
New Advocate Commissioner can be appointed in a suit schedule land with the assistance of Mandal Surveyor or the Assistant Director of Survey and Settlement, Held, the burden is on the defendant to prove that the property which the petitioner is claiming is different from the property based on the boundaries. Appointment of an Advocate-Commissioner to note down the physical features. Orders in the nature of appointment of an Advocate-Commissioner to note down the physical features and boundaries of the disputed properties are incidental and complimentary in nature and assist the Court in arriving at a just decision in the is unlike supplementary orders.
Before appointing commissioner, Court shall examine pleadings, relief claimed and real controversy between parties. It is always better if the parties are allowed to adduce evidence at the stage of trial for better appreciation of the facts which will help the Court in effectively deciding the main dispute between the parties. At what stage Advocate Commisioner can be appointed: Before the issues are framed:- It cannot be said that no Commission could be appointed before the issues are framed or evidence. At the stage arguments not permissible:- Reopening of suit and appointment of Commissioner allowing of application filed by defendants for reopening of the suit and for Appointment of advocate Commissioner to note the physical features of suit schedule land at a belated stage after completion of evidence and at the stage of defendants\arguments is impermissible as it would pave the way for the parties.
Local inspection by Advocate-Commissioner:-
Where there is controversy as to identification, location or measurement of the land, local investigation should be done at an early stage so that the parties are aware of the report of the Commissioner and go to trial prepared. an Advocate Commissioner can be appointed in an injunction suit for local inspection of the suit and to demarcate the suit schedule property with the help of the Surveyor. As earlier mention that for purpose of factum of possession cannot be ascertain by Commission. Identification of property and not the title or possession of property to determine whether there is an existence of fact.
Evidential value of Advocate – Commissioner’s report:-
Report of Advocate-Commissioner forms part of the records. Advocate Commissioner report is not binding on Court and in fact his report is to be appreciated along with other evidence available on record in a given case. For all above propositions the latest case law in respect of appointment of Advocate Commissioner is “Bandi Samuel Vs. Medida Nageshwara Rao 2017 (1) ALT 493 dated 04-11-2016” reported the two important aspects of order XXVI r.9 of C.P.C are that (1) when advocate commissioner may be appointed (2) what to elucidate any matter? Apart from latest case laws there are some circular passed by Hon’ble High Court of Andhra Pradesh regarding the procedure and panel of appoint of advocate commissioner.
WHEN THE REPORT OF THE COMMISIONER IS BEYOND THE SCOPE OF APPOINTMENT ORDER
Statements that are made in the report of the commissioner in respect of the matters that are beyond the scope of the appointment of Commissioner are not admissible in evidence.21 Where the report of commissioner tends to show that the demised premises are no longer in occupation of the tenant but in the occupation of strangers, then inference of subletting can be drawn and the report of the commissioner can be treated as legal evidence for the said purpose.
Case Laws:
The decision of a material issue cannot be left to the Commissioner, as such issues decided by the Court. The report of the Commissioner on such issue is not binding on the Court, as the Court is free to arrive at its own conclusion. Rangayyakanantha Vs. Govinda Chatra and others. AIR 1970 Mys 314 .
When plaint allegations are clear and specific about the extent of encroachment, there is no need to appoint a Commissioner. Local Commissioner can only report on existing facts and it cannot report as to how the facts came into being. Refer the decision reported in Lekh Raj Vs. Muni Lal (2001) 2 SCC 762
In Vijay Son of Shrawan Shende v. State of Maharashtra15, the Hon’ble Bombay High Court had held that if the correct procedure of measurement was not adopted by the commissioner appointed for the first time, then the court can order re-measurement by another higher and competent authority.
Conclusion:
Therefore, appointment of advocate Commissioner as a matter of course shall not done. The court should convinced for the purpose and the ingredients of Order 26 Rule 9 CPC. Thus as per C.P.C. provisions, the Court has discretion to appoint a commissioner but the discretion has to be exercised in a judicious and sound manner. The purpose of a court commissioner is to aid investigation in matters where courts have their limitations or lack expertise as a result of which, their appointment becomes necessary in cases of boundary disputes and encroachment where measurement of suit land is required. However, courts have always refrained from appointing commissioner for establishing title of the suit land or for proving possession as the same would directly amount to collection of evidence by the court. Furthermore, although the report of a Court Commissioner is a legal evidence and forms part of the records of the case, the same is rebuttable by other evidence. The court commissioner is also liable to be examined in the open court for statements made in the report.
