H G SHANKER NARAYAN Vs. STATE

JUDGEMENT

(1.) This matter comes up ' before us on a reference by a learned Single Judge (Bhargava J.). The reference has been made in the following circumstances : The petitioner H. G. Shankar Narayan filed a writ petition in this court on Oct. 19, 1983 wherein he prayed that an appropriate writ, order or direction may be issued directing the State of Rajasthan, respondent 1 to the said writ petition, to make appointments against the vacancies of Additional Chief Engineer in the Public Works Department in the Government of Rajasthan available temporarily on the basis of R.27 of the Rajasthan Service of Engineers (B and R) Rules, 1954. In the said writ petition it was also prayed that the record of the Departmental Promotion Committee, which met in Nov. 1982 for making selections for the post of Additional Chief Engineer, be called and examined and the order dt. Sep. 24, 1983 leading to the appointment of Shri P. C. Panchariya and Shri Harbinder Singh, respondents 2 and 3 to the writ petition, be declared illegal and be quashed and set aside. The aforesaid writ petition was put up for admission before the learned Single Judge on Oct. 27,1983, on which date the writ petition was admitted. Thereafter on Nov. 14, 1983, an application was moved by Harbinder Singh, respondent 3 in the writ petition, for recalling the order dt. Oct. 27, 1983, and for re-hearing the writ petition for the purposes of admission on the ground that the said respondent had filed a caveat in this court on Sep. 23, 1983 and that the said writ petition was heard on Oct. 27,1983 without any notice being given to the said respondent about the filing of the writ petition by the petitioner and about the fixation of the date of hearing in the said writ petition. The said application filed by the respondent No. 3 came up for orders before Bhargava, J. on Nov. 21,1983. On behalf of the respondent No. 3 reliance was placed on the judgment of Mudal J. in Hari Ram v. Ratan Lal, 1979 Raj LW 589. The petitioner on the other hand opposed the said application of respondent No. 3 and placed reliance on the judgment of G. M. Lodha, J. in Pachupati Nath Arora v. Registrar Co-operative Societies, Jaipur, 1982 Raj LW 572. The learned single Judge (Bhargava, J.), felt that there was conflict between the judgments of two learned single Judges of this court in the judgment referred to above and further that caveats are being filed in most of the cases and such a situation can arise on several occasions and he considered it proper to refer to the division bench for authoritative pronouncement.

(2.) We have heard Shri M. R. Calla, learned counsel for the petitioner and Shri G. S. Singhvi, learned counsel for respondent 3.

(3.) The first question which arises for our consideration is as to whether a caveat can be entertained in respect of proceedings under Art.226 of the Constitution of India. Shri Calla has submitted that under the Rajasthan High Court Rules (hereinafter referred to as "the Rules") a separate procedure is laid down in respect of proceedings under Art.226 of the Constitution other than petitions for writs in the nature of Habeas Corpus, in Chapter XXII which falls in Part IV of the Rules and that in that said Chapter no provision has been made with regard to filing of a caveat. The submission of Shri Calla was that R.159 of the Rules which makes provision for filing of caveats in civil proceedings has no application to the proceedings under Art.226 of the Constitution because R.159 falls in Chapter XI which forms part of Part II relating to Civil jurisdiction and the said Rule has no application to proceedings under Art.226 of the Constitution of India. In our view, the aforesaid contention of Shri Calla cannot be accepted in view of the provisions contained in R.123 of the High Court Rules. Sub-rule (2) of R.123 lays down that subject to the provisions of sub-rule (1), the Rules contained in Part II shall, so far as may be and with necessary modifications and adoptations, also apply to proceedings under Parts III, IV, V and VII. In view of the aforesaid sub-rule, the rules contained in Part II of the Rules have been made applicable to proceedings under Part IV in proceedings for issuance of directions, orders or writs under Art.226 of the Constitution other than writs in the nature of Habeas Corpus. Shri Calla has also submitted that even if it is held that in view of R.123(2) the Rules contained in Part II can be made applicable to proceedings under Art.226 of the Constitution, the provisions of R.159 relating to filing of caveat cannot be made applicable to proceedings under Art.226 of the Constitution for the reason that R.159 contemplates the filing of a caveat only in proceedings instituted in this court against orders passed by the lower courts and since in writ petition filed under Art.226 the proceedings are not instituted against orders passed by the lower courts, the provisions of R.159 relating to filing of caveat, can have no application to proceedings under Art.226. We are unable to agree with the aforesaid submission of Mr. Calla. A caveat is a caution or warning giving notice to the court not to issue any grant or take any step without notice being given to the party lodging the caveat. It is a precautionary measure which is generally taken against the grant or probate or letters of administration, as the case may be, by the person lodging caveat. But now it has also been extended to other civil proceedings. The Rules contemplate the filing of a caveat in civil proceedings in R.159 which falls in Chap. XI of Part II as well as in testamentary proceedings under R.777 which falls in Chap. XXX. This would show that apart from proceedings instituted in this court against the orders passed by the lower courts, caveats can also be entertained in respect of other matters like succession. It is, therefore, not correct to say that caveats can only be filed in proceedings instituted against orders of the lower courts. As pointed out earlier the object of a caveat is to enable the person lodging the caveat to appear before the court before an order is passed to his prejudice and on ad interim orders can be passed ex parte by the court in proceedings under Art.226 of the Constitution also. By filing a caveat, a person likely to be affected by the ad interim order would be able to protect his rights. Moreover, there is nothing in R.159 to preclude the applicability of the said rule to proceedings under Art.226 of the Constitution. In our opinion, therefore, the provisions of R.159 with regard to filing of a caveat are applicable to proceedings under Art.226 of the Constitution.