1 A.O. 956 of 2011with CAA1271/2011 (4) saj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 956 OF 2011 WITH CIVIL APPLICATION NO.1271 OF 2011 M/s. Ravi Ashish Land Developers Ltd. .. Appellants V/s. Sabhajit Shalikram Yadav & Anr. .. Respondents Mr. A.N.Narula a/w Kshitij Rai i/by M/s. Jhangiani Narula & Associates for the Appellant. Mr. Shrishail Sakhare, Adv. for Respondent No.1 CORAM : MRS. ROSHAN DALVI, J. DATED : 23rd AUGUST, 2011 P.C. : 1. The Appellant herein is a Caveator in the original proceeding. He filed caveat in the Bombay City Civil Court in respect of a notice issued by the M.M.C. under Section 351 of the M.M.C. Act bearing No.AC/PS/BF-III/351/3181/AEBF of 2011 dated 1st June, 2011 and a final order passed thereon by the M.M.C. under No.AC/PS/06620/BF/III/AEBF. 2. The Respondent herein filed a suit against the M.M.C. challenging the said notice and applied for ad-interim injunction therein. The Respondent applied without notice to the Appellant/Caveator. The Court also did not issue notice to the Caveator. The Caveator appeared through his Advocate 2 A.O. 956 of 2011with CAA1271/2011 (4) and sought to be heard. The Caveator has not been heard on the ground that he was not a party to the Suit. 3. The provisions relating to the Caveat are set out in Section 148-A of the C.P.C. 4. Under sub-section 1 of the said section, any person claiming a right to appear before the Court in respect of any claim which is expected to be made or has been made may lodge a Caveat. The Caveator filed his caveat in the Bombay City Civil Court. 5. Under sub-section 2 of the said Section, the Caveator has to serve a notice of the Caveat by RPAD to the person by whom an application for grant of injunction was expected to be made. The Caveator served notice upon the Plaintiff by hand delivery and Registered A.D. The postal receipt of the acknowledgment of the notice received by Registered Post on 02.07.2011 has been produced. Copy of the notice sent by hand delivery has been produced before this Court. The notice was refused to be accepted. Consequently, the Caveator also served a notice of the caveat lodged by him on 5th July, 2011 upon the Advocate of the Plaintiff which has been received on that day by the Advocate of the Plaintiff. 6. Under sub-section 3 of the said Section, the Court is required to serve notice upon the Caveator of any application made to 3 A.O. 956 of 2011with CAA1271/2011 (4) it. Lodging of the notice has been endorsed on the docket of the Plaint. The Court was, therefore, required to serve the notice of any application made by the Plaintiff to the Caveator under sub-section 3 of the aforesaid Rule. 7. Under sub-section 4 of the said Section, upon service of the Caveat, the person making the application to the Court is required to give a copy of the application and documents relied upon by him to the Caveator at the expense of the caveator. The Plaintiff had to furnish a copy of the Application made by him to the Caveator. 8. The caveat has been lodged on 1st July, 2011. It remains in force for a period of 90 days. The ad-interim application bas been made on 6th July 2011. 9. Despite the fact that the Caveator followed the provisions of sub-section 1 and 2 of the aforesaid Section, the Plaintiff failed to comply sub-section 4 and the Court also failed to comply sub-section 3. Nevertheless the Caveator was represented by his Advocate when the application of the Plaintiff was heard. 10.Caveator sought to be heard. He was not heard on the ground that he was not the Defendant in the Suit. The Caveator has taken strong objection to the attitude of the 4 A.O. 956 of 2011with CAA1271/2011 (4) Court in not hearing him when he was represented through his Advocate. Counsel on behalf of the Appellant / Caveator has drawn my attention to the Judgment of the Supreme Court in the case of Mahadev Govind Gharge and others vs. Special Land Acquisition Officer (2011) 6 SCC 321, setting out rights of the Caveator. The Caveator has a right to be heard mandatorily before any order is passed. It is observed in para 49 of the Judgment that the Caveator has a right to be heard mandatorily for the purpose of passing of an interlocutory order because the law contemplates that the Caveator has to be heard by the Court before any interim order is passed. 11.It is contended by the Respondent herein / the Plaintiff in the suit that no order has been passed against the Caveator. The suit was to challenge the notice issued by the M.M.C.. This is the matter between the Plaintiff and M.M.C. restraining them acting on the notice. 12.The learned Trial Judge also observed similarly. 13.It is argued on behalf of the Caveator / Appellant that the Order passed would actually hinder any proper party from being represented who may be prejudicially affected by any order, if the order sought by the Plaintiff is carved in such terms which is not passed against him. This is one such case. 5 A.O. 956 of 2011with CAA1271/2011 (4) The Caveator is the developer on the suit plot of land. The Plaintiffs structure is shown to be within the compound of the premises which has been developed by the Caveator. The Caveator is the party prejudicially affected. The Caveator, in fact, would be in a position to show the Court the facts on merits if it is heard through its representative. Upon the suit structure which was sought to be and is protected by the order of status-quo, the Caveator should have been heard to show the Court why status-quo order should not have been passed on merits. 14. It was, therefore, most improper for the Court not to have heard the Caveator when he was already represented and when his Caveat has been lodged as per law on the technical plea that he was not the Defendant in the suit. 15.The notice of the caveat has not to be given by the party who is the defendant alone. It is to be given by the person against whom an order is to be passed. Sub Section 1 of Section 148A does not require notice to be given only if an order is passed against the party. It is to be given to the person “claiming a right to appear before the Court”. It may be that upon hearing him, the Court may reject and pass an order either against him or which may prejudicially affect him. 16.It is seen that the Plaintiff as well as the Court have not 6 A.O. 956 of 2011with CAA1271/2011 (4) complied with the statutory requirements. Hence the order of status-quo is illegal. It cannot be sustained. 17.Hence the Appeal From Order is disposed off upon following directions : 1. Order of status-quo dated 06.07.2011 in Suit No.1337 of 2011 passed in Bombay City Civil Court (C.R.No.5) shall remain in force upto 6th September, 2011. The learned Judge shall hear the Caveator and pass a reasoned order de-novo. The Plaintiff shall give notice of the date of hearing to the Caveator. 2. The Civil Application is disposed off accordingly. ( ROSHAN DALVI, J.)