RECOURSES AVAILABLE FOR SUCCESSFULLY OPPOSING AN EX PARTE RELIEF IN A CIVIL SUIT
As everyone is aware that due to the COVID-19 restrictions, our offices are not fully functional and most of us are working remotely, there has been a significant pressure on advocates who receive instructions so as to represent their client to oppose interim relief in an urgent matter that is listed within a days time.
Due to paucity of time between the listing of the matter and also coordinating with clients who are often outside located, it becomes challenging to prepare thoroughly for the matter and due to such reasons most of the advocates often end up taking decision in haste of not appearing in the matter or requesting for taking a short adjournment despite their client willing to contest the matter on the basis of merits in it’s favour. Such decisions sometimes become fatal as they result into unfavorable orders being passed by the court.
Today we will discuss some legal strategies on how to overcome this pressure based upon our experience in the recent cases that were listed in the past during COVID times.
In general an advocate defending the case would have majorly the following options:
a) to not appear in the matter
b) to appear in the matter with the risk of not filing of a caveat.
c) to appear in the matter pursuant to filing of a caveat.
Since some of the readers who might be reading this discussion might not be having legal background or would be young students, therefore, we would like to clarify that a caveat is a form of an application usually filed by an advocate on behalf of their clients so as to obtain notice / service of copy of the urgent application which is likely to be pressed with the further claim for right of appearing and arguing before the court thereafter.
It is a popular belief amongst advocates that a caveat is required to be filed prior to filing of a particular application in a suit due to which advocates mostly consider opting either for option a) or b) from the above given options when faced with the challenge of attending the first date of hearing of an urgent matter wherein urgent relief mostly ex parte relief is pressed for.
Usually it is a belief that the caveat filing may not be feasible within such a short span because the client is required to get the necessary accompanying documents sworn / executed. Therefore, this option is not preferable most of the times. However, our experiences shows that during the COVID times, the filings before the courts have become relatively a matter of ease. Filing of caveat has not merely proven to be useful in the court but has allowed the lawyers to gain materially by filing additional application prior to fully representing the client.
As per language of provisions of Section 148A (1), CPC, 1908 it is clear that a person claiming right to appear before the court can file a caveat even after filing of any application in a suit i.e. to say shortly prior to the listing of the urgent suit. This position has been affirmed by the Hon’ble Karnataka High Court in the case of G. C. Siddalingappa Vs. G.C. Veeranna [AIR1981Kant242].
Applying this principle, recently we filed the caveat virtually before the Ld. District Judge in Delhi upon getting the knowledge of listing of the matter within days time and also made an advance service to the opposite party through email. The said caveat application was accepted and thereafter the Ld. District Judge applied the principles of Section 148A, CPC, 1908 and issued the notice to us and eventually we were successfully able to prevent passing of ex parte when infact the Plaintiffs side came fully prepared for arguments in the said matter.
Conclusion:
So it is always advisable to handle such critical situation carefully and the option of filing a caveat prior to making appearance on the first date of listing of an urgent matter is most desirable if incase the client has a meritorious case and if the client is very much inclined towards contesting the matter. This would also act as a shield in favour of the defending advocate as no urgent relief orders would be passed prior to issuance of notice upon such defending advocate and moreover this would also grant right in favour of such advocate to argue his/her case after going through the urgent application.
The cons of adopting option a) and b) include the eventuality of adjournment not being granted and an adverse order being passed. Likewise the court may not grant a full opportunity of being heard to the defending advocate if the caveat is not on record and this way the client would be on the mercy of the court without having the options of being heard as a matter of right. Lastly, the advocate may end up loosing business if he / she does not accept the brief or does not appear in the matter which is also not viable during these stressful times. Accordingly, if some circumspection is exercised and filing of caveat application is preferred then we can avoid all such cons and convert option c) into a productive and constructive hearing which is well appreciated both by the court and the client.
Prepared by Sushant Singh and Kunal Khanna Advocates