Caveat
Introduction
‘…no proposition can be more clearly established than that a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a reasonable opportunity of answering the case against him..’
- de Smith[1]
According the Salmond, the law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions- jus quod ad actions pertinet- using the term action in a wide sense to include all legal proceedings, civil and criminal. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. Substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.[2] Procedure is the hand-maiden of justice and is not supposed to be it’s mitress.[3]
Therefore the attempt of procedure is to the facilitation of an encompassing justice. Various devices have been invented in this endeavor. One of these , is the ‘right to caveat’. Sometimes a party obtains an exparte order on an application without informing the other party of his intention of making such an application.[4] Therefore, Mulla describes the provision incorporating ‘caveat’ as salutary [5] as it attempts to prevent this practice.
Caveat: What is?
The word “Caveat” has not been defined by the Civil Procedure Code. In fact it has been introduced into it only recently. Therefore to understand it we must take it’s usual meaning.[6]
‘Caveat’ literally means “let him beware”.[7]
It can be understood to mean “a formal notice or warning given by a party to a court or court officer requesting a suspension of proceedings” as per Blacks’Law Dictionary[8]. However, this is not the understanding of caveat India
According to the Jowitt’s Legal dictionary meaning[9],
“a caveat is an entry made in the books of the offices of
‘…no proposition can be more clearly established than that a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a reasonable opportunity of answering the case against him..’
- de Smith[1]
According the Salmond, the law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions- jus quod ad actions pertinet- using the term action in a wide sense to include all legal proceedings, civil and criminal. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. Substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.[2] Procedure is the hand-maiden of justice and is not supposed to be it’s mitress.[3]
Therefore the attempt of procedure is to the facilitation of an encompassing justice. Various devices have been invented in this endeavor. One of these , is the ‘right to caveat’. Sometimes a party obtains an exparte order on an application without informing the other party of his intention of making such an application.[4] Therefore, Mulla describes the provision incorporating ‘caveat’ as salutary [5] as it attempts to prevent this practice.
Caveat: What is?
The word “Caveat” has not been defined by the Civil Procedure Code. In fact it has been introduced into it only recently. Therefore to understand it we must take it’s usual meaning.[6]
‘Caveat’ literally means “let him beware”.[7]
It can be understood to mean “a formal notice or warning given by a party to a court or court officer requesting a suspension of proceedings” as per Blacks’Law Dictionary[8]. However, this is not the understanding of caveat India
According to the Jowitt’s Legal dictionary meaning[9],
“a caveat is an entry made in the books of the offices of
Bibliography: Books Mulla on the Civil Procedure Code, (T.L.V Aiyer Ed., Vol.2, 1992) S.M.Mehta, Civil Procedure Code, (1990). S Viswanatha Aiyer’s Civil Procedure Code, 1908, (Dr. V.K. Chary, et al., Eds., 2000). C.B C.K. Takwani, Civil Procedure Code, (2000). Mulla on the Civil Procedure Code, ( J.M Dictionaries Aiyer’s Concise Legal Dictionary, (1995) Blacks’ Law Dictionary, (1990). Blacks’Law Dictionary, (1990) Earl Jowitt: The Dictionary of English Law (1977), Vol. 1. Wharton’s Law Lexicon, (1993) Statement of Objects and Reasons (Bill to amend CPC), 1974, Gazette of India, Ext., dt. 8-4-1974, Pt. II, S. 2, p. 3101. Report of the Joint Committee, 1976, Gazette of India, Ext., dt