On 12-5-2021, the Bombay High Court issued two separate notifications under Articles 225 and 226(3) of the Constitution of India (hereinafter referred to as “the Constitution”), amending both the Original and Appellate Side Rules of the Bombay High Court. The new amendments expressly state that Section 148-A of the Code of Civil Procedure, 1908 (hereafter referred to as “CPC”) will not apply to writ petitions filed under Article 226 of the Constitution. Section 148-A CPC deals with the right to lodge a caveat in “any suit or proceeding instituted or about to be instituted in a court.” Therefore, as a result of these amendments to the High Court Rules, no caveats can be filed in proceedings that may arise under Article 226. The purpose of this piece is to examine the law on this issue.
II. Section 141 CPC
To understand whether Section 148-A CPC applies to writ petitions under Article 226, it would be necessary to examine Section 141 CPC. Section 141 states that the procedure provided in CPC regarding suits “shall be followed, as far as it can be made applicable in all proceedings in any court of civil jurisdiction”.
The question as to whether Section 141 CPC applies to writ petitions under Article 226 arose before a three-Judge Bench of the Supreme Court in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot (hereinafter referred to as “Babubhai”). The Supreme Court, however, felt that it was “not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution.” The Court observed that the words “as far as it can be made applicable” in Section 141 “make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought.” The Court further observed that since the object of Article 226 is to provide a quick and inexpensive remedy for aggrieved parties, if the procedure of a suit was followed in case of writs under Article 226, the entire purpose of this remedy would be defeated. However, in a given case where the petition under Article 226 raises “complex questions of fact”, the High Court in its discretion may either decline to entertain the petition or may entertain the same in conformity with sound judicial principles. The Court went onto to observe that in case “it is not possible for the court to arrive at a definite conclusion on account of there being affidavits of either side containing allegations and counter-allegations, it would not only be desirable but in the interest of justice the duty also of the court to summon a deponent for cross-examination in order to arrive at the truth.” The Court relied on its previous judgment of the five-Judge Bench in Barium Chemicals Ltd. v. Company Law Board (hereinafter referred to as “Barium Chemicals”) that had taken a similar view.
Though the Supreme Court did not give a definitive answer to whether Section 141 would apply to writ petitions under Article 226, certain High Courts have delivered divergent opinions on the question. While the Andhra Pradesh High Court had held that Section 141 applies to writ petitions under Article 226, the Allahabad, Calcutta, Madras and Punjab and Haryana High Courts had held to the contrary. It is for this reason that CPC was amended by the Union Legislature by the Code of Civil Procedure (Amendment) Act, 1976. Section 47 of the Amendment Act added an Explanation to Section 141 clarifying that the expression “proceedings” includes proceedings under Order 9 CPC but does not include any proceeding under Article 226 of the Constitution.
Pursuant to the amendment to Section 141, the Bombay High Court in Musaji Mohamadali Master and Sons v. Gulamali Dadabhai Amreliwala, interpreted the Explanation to Section 141 and has held that though the explanation will apply to writ petitions filed under Article 226 of the Constitution, it would not apply to a petition filed under Article 227 and therefore CPC would apply to proceedings under Article 227.
III. The views of various High Courts
Having thus analysed the Explanation to Section 141 CPC, it would be apposite to examine the views taken by various High Courts on this question. The Kerala High Court in K.P. Harikrishnan v. C.K. Jacob, after interpreting the relevant rules of the Kerala High Court held that “no caveat petition is maintainable in proceedings under Article 226 of the Constitution of India.” This judgment of the Kerala High Court was followed by the Delhi High Court in Deepak Khosla v. Union of India in which the Delhi High Court went one step further to observe that Section 148-A CPC cannot even apply to petitions filed under Article 227 of the Constitution. However, it is respectfully submitted that while making reference to the judgment of the Kerala High Court, the Delhi High Court has erroneously given the impression that the Kerala High Court has held that Section 148-A CPC will not apply to petitions filed under Article 227. The Kerala High Court had confined its examination only to petitions under Article 226.
The Rajasthan High Court in H.G. Shankar Narayan v. State of Rajasthan interpreted Rule 159 of the Rajasthan High Court Rules, 1959 to hold that caveats can be filed in proceedings arising out of Article 226. Like Section 148-A CPC, Rule 159 of the Rajasthan High Court Rules provides for filing of caveats in civil proceedings. The High Court held that in light of the Explanation to Section 141 CPC, Section 148-A CPC would not apply to petitions under Article 226, but Rule 159 of the High Court Rules would continue to apply.
The Karnataka High Court in Apsara Theatre Bijapur, In re on the other hand has held that since Rule 39 of Part IV of the High Court’s Writ Proceeding Rules, 1977 provides that the provisions of CPC would apply to petitions under Article 226 and Article 227, the provisions contained in Section 148-A CPC and the interpretation thereof would automatically apply to writ petitions as well.
The Orissa High Court in Jogeswar Bhoi v. State of Odisha has held that though the Explanation to Section 141 CPC excludes proceedings under Article 226, the procedure prescribed by CPC would apply to High Courts while exercising jurisdiction under Article 226 “not because of any compulsion to do so but because that procedure accords with the rules of natural justice.” The High Court relies on the judgment of the Supreme Court in Babubhai (referred to above) to come to this conclusion. With respect, the author submits that Babubhai was delivered prior to the amendment of Section 141 and therefore cannot be relied on for the purpose of determining whether Section 148-A CPC applies to writ proceedings under Article 226. Therefore, the view of the High Court would not have been correct but for the fact that Part II, Chapter VI, Rule 5 of the Orissa High Court Rules provides for a caveat to be lodged where “a petition is lodged or expected to be lodged.” This rule has not been referred to by the Court in its judgment. Interestingly, Rule 17 in Chapter XV that is titled, “Applications under Articles 226, 227 and 228 of the Constitution and Rules for the issue of writs under the said articles (except writs in the nature of habeas corpus)” states that questions for determination under this chapter shall be decided on affidavit but the Court has the discretion to decide “such questions as it may consider necessary … on such other evidence as it may deem fit” in which case, “the procedure prescribed in the Code of Civil Procedure, 1908 for the trial of suits shall so far as applicable be followed.” This rule seems to be in consonance with the decisions of the Supreme Court in Babubhai and Barium Chemicals, delivered prior to the amendment of Section 141 CPC.
IV. Concluding comments
From a reading of the aforementioned judgments, one can conclude that though the Explanation to Section 141 CPC excludes the application of its procedure to proceedings under Article 226 of the Constitution, where the rules of a particular High Court provide for filing of caveats for petitions under Article 226, such rules have been held to take precedence over CPC. As has been seen above, some High Courts have retained its rules to file caveats for petitions under Article 226. However, the Bombay High Court through its amendment to the Original and Appellate Side Rules has clarified that Section 148-A CPC will not apply to petitions under Article 226. This discrepancy across different jurisdictions results in a lack of uniformity in practice. Therefore, in an appropriate proceeding, it would be necessary for the Supreme Court to lay down the law on this issue in order to bring about a certain degree of uniformity, consistency and clarity.
<https://bombayhighcourt.nic.in/writereaddata/notifications/PDF/noticebom20210524131828.pdf> (last visited on 21-6-2021 at 11.44 a.m.).
 225. Jurisdiction of existing High Courts.—Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:
Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) * * *
 148-A. Right to lodge a caveat.—(1) Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as “the caveator”) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been, or is expected to be, made, under sub-section (1).
(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.
(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.
 141. Miscellaneous proceedings.—The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.
Explanation.— In this section, the expression “proceedings” includes proceedings under Order 9, but does not include any proceedings under Article 226 of the Constitution.
 Statement of Objects and Reasons (Bill), Gazette of India, Ext, dt. 8-4-1974, Part II., S. 2, p. 310 as referred to in Professionals Code of Civil Procedure, Manual with Short Comments, Professional Book Publishers, 2013 at p. 73. Also see Puran Singh v. State of Punjab, (1996) 2 SCC 205, 211 para 5 for the specific citations of the various High Court decisions.
 S. 47 of the Code of Civil Procedure (Amendment) Act, 1976 (w.e.f. 1-2-1977).
227. Power of superintendence over all courts by the High Court.—(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provision, the High Court may—
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the armed forces.
 <https://hcraj.nic.in/hcraj/Allfiles/RHCRules1952.pdf> (last visited on 22-6-2021 at 6.47 p.m.).
 <https://karnatakajudiciary.kar.nic.in/hcklibrary/PDF/HC_Writ_1977.pdf> (last visited on 22-7-2021 at 7.15 p.m.).
 <https://www.orissahighcourt.nic.in/rules/orissa-highcourt-rules/orissa-highcourt-rules-pdf-view/6/> (last visited on 22-6-2021 at 8.19 p.m.).
 <https://www.orissahighcourt.nic.in/rules/orissa-highcourt-rules/orissa-highcourt-rules-pdf-view/16/> (last visited on 22-6-2021 at 8.29 p.m.).