Issue: What is a caveatable interest within the meaning of the DV Act 2005 vis-à-vis the Rules framed by the (your) State High Court is the question involved in this short reference.
Here I am attempting only above question reason being the moment you tell us that a ld. Sessions Judge under CrPC proceedings in reference to DV Act Appeal matter adjudication r/w Caveat already in material records uses word and phrases “discretionary power” and sets aside right of a Caveator and proceeds to give Stay then automatic challenge question is summarized in above framed issue which I feel is just and proper . [However, if some ld. reader(s) have different view to that of mine then more than welcome onboard solving this small reference query of the author abovein]
Since the extent of right of a person for lodging a caveat had not been laid down under a statute, the decisions rendered from time immemorial holding that only a bare right (which would also mean a bare contention, i.e., which would give rise to an arguable point at the hearing constitutes a caveatable interest) should be held to be still a good law.
A person to whom a citation is to be issued or a caveator, must have some interest in the Appeal of the Appellant. Any person claiming any interest adverse to the Appellant or her Appeal cannot maintain any application before the Sessions Court in reference to context. His remedy would be elsewhere. But this is not the case in hand. The question with regard to the degree of interest or the right which a caveator must show to establish his or her caveatable interest before the Sessions Court in reference to context should be considered having regard to the aforementioned legal propositions i.e. referred to as "CAVEATABLE INTEREST".
"Caveat" has been defined in Random House Webster's Dictionary of the Law as under :-
"caveat, n. 1, a warning or caution; admonition.
In legal contexts, a formal notice of interest in a matter or Appeal; for example, a notice to a Court or public officer to suspend a certain proceeding until the notifier is given a hearing; a caveat filed against the Appeal in Sessions Court is in reference to context herein as per us.
Whereas the ld. Sessions Judge for Appellant want you to take a liberal approach as contrasted to real interest citing “discretionary powers”, submission as in above is that all caveators must have a real interest in the subject matter of the Appeal in question and you have rightly agitated before Sessions Judge but seems without assistance from a seasoned Advocate in your side that is why you heard some blunt overt reaction of the ld. Judge in a open Court!.
A statute must be interpreted having regard to the purport and object of the Act. The doctrine of purposive construction must be resorted to in a case of this nature when The Act, 2005 needs to be interpreted which is anyhow clumsily drafted. Be it as it may be the ld. Court must place itself in the chair of a reasonable legislator.
The propositions of law which in our considered view may be applied in a case of this nature are:
(i) To sustain a caveat, a caveatable interest must have been shown by you in writing and not orally as reported here as a matter of casual remark;
(ii) The test required to be applied is: does the claim of grant of Stay prejudice your rights because it defeats some other Order whereof the caveator asserted got a relief.
(iii) It is a fundamental nature of a Appellate Court proceeding that whatever would be the interest of the Appellant, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of Appeal in respect of the Order of trial Court or capacity of the Appellant to seek stay on ground outside the law of Appeal would be a stranger to the Appellate proceeding inasmuch as none of such rights can effectively be adjudicated therein till a caveator is given opportunity to be heard.
It is in that backdrop the question which is required to be posed is: Did the Sessions Court opine that even a respondent (husband - natural father herein) having no legitimate concern in the outcome of the Appellate proceedings would be entitled to lodge a caveat and oppose the Appeal? The answer thereto, in our opinion, must be rendered in the negative. If anybody in reference to context of queriest is found to be entitled to enter a caveat and oppose, grant of a Stay, then S. 29 of the Act 2005 would have been differently worded. Such an interpretation by ld. Sessions Judge without hearign caveator and posting for Stay would lead to an anomalous situation. It is, therefore, not possible for me to accede to the submission of the ld. Sessions Judge that caveatable interest should be construed very widely (as his discretionary powers) and thus you should now go to HC under say its Writ Jurisdiction or say under evocable remedies when the issue is child visitation which was granted by trial Court and visitation date is approaching fast.
Now what your side have to get hands on is Appellate Side Rules of your State's HC first of all. Study well the Appellate side Rules and then Application of above Rule will cometh for a simple fact I donot know which State this query originated from as it is not mentioned and I cannot keep on guessing missing crucial facts in every query that we touch with our opinions hereof! Even be it so don't self experiment before Appellate sides and always consult in Chamber with a seasoned Lawyer not free legal portal sides for all your remedies by simply inking in generic language few lines of queries and expect masterstroke remedies on the go that also for free !
