K.K. Sharma vs Punjab State and Others

This revision petition is directed against the order dt. 5-5-1986 passed by the learned Additional Senior Sub-Judge, Bathinda, whereby the suit filed by the plaintiff-petitioner has been held to be not maintainable. The plaint has been returned to him for presentation after complying with the provisions of Section 80(1), Civil P.C. (hereinafter referred to as ''the Code'').

The facts in brief are that the petitioner filed a suit for declaration that the order dt. 14-10-1984 passed by defendant No. 2 and conveyed to him imposing penalty of Rs. 17,592/- is illegal and for grant of permanent injunction restraining the defendants from recovering the said amount from his salary. In para 10 of the plaint, he made an averment that in view of the urgency of the matter and the threat of the defendants to recover the amount by force and coercive methods the service of notice u/s 80 of the Code may be dispensed with. It was also added that a separate application for the purpose was being moved. The petitioner also moved an application for dispensing with the service of notice u/s 80 of the Code. He made another application for grant of temporary injunction restraining the defendants from recovering the amount in question from his salary. On this application, the learned trial Court granted a temporary injunction in his favour.

Notice of the suit was issued to the respondents who in the written statement raised a preliminary objection to the effect that the suit was not maintainable because of non service of notice u/s 80 of the Code prior to the institution of the same. The learned trial Court framed a number of issues arising out of the pleadings of the parties. Issue No. 4 to the effect ''whether the suit is liable to be dismissed for want of notice u/s 80, C.P.C.'' was treated as a preliminary issue. Through the order under revision, this issue was decided in favour of the defendant-respondents and the plaint was returned to the petitioner.

Section 80 of the Code as amended by the CPC Amendment Act, 1976, inter alia, lays down that save as otherwise provided in Sub-section (2) thereof no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered to or left at the office of the Government or its secretary. Sub-section (2) provides that a suit to obtain an urgent or immediate relief against the Government or any public officer may be instituted with the leave of the Court without serving any notice as required by Sub-section (1) but the Court shall not grant relief in the suit whether interim or otherwise except after giving to the Government or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. It is, however, provided that the Court shall, if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirement of Sub-section (1).

The learned counsel for the petitioner submits that no order allowing or disallowing the application made by the petitioner for filing the suit without serving notice on the respondents under Sub-section (1) ibid was passed by the learned trial Court. However, the urgency of the matter was appreciated by it and an interim order granting injunction as prayed for restraining the respondents from recovering the amount in dispute was passed by it. He further submits that there is no finding recorded in the impugned order by the learned trial Court that the matter was not urgent or immediate relief need not be granted. Therefore, the plaint could not be returned for presentation after complying with the requirements of Sub-section (1).

I have considered the submission made by the learned counsel and I find force in the same. It was incumbent on the learned trial Court to have passed a specific order on the application filed by the petitioner along with the suit for granting leave to institute the suit without serving notice as required under Sub-section (1) ibid. This could be done by taking into account the nature of the case and also on reaching at a conclusion whether or not immediate relief is required to be afforded to him. At the same time, it is to be noted that an ad interim injunction was granted by the trial Court in favour of the petitioner. This shows that the learned trial Court did appreciate urgency of the matter. There is no doubt that the trial Court was at liberty to return the plaint to the petitioner under the proviso to Sub-section (2) ibid but that could be done only in case it was satisfied that no urgent or immediate relief need be granted in the suit. The trial Court has not applied its mind to this aspect at all and no such satisfaction has been recorded in the order under revision. The impugned order, therefore, cannot be sustained as it suffers from material irregularity in the exercise of its jurisdiction by the trial Court.

Consequently, I allow this revision petition with costs, set aside the order dt. 5-5-1986 passed by the learned Additional Senior Sub Judge, Bathinda, and direct him to proceed with the suit in accordance with law and decide issue No. 4 in keeping with the provisions of Section 80(2) of the Code.

The parties through their counsel are directed to appear before the learned trial Court on 3-8-1987.