AI Structured Summary
Not yet generated for this judgment
Judgment
Satyanarayan Rao, J.—This Civil Revision Petition was directed to be, posted before a Bench by Govinda Menon, J., when the matter was pending in the High Court of Madras, as it raised an important question of law regard-ling the construction of Section 80 of the CPC Code.
The suit was instituted by the 1st Respondent in the District Munsif''s Court, Rajahmundry, for a declaration that Defendants 1 and 2, i.e., the State of Madhya Pradesh represented by the Chief Secretary, and the Divisional Forest Officer, South Bas-tar Division (Jagadalpur), were not entitled to levy any alleged forest dues from him and for a permanent injunction restraining the Defendants from levying any money by distraint of properties or other wise The District Collector of East Godavari was impleaded, as the 3rd Defendant.
In the plaint it was alleged that one Ramachandrayya represented to the Plaintiff that he was . the auction-lessee for gathering tumid leaf (used in (manufacturing of beedies) from the Konta and Golapalli of the forest in the South Bastar Division of the Bastar State for Rs. .1,18,000 to be paid ''4''Ttv ten instalments in three years, i.e., 1949, 1950 4 and 1951 that the Plaintiff and Ramachandrayya entered into an. agreement of partnership a the 5th. March 1949, for working the said forest ranges on the understanding that Ramachandrayya should get the leases transferred in the name of die Plaintiff and that the Plaintiff should advance the necessary funds for carrying on the business. Ramachandrayya was unable to secure a transfer of the leases.
The Plaintiff, however, paid a sum of Rs. 38,009 by way of installments of forest revenue on behalf of the said Ramachandrayya and the Forest Department created troubles by reason of the fact that the permits were in favour of Ramachandrayya and so there were considerable difficulties in gathering and transporting leaf, to the market at Rajahmundry. The Plaintiff paid three installments but fearing that Ramachandrayya was not in solvent circumstances, the 2nd Defendant, in. collusion with him, wrote a letter on 15th December 1949, to the Plaintiff stating that he '' was willing to transfer the said lease'' in Ms lavour.
Transfer forms were also sent but the Plaintiff refused to enter into an agreement.:
Notwithstanding the refusal of tike Plaintiff to! enter into a contract with the 2nd Defendant, with'' a view to collect the amount of arrears from the Plaintiff, the 2nd Defendant sent directions requesting the 3rd Defendant, Collector of East Godavari, as the Plaintiff owns properties, movable and immovable, in Mirtipadu in Rajahmundry taluk, to distrain the properties of the Plaintiff for the forest dues. The Collector communicated the said direction to the Tahsildar, Rajahmundry, and he threatened to distrain the properties of the Plaintiff. It is therefore alleged that the action of the 2nd Defendant in moving the 3rd Defendant to attach and distrain the properties of the Plaintiff was highly illegal and that Plaintiff was entitled to pray for a declaration and for a permanent injunction restraining the Defendants from proceeding with the threatened distraint of the Plaintiffs movable and immovable properties.
Objection was taken also to the action of the 3rd Defendant jn threatening by issuing an order of distraint in pursuance of the direction of the 2nd Defendant, and that such an action is illegal and ultra vires and arbitrary. For this reason also he prayed that the 3rd Defendant should be restrained by a permanent injunction from proceeding with the threatened action. Cause of action is said to have arisen on the 1st day of August; 1951, when the Plaintiff came to know, that the 3rd Defendant under the directions of the 1st and 2nd Defendants was threatening to distrain the properties of the Plaintiff at Mirtipadu within the jurisdiction of the District Munsif''s Court of Rajahmundry. Lie therefore claimed the two reliefs as stated above.
The sum and substance of the defence on be half of the Defendants was that Ramachandrayya requested the transfer of the lease in favour of the Plaintiff and that the Plaintiff also put in an application on 17th of March 1949, to transfer the lease in his name which was accepted by the 2nd Defendant. Though the execution of a formal document was delayed there was a concluded contract between; the Plaintiff and, the 2nd Defendant and the Plaintiff; was bound to pay the arrears. Objection was taken in the written statement that as no notice u/s 80 CPC was given to any of the Defendants, the suit was not maintainable;
On the pleadings eight issues were framed and the fifth issue which covers the contention based on Section 80, Code of Civil Procedure, was tried as a preliminary issue, and the learned District Munsif recorded a finding on that issue that the suit was not bad for want of notice u/s 80, CPC Code. The learned Judge felt that he was bound by a later decision of the Madras High Court in Krishnaswami Sastri v. Syed Ahmed 34 Mad LW 993 (A), which interpreted the decision of the Privy Council in AIR 1927 176 (Privy Council) Against this order the Government have filed this revision, and the applicability of Section 80, CPC to the suit as framed was the only point debated before us on behalf of the Petitioner.
Besides supporting the judgment of the lower Court, the 1st Respondent''s learned Counsel also raised the question that Section 80, Code of Civil Procedure, offends Article 14 of the Constitution and must therefore be held to b(c) invalid and ultra vires.
Judicial opinion was not unanimous regarding '' the interpretation of Section 80, Code of Civil Procedure.
Prior to the decision of the Privy Council in ILR 51 Bom 725 : AIR J927 PC 176) (B), the Calcutta and Allahabad High Courts held that the section applied to all suits whether they were suits for injunction of for other reliefs and that the fact that irremediable harm would ensue to the Plaintiff the strict rule u/s 80, CPC , were enforced did not find favour with the learned Judges of those two High Courts.
The Bombay High Court was, however, of a different opinion and held that as a remedy by way of injunction in respect of threatened actions related to future acts and as irreparable harm would be done f to {he Plaintiffs if the two months'' notice is insisted on Section 80 should not be applied to such cases. In Madras the opinion, was fluctuating. The earlier view in Secy, of State v. Kalekhan ILR 37 Mad 113 : AIR . 1914 Mad 502) (C), was that for all suits Section 80 applied, and this was the opinion followed in Superintending Engineer, Bezwada v. Chituri Ramakrishnayya, Mad LJ..1S1 : AIR 1920 Mad 723) (D). In a later decision, Arunachalam Chetty v. David, ILR,50 Mad 239 : AIR 1927 Mad 166) (E), Ramesan and Reilly, JJ., followed the Bombay view.
In 34 Mad LW 993 (A), Curgenven, J., after the decision of the Privy Council in AIR 1927 176 (Privy Council) , applied the decision in ILR 50 Mad 239 : AIR 1927 Mad 166) (E), on the ground that in spite of the decision of the Privy Council future acts in respect of which relief by way of injunction is asked for in a suit did not attract the provisions of Section 80, CPC and the suit without notice was maintainable. It is this decision that was followed by the learned District Munsif as ke felt he was bound by that decision.
The correctness of the Madras view was can used before us by the learned Government Pleader, and" that is the point for decision.
It will be useful to consider the language of the section before adverting to the conflicting views regarding its interpretation. The section so far as it is pertinent to the discussion of the present question is as follows;
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 alter notice in writing, has been delivered to or left at the office of.
Apart from authority, the section clearly applies to all suits, whether they are suits for declaration or suits for injunction, mandatory or prohibitory, and suits for damages. . There is nothing, in the language of the section to support the view that suits for injunction are outside the purview of the section. What was the class of suits to which the restrictions of the section were intended by the Legislature to be applied? The suit instituted against die Government or Public Officer should be ''in respect of any act purporting to be done by such public officer in his official capacity.'' The language does not concern .itself, by restricting the suit to particular reliefs which may be prayed in the suit, but the suit must be in respect of any act purporting to be done by such public officer in his official capacity.
The expression ''act purporting to be done'' was the subject-matter of criticism in some of the decisions. One interpretation is, which is strictly grammatical, that it takes in past acts as well as future acts. The other interpretation based upon an idiomatic interpretation of the language is that it would be restricted to past acts. The expression ''in respect of is of very wide amplitude as the contemplated suit ma be for any relief which flowed from the allegation in the plaint, but the suit must have relation to or must have reference to an act purporting to be done by a public officer in his official capacity. If the allegations -in the plaint relate to acts purporting to, be done by such public officer, whatever the relief may be that was prayed, the section is attracted and the notice is mandatory. In the case of a threatened injury which is sought to be restrained by an injunction, it is difficult to imagine a plaint which does not contain allegations on which the fear of the threat complained of could be justified.
The allegations or the acts complained of must necessarily be acts which! preceded the suit and therefore must necessarily be past acts. The issue of an order or a notification which is sought to be enforced. but in respect of which the relief of injunction is asked for is an act purporting to be done by a public officer in his official capacity and in respect of which the Plaintiff complains in the suit by moulding his relief appropriate to his allegations in the plaint. Construing the section in this view it does not matter in the least whether the expression ''acts purporting to be done'' relate to past acts or future acts. It is also unnecessary to express an opinion whether the grammatical construction is to be preferred to the narrower and restrictive construction based on the idiom of the English language. Most of the conflict in the decisions can be avoided if the section is interpreted in the manner stated above.
The decision of Sundara Ayyar and Sadasiva Ayyar, JJ in ILR 37 Mad 113 : AIR 1914 Mad 502) (C), was under-the Code of 1882, the corresponding section being 424, the language of which is the same as Section 80 of the present Code. It was there, laid down that notice was necessary in all suits against i the Secretary of State whether it was a suit for in junction .or, for damages The .argument considered "''in that case was that the expression ''purporting to be done ''excluded from its ambit suits for injunction. his contention was not accepted. The argument asked ''on hardship in the case of irremediable damage to the Plaintiff if the requirement regarding notice of two months was insisted upon, was negatived by learned Judges.
The matter was examined somewhat critically by Ramesam and Re Uly, JJ., in lLR 50 Mad 239: AIR 1927 Mad 166) (E). The suit there was for a declaration that the suit property belonged to the Plaintiff-arid Defendants 3 and 4 in the action and that the-'' Official Receiver, who advertised the projectile for sale,-should be restrained by a perpetual "injunction from selling the properties as properties belonging to the 2nd Defendant. Ramesam, J., Pointed Out that ''the phrase ''''purporting to be done'' uses the present indefinite form and was grammatically vider than the phrase-''purporting to have been done''.
In this view it would include past as well as matter But the learned Judge thought that as a matter of ordinary idiom " the whole phrase ''an act purporting" to be done'' would ordinarily refer to past acts whether finished or begun but {complete and does not refer to future acts. Unless''''.the1 meaning is made clear by purported language-to''include1 future acts, it was held that phrase ought to be ordinarily limited to past acts, lien-the argument was addressed before the learned Judge that there/was already a past act of the'' Official Receiver as the had advertised the property Hot sale and'' therefore the suit was in respect of that! and that even on the interpretation placed by the t learned Judge on the expression ''act purporting to be done the suit was within the mischief of Section 80 the answer of the learned Judge was that the cause of ''.action for the suit was furnished, no doubt, by the advertisement or some other past act of the Official Receiver but it did not follow from that that the suit ''was in respect of that act. He then emphasised the ''relief in the suit which was for an injunction and treated it as a suit to restrain the intended sale.
The learned Judge with great respect is over-stressing the importance of the relief in the suit by of unstrung the expression ''in respect of as identical with We relief sought for in the suit. If the cause of .''action Was the advertisement for sale, which is a past fact, the suit, whatever the relief might be that was asked ;in it, based on that cause of action is undoubtedly a suit in respect of an act purporting to be done by an officer in his official capacity. The question IF relief does riot at all come into the picture on the language of the section. The learned Judge ultimately held that the section applied only in the case if past acts completed or begun but not to incomplete and threatened acts. In other words, reading the judgment as a whole, the learned Judge seems to pimply that if the relief is asked for in respect of a threatened injury based upon past acts relied on as constituting the cause of action in the plaint, such a -suit would be outside the ambit of Section 80, CPC Code;
The learned Judge does not refer to ILR 37 Mad 113: AIR 1914 Mad 502) (C), but he adverts to the ''''decision of Mr. Justice Sadasiva Aiyar and Mr. Justice Spencer in 39 Mad LJ 151 : AIR 1920 Mad 723) (D),in which it was held that Section 80 applied even to suit for injunction. The suit in that case was against the Superintending Engineer restraining him from enforcing an order directing the removal of an image. Sadasiva Aiyar, J., dealt with the argument based on hardship and pointed out that the proper course was to appeal to the Legislature to enact an exception providing for such contingencies and the section as it stood made no exception.1 The acts on which a threat to future injuries was based might be a speech, a writing, a notice, a message and so on The learned Judge held that the cause of action for the suit arose when the Superintending Engineer threatened to? remove the'' image and pandal, which was not merely a mental act of the Superintending Engineer but was a physical act, as there was a Written order Sigrid by him and communicated to the Plaintiffs. Spencer, J., disposed of the case on other grounds as well and the learned Judge also referred to ILR 37 Mad 113 AIR 1914 Mad 502) (C), and agreed with Sedalia Aiyar, J., in construing the word ''act'' as including words spoken or written which may cause the Plaintiff to apprehend some, injury in the future.
AIR 1927 176 (Privy Council) is the decision of the Judicial Committee on which strong reliance was; placed by the learned Government Pleader as settling the, law on the question was also a suit for a declaration that certain final notices and orders were ultra vires and invalid and for an injunction'' permanently restraining all executive actions thereunder so that they were past acts pn which the threatened injury\\ was sought to be justified and in respect of which die relief for injunction was asked. Actually a notification was published by the Government in the Bombay Government Gazette. It was the1 validity of that notification that was attacked in the suit.
Though notice u/s 80 was given by the Plaintiffs, the suit Was filed before the lapse of a period of two months on the ground that it was a suit for injunction which did not require notice. This of course was based on the Bombay view then obtaining. The policy underlying Section 80, CPC Code, was the protection intended to be afforded to all officers of the Government. The provisions are strict and are mandatory. The Judicial Committee adverted to the conflicting views in the High Courts and the decisions of the English Courts under the Public Authorities'' Protection Act were also considered. At p. 746 (of, ILR Bom): (at p. 184 of AIR), their Lordships observed:
A view therefore about a. Bill for an injunction ''against serious and irreparable: damage requiring the intervention of the. Courtly most undisputed in the Court of appeal would not be any guide to the meaning of the CPC Code, where the clause applies to all offices of Government and to all their official acts, and where the words ''in respect of'' a term going beyond ''for anything done or intended to be done'' show it to be wider than the statutes on which the English authorities were decided.
Again at p. 747 (of lLR Bom): (at p. 185 of AIR), Stated:
A suit in which inter alia an injunction is prayed is still ''a suit'' within the words of the section and to read any qualification into it is an encroachment on the function of legislation." Adverting to the argument based on hardship, their Lordships pointed out that ''Section 80 imposes a statutory .and unqualified obligation upon the Court'' and does not recognise any exceptions. At the bottom of p. 747 ( of ILR 51 Bom) the contention that the act purporting to be done by the Collector in his official capacity in respect of which the suit was begun, was his threatened enforcement of payment was rejected as fallacious, since the illegality, if any, was in the order for recovery of the tax and not in the threatened act. If the order was valid, there was nothing to bee strained. ''Hence observed their Lordships, "though the act to be restrained is something .apprehended in the future, the act alone ''in respect of which'' the suit lies, if at all, is the order already completed and issued.
The foundation for the action is the past act, namely, the illegal notification and in respect of that the suit lies. Though the act to be restrained is something in the future, the illegality complained of is in respect of the act already done. This, in our opinion, supports the construction which we are inclined to place upon the section. Read in this light, there is no scope for any doubt that suits for injunction are within the purview of Section . 80, Code of CPC (14) Curgenven, J., dealt with this case in 34 Mad LW 993 (A) and he thought that notwithstanding the Privy Council case, AIR 1927 176 (Privy Council) the decision in ILR 50 Mad 239 : AIR 1927 Mad 166) (E; was still good law. But at p. 994 the learned Judge observed that all that was decided by their Lordships of the Judicial Committee was that 5. 80 will apply to any kind of suit, whatever the relief sought, including a suit for an injunction.
He however concedes that it may very well be that a suit for an injunction may be based upon past acts, and not merely upon an apprehension of future action, and that in fact, was the case there, because the relief asked for was in the first place a declaration that certain official notices and orders were ultra vires and invalid, and secondly, for an injunction permanently restraining all executive actions thereunder. He further stated that their Lordships expressly say that unless the right to the first relief was made out, the prayer for the second necessarily failed, and it is apparent that the first relief could not have been claimed against the Defendants unless they had notice u/s 80.
It is difficult to imagine a plaint which does not lay a foundation for a suit in respect of feared or threatened acts by reference to something in the past which justified the fear of the future. If such a suit without such allegations is ever filed, it of course will naturally be dismissed on the merits. The fear of threat must always be founded upon some past act or acts and if that is done the suit would undoubtedly be within Section 80 of the CPC Code.
An exhaustive review of the cases on the point is to be founded in the latest case of the Lahore High Court in Shingara Singh v. C. H. D. O., Callaghan, AIR 1946 Lah 247 (F), a decision of Abdul Rahman, Mahajan and Marten, JT. Abdur Rahman, J., who delivered the judgment of the Court, subjected the decision of the Madras High Court in ILR 50 Mad 239 : AIR 1927 Mad 166) (E), to severe criticism as well as the decision of Curgenven, J., in 34 Mad LW 993 (A).
The learned Judges held that a suit for injunction is also within the purview of Section 80,Code of Civil Procedure We respectfully agree with the decision of the learned Judges.. In the present case there is a prayer for declaration which it is not disputed requires notice, and the prayer for injunction also according to our view is governed by the principles laid down by the Privy Council in AIR 1927 176 (Privy Council) , and requires notice u/s 80, Code of CPC As this notice was not admittedly given by the Plaintiff, the suit must fail.
The argument of the 1st Respondent''s counsel based on Article 14 of the Constitution need not detain us longer. What is contended for is that an invidious distinction was introduced in the Code between ordinary litigants and officers of the Government for which there is no justification. That it is permissible notwithstanding Article 14 to enact a piece of legislation based on reasonable classification to achieve a particular object has now been well established by decision. We do not propose to cover the same ground once again as the matter was exhaustively dealt with by the learned Chief Justice and my learned brother Bhimasankaram, J., in Writ Appeal No. 1 of 1955.
In view of the above principles, in our opinion Section 80 was based upon a reasonable classification for the protection of the interests of the Government and its officers to enable them to have sufficient time to take legal advice and to adjust the matter if possible without the necessity of a suit. As pointed out by the Judicial Committee in ILR 51 Bom 725 : AIR 1927 PC 174) (B), the section was intended for the protection of the officers, of the Government and that is the object. The distinction is between officials and ordinary private citizens, which in our view is a reasonable classification and the section has relation to the end in view as it requires that the Government! should have a period of two months before the suit is filed. It does not absolutely prohibit the suit but only postpones the action for a period of two months. It is difficult, therefore, to hold that the section violates the protection afforded by Art 14 of the Constitution.
The result is the revision petition must be allowed and the order of the learned District Munsifi must be set aside and the suit dismissed with costs. In the Code of Criminal Procedure the Petitioner is entitled to his costs which we fix at Rs. 150.