The Deputy Commissioner and Another vs Smti. Ravanamma

Kalidas Mukherjee, J.—This is an application under Article 227 of the Constitution of India assailing the impugned order No. 09 dated 2.6.2010 passed in Other Suit No. 17 of 2009 by the learned Civil Judge, Junior Division �II, Port Blair whereby and whereunder the learned Judge allowed the plaintiff to comply with the provision of notice u/s 80 CPC. The learned Judge further directed that till then the suit will remain stayed.

The respondent herein instituted a civil suit for declaration against the petitioners herein before the learned Court of Civil Judge, Junior Division-II, Port Blair bearing Other Suit No. 17 of 2009. The petitioners entered appearance and prayed for time for filing written statement. The respondent filed a petition before the learned Court stating that the respondent did not serve the notice u/s 80 CPC and prayed for an opportunity to comply with Section 80 CPC. The learned Court after hearing passed the impugned order.

Being aggrieved by that order passed by the learned Court below, the defendants have preferred the instant application under Article 227 of the Constitution of India.

The learned Judge while passing the impugned order observed that if the plaintiff was given liberty to comply with the provision of notice u/s 80 CPC and till then if the suit be stayed, the defendant would not be prejudiced.

The learned Counsel appearing for the petitioners submits that service of notice under the provision of Section 80(1) CPC is mandatory and the plaintiff ought to have complied with the said provision. It is contended that for want of service of notice u/s 80(1) CPC, the suit is not maintainable.

The learned Counsel appearing for the respondent submits that the husband''s name of the respondent was wrongly entered in the licence and after the death of the husband, the respondent herein wanted to pay the premium. It is further contended that due to the inaction on the part of the Administration, the respondent herein filed a writ petition bearing No. WP 255 of 2009 and upon hearing both sides, the writ petition was disposed of directing the respondent to dispose of the prayer of the petitioner after giving opportunity of being heard and to pass a reasoned order. It is submitted that the Deputy Commissioner, South Andaman thereafter passed a reasoned order wherein it was further observed that a mere affidavit executed by the petitioner at that stage stating that her husband''s name had been wrongly entered as Venkat Rathnam in the licence, could not be sufficient proof for adjudicating the matter and that the applicant might have to get a declaration from the competent forum that Venkat Rathnam and Venkat Ramanna were one and the same person and then only this case could move ahead. It is submitted that in view of such observation made by the Deputy Commissioner, South Andaman, the respondent herein was compelled to institute a civil suit for declaration.

The learned Counsel appearing for the respondent herein further contends that since the Administration is already aware of the previous direction of the Hon''ble Writ Court passed in the writ petition, the compliance with the provision of Section 80(1) CPC has become a mere formality, but, not mandatory. The learned Counsel for the respondent herein has referred to and cited the decision reported in Shri Kailash Chandra Jain Vs. State of Madhya Pradesh and Another, in support of his contention that the compliance of Section 80(1) CPC in the circumstances of the case was a mere formality, but, not mandatory.

u/s 80 CPC, no suit shall be instituted against the government or against the public officer in respect of any act purported to be done by such public officer in his official capacity, until the expiry of two months next after notice in writing has been delivered to, or left at the office of the concerned authority.

It is, therefore, clear from the Section itself that service of notice u/s 80(1) CPC is the condition precedent to the institution of a suit. The provision of Section 80(1) CPC is mandatory and the terms of the Section are express and explicit and admit of no implication or exception. It is a statutory obligation for the plaintiff to comply with the required notice u/s 80(1) CPC which is sine qua non to the institution of a suit.

The facts in the case of Shri Kailash Chandra Jain v. State of Madhya Pradesh and Anr. (supra) are quite different from those of the instant one, in as much as, in the said case, the suit was instituted with an application u/s 80(2) CPC which the learned Trial Court allowed and the learned Additional District Judge directed that the plaint be returned under the provision of proviso to Section 80(2) CPC for instituting the suit again after complying with the provision of Section 80(1) CPC. I have already held that the facts of the instant case are different. Therefore, aforesaid decision on the different fact situation is not applicable here.

In the instant case, the plaintiff did not apply for leave of the Court u/s 80(2) CPC for institution of the suit without service of notice u/s 80(1) CPC. It is also not the case that the plaintiff after the institution of the suit, without complying with the provision of Section 80(1) CPC took recourse to the provision of Order 23 Rule 1 CPC for withdrawal of the suit with liberty to suit afresh on the same cause of action on the ground of formal defect. The plaintiff chose to file a petition as it appears from para 4 of the instant application, praying for permission of the learned Court to comply with the provision of Section 80 CPC for service of notice. Evidently, therefore, the said petition was filed after the institution of the suit. Here the provision of Section 80(1) CPC comes into play. Admittedly, the suit was instituted without serving notice u/s 80(1) CPC. I have already held that the provision of Section 80(1) CPC is mandatory, unless the plaintiff obtains the leave of the Court u/s 80(2) CPC. If this leave is obtained u/s 80(2) CPC, the question of service of notice u/s 80(1) CPC would not arise. But the plaintiff did not take recourse to the provision of Section 80(2) CPC. After the suit is instituted there is no scope for complying with the provision of Section 80(1) CPC, in as much as, service of notice u/s Sub-section (1) is a condition precedent to the institution of the suit. The contention of the learned Counsel for the respondent that the service of notice u/s 80(1) CPC is a mere formality on the ground that the petitioners are already aware of the matter because of the direction passed in the earlier writ petition, is, therefore, not acceptable.

The learned Judge of the Court below committed illegality and the order impugned is not sustainable in law.

The order impugned is set aside. The application is allowed. There will be no order as to costs.

Urgent Photostat certified copy, if applied for, be made over to the parties as early as possible.