Zile Singh and Others vs Tara Chand and Others

Rakesh Kumar Jain, J.—This revision petition is. against the order dated 10.11.2009 passed by Civil Judge (Senior Division), Karnal, vide which application for interim injunction has been dismissed and further for non-compliance of Section 80(2) of the Code of Civil Procedure, 1908 (for short "CPC") the plaint has been ordered to be returned to the plaintiffs.

Learned Counsel for the petitioners, inter alia, argued that along with the suit, an application u/s 80(2) CPC was also filed for seeking exemption from serving advance notice u/s 80(1) CPC upon defendants No. 7 to 10. The said application was allowed by the learned trial Court and the plaintiffs were permitted to pursue the suit without serving advance notice upon defendants No. 7 to 10, who are the official respondents. Learned Counsel has further argued that once the permission has been granted to sue without serving advance notice to the official respondents as envisaged in Section 80(1) C.P.C. the said order cannot be re-opened by the learned trial Court later on.

On the contrary, learned Counsel for the respondents has argued that in-terms of proviso to Section 80(2) of CPC, if the Court finds that no urgent or immediate relief is needed, then the plaint can be returned for compliance of Section 80(1) CPC.

I have heard both the learned Counsel for the parties and have perused the record.

Before adverting to the merits of the case, Section 80 CPC needs to be noticed which reads as under:

Notice - (1) [Save as otherwise provided in Sub-section (2), no suit shall be instituted) (against the government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act not 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:

(a) in the case of a suit against the Central Government;

(b) in the case of a suit against the Central Government where it relates to'' a railway, the General Manager of that railway);

***

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf;

(c) in the case of a suit against [any other State Government], a Secretary to that Government or the Collector of the district; [***]

47 [***]

And, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect any act purporting to be done by such public officer in his official capacity, 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 Public Officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit;

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 requirements of Sub-section (1).

(3) No suit 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 shall be dismissed merely by reason of any error or defect in the notice referred to in Sub-section (1), if in such notice.

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in Sub-section (1) and

(b) the cause of action and relief claimed by the plaintiff had been substantially indicated]

No doubt as per Section 80(1) CPC no suit can be instituted against the Government or against a public officer in respect of any act purported to have been 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 his office. But the said notice has been exempted u/s 80(2) C.P.C. which provides that in a suit to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purported to have been done by such public officer in his official capacity, it may be instituted, with the leave of the Court as required u/s 80(2) C.P.C. But if the Court is not satisfied after hearing the parties that no urgent or immediate relief needs to be granted in the suit, it can return the plaint to the applicant-plaintiff for its presentation to it after complying with the requirement of Section 80(1) C.P.C. Thus, question involved in this case is as to "whether once permission u/s 80(2) C.P.C. has granted, the plaint can be returned for compliance of Section 80(1) CPC later on?

Learned Counsel for the petitioners has also relied upon a decision of this Court in the case of Constable/Driver Ramesh Chand v. Union of India and Anr. 1990 P.L.J. 269, in which it was held that once court has exercised its discretion of exempting notice u/s 80(1), the matter can not be re-opened. The parties aggrieved against the order could assail it before a competent authority by way of revision or appeal.

In my considered view, the submission made by learned Counsel for the respondents is totally misplaced because as per record of this case, an application was filed by the petitioners to seek leave of the Court for exemption of advance notice to the defendants, which was allowed, therefore, the court cannot reopen the case to order for compliance of Section 80(1) C.P.C.

Thus, the impugned order dated 10.11.2009 passed by Civil Judge (Senior Division) Karnal is illegal and as such, the order whereby the plaint is ordered to be returned for compliance of Section 80(1) is hereby set aside. The revision petition is allowed only to that extent.