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1954 DIGILAW 54 (MP)

Babulal v. State

1954-10-15

DIXIT

body1954
JUDGEMENT : These eight appeals raise a common question for determination, namely, the maintainability of the appellant's suits for want of notice under S.80, Civil P.C. Each of the appellants sued in the Court of Civil Judge first Class, Gwalior, to restrain the Government from auctioning certain lands, claiming that he was entitled to continue in possession of the land as a 'Pacca' tenant and that the Government had no right to auction his land and allot it to any one else. The suits were resisted by the Government 'inter alia' on the ground that no notice as required under S.80, Civil P.C., was given to the Government by any of the plaintiffs. This objection was overruled by the trial Judge who ultimately decreed the plaintiffs' claims against the Government. The Government then filed separate appeals before the Additional District Judge, Gwalior. The learned Additional District Judge heard all these appeals together and by a common judgment reversed the decree passed by the lower Court holding that the suits were not maintainable for want of notice under S.80, Civil P.C. 2. In these second appeals Mr. Parashar, learned counsel for the appellants urged that it was not necessary for any of the plaintiffs to give notice to the Government under S.80, Civil P.C. because the plaintiff's suits for injunction were not based on past acts but were with regard to a contemplated or threatened action of the Government. Mr. Parashar relied on two decisions of the Madras High Court - 'Arunachalam Chetty v. Official Receiver, Ramnad', AIR 1927 Mad 166(A), and 'Krishna Swami v. Syed Ahmad', 136 Ind Cas 777 Mad (B). I am unable to accede to this contention. It is no doubt true that in the cases cited by the learned counsel it has been held that no notice is necessary in a suit for injunction not based upon any past act of the public officer. But so far as this Court is concerned it has been expressly ruled by a Division Bench in -'Shobharam v. State of Madhya Bharat', 1949 Madh B.L. R.69 (C), that S.80 applies to any kind of suit, whatever the relief sought including a suit for injunction and that it applies to suits which relate to mandatory injunctions in respect of acts which have already been performed as well as suits in which prohibitory injunctions in respect of threatened acts are asked for. In coming to this conclusion the Division Bench relied on the observation of the Privy Council in -'Bhagchand v. Secy. of State', AIR 1927 P.C. 176 (D), that S.80 is express, explicit and mandatory and it admits no implications or exceptions. The Division Bench also adopted the reasoning of the Lahore High Court in -'Shingara Singh v. Brigadier Callaghan', AIR 1946 Lah 247 (SB) (E), that if the Legislature had intended to restrict S.80 to suits of injuction based on past acts only, then it would have used the expression "an act done or purporting to have been done" in S.80; that in using the expression "purporting to be done", the object of the Legislature was to protect a public officer both in regard to an act to be done by him in his official capacity and in regard to an act purporting to be done by him in that capacity and that if the word "purporting" is dropped it could not be legitimately contended that the words "to be done" were used in S.80 for the word "done". I am bound by the decision of the Division Bench in Shobharam's case (C), and following that decision each of these appeals must be and is dismissed with costs. Appeals dismissed.