IRAPPA BASAPPA KUDACHI v. STATE OF KARNATAKA — 1995 DIGILAW 325 (KAR)

H. N. TILHARI, J. ( 1 ) THIS is plaintiffs second appeal from the judgment and decree dated 28-11-1984 in r. a. No. 32 of 1983 delivered by the additional civil judge, chikodi, whereby the learned civil judge reversed and set aside the judgment and decree dated 21-7-1983 passed by the learned principal munsiff, hukeri, decreeing the plaintiffs appellant claim in the original suit No. 54 of 1981, and thereby allowing the defendants appeal and dismissing the plaintiffs claim in toto. ( 2 ) THE facts of the case in brief are:that the plaintiff-appellant filed a suit for permanent injunction restraining the defendants-respondents from obstructing the plaintiffs-appellant in his peaceful use and enjoyment of the suit land viz. , revenue survey nos. 116/2 and 93/1 of hattargi village. The plaintiffs case has been that the plaintiff has been and is in actual possession and enjoyment of the suit property but the defendants were trying to encroach the plaintiffs land, referred to above, by removing the bunds with the help of bulldozers. The plaintiff further alleged that the defendants did not have title to the land nor any right or interest therein nor defendants had acquired the suit lands. According to the plaintiff, mango trees have been in existence near and just touching the bunds and defendants were attempting to destroy the mango trees. So, the plaintiff having apprehended that his possession is likely to be interfered, filed the suit for decree for permanent injunction restraining the defendants from committing any encroachment on the plaintiffs suit land. ( 3 ) ON behalf of the defendant-respondents, written statement was filed by the tahsildar, hukeri, which has been adopted by the other defendants. According to the defendants case on the southern side of the suit land, there is gairana land bearing survey No. 251-a/1, which land has been used, as admitted by both the parties before the courts below for grazing of the catties and it has been reserved by the Karnataka government for the rehabilitation of the persons of those areas. The defendants further alleged that the plaintiff was trying to encroach upon the gairana land viz. , an area of 1 acre of gairana land and this was detected by the special tahsildar on 27-2-1981. The defendants further alleged that the plaintiff was trying to encroach upon the gairana land viz. , an area of 1 acre of gairana land and this was detected by the special tahsildar on 27-2-1981. So, according to the defendants, a notice was issued to the plaintiff on 5-3-1981 calling upon him to remove the encroachment, but the plaintiff did not pay any heed. The defendants/respondents further asserted that the suit was not maintainable as no notice had been given under Section 80 of the code of civil procedure and further on account of the fact that no cause of action had accrued in favour of the plaintiff against the defendants. The defendants/respondents claimed compensatory costs also. ( 4 ) THE trial court framed, as many as seven issues which read as under: (1) whether plaintiff proves his lawful possession over the suit property? (2) whether he further proves that defendants are obstructing the plaintiff as alleged? (3) whether defendants prove that plaintiff has encroached upon the gairana land as alleged? (4) whether suit is not maintainable as notices under Section 80 of C. P. C. was not issued by the plaintiff to the defendants? (5) whether the defendants are entitled to any compensatory costs? (6) whether the plaintiff is entitled to permanent injunction sought? (7) what Order or decree? On consideration of the evidence on record, the trial court recorded the following findings: (a) that the plaintiff has proved that he has been in lawful possession of the suit land. (b) that the defendants have failed to prove that the plaintiff has encroached upon the gairana land. (c) that it has been established by the plaintiff that when the defendants, without giving any opportunity to the plaintiff about the alleged encroachment upon the gairana land, started removing the bund of the plaintiff, they created obstructions and unlawful interference with the plaintiff/appellant's peaceful possession and enjoyment of the property in dispute. (c) that it has been established by the plaintiff that when the defendants, without giving any opportunity to the plaintiff about the alleged encroachment upon the gairana land, started removing the bund of the plaintiff, they created obstructions and unlawful interference with the plaintiff/appellant's peaceful possession and enjoyment of the property in dispute. ( 5 ) THE trial court further held that the plaintiff had been permitted to file the suit by dispensing with the notice under Section 80 of the Code of Civil Procedure as the relief sought was of very urgent in its nature and that the Order permitting the plaintiff to file the suit on the date of filing of the suit, was being made absolute on account of urgency and that the suit was not bad for notice under Section 80 of C. P. C. the defendants/respondents are not entitled to any compensatory costs and that the plaintiff is entitled to the decree for permanent injunction. Having recorded the above findings, the principal munsiff, hukeri, decreed the plaintiffs claim for permanent injunction and restrained the defendants (respondents) by permanent injunction from obstructing or interfering with the plaintiffs lawful possession and peaceful enjoyment of the land in dispute either by destroying the bund or by encroachment into the suit land. ( 6 ) HAVING felt aggrieved from the judgment and decree of the trial court dated 21-7-1983 the three defendants viz. , state of karnataka, tahsildar and revenue inspector concerned filed the r. a. No. 32 of 1983. The learned lower appellate court after having heard the counsel for the parties held that plaintiff/appellant did establish his lawful possession over the suit property. It further held that the plaintiff succeeded in establishing that the defendants have been causing obstruction in plaintiffs occupation and user of the land in suit. The lower appellate court further held that the present defendants/respondents failed to establish that the plaintiff was/has been is encroaching upon the gairana land as alleged in the written statement. It further held that defendants were not entitled to get any compensatory costs. It also recorded the finding that the plaintiff has been entitled to the decree for permanent injunction, but he cannot get that decree. The decree for permanent injunction could not be granted in his favour, as the notice required under Section 80 of the code of civil procedure had not been given by the plaintiff. It also recorded the finding that the plaintiff has been entitled to the decree for permanent injunction, but he cannot get that decree. The decree for permanent injunction could not be granted in his favour, as the notice required under Section 80 of the code of civil procedure had not been given by the plaintiff. He held that no leave appears to have been granted by the trial court to the plaintiff to file the suit without serving notice under Section 80 (2) of the Code of Civil Procedure on the ground that the matter is of an urgent nature and immediate relief sought for was needed. On account of the finding recorded by the lower appellate court to the effect that as no notice under Section 80 of the Code of Civil Procedure had been given and no Order granting leave under Section 80 (2) of C. P. C. , had been passed by the learned munsiff, the suit of the plaintiff for permanent injunction was not maintainable and as such it allowed the defendants' appeal and set aside the judgment and decree passed by the trial court, and dismissed the suit of the plaintiff-appellant. Having felt aggrieved from the judgment and decree of the appellate court, the plaintiff-appellant has come up before this court under Section 100 of C. P. C. ( 7 ) I have heard Smt. H. r. vasudha, counsel for the appellant/plaintiff and Smt. K. r. meenakumari, learned government pleader representing for the state. Smt. H. r. vasudha, learned counsel for the appellant contended before me that the lower appellate court, committed an error of law of substantial nature in allowing the defendants appeal as well as in setting aside or reversing the trial court decree whereby the trial court had decreed the plaintiff/appellant's suit for decree for permanent injunction. Elaborating her contention, the learned counsel for the appellant Smt. H. r. vasudha, submitted that firstly the plaintiff/appellant has done what was within plaintiffs power. That the matter was urgent and immediate relief was required. The plaintiff filed the suit along with an application for leave being granted for instituting the suit without serving any notice under Section 80 of C. P. C. , on the defendants/respondents. That the matter was urgent and immediate relief was required. The plaintiff filed the suit along with an application for leave being granted for instituting the suit without serving any notice under Section 80 of C. P. C. , on the defendants/respondents. That along with the plaint and the application for leave, the plaintiff-appellant, the learned counsel had submitted, did move an application for temporary injunction on the very first day. She invited my attention to the record of the case and submitted that the Order sheet will also indicate that when the suit was filed, the applications were before the trial court and the trial court i. e. , the learned munsiff entertained the suit and he was permitted to file the suit as it was a case of urgent necessity and granted the interim relief of injunction as prayed for. According to the learned counsel for the plaintiff/appellant when the application i. a. No. I had been filed along with the affidavit for leave to file the suit under Section 80 (2) of the Code of Civil Procedure and this was placed before the court as per the Order sheet and the court thereafter disposed of the application and granted the temporary injunction and directed the issue of notice to the defendants. ( 8 ) THE learned counsel for the appellant submitted that in the Order sheet there is type written Order to the effect that suit be entered in the original suit 'register and put up'. The learned counsel submitted that no doubt there is no signature below that portion of the Order, but that is after the report of sheristedar. Smt. H. r. vasudha, further submitted that when the trial court started disposing of the application for injunction keeping in view that i. a. No. I and i. a. No. Ii which were very much there, either due to the mistake of the office or the court, while ordering the suit be registered there is omission i. e. , no specific Order granting or refusing leave is there. Any way the court entertained the suit after the applications had been filed for permission to file the suit but there is some irregularity. But circumstances appearing on the record show that the court really granted leave, even for a moment, that there has been no specific Order to the effect that leave is granted. Any way the court entertained the suit after the applications had been filed for permission to file the suit but there is some irregularity. But circumstances appearing on the record show that the court really granted leave, even for a moment, that there has been no specific Order to the effect that leave is granted. It appears the leave impliedly had been granted that the suit be entered and the interim application had been disposed of. Smt. H. r. vasudha, appellant's learned counsel submitted that in this view of the matter, the lower appellate court committed an error of law in assuming that there is no leave. The learned counsel for the appellant further submitted that, even if for a moment, it may be taken that the trial court did not pass any Order or omitted to pass any Order on the application and it proceeded to entertain the suit and granted the interim relief as well as directed the notice to be issued to the defendants/respondents. It may be said to be a mistake amounting to irregularity committed by the trial court and it had proceeded and gone to the scope of decreeing the suit taking the view that leave had already been granted to the plaintiff to sue against the defendants. If there was any mistake amounting to irregularity on the part of the trial court, no person should be made to suffer because of technical error on the part of the learned trial court. The learned counsel further urged that in the present case, considering the facts and circumstances that there was no error, on account of the non-passing of the specific Order granting leave, in court's decreeing the suit. The acts of the trial court do indicate its intention to grant the leave. That the said ground should not have been permitted to be raised at the stage of first appeal and that the decree passed by the trial court should not have been reversed particularly when on the findings of other issues, the lower appellate court has also recorded findings affirming the findings of the trial court. That the said ground should not have been permitted to be raised at the stage of first appeal and that the decree passed by the trial court should not have been reversed particularly when on the findings of other issues, the lower appellate court has also recorded findings affirming the findings of the trial court. ( 9 ) THE learned government pleader Smt. Meenakumari contended that there is no such Order as granting leave under Section 80 (2), C. P. C. but she very fairly admitted the factual position that application for leave to sue under Section 80 (2) of the Code of Civil Procedure had been made and it was before the court as appears from the Order sheet and the court did proceed with the suit thereafter. She submitted that no doubt there is Order that the suit be entered in the original register and put up but this Order does not bear any signature and there are no Order nor indications therein to the effect that leave is granted. She submits that ordinarily Section 80 of the Code of Civil Procedure bars the institution of the suit, without serving a notice under Section 80 of C. P. C. , and as per language of Section 80 (1) it is provided that 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. But there is no doubt that the power has been given to the trial court, that where suit is instituted against state or a public officer, either to grant leave or refuse to grant leave. She submitted that leave has not been expressly granted by the trial court. It is open to the courts concerned to determine if suit as such was maintainable and lower appellate covrt held the suit to be not maintainable. That as regards the findings on the merits, those findings on merit appear to be concurrent findings of fact, the learned government pleader fairly stated. ( 10 ) I have applied my mind to the contentions raised by the learned counsel for the parties. That as regards the findings on issue nos. That as regards the findings on the merits, those findings on merit appear to be concurrent findings of fact, the learned government pleader fairly stated. ( 10 ) I have applied my mind to the contentions raised by the learned counsel for the parties. That as regards the findings on issue nos. 1 and 2 and other issues, except the question of notice and the maintainability of the suit, in my opinion, the said findings do not involve any question of law, instead, are the findings arrived at on the basis of the appreciation of the evidence on record, so cannot be interfered in second appeal by this court. It is only when the findings are vitiated by any error of law committed by the trial or the appellate court by both, this court can interfere with such matter but no such error of law or substantial question of law has been indicated. ( 11 ) THE only point that arises for consideration by this courtin this second appeal is whether the lower appellate court did commit any substantial error of law by holding the appellant's suit to be not maintainable despite therebeing finding that leave is the absolute, for want of notice under Section 80 of the Civil Procedure Code. ( 11 ) THE only point that arises for consideration by this courtin this second appeal is whether the lower appellate court did commit any substantial error of law by holding the appellant's suit to be not maintainable despite therebeing finding that leave is the absolute, for want of notice under Section 80 of the Civil Procedure Code. No doubt as laid by the Hon'ble Supreme Court of India in many many cases, Section 80 (1) of the Code of Civil Procedure is mandatory and before the suit can be filed against the government or against a public officer as such a notice under Section 80 of the Code of Civil Procedure is a must that notice should be given and the only exception are the cases covered by sub-section (2) of Section 80 of C. P. C. it is also well settled that in case a suit is filed without giving notice and the court is satisfied that the case is not of a type where an urgent or immediate relief against the government or any public officer has to be granted then in that case, the suit should not be dismissed but the plaint should be returned to the party for being filed after due notice to the other side by compliance of Section 80 (1), C. P. C. no doubt if a suit is filed without giving notice under Section 80 of the Code of Civil Procedure, without seeking any permission under Section 80 (2) of C. P. C. , to file the suit against the government or public officer, the plaint has to be returned/rejected. In the present case, the facts are special and quite different in state. La. No. I, as appears from the lower court records, had been moved by the plaintiff/appellant on 8-4-1981 and had been filed along with the plaint of the suit. The said application had been supported by an affidavit sworn by the appellant (plaintiff) in which appellant (plaintiff) has asserted that the case is of an urgent nature and the plaintiff required the urgent and immediate relief to be granted by way of temporary injunction and if he had waited for the notice period the encroachment would have been made and the bund would have been destroyed. So, the plaintiff had filed the suit along with the application seeking leave to sue without serving the notice under Section 80 (1) of the Code of Civil Procedure. In the Order sheet, the trial court it is mentioned with regard to i. a. which reads as under:"i. A. No. I is filed by plaintiff with an affidavit seeking permission to file the suit without issuing a notice to defendants under Section 80 (2) of C. P. C. ". Earlier to the above, it is also typed as suit be entered in the original suit register and put up. The Order sheet of the trial court show that i. a. No. Ii is filed by the appellant/plaintiff which reads as under:"la. No. Ii is filed by the plaintiff for the reasons stated in the accompanying affidavit has prayed for temporary injunction against the defendants not to obstruct for the enjoyment of the suit land, by destroying the suit bund by encroachment till the disposal of this suit". the material on record indicates that la. Nos, I and ii were both placed before the court for orders. It also appears that in the type-written Order 'suit be entered in the original suit register and put up'. There appears to be some office mistake as well mistake in typing the order. In that Order sheet it is mentioned the suit be entered in the original suit register, but the signature of the presiding officer, viz. , the learned trial court judge appear not to have been taken and the la. No. Ii application of or grant of temporary injunction appear to have disposed off by grant of interim Order of injunction. That the lower appellate court has taken the view that no leave under Section 80 (2), C. P. C. has been granted as such. ( 12 ) THE proviso to sub-section (2) of Section 80 of the code ofcivil procedure indicates that when and how the leave is to be rejected. The proviso says that if the court is satisfied that no urgent or immediate relief is needed to be granted in the suit it shall return the plaint for presentation to it after complying with the requirements of sub-section (1 ). The proviso says that if the court is satisfied that no urgent or immediate relief is needed to be granted in the suit it shall return the plaint for presentation to it after complying with the requirements of sub-section (1 ). It means in the matter of rejection of leave, the court has to record a finding to the effect that it is not satisfied that any urgent or immediate relief needed to be granted. So there is really no Order of rejection also as in the Order of rejection the court would have had to record the finding that the case is not one in which immediate or urgent relief is needed. Once the court has not recorded the finding to that effect and has not passed any Order instead on the other hand there appears to be some Order in the suit. In my opinion, here the trial court instead of rejecting the leave and returning the plaint, proceeds to consider the matter for interim relief claimed in the suit atleast it can be implied from these circumstances and the conduct of the court that leave had been granted by the court. Though it would be proper that the court should be very cautious providing no opportunity for such objections and it should ordinarily pass clear order. ( 13 ) THE question before me is that if there has been some omission on the part of the trial court by its not clearly and expressly providing by use of clear expressions that leave is granted, should the party be made to suffer for fault of court. From the Order sheet of the case of the trial court, it appears that the court has granted temporary injunction Order and trial of the suit thereafter proceeds and goes on and at the stage of passing the final judgment even the trial court says that leave that has been granted is made absolute. So, in my opinion, in the circumstances of the case, viz. So, in my opinion, in the circumstances of the case, viz. , the filing of the application by the plaintiff-appellant for the leave to sue against the defendants under Section 80 (2) of C. P. C. , and that application being before the court, the trial court to have further proceeded with the suit with the stage of granting injunction as if it had already granted leave to sue under Section 80 (2), C. P. C. , against the defendants. This irregularity if any would not entitle reversal of the entire decree of the trial court, if judged in view of the provisions of Section 99 of C. P. C. there is no doubt that if no notice had been given and no application for leave had been filed, the court at that stage could have only returned the plaint because the institution of the suit without either prior notice under Section 80, C. P. C. , or seeking leave of the court is barred. But when it comes up with application under Section 80 (2), C. P. C. , before the court, the court has to either pass orders granting the leave or rejecting it and the trial court has not passed any Order nor it recorded any finding that the matter is not one of urgency or one where an immediate Order required. But instead it proceeds with the matter and dealt with the interim relief, then there is no rejection of leave, instead it has to be implied to have been granted. I find support for my view from the decision of the kerala High Court in the case of T. V. Parangodan v. District Collector, Trichur and others. Their lordships of the kerala High Court while interpreting the Section laid it down that,". . . . The sub-section does not prescribe any form or manner in which leave has to be granted. What it says is only "with the leave of the court, without serving any notice as required by sub-section (1)". Leave need not be by a formal order. It can be implied also and could be granted from what the court does. Proceeding with the suit after the objection by considering any relief could be a visible manifestation of an implied leave being granted. If so, what the trial court and the appellate court did on the injunction application may amount to leave granted. It can be implied also and could be granted from what the court does. Proceeding with the suit after the objection by considering any relief could be a visible manifestation of an implied leave being granted. If so, what the trial court and the appellate court did on the injunction application may amount to leave granted. That cannot be withdrawn at the final stage of the suit for dismissing the same on maintainability when his remedies were lost by lapse of time". so when the appellant/plaintiff did file an injunction application which was granted and notice being issued and suit being ordered to be registered, leads me to hold that the leave was impliedly granted. So, firstly, I am of the opinion that in this case impliedly leave had been granted on the very initial stage when the trial court ordered that the suit be entered in the original suit register and put up and thereafter an injunction application is allowed. It is to be noticed that the purpose of giving notice to the government is that the government authorities may consider the case within two months from the date of service of notice. In my opinion it would not be proper to take too technical view in the matter. Apart from that, even if the technical view is taken for a moment, that is no specific Order granting leave to file suit under Section 80 (2) i. e. passed by the trial court and the court has proceeded with the suit and therefore there was fault on the part of the court. It is one of the trite principles of law relating to the courts of Justice that no party should be made to suffer because fault of the court. It is the duty of the court to see that no party should suffer because of the fault of the court, ( 14 ) IN the case of Rodger v. Comptoir D'escompte De Paris, Lord Cairn's L. c. , had observed that,"one of the first and highest duties of all courts is to take care that the ACT of the court does no injury to any of the suitors". In other words, no person should be made to suffer any injury in the eye of law for no fault or mistake of the court or its officers. In other words, no person should be made to suffer any injury in the eye of law for no fault or mistake of the court or its officers. This principle of law has been followed with the approval of their lordships of the Hon'ble Supreme Court in many many cases including the case of Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others. The relevant observations of the Supreme Court reads as under:",. . . The failure of the trial court to draw up the decree as well as the failure of the relevant department in the High Court to examine the defect in the presentation of the appeal at the initial stage have contributed substantially to the present unfortunate position. In such a case there can be no doubt that the litigant deserves to be protected against the default committed or negligence shown by the court or its officers in the discharge of their duties". this jagat dhish bhargava's case, supra, was followed with the approval of their lordships of the Supreme Court in the case of A. R. Antulay v. R. S. Nayak and another, as per the observations made in A. R. Antulay's case in paragraphs 83 and 84 of the report keeping this in view when I examine the observations made by the trial court in its judgment, to the effect as under:". . . . but, the plaintiff was permitted to file the suit by dispensing with the notice as the relief sought by the plaintiff was very urgent. Besides that the purpose of the suit will be defeated if plaintiff is directed to issue notice under Section 80 of C. P. C. , and then to file the present suit. Hence, the Order permitting the plaintiff to file the suit on the date of the filing of the suit is made absolute and it is held that in the instant case a notice under Section 80 of C. P. C. was not essential, in view of the urgency. ,. ". hence by passing the Order permitting the plaintiff to file the suit on the date of filing of the suit is made absolute, in my opinion, the trial court tried to follow the principle laid down by the Supreme Court in jagat dhish bhargava's case. ,. ". hence by passing the Order permitting the plaintiff to file the suit on the date of filing of the suit is made absolute, in my opinion, the trial court tried to follow the principle laid down by the Supreme Court in jagat dhish bhargava's case. That even if some omission has been there on the part of the court at the initial stage the same being rectified by observing that the permission which had been granted by it impliedly was being absolute and the trial court did not commit any error of law in making these observations and holding that the suit was not bad for want of notice. The lower appellate court should have applied its mind by going through the contents mentioned in the Order sheet of the case when the suit was filed. The contents of the Order sheet really indicate that the trial court really intended to grant permission and it did grant permission to file the suit but there is some omission on the part of the trial court while ordering to the effect that suit be entered in the original suit register and put up. Thus considering in my opinion, the lower appellate court committed an error of law in reversing the decree of the trial court on the ground not touching upon the jurisdiction of the trial court to entertain the suit and as such it acted in the breach of the provisions of Section 99 of C. P. C. the position would have been different if in case no permission would be implied to have been granted or no permission would have been sought in the case as of urgent necessity. Thus considering the material on record, I am of the opinion that the judgment and decree of the appellate court suffer from error of law and is liable to be set aside and that the decree passed by the trial court needs to be restored. ( 15 ) ACCORDINGLY, this second appeal is allowed. The judgment and decree of the lower appellate court is set aside and that the trial court decree, decreeing the suit in favour of the plaintiff is restored and suit is decreed as per trial court decree. ( 15 ) ACCORDINGLY, this second appeal is allowed. The judgment and decree of the lower appellate court is set aside and that the trial court decree, decreeing the suit in favour of the plaintiff is restored and suit is decreed as per trial court decree. In fact as this appeal has been argued very fairly by the learned counsel for the appellant and the respondents, so I think that the costs of the appeal should be borne by the parties respectively. --- *** --- .