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Himachal Pradesh High Court · body

2001 DIGILAW 333 (HP)

INDER SINGH v. STATE OF H. P.

2001-11-15

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J. :- This revision petition under Section 115 of the Code of Civil Procedure (hereinafter referred to as the Code) is directed against the order dated 17.4.2001 passed by the learned sub Judge 1st class (1), Paonta Sahib, whereby an application of the petitioner plaintiff (hereafter referred to as the petitioner) and proforma respondents No.2 and 3 - plaintiffs (hereafter referred to as the plaintiffs) under Section 80(2) of the Code for grant of leave to sue the respondent - defendant/State (hereafter referred to as the defendant) without prior service of notice under Section 80 of the Code has been dismissed. 2. The plaintiffs intended to institute a suit against the defendant for permanent prohibitory injunction restraining the defendant from demolishing the residential house of the plaintiffs or part thereof situate in Khasra .No.345/217/1 measuring 0-3 bighas situate in village Shubh Khera, Tehsil Paonta, District Sirmaur, on the strength of an order of ejectment passed by the concerned Revenue Officer under Section 163 of the H.P. Land Revenue Act. Apprehending that the house may be dismantled by the concerned Officers and the servants of the defendant with the assistance of the police immediately after 24.3.2001 when some officials had visited the spot with a view to demolish the house and eject the plaintiffs from the suit property, plaintiffs moved an application on 31.3.2001 under Section 80(2) of the Code for grant of permission to institute the suit without service of a notice under Section 80 of the Code on the defendant. An application under Order 39 Rules 1 and 2 read with Section 151 of the Code was also intended to be filed seeking interim relief of restraining the defendant from demolishing the house of the plaintiffs and from ejecting them therefrom. 3. The application was resisted by the defendant which filed a reply inter-alia asserting that the application is not maintainable and the suit sought to be filed has become time barred. On merits it was averred that the ejectment order sought to be executed against the defendant is a valid order and has become final. 4. After hearing the parties, the learned trial Judge dismissed the application and directed tat the plaint be returned to the plaintiffs for complying with the provisions of Section 80 of the Code, hence, the present petition. 5. 4. After hearing the parties, the learned trial Judge dismissed the application and directed tat the plaint be returned to the plaintiffs for complying with the provisions of Section 80 of the Code, hence, the present petition. 5. I have heard the learned counsel for the petitioner and the learned Assistant Advocate General for the State and have also gone through the records. 6. Sub-section (2) of Section 80 of the Code, which is an exception to sub-section (1) of Section 80, which bars the institution of the suit against the Government or against a public servant in respect of any act purporting to have been done by such public officer in his official capacity until the expiry of two months next after notice in writing has been served on them, reads as follows:- " A suit to obtain an urgent or immediate relief against the Government (including Ihe Government of the State of Jammu & Kashmir) or any public officer in respect of 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)." 7. It is clear on a bare reading of the aforesaid provisions that in a case where the plaintiff is to obtain an urgent and immediate relief against the Government or any public officer in respect of any act purporting to have been done by such public officer in his official capacity he may, with the leave of the Court, institute a suit to seek such relief so that he is not debarred of his legal remedy without serving a notice as required under Section 80 (1) of the Code. Intention of the legislature in making these provisions is to mitigate the procedure of Section 80 to seek urgent and immediate relief against the Government or a public officer. The provisions will, therefore, apply to a case where the leave to sue without compliance of the provisions of Section 80(1) of the code is prayed for by a party seeking urgent and immediate relief against the Government or public officer. Therefore, at the time of considering an application under Section 80 (2) of the code for grant of leave the court is to consider whether the requirement of sub section (2) of Section 80 are satisfied In case it is found that the plaintiff is in need of urgent or immediate relief against the Government or its public officer whose official act is under challenge, the court may grant leave to such a litigant to sue without serving any notice as required by sub section (1) of Section 80 of the Code. To be successful the party seeking leave of the court to institute the suit without service of notice under Section 80 (1) of the Code has to satisfy the court that the suit is against the Government or a public officer challenging any act purporting to have been done by the public officer in his official capacity and that the matter is so urgent that the plaintiff cannot be expected to wait to institute the suit for two months after the service of notice and if he is made to wait so the intended suit itself may become infructuous. There is nothing in sub section (2) of Section 80 of the Code which requires the Court to consider whether the suit is prima face maintainable or that the Court has jurisdiction to entertain such a suit. Such questions can be considered after the plaintiff has been permitted to institute the suit because of the urgency of the matter. The court, however, may refuse the leave in case it is of the opinion that no immediate or urgent relief is necessary and direct return of the plaint for presentation after compliance of the requirements of sub section (1) of Section 80 of the Code. The court, however, may refuse the leave in case it is of the opinion that no immediate or urgent relief is necessary and direct return of the plaint for presentation after compliance of the requirements of sub section (1) of Section 80 of the Code. If the Court at the time of considering an application under Section 80 (2) of the code decides that the suit is not within limitation or that the Court has no jurisdiction and refuses leave on such grounds, the provisions requiring the return of the plaint to the plaintiff for presentation after compliance of the provisions of Section 80 (1) of the Code shall be rendered redundant. 8. The view I have take hereinabove is fully supported by the ratio in Taxi Luxury Tourists Co. Op. Society Ltd. v. State 198! (22) Guj. L.R. 694, wherein it has been held as follows: "Sub-section (1) of sec. 80 provides 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 officer in his official capacity, until the expiration of two months next after notice in writing is served in the manner provided thereunder. The purpose of this requirement is to give the Government or the public officer a opportunity to settle avoidable litigation at the threshold. This requirement very often created difficulty in the way of a party whose civil rights were threatened by some acts done by a public officer in his official capacity, when the concerned public officer refused to maintain the status qu during the notice period, it was thought only fair that the Government acting trough its public offices is not allowed to defeat the just rights of a party which are threatened by some act of its public officer by insisting on compliance of the technical requirements of Sec.80 and at the same time refusing to stay its hands to enable the party to comply with the said requirements. Therefore, in order that a litigant who is required to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity is not deprived of his legal remedy, sub section (2) of Section 80 was inserted to enable the litigant to move the court without satisfying the requirements of sub section (1) thereof. At the stage when the court is called upon to grant leave for instituting a suit against the or any public officer in respect of any act purportng to be done by such public officer in his official capacity, all that the court has to consider is whether the requirements of sub section (2) of Section 80 are satisfied. If the Court finds on a perusal of the plaint of the suit proposed to be lodged against the State Government or any public officer that the plaintiff is in need of an urgent of immediate relief against the State Government or its public officer whose act is under challenge, the court may grant leave to such a litigant to sue without serving any notice as required by sub section (1) of Section 80 of the code. The requirements to be satisfied are; (i) that the proposed suit is against the or any public officer; (ii) that it challenges any act purporting to be done by such public officer in his official capacity; and (iii) that the matter is so urgent that the plaintiff cannot be expected to wait for a period of two months after the service of notice under sub section (1) of Section80. The test is, therefore, one of urgency of the matter and if the court is satisfied that the matter is so urgent that it cannot brook delay, the Court must grant leave to the litigant under sub Section (2) of Section 80 of the Code to institute a suit forthwith. It is of utmost importance to see that the legal rights of a party are not satisfied at the alter of technicalities. Once the requirements of sub section (2) of Section 80 are satisfied, the court must ordinarily grant leave to the party to institute a suit without requiring it to comply with the provisions of sub section (1) thereof. It is of utmost importance to see that the legal rights of a party are not satisfied at the alter of technicalities. Once the requirements of sub section (2) of Section 80 are satisfied, the court must ordinarily grant leave to the party to institute a suit without requiring it to comply with the provisions of sub section (1) thereof. There is nothing in sub section (2) of Section 80 to suggest that at the stage of granting leave to institute a suit without service of notice as required by sub section (1) the court is required to consider whether the suit is prima facie maintainable or that the court has jurisdiction to entertain such a suit. These are matters which the Court may consider while granting relief to the litigant, interim or otherwise, after the plaintiff has been permitted to file a suit having regard to the urgency of the matter. If the court is of the op if ion that no urgent or immediate relief is necessary, it may return the plaint for presentation to it after complying with the requirement of sub section (1) of Section 80. If the court pronounces upon the merits of the impugned order or on the question of jurisdiction, as in the instant case, there would be no point in returning the plaint for presentation to it after complying with the requirements of sub Section (1) of Section 80. It is, therefore, obvious that at the stage of granting leave under sub section (2) of Section 80 of the court has merely to consider whether the requirements of that sub section are complied with and if the court is of opinion that they have been duly complied with, the court should grant leave to the plaintiff to institute the suit without serving any notice as required by sub section (1) of Section 80. The court can certainly consider the merits or demerits of the plaintiffs case when it is called upon to grant relief, whether interim or otherwise, after the institution of the suit." 9. The impugned order calls for scrutiny in view of the above legal position. The court can certainly consider the merits or demerits of the plaintiffs case when it is called upon to grant relief, whether interim or otherwise, after the institution of the suit." 9. The impugned order calls for scrutiny in view of the above legal position. A perusal of the impugned order reveals that the learned Sub Judge, | instead of examining as to whether grant of any urgent or immediate relief was involved in the suit or not adverted to the questions whether the civil court has the jurisdiction to entertain the suit or whether the suit was maintainable or whether it was within the period of limitation and appears to have doubted the jurisdiction of the civil court to entertain the suit and its being within the period of limitation and for these reasons, held that there was no ground to grant the leave prayed for and the plaint was ordered to be returned for complying with the provisions of Section 80 of the code. Evidently, the learned trial judge entered into the questions which were not relevant of deciding the application and altogether failed to consider whether the sit intended to be instituted was to obtain an urgent or immediate relief against the defendant or not. The learned, trial Judge, therefore, acted in exercise of his jurisdiction with material irregularity and illegality which render the impugned order illegal, unsustainable and thus liable to be set aside. 10. As a result, this revision petition is allowed and the impugned order is set aside. The case is remitted to the learned Sub Judge to dispose of the application under Order 80 (2) of the Code afresh after hearing the parties in accordance with law and the observations made hereinabove.11. Parties are directed to appear before the trial Court on 21.12.2001.