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2002 DIGILAW 21 (GAU)

Rina Sikdar v. Union of India

2002-01-09

R.S.MONGIA

body2002
R.S. MONGIA, CJ. — The petitioner herein Smt Rina Sikdar had brought a suit against the respondents-Union of India and Divisional Railway Manager, N.F. Railways, Tinsukia, which was registered as Title Suit No. 48 of 1994. Her case in the suit was that she was lawfully in physical possession over a plot of land measuring 1K 10Ls covered by Dag No. 2917 of P.P. No. 195 under Tinsukia Mauza situated at Borpathar Road, Tinsukia Town by paying land revenue to the Government of Assam in her own name. It was her further case that she had been residing on the land by constructing houses thereon paying taxes to the municipality and her Holding No. is 3594(A) of Ward No. 15 of the Tinsukia Municipal Board. The defendants in the suit (respondents herein) allegedly planned to construct wall on the northern side of the suit land and on 2.8.94 the workers of the defendants further allegedly asked the plaintiff to remove her fencing and house. Since she had refused to do so, they had left with a warning to her that they would demolish the fencing and the house. She had filed the suit for declaration that she was in possession of the land with further prayer for grant of permanent injunction restraining the defendants from encroaching upon the suit land. She had also filed an application for temporary injunction, which was allowed on 8.9.94 by the trial Court granting temporary injunction restraining the defendants from disturbing the possession of the plaintiff on the suit land. The Railways filed an appeal against the injunction order dated 8.9.94 of the trial Court. The appellate Court, i.e., the District Judge, Tinsukia allowed the appeal of the Railways by the order dated 6.6.96, inter alia, holding that the three basic principles for grant of temporary injunction, i.e., (1) prima facie case, (2) balance of convenience and (3) irreparable loss did not exist in favour of the plaintiff entitling her to get an order of temporary injunction. Detailed order was passed vacating the temporary injunction. 2. When the matter went back, the trial Court by the impugned order dated 2.8.96 ordered the return of the plaint to the plaintiff to be presented after complying with the provisions of sub-section (1) of Section 80 of the Code of Civil Procedure. Detailed order was passed vacating the temporary injunction. 2. When the matter went back, the trial Court by the impugned order dated 2.8.96 ordered the return of the plaint to the plaintiff to be presented after complying with the provisions of sub-section (1) of Section 80 of the Code of Civil Procedure. It may be observed here that the suit by the plaintiff had been filed without issuance of any notice u/s 80 of the Code of Civil Procedure on the defendants. The present revision petition was filed against the aforesaid order of the trial Court dated 2.8.1996. When this revision petition was admitted, the motion Bench had ordered the stay of the order dated. 2.8.96 of the trial Court regarding the return of the plaint to the plaintiff. 3. The learned counsel for the petitioner argued that as per the provisions of sub-section (2) of Section 80 of the Code of Civil Procedure, if in a suit an urgent or immediate relief is prayed for against the Government, then a suit can be instituted with the leave of the Court without serving a notice as required under sub-section (1) of Section 80 of the Code of Civil Procedure. But the rider on the Court is that it shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government a reasonable opportunity of showing cause in respect of the relief prayed for. According to the counsel, since immediate relief by way of temporary injunction was sought for, the suit had been instituted without serving notice as envisaged by sub-section (1) of Section 80 of the Code of Civil Procedure, which had been entertained by the trial Court and even temporary injunction had been granted after notice had been served on the defendants pursuant to which they had put in their appearance and only after hearing them the temporary injunction had been granted. As per the submission of the learned counsel for the petitioner, simply because the appellate Court vacated the order of temporary injunction on the ground that the basic principles for grant of temporary injunction did not exist, would not mean that there was no urgency in asking for the temporary injunction. 4. As per the submission of the learned counsel for the petitioner, simply because the appellate Court vacated the order of temporary injunction on the ground that the basic principles for grant of temporary injunction did not exist, would not mean that there was no urgency in asking for the temporary injunction. 4. Learned counsel for the respondents, however, argued that since the appellate Court had found that it was not a fit case in which temporary injunction should have been granted, it would follow that there was no urgency for the grant of any relief and therefore the suit could not have been entertained without service of notice under sub-section (1) of Section 80 CPC. The plaint was rightly returned to the plaintiff for presenting the same after complying with the requirements of sub-section (1) of Section 80 CPC. 5. After hearing the learned counsel for the parties, I am of the view that sub-section (2) of Section 80 CPC empowers the Court to entertain a suit without service of notice under sub-section (2) of Section 80 CPC if it comes to the conclusion that there is urgent or immediate relief prayed .for, which requires consideration as to whether the same should be granted or not. Of course, such relief can only be granted after giving reasonable opportunity of hearing to the defendants. This had precisely been done while granting temporary injunction in favour of the plaintiff. The object of requirement of notice under sub-section (1) of Section 80 of the Code of Civil Procedure is to avoid unnecessary litigation, inasmuch as, the State Government might on receipt of notice issued under sub-section (1) of Section 80 CPC may itself grant the relief prayed considering the same to be justified. If that is done, the suit would be avoided. The other aim and object of the aforesaid Section is that the defendants should not be taken unaware and they should have reasonable opportunity to defend the case, if at all filed. In the present case, the defendants were duly served as required under sub-section (2) of Section 80 CPC before granting temporary injunction. Consequently, they were in the know of the case after they were served with the notice and the trial Court was of the view that it was a fit case in which the question of grant of temporary injunction should be considered immediately. Consequently, they were in the know of the case after they were served with the notice and the trial Court was of the view that it was a fit case in which the question of grant of temporary injunction should be considered immediately. Simply because the appellate Court set aside the grant of temporary injunction, according to me, would not ipso facto lead to the conclusion that there was no question of urgent or immediate relief to be granted to the plaintiff. It is totally a different thing that no case is made out for grant of such an injunction which otherwise may be immediately asked for. According to me, the trial Court was not right in ordering the return of the plaint. 6. This, however, is not the end of the matter in the present case. The trial Court at the most would have granted the relief that the plaintiff should be evicted from the suit property in due process of law after holding that the plaintiffs possession was authorised. I am told that after the temporary injunction order was vacated by the appellate Court by its order dated 6.6.1996, the respondent-Railways have already taken steps to evict the plaintiff under the provisions of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter called the Act). Show cause notice was issued to her by the prescribed authority under that Act, who had passed an order of eviction of the plaintiff-petitioner on 20.9.1996 against which the present petitioner (plaintiff in the suit) had filed an appeal before the District Judge, Tinsukia under Section 9 of the Act, which, however, was dismissed on 31.8.1998. The present petitioner (plaintiff in the suit) had filed a revision petition in this Court being Civil Revision No. 295/98, which was allowed by a learned Single Judge of this Court on 16.9.98 and both the orders dated 20.9.96 passed by the prescribed authority as well as of the appellate Court dated 31.8.98 were set aside. In the concluding portion of the judgment and order dated 31.8.98 passed in Civil Revision No. 295/98, the learned Single Judge observed as under:- "In the result, revision succeeds and is accordingly allowed. The case is remanded back to the prescribed authority who-shall proceed with the disposal of the case strictly in accordance with law. In the concluding portion of the judgment and order dated 31.8.98 passed in Civil Revision No. 295/98, the learned Single Judge observed as under:- "In the result, revision succeeds and is accordingly allowed. The case is remanded back to the prescribed authority who-shall proceed with the disposal of the case strictly in accordance with law. In case petitioner appears and files his W.S./show cause and evidence in support of his case he may be examined in the context of the case set up by the department and necessary finding may thereafter be recorded. The prescribed authority shall do the needful within a period of 2 months from the date of receipt of this order. It is further provided that in case petitioner wants to file her objection/W.S. against the notice served on her she may do so within 2 weeks from today along with her evidence on which she may rely in support of her case. In case however petitioner fails to file the W.S./evidence within the aforementioned period, it would be open to the prescribed authority to proceed with the case ex-parte and pass requisite order in the light of the observation made herein above. Revision application is accordingly allowed." 7. I am told that the proceedings under the Act are still going on. To avoid multiplicity of litigation, I do not consider it to be a fit case to remand the same to the trial Court to proceed with the suit, inasmuch as, the due process of law for eviction has already been commenced by the Railways and the matter is pending before the authorities concerned. I may add here that whatever points/defence that may have been raised by the plaintiff in the written statement/reply to the show cause notice, the authorities under the Act would decide those points on merits. Needless to mention that if the decision on the points raised by the petitioner goes against her, she would be at liberty to challenge those findings before an appropriate forum. This decision has been given to straighten the law but despite that having been decided in favour of the plaintiff-petitioner, I have not thought of remanding the case back because of the reasons already mentioned above. 8. The revision petition stands accordingly disposed of.