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2002 DIGILAW 369 (JK)

State Of J. &K. v. Gangi Magharani

2002-11-27

T.S.DOABIA

body2002
1. Smt. Gangi Magharani and Ors. Invoke the Jurisdiction of this court under the Article 226 of the Constitution. Writ petition bearing No. 716/1994 was filed. The plea taken by her was that her husband Santa Lal Thapa was serving in the Indian Army as a Cook. It was stated that he died as an electric poll fell upon him. First Information Report was lodged. In the writ petition compensation was sought. The writ petition OWP 716/94 was disposed of with a direction that the State would pay a sum of Rs 50000/- to the aforementioned heirs of the deceased Santa Lal Thapa. This was ordered by invoking of the concept of no fault liability. As disputed question of facts were involved, therefore with regard to the determination of further amount, a direction was given that the Civil Court would try the issue and determine the question of facts and also the amount of compensation. The relevant observations made when the writ petition was decided on 7th of Dec. 1998 are to the following effect:- Thus even if there is no negligence even then compensation can be awarded by adopting the rational behind awarding compensation on the basis of No fault liability� principles. 2. On the basis of the principles of no fault liability a sum of Rs. 50000/- is ordered to be paid by way of compensation. Petitioners would thus be entitled to interim compensation which is fixed is Rs. 50000/-. Let the payment be made within a period of three months. The period of three months would begin when a copy of order passed by this court is made available by the petitioners to the respondent-authorities. If the aforementioned Compensation is not made within stipulated period then petitioners would be entitled to interest. The rate of interest would be 12% p.a. Court to which the case is sent for trial shall dispose of the matter with in a period of Six months would begin from the date of the copy of order along with writ petition is made available to the court. Both the parties are directed to appear before the principle District Judge Jammu on 28-01-1999. He may keep the file with him or transfer to any other court.� 3. The writ petition itself was ordered to be transmitted to the trial court. When the trial court took up the matter the State raised a preliminary objection. Both the parties are directed to appear before the principle District Judge Jammu on 28-01-1999. He may keep the file with him or transfer to any other court.� 3. The writ petition itself was ordered to be transmitted to the trial court. When the trial court took up the matter the State raised a preliminary objection. It was stated that suit was not maintainable as notice under Section 80 of the Civil Procedure Code was not served. The trial court negatived the plea and has come to the conclusion that no further notice was required to be given. The reasoning given was that no further notice was required as the proceedings in the trial court were in continuation of the proceedings taken by the way of the writ petition preferred in the High Court. It is this order which is subject matter of challenge in this petition. 4. The learned counsel for the State submits that requirement for giving notice under Section 80 of the code of Civil Procedure, is mandatory and this cannot be waived. For this reliance is being placed on a decision of Privy council reported as Hira Lal-Sadu Vs Lachhmi Prasad, 1929, PC 176 and that of Supreme Court of India Smt. Sooraj & Ors. Vs. S.D.O. Rehli & Ors, AIR 1995 S.C. 872. 5. The Learned 1st Addl. District Judge after taking note of the facts analyzed the scope of Section 80 of the code of Civil Procedure. He has rightly concluded that under normal circumstances the requirement to comply with the procedural steps under section 80 is mandatory. He, however, relying upon the provisions of section 80(3) of the code of Civil Procedure as applicable to this state concluded that this is case where the leave would be deemed to have been granted under Section 80(3) of the code of Civil Procedure. He was of the opinion that: .......... He, however, relying upon the provisions of section 80(3) of the code of Civil Procedure as applicable to this state concluded that this is case where the leave would be deemed to have been granted under Section 80(3) of the code of Civil Procedure. He was of the opinion that: .......... sub-section (3) was only inserted when it was felt that some relaxation of provisions of Sec. 80 CPC was necessary so that the person may not be deprived the opportunity of obtaining immediate and urgent relief where relief is essential in circumstances and in case the plaintiffs chooses the forum of issuance of notice then he cannot file the suit before expiry of two months notice but secondly he has the choice to institute a suit without giving the requisite notice u/s. 80 CPC but only obtaining leave from the court.� He further observed. ........... The prayer for leave could be in any form. From the reading of the plaint it has been noticed that the plaintiffs initially presented a writ petition before the Hon™ble Court. The Hon™ble Court had while disposing of the writ petition permitted the plaintiffs to commensurate the civil suit and transferred it to the District Judge.� 6. As in the writ petition which was referred for adjudication no direction was given for serving notice. The Learned 1st Addl. District Judge concluded that; ......... no such direction by the Hon™ble High Court that the plaintiffs suit will be entertained unless he adhere to the requirement of the notice u/s. 80 CPC being prerequisite for commensuration of the suit. The liberty to the State to file written statement of course it is undeniable fact that it was a right of the State to file written statement of course it is undesirable fact that it was a right of the state to file written statement but the observation made by the Hon™ble High Court the plaintiffs to be at liberty to file a proper plaint was only to make the court aware of the claims of the plaintiffs in a proper manner. Not that he will also suffer an agony to issue a notice to the defendants that he is going to file a suit against the defendants. Not that he will also suffer an agony to issue a notice to the defendants that he is going to file a suit against the defendants. The issuance of notice is only for the purpose to inform the State that the person has suffered such a loss and it will be appropriate for the Government not to enter into litigation and prevent itself once a writ petition has been filed before the Hon™ble High Court The government has been cautioned that this is the claim of the plaintiffs. Of course the plaintiff got defeated in the writ petition but it was noticed by the defendants what is the claim the plaintiff. The defendants without preventing itself from entering into litigation have come up with a plea that the suit is not maintainable......�. 7. The fact that reference was made by this Court to the Court of District Judge for determining the question of facts was also taken note of. It was accordingly concluded that there was no necessity to give notice. This is the view which is subject matter of challenge in this petition. 8. I am of the opinion that the Learned 1st Addl. District Judge, has rightly understood the provisions of the code of Civil Procedure and as ably brought out of the fine distinction by placing interpretation on Section 80 (3) of the code of the Civil Procedure. The effort put in by the Learned Judge does require appreciation. 9. The statement object and reasons which led to the insertion of sub-section (2) of the Code of Civil Procedure 1908 Vide Central Act of 1976, which section in pari material with State Act are being reproduced below :- OBJECTS AND REASONS" Clause 27 (Original Clause 28): - The Committee feel that the commission of Sec. 80 of the code, as proposed in the Bill, will not be in the public interest. It might prompt people to file suits against the Government to prevent it from undertaking any measure for the benefit of the society and this might also hinder the pace of developmental activities. The Committee are, therefore, of the view that provisions contained in S. 80 should be retained subject to modification indicated hereafter. 10. It might prompt people to file suits against the Government to prevent it from undertaking any measure for the benefit of the society and this might also hinder the pace of developmental activities. The Committee are, therefore, of the view that provisions contained in S. 80 should be retained subject to modification indicated hereafter. 10. The Committee, however, feel that relaxation of the provisions of S. 80 of the code is necessary so that a person may not be deprived of the opportunity of obtaining an urgent or immediate relief. Where relief is essential. In the circumstances, the committee felt that S.80 of the code should provide for the institution of her suit for obtaining an urgent or immediate relief against Government or any public officer in his official capacity without serving any notice under S. 80, but in such a case, the court should not grant any relief expect after giving to the Government or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed in the suit. 11. The Committee also feel that with a view to seeing the just claim of many persons are not defeated on technical grounds, the suit against the Government or the public officer should not be dismissed merely by the reason of any technical defect or error in notice or any irregularity in the service of the notice if the name, description and residence of the plaintiff has been so given in the notice as to enable the appropriate authority or public officer to identify the person serving the notices, and the notice had been delivered or left at the office of the appropriate authority, and the cause of action and relief claimed have been substantially indicated in the notice. The Clause has been amended accordingly.� 12. The aforementioned objects and reasons does visualize that technical defect or error in notice or any irregularity in the service of the notice should not be made a ground for dismissing a suit. It also visualize that leave can been granted in terms of Section 80 (2) of the code of Civil Procedure. The Clause has been amended accordingly.� 12. The aforementioned objects and reasons does visualize that technical defect or error in notice or any irregularity in the service of the notice should not be made a ground for dismissing a suit. It also visualize that leave can been granted in terms of Section 80 (2) of the code of Civil Procedure. If the statement of the object and reasons as noticed above are taken note of then it becomes apparent that there is no absolute bar in the matter of filling a suit under section 80 (2) of the Central Act which section corresponds to Sec.80 (3) of the State Act. This is one aspect of the matter. 13. Again, there can be no dispute with the proposition that when a suit is filed, then the notice has been given and this can be waved only if the requirements under section 80 (2) of the code are in existence. The position in this case is entirely different. The difference is that proceedings which are pending in the trial court are in continuation of the proceedings which are pending in the trial court are in continuation of the proceedings taken in the writ petition preferred in this court. When no notice is required when a writ petition is preferred in this court, then the question of holding that the proceedings are bad for want of notice would not be apt. A perusal of the order passed by this court indicates that writ petition itself was transferred to the trial court with liberty to the parties to supplement their pleadings. A formal amendment of plaint would not re quire further notice. See Lal Chand Vs. Union of India, AIR 1960 Cal. 270. See also Ezra Vs. Security of State 7 CWN 249. 14. In this case the file was sent to the trial court so that the disputed question of fact could be taken note of by the trial court. As a matter of fact there was no requirement to pay even the court fee. This is because proceedings pending under Article 226 were transferred to the trial court for further adjudication, so that the question of facts can be taken note of and dealt with more appropriately. 15. I am accordingly of the opinion that the technical objection taken by the State cannot be accepted. This is because proceedings pending under Article 226 were transferred to the trial court for further adjudication, so that the question of facts can be taken note of and dealt with more appropriately. 15. I am accordingly of the opinion that the technical objection taken by the State cannot be accepted. The proceedings in the trial court are in continuation of the proceedings taken in this court. State had due notice of the plea sought to raised writ petition was in itself a good and sufficient notice. This revision petition is therefore, disposed of with the following direction. (i) that the order passed by the Trial Court is up-held. It has been rightly observed that this is a matter where notice was not required to be given; (ii) taking into consideration that even though the writ petition was filed in the year 1994 and even though it was decided on 7th of Dec. 1998, no meaning full progress in the matter of giving objection by both side. Which may be recorded by the trial court. This Course has been adopted with a view to put an end to this long drawn litigation which has continued on account of the technical objections raised by the State. (iii) Court fee paid by the respondent-writ petitioners be refunded; 16. Then net result is that the view expressed by the 1st Addl. District Judge is upheld, but instead of treating the writ petition as a suit the court below would now submit a report and this report would be submitted with in a period of four months from the date a copy of this order becomes available to the court below. The report so submitted would be made part of the writ record and would be placed for farther necessary action before this court as per roster. Disposed of as such.