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2003 DIGILAW 976 (PNJ)

State Of Punjab v. Karnail Singh

2003-07-17

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This is defendants petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) dismissing their application in which prayer was made that the mandatory provisions of Section 80 of the Code requiring the plaintiff-respondent to serve prior notice of the suit having not been issued, the plaint be returned to the plaintiff-respondent. It is appropriate to mention that the plaintiff-respondent has filed a suit for declaration and permanent injunction with an application for interim relief that the defendant-petitioners be restrained from effecting any recovery from his salary. On 16.5.2002 after hearing me parties, the interim prayer made by the defendant-petitioners was declined although exemption under Section 80 of the Code to issue advance notice had already been issued on 26.4.2002. 2. Brief facts of the case are that the plaintiff-respondent filed a civil suit seeking a declaration to the effect that the order bearing endorsement No. 6913-15/BA dated 1.4.2002 passed by the defendant-petitioner imposing a recovery of Rs. 11,515/- for the loss of tickets and deduction of Rs.2303/- from the salary of the plaintiff-respondent in installments is illegal and void. It was further prayed that the defendant-petitioner be restrained by issuing a decree for permanent injunction from recovery of the amount from the salary of the plaintiff-respondent. Along with the suit, an application was filed seeking exemption of serving prior notice under Section 80 of the Code. The application was allowed on 26.4,2002 and exemption was given to the plaintiff-respondent. Thereafter, the defendant-petitioner filed an application with the prayer that the plaint be returned to the plaintiff-respondent as the mandatory provisions of Section 80 of the Code has not been complied with by him. The application has been rejected by the Civil Judge and the operative part of the order reads as under:- "Heard. In this regard I am also of the opinion that when the plaintiff has already been granted exemption vide order dated 26.4.2002 to serve notice on the defendant before filing the present suit I think now there is no need to the plaintiff to serve any notice on the defendant under Section 80 CPC. As such in my view the aforesaid case law referred to by learned G.P. for the State is not applicable to the present case. As such in my view the aforesaid case law referred to by learned G.P. for the State is not applicable to the present case. No doubt the injunction application moved by the plaintiff has been dismissed but even then plaintiff can proceed further to prove his case by reading evidence. With these observations, the application moved by defendant State is dismissed." 3. I have heard Mr. Ashok Aggarwal, learned Additional Advocate General, Punjab who has argued that the basic object of dispute redressal outside the Court would be defeated if exemption under Section 80 of the Code is granted in a routine manner. According to the learned counsel, it will defeat the public purpose and Would necessarily multiply the litigation. 4. After hearing the learned Additional Advocate General, I do not feel persuaded to take a view different than the one taken by the Civil Judge because when the suit was originally filed, an application seeking exemption to issue notice under Section 80 of the Code was filed and that was accepted vide order dated 26.4.2002. The exemption is not dependent on the success of the application filed under Order XXXIX Rules 1 and 2 of the Code because if that legal proposition is accepted, then in all cases where application for interim relief has been declined, the exemption granted would become bad in law and the plaint will have to be returned to the plaintiff in order to comply with the provisions of Section 80 of the Code. 5. It is true that the provisions of Section 80 of the Code are mandatory as has been held by a Constitution Bench of the Supreme Court in the case of Amar Nath Dogra v. Union of India, A.I.R. 1963 S.C. 424 and other judgment of the Supreme Court in the case of Ghanshyam Dass v. Dominion of India, (1984)3 S.C.C. 46. However, it is equally true that Section 80(2) of the Code postulates that a suit for urgent and immediate relief could always be filed with the leave of the Court, Section 80(2) of the Code reads as under:- "Section 80(2) - A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and 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 needs be granted in the suit, return the plaint for presentation to it after complying with the requirements of Sub-section (1)." 6. It is admitted position that on 26.4.2002, the Civil Judge has granted exemption to the plaintiff-respondent from issuing any notice under Section 80 and his suit was entertained. However, the prayer of the plaintiff-respondent for issuance of interim relief was declined on 16.5.2002. The defendant-petitioner then filed an application for return of the plaint. Therefore, no review of the order dated 26.4.2002 would be possible because if such a proposition is accepted then in cases where exemption from issuing notice under Section 80 has been granted then on the failure of application for interim relief the exemption would be revoked, plaint has to be returned and the suit has to be refiled after complying with the provisions of Section 80 of the Code. 7. The judgment of this Court in the case of Ajmer Kaur v. Punjab State, (1990-1)97 P.L.R. 314 would not apply to the facts of the present case because no order granting exemption to the plaintiff was passed in that case as is the factual position in the instant case. 7. The judgment of this Court in the case of Ajmer Kaur v. Punjab State, (1990-1)97 P.L.R. 314 would not apply to the facts of the present case because no order granting exemption to the plaintiff was passed in that case as is the factual position in the instant case. Moreover, the question of jurisdiction of the Civil Court has also weighed with the Court in that case because the provisions of Northern India Canal and Drainage Act, 1873 creates a bar from entertaining a civil suit by the civil Court. The plaint was ordered to be rejected under Order VII Rule 11(d) of the Code. Therefore, the revision petition is liable to be dismissed. For the aforementioned reasons, this petition fails and the same is dismissed. RM.S.