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2005 DIGILAW 343 (HP)

VIKAS JAIN v. HARBHAJAN SINGH

2005-09-14

V.M.JAIN

body2005
JUDGMENT V.M Jain, J. (Oral):- This petition under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India has been filed by the plaintiff, challenging the order dated 27.5.2005 passed by the trial Court, dismissing the application under Section 80(2) CPC and ordering the return of the plaint to the plaintiff for compliance of the provisions of Section 80 CPC. 2. The facts which are relevant for the decision of the present petition are that the plaintiff-petitioner had filed a suit for rendition of accounts against Harbhajan Singh as defendant No.1 and Union of India as defendant No.2. In the plaint, the plaintiff had prayed that the defendants be directed to render the accounts of the execution of work, which is the subject matter of the suit and the amounts determined by the court after settlement of account may be decreed in favour of the plaintiff and. against the defendants with future interest etc. Along with the suit, the plaintiff had filed two applications. One application was under Order 39 Rules 1 and 2 CPC for the grant of ad interim injunction restraining defendant No.2 Union of India from releasing any further payment to defendant No.1 till the accounts were settled and in the alternative, seeking a direction to defendant No. 1 to deposit the said amount in the Court. The other application was under Section 80(2) CPC seeking exemption form giving advance notice to defendant No.2 Union of India before the filing of the suit. 3. After issuing notice to the defendants ad after hearing both sides, the learned trial Court dismissed the ad interim injunction application of the plaintiff under Order 39 Rules 1 and 2 CPC, vide order dated 27.5.2005. Thereafter, after noticing that the suit was for rendition of accounts and there was no urgency and no case was made out for exempting the service of advance notice under Section 80 CPC, the learned trial Court passed the impugned order dated 27.5.2005 dismissing the application under Section 80(2) CPC and ordering the return of the plaint to the plaintiff for complying with the provisions of Section 80 CPC. Aggrieved against the same, the plaintiff filed the present petition in this Court. 4. I have heard the learned counsel for the petitioner and gone through the records carefully. 5. Aggrieved against the same, the plaintiff filed the present petition in this Court. 4. I have heard the learned counsel for the petitioner and gone through the records carefully. 5. The learned counsel appearing for the petitioner submitted before me that the trial Court having entertained the suit along with the application under Order 39 Rules 1 and 2 CPC and under Section 80(2) CPC, the learned trial Court could not have dismissed the application under Section 80(2) CPC and could not have ordered the return of the plaint to the plaintiff for complying with the provisions of Section 80 CPC. 6. However, I find no force in this submission of the learned counsel for the petitioner-plaintiff. Section 80(l) CPC provides that no suit shall be instituted against the Government or against public officer etc, until the expiration of two months next after notice in writing has been delivered etc. and that the plaint shall contain a statement that a such a notice has been so delivered etc. under Section 80(2) CPC it is provided that a suit to obtain an urgent or immediate relief against the Government or any public officer may be instituted, with the leave of the Court, without serving any notice as required under 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. There is a proviso to Section 80(2) CPC to the effect that if the Court is satisfied, after hearing the parties, that no urgent or immediate relief need to be granted in the suit, the Court shall return the plaint for presentation to it after complying with the requirements to subsection (1). 7. From the perusal of the provisions of Section 80 CPC, in my opinion, it would be clear that the plaintiff could have filed the suit along with application under Section 80(2) CPC, without serving advance notice upon defendant No.2 Union of India, if the plaintiff was claiming an urgent or immediate relief against the Government. However, in such eventuality the Court was required to give reasonable opportunity of showing cause in respect of the relief prayed in the suit, to the Government before any relief, interim or otherwise, could be granted. However, in such eventuality the Court was required to give reasonable opportunity of showing cause in respect of the relief prayed in the suit, to the Government before any relief, interim or otherwise, could be granted. Furthermore, if after hearing both the parties, the Court was of the opinion that no urgent or immediate relief need be granted in the suit, the Court was required to return the plaint to the plaintiff for presentation to it after complying with the requirements of sub-section (1) i.e. service of advance notice upon the Government or public officer, as the case may be, before filing the suit. In the present case, the learned trial Court had done exactly what was required to be done by Section 80 CPC, referred to above. Since the plaintiff had filed the suit impleading Union of India as defendant No.2 and the plaintiff had filed the application under Section 80(2) CPC and had also filed an application under 39 Rules 1 and 2 CPC, the learned trial Court had issued notice to the defendants and after hearing the both sides, the learned trial Court found that no urgent or immediate relief was required to be granted in the suit. Resultantly, the application under Order 39 Rules. 1 and 2 CPC filed by the plaintiff was dismissed. There upon, in compliance with the proviso to sub-section (2) of Section 80 CPC the learned trial Court ordered the return of the plaint to the plaintiff for presentation after complying with the requirement of subsection (1) of Section 80 CPC. 8. In my opinion, if the learned trial Court had entertained the suit alongwith the aforesaid application under Order 39 Rules 1 and 2 CPC, and under Section 80(2) CPC and the trial Court had issued notice to the defendants, it could not be said that the learned trial Court had granted necessary permission to the plaintiff to institute the suit without serving advance notice upon defendant No.2 Union of India, nor could be it said that the trial Court was duty bound to retain the suit on its file, even if the trial Court was of the opinion that an urgent or immediate relief was required to be granted in the suit. In my opinion, if the learned trial Court after dismissing the application under Order 39 Rules 1 and 2 CPC had still retained the suit on its file and had not returned the same to the plaintiff for presentation after complying with the requirement of sub-section (1) of Section 80 CPC, the said action of the trial Court would have been contrary to the provisions of sub section (2) of Section 80 CPC. 9. In my opinion, as referred to above, the only course open to the trial Court was to return the plaintiff for presentation after serving advance notice as required under Section 80(1) CPC. 10.During the course of arguments, the learned counsel appearing for the petitioner referred to the law laid down in S.A.Ramchardran vs. Neelvathy, (1997) 1 SCC 767, Ghanshyam Dass and others vs. Dominion of India and others, (1984)3 SCC 46, T.V.Parangodan vs. District Collector, Trichur and others, AIR 1989 Kerala 276, M/s Basic Tele Services Ltd. v. Union of India and another, AIR 2000 Delhi 1, Harish Chandra (India) Pvt. Ltd. v. The Corporation Bank and others, AIR 1992 Delhi 279, The Union of India v. Devanagere Cotton Mills ltd. and another, AIR 1976 Madras 20, Raghunath Das v. Union of India and another, AIR 1969 SC 674, Smt. Janak Raji Devi v. Chandrabati Devi and another, AIR 2002 Calcutta II and Babuli @ Narayan Bahera V. The State of Orissa, (1974) 3 SCC 562. I have minutely gone through the various authorities referred to above. None of the authorities has any relevance with the point involved in the present petition and the law laid down in these authorities has no application to the facts in the present case. 11. For the reasons recorded above, I find no merit in this petition and the same is hereby dismissed.