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2007 DIGILAW 849 (ORI)

Gouranga Das v. Tahasildar, Baliapal

2007-11-08

L.MOHAPATRA

body2007
ORDER :- This writ application is directed against the order dated 21-1-2007 passed by the learned Civil Judge (Senior Division), Balasore in Civil Suit No. 107 of 2007 rejecting an application filed by the plaintiff-petitioner for dispensing with notice on the State under Section 80 (2) of the Code of Civil Procedure and returning the plaint with liberty to re-file the same after compliance of Section 80 (1) of the C.P.C. 2. The learned counsel for the State at the time of admission challenged the maintainability of the writ application on the ground that in view of amendment in the Civil Procedure Code in Section 115, the writ application is not maintainable and the petitioner should have filed a revision under Section 115 of the Code of Civil Procedure challenging the impugned order. In view such objection raised, the learned counsel for the parties were heard on maintainability as well as merit. 3. The plaintiff who is petitioner before this Court had filed a suit for declaration of right, title, interest and for permanent injunction as well as damages. Defendants 1 to 3 are Government officials and defendant No. 4 is a contractor against whom allegation is that he was trying to forcibly evict the plaintiff-petitioner from the suit properties and construct a road thereon. It was the case of the plaintiff-petitioner that the defendants have already cut down some valuable trees from the land of the petitioner over plot Nos. 477 and 178 of Lot No. 1 and were contemplating to construct the road. In view of such urgency, there was no time to serve notice on the State officials as required under sub-section (1) of Section 80 of the Code of the Civil Procedure and a petition was filed under Section 80 (2) of the Code of Civil Procedure for dispensing with the notice. The said petition was rejected by the learned Civil Judge in the impugned order and the plaint was returned with liberty to re-file the same after compliance of the mandatory provisions contained in sub-section (1) of Section 80 of the Code of Civil Procedure. 4. So far as question of maintainability is concerned, it was contended by the learned counsel for the State that once the Court directs for return of plaint, it brings an end to the suit and, therefore, a revision lies under Section 115 of the Code of Civil Procedure. 4. So far as question of maintainability is concerned, it was contended by the learned counsel for the State that once the Court directs for return of plaint, it brings an end to the suit and, therefore, a revision lies under Section 115 of the Code of Civil Procedure. The learned counsel appearing for the petitioner submitted that return of plaint on technical ground with liberty to re-file the same does not bring finality to the suit and there being further scope to file the suit, it cannot be said to be a case decided and, therefore, a revision will not lie against the said order. It was further contended that against the said order only a writ application can lie. Admittedly, along with the plaint an application was filed under Section 80 (2) of the Code of Civil Procedure for dispensing with the notice as required under Section 80 (1) of the Code of Civil Procedure. In the impugned order, the petition was rejected and the plaint was returned which obviously means that the plaint had not been admitted at all and prior to admission such an order was passed and the plaint was returned. Now the question that arises for consideration is as to whether return of a plaint for presentation after compliance of Section 80 (1) of the Code of Civil Procedure amounts to a case decided or not. If it amounts to a case decided and brings finality to the suit, a revision is maintainable and if it does not bring finality to the suit, the revision is not maintainable and consequently a writ can be maintainable. 5. The learned counsel for the State relied upon a decision of this Court in the case of Executive Officer, Notified Area Council, Bhadrak and another v. Prabin Kumar Mohanla alias Mohanlal and another reported in (1995) 80 CLT 529 : 1995 AIHC 5536. While deciding the second appeal, a question was raised before the Court with regard to maintainability of the suit on the ground that notice under Section 349 of the Orissa Municipal Act, 1950 had not been served prior to filing of the suit. In connection with the above point raised, the Court examined Section 80 of the Code of Civil Procedure and observed that the provisions of Section 80 are mandatory in nature. Its terms are imperative and admit of no exception or implication. In connection with the above point raised, the Court examined Section 80 of the Code of Civil Procedure and observed that the provisions of Section 80 are mandatory in nature. Its terms are imperative and admit of no exception or implication. The section is applicable to all forms of action including those in which the whole or the part of the relief claimed is an injunction. A suit not complying with its provision cannot be entertained by any Court and if instituted must be rejected under Order 7, Rule 11 of the Code. Relying on the aforesaid observation, it was contended by the learned counsel for the State that once the plaint is returned it amounts to rejection under Order 7, Rule 11 of the Code of Civil Procedure and a revision under Section 115 of the said Code will lie and not a writ application. Shri Baug, the learned counsel appearing for the petitioner relied upon a decision of the Apex Court in the case of Shiv Shakti Cooperative Housing Society, Nagpur v. M/s. Swaraj Developers and others, reported in 2003 (1) OLR (SC) 673 : AIR 2003 SC 2434 . With reference to Section 115 of the Code of Civil Procedure, the Supreme Court in the aforesaid judgment held that a plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. The learned counsel also relied upon another decision of this Court in the case of M/s. Orissa Agro Industries Corporation Ltd. v. M/s. K. C. S. Private Ltd. reported in 2003 (Supplementary) OLR 675 : 2004 AIHC 1788. In the aforesaid decision this Court referred to Order 7, Rules 10A and 10B and held that mere disposal of an application under Rule 10 practically a suit is not disposed of but it is returned to be presented in a Court having jurisdiction. In the aforesaid decision this Court referred to Order 7, Rules 10A and 10B and held that mere disposal of an application under Rule 10 practically a suit is not disposed of but it is returned to be presented in a Court having jurisdiction. Relying on the above decision, it was contended by the learned counsel for the petitioner that had the application filed by the petitioner for dispensing with notice under Section 80 (1) of the Code of Civil Procedure been allowed, the suit would have continued. Relying on the decision of this Court as stated above, it was also contended by the learned counsel for the petitioner that disposal of the application by directing return of the plaint does not bring a finality to the suit and there being scope for filing of further suit, it cannot be said to be a case decided. 6. Section 80 of the Civil Procedure Code provides that save as otherwise provided in sub-section (2) no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to or left at the office of the category of officers mentioned in sub-section (1) of the said Section. Sub-section (2) of the said section makes an exception and the Court has discretion for dispensing with notice for the purpose of grant of interim relief. If an application under sub-section (2) of Section 80 is rejected, then the only option left to the Court is to return the plaint for non-compliance of sub-section (1) of Section 80. In the case of Executive Officer, Notified Area Council, Bhadrak and another v. Prabin Kumar Mohanla alias Mohanlal and another, 1995 AIHC 5536 (supra), this Court observed that for non-compliance of the mandatory provisions contained in Section 80 (1), the plaint is to be returned under Order 7, Rule 11 C.P.C. Order 7, Rule 11 specifies the ground on which the plaint is to be rejected. If return of the plaint does not come within the purview of the said provision, then return the plaint for presentation either in Court having jurisdiction or after compliance of the mandatory provision cannot be said to be under the said provision. If return of the plaint does not come within the purview of the said provision, then return the plaint for presentation either in Court having jurisdiction or after compliance of the mandatory provision cannot be said to be under the said provision. Order 7, Rule 10 prescribes for return of plaint. Order 7, Rule 10(1) provides that subject to the provisions contained in Rule 10-A, the plaint at any stage of the suit can be returned to be presented to the Court in which the suit should have been instituted. This Court in the case of M/s. Orissa Agro Industries Corporation Ltd. v. M/s. K.C.S. Private Ltd., 2004 AIHC 1788 (supra) held that on conjoint reading of Rules 10A and 10B it merges that by mere disposal of an application under Rule 10 practically a suit is not disposed of but it is returned to be presented in Court having jurisdiction. Once this view is accepted, it can safely be said that return of the plaint for presentation in appropriate Court or after compliance of the mandatory provision does not amount to disposal of the suit and, therefore, cannot be said to be a case decided to attract Section 115 of the C.P.C. Moreover, if the observation of the Apex Court in the case of Shiv Shakti Cooperative Housing Society, Nagpur v. M/s. Swaraj Developers and others, AIR 2003 SC 2434 (supra) is taken into consideration in the present case, had the application of the petitioner filed under Section 80 (2) of the C.P.C. been allowed, the suit would have proceeded and, therefore, a revision is not maintainable. I, accordingly hold that the writ application is maintainable against the impugned order. 7. Coming to the merits of the case, it appears from the impugned order the learned Civil Judge has not assigned any reason while rejecting the petition except stating that the mandatory provisions contained in Section 80 (1) has not been complied with. The discretion is given to the Court to dispense with such notice in case of emergency where immediate relief is required to be given and considering the averments made in the plaint as well as the application for injunction, I am of the view that the trial Court should have allowed the application. 8. The discretion is given to the Court to dispense with such notice in case of emergency where immediate relief is required to be given and considering the averments made in the plaint as well as the application for injunction, I am of the view that the trial Court should have allowed the application. 8. I, accordingly set aside the impugned order and direct that notice under Section 80 (1) of the C.P.C. be dispensed with and the application for injunction be entertained in terms of the provisions contained under Section 80 (2) of the C.P.C. The writ application is accordingly disposed of. Order accordingly.