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2008 DIGILAW 2408 (ALL)

SARAYA SUGAR MILLS LTD v. STATE OF UTTAR PRADESH

2008-12-03

SHASHI KANT GUPTA

body2008
JUDGMENT Hon’ble Shashi Kant Gupta, J.—Sri Pinaki Mishra learned Senior Advocate assisted by Sri Akhilesh Kalra and Sri Piyush Kumar Agarwal appearing for the revisionist. Sri K.N. Tripathi learned Senior Advocate assisted by Sri Mukesh Prasad, Sri Ashok Kumar Srivastava and Sudeep Kumar, advocates are appearing for respondent Nos. 4 and 5. Sri Ritu Raj Awasthi, learned Assistant Solicitor General of India is appearing for the Union of India respondent No. 3, Sri Jaydeep Narayan Mathur, Addl. Advocate General represents respondent Nos.1 and 2. The Facts 2. This civil revision is filed under Section 115 of the C.P.C. against the issuance of a notice dated 18.9.2008, by Civil Judge (Senior Division), Lucknow in Regular Suit No. 1192 of 2008, M/s. Saraya Sugar Mills Ltd. v. State of U.P. and others, on the application for interim injunction filed under Order 39 Rule 1 read with Section 80(2) of CPC. The brief facts which emerge from the affidavit filed by the revisionist in support of the application for interim relief are as follows : The plaintiff company is a registered company and is in the business of manufacture of sugar by Vaccum Pan Process and at present has its Industrial Undertaking (Existing Sugar Mill) at Sardar Nagar, Tehsil Chauri Chaura, District Gorakhpur, since the year 1933. The Central Government had issued a notification dated 10-11-2006, whereby amended the Sugarcane (Control) Order 1966, which was interpreted by the Hon’ble Supeme Court to have retrospective effect, as a consequence whereof the criterion of maintaining 15 Kilometer distance, which was held by the Hon’ble High Court of Delhi on 22-12-2005, to have statutory force, was upheld and was made applicable from the date it was deleted from the Industrial (Development) Regulation (in short IDR) at 1951. 3. It is further stated that the Supreme Court in the appeal namely, M/s Ojus Industries (P) Limited v. Oudh Sugar Mills Limited and others, held that the Sugarcane (Control) (Amendment) Order, 2006 imposes a bar on the subsequent Industrial Enterpreneur Memorandum (in short referred to as “IEM”) holder in the matter of setting up new sugar mill during the stipulated period given in the earlier IEM. It is further pleaded that as per the amendment to the Sugarcane (Control) Order, 1966, as amended on 10-11-2006, any proposal to construct a sugar factory will be dealt with accordingly. It is further pleaded that as per the amendment to the Sugarcane (Control) Order, 1966, as amended on 10-11-2006, any proposal to construct a sugar factory will be dealt with accordingly. Such an Entrepreneur shall not be accorded permission to do so, in case, if an industry which is going to be established is within 15 Km. from any existing factory or a new factory as defined in Explanation-2 to Clause 6A of the Sugarcane (Control) Order, 1966 as amended on 10-11-2006. 4. It is further stated that M/s New India Sugar Mill opposite party No. 4 filed an IEM expressing its intention to set up a sugar industrial undertaking at Village Dharaha Buzurg, Tehsil Hata district Kushinagar, U.P. and the said IEM was issued on 25-2-2005 . It is further pleaded that the period of two years for taking of the effective steps having elapsed and as such IEM issued on 25-2-2005 stood derecognized on 25-2-2007 as per the provisions of clause 6-C of the Notification dated 10-11-2006 and now no order infusing new life can be issued. According to the learned counsel for the revisionist the respondents No. 1 to 3 have not followed the direction and observation of the Supreme Court in the judgment, referred to above, as from the distance certificate (Annexure-12) issued by the Office of Director, U.P. Geospatial data Centre, Survey of India. It is evident that distances are 13.91 and 13.97 Kms. which have been measured on circle and dot. It is further stated that a certificate of distance dated 19-4-2005 has been issued by the Survey of India in favour of defendant No. 4 showing the distance of the village where sugar factory is proposed to be set up, to be more than 15 Kms. from the existing factory of the plaintiff. 5. The defendant respondent No. 2 has also issued no objection certificate certifying the distance of the proposed sugar mill from that of the plaintiff’s sugar and other sugar mills in the area. 6. It is stated that in order to safeguard its right and interest the revisionist filed a suit for declaration, mandatory and permanent injunction against the opposite parties-defendants in the Court of Civil Judge, Lucknow which was registered as Regular suit No. 1122 of 2008. 7. 6. It is stated that in order to safeguard its right and interest the revisionist filed a suit for declaration, mandatory and permanent injunction against the opposite parties-defendants in the Court of Civil Judge, Lucknow which was registered as Regular suit No. 1122 of 2008. 7. The revisionist also preferred an application under Section 80(2) CPC together with application under Section 151, CPC read with Order 39 Rules 1 and 2 of CPC for grant of interim injunction. The Trial Court exempted the revisionist from complying with the provisions of Section 80(1) and permitted to institute the aforesaid suit without serving any notice as required by sub-section (1) of Section 80 of CPC. But in compliance of the provisions of Section 80(2) of CPC Court below issued notices to the opposite parties including the State & Union of India for affording reasonable opportunity or showing cause in respect of the relief prayed for in the application for grant of interim injunction. Submissions on behalf of the defendants 8. Sri K.N.Tripathi, learned senior counsel for the respondents No. 4 and 5 has raised preliminary objection regarding the maintainability of the present revisionist filed under Section 115, CPC against the impugned order passed by the Courts below issuing notices to the State, Union of India and other private parties in accordance with the provisions of Section 80 (2) of CPC on the interim injunction application of the revisionist. It is submitted by him that the trial Court has neither disposed of the suit nor the interim injunction application, therefore, the impugned order does not come within the meaning of “case decided”. 9. It is further submitted that no illegality and impropriety was committed by the Civil Judge (Senior Division), Lucknow by merely issuing notice as the trial Court was perfectly justified in first issuing notice to defendants on the injunction application before considering whether injunction can be granted because under Section 80(2) of CPC there is complete embargo against the Court from granting any relief whether interim or otherwise except after giving the Government or public officer a reasonable opportunity of showing cause. 10. 10. Sri K.N. Tripathi, learned senior counsel for the opposite parties No. 4 and 5 while referring to the provisions under Sections 115 and 80 of C.P.C. and Order 39 Rules 1 and 2 of CPC, has argued that neither the case has been decided by the Court below nor the order issuing notice has finally disposed of the suit or other proceedings nor the order has caused failure of justice or irreparable injury to the revisionist. The Court below has exercised jurisdiction in accordance with law while issuing notice under Section 80(2) of CPC to the opposite parties to grant them opportunity or showing cause before passing any order on the injunction application. 11. It is further submitted that the provisions of Section 80(2) of CPC for issuing notices to the State & Union of India for providing reasonable opportunity of showing cause in respect of the relief prayed on the injunction application/suit is mandatory and as such by no stretch of imagination it could be said that the Court below has failed to exercise a jurisdiction so vested or the impugned order has finally disposed of the suit or other proceedings or has caused failure of justice or irreparable injury to the revisionist. It is further contended that the impugned order has been passed neither in favour of the revisionist nor in favour of defendant, simply notice has been issued and the final decision on the interim injunction application is yet to be taken by the Court below and by issuing notice under Section 80(2) of CPC the Court below merely has complied with the mandate of the statute. 12. Mr. Tripathi has further submitted that sub-section (1) of Section 115 of CPC empowers the Court to acquire the revisional jurisdiction and sub-section (3) of Section 115 of CPC provides the manner in which revisional jurisdiction can be exercised. Any order passed on the interim injunction application will not come within the meaning of “other proceedings” by a subordinate Court as contemplated under Section 115(1) of CPC. Issuing notices to the opposite parties in accordance with Section 80(2) of CPC is a step in aid to the exercise of jurisdiction by the subordinate Court. Any order passed on the interim injunction application will not come within the meaning of “other proceedings” by a subordinate Court as contemplated under Section 115(1) of CPC. Issuing notices to the opposite parties in accordance with Section 80(2) of CPC is a step in aid to the exercise of jurisdiction by the subordinate Court. Before exercise of power under Section 115 of CPC it is incumbent upon the Court to see whether the order against which the revision has been filed is a “case decided” and whether there is jurisdictional error committed by the Court below and further the impugned order which has been passed, if it had been made in favour of the parties applying for revision would have finally disposed of the suit or other proceedings or the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the parties against whom it is made and has further submitted that issuing notice by the Court below under Section 80(2) of CPC has simply postponed the decision on the interim application to a future dates and that stage has yet not arrived and the controversy raised is yet to be determined and adjudicated upon by the lower Court. 13. Learned counsel for the opposite parties Sri K.N. Tripathi has referred to the following decisions in support of his contention to demonstrate that the present revision under Section 115 of CPC against the mere issuance of notice is not maintainable : (i) (2003) 6 SCC 659 , Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and others, (ii) 2003 (3) AWC 1921, Debi Das v. State of U.P. and others, (iii) 2006(4) ADJ 67 (All), Narendra Kumar v. Nagar Nigam Bareilly and others, (iv) 2007(3) ADJ 490 , Dinesh Singh v. Additional District Judge (Court No. 1) Gorakhpur and another, (v) AIR 2003 All 180 , Rajendra Singh and others v. Brij Mohan Agarwal and others, (vi) 2007(1) ADJ 48 , Ram Ishwar @ Rameshwar v. Laxmi Narain and another, (vii) 2007(25) LCD 390, Lalit Mohan Srivastava and others v. District Judge Ambedkar Nagar and others, (viii) (2003) 6 SCC 675 , Surya Dev Ram v. Ram Chandra Rai and others, (ix) (2005) 5 SCC 527 , Gayatri Devi and others v. Shashi Pal Singh, (x) 2006(62) ALR 278, Rajpal Singh v. Richpal Singh and others, (xi) 2006(62) ALR 885, Mohd. Rais Khan v. Naseeb Ullah Khan and others. Learned counsels for the respondent Nos.1 to 3 have supported and adopted the arguments of Sri K.N. Tripathi learned senior counsel appearing for the respondent Nos. 4 and 5. Submissions on behalf of the applicant 14. Learned counsel for the revisionist on the other hand has submitted that the provisions of Section 80(1) of CPC is applicable only in respect of any ‘act’ purporting to be done by a public officer in his official capacity. Hence, before Section 80 of CPC can be relied on in any suit, it must be shown that it is a suit in respect of an ‘act’ purporting to be done in his official capacity, which also includes illegal omissions. Therefore, in so far as a relief which does not relate to any ‘act’ or ‘illegal omission’ purporting to be done in his official capacity, Section 80 will not have any application. Learned counsel for the revisionist has also placed reliance upon the judgment passed by the Apex Court in Amalgamated Electricity Company v. Municipal Committee Ajmer, AIR 1969 SC 227 . 15. It is further submitted that since the interim relief sought by the revisionist included amongst other, relief in respect of act(s) which had not been committed by the public official (Cane Commissioner) till the date of institution of the suit itself, as such, the bar of Section 80, CPC, would not apply at all in that respect. 16. It is further submitted that the plaintiff moved an application under Section 151, CPC, but the same was not considered at all thus making it infructuous while passing of the impugned order dated 18.9.2008 wherein simplicitor notices have been issued under the misplaced and wrong impression that no relief of any kind can be granted in suit against the government and it’s officials, consequently, committing a grave irregularity and illegality in the exercise of jurisdiction by the trial Court. In support of his contention the revisionist has placed reliance upon the decision of Apex Court in the case of Bajaj Hindustan Sugar v. Balrampur Chini Mills, 2007(9) SCC 43 . 17. It is further contended by the learned counsel for the revisionist that in the Amendment Act of 1999, Clause (b) to the Proviso to sub-section (1) of Section 115 of CPC has been omitted. 17. It is further contended by the learned counsel for the revisionist that in the Amendment Act of 1999, Clause (b) to the Proviso to sub-section (1) of Section 115 of CPC has been omitted. It is emphasized that the Apex Court while interpreting Section 115 of CPC has held that the scope of revision before the High Court has been further minimised and that aspect of the matter has led the Hon’ble Supreme Court in the case of Shiv Shakti Co-operative Housing Society, Nagpur v. Swaraj Developers and others, 2003(2) SCC 651, to lay down a proposition that an order directing issue of notice on an application under Order XXXIX, Rules 1 and 2, CPC by the trial Court would not be an order subject to the revisional jurisdiction of the High Court. It is further submitted that the Apex Court did not consider the provisions as incorporated after amendment of Section 115 by the State Amendment as applicable to the State of U.P. and therefore, the case law of Shiv Shakti (supra) would not be available to the Courts of U.P. in exercising the jurisdiction within the State as binding precedent. 18. It is further submitted that the provision of Section 115 of CPC as available after Central Amendment Act 1999 are not totally parallel or identical to the amended provision of the said Section 115 as available in the State of U.P. The U.P. State Amendment to Section 115 as incorporated in 2003 has, however, retained both clauses (a) and (b) of the old Amendment Act in form of ‘Clauses (i) and (ii) of sub-section (3) of Section 115. 19. It is further submitted that the Court under Order XXXIX Rule 3 can grant ex-parte injunction where it appears that the object of granting the injunction would be defeated by the delay, as such the provisions of Order XXXIX Rules 1, 2, 3 and Section 80 of CPC should be read harmoniously otherwise it will result in grave miscarriage of justice. The provision as contained in Section 115 of CPC are not to be seen in isolation but in consonance with the entire factual as well as legal matrix of a given suit or proceedings. Points for determination 20. Heard the learned counsel for the parties and perused the record. 21. The provision as contained in Section 115 of CPC are not to be seen in isolation but in consonance with the entire factual as well as legal matrix of a given suit or proceedings. Points for determination 20. Heard the learned counsel for the parties and perused the record. 21. Considering the rival contentions made by the contesting parties, the following issues arise for determination for deciding the maintainability of this revision : (i) Whether the provisions of Section 80(2) of CPC is mandatory which provides that the Court shall not grant relief in the suit whether interim or otherwise except after giving to the Govt. or public officer as the case may be, a reasonable opportunity or showing cause in respect of the relief prayed for in the suit. (ii) Whether issuing a notice under Section 80(2) CPC to the defendant on an application for grant of temporary injunction is a case decided within the meaning of Section 115 of CPC. (iii) Whether the Court below in the present matter has failed to exercise a jurisdiction so vested or have acted in the exercise of his jurisdiction illegally or with material irregularity. (iv) Whether the Provisions of Order XXXIX Rule 3, CPC are applicable in the present matter. Issue No. 1 22. Bare perusal of the impugned order dated 18.9.2008 clearly shows that the Court below has issued notice to Union of India and State of U.P. to file objections fixing 30.9.2008 for providing reasonable opportunity of hearing as envisaged in Section 80 (2) of CPC. 23. The revisionist without serving notice as provided under Section 80(1) of CPC filed inter alia an application under Section 151 with the following prayer : ”APPLICATION UNDER SECTION 151 CODE OF CIVIL PROCEDURE, 1908 (i) That the facts, reason and circumstances deposed in the accompanying affidavit as also the plaint it is most respectfully prayed that this Hon’ble Court to kindly adjudicate and hear the application under Order XXXIX Rule 1 and 2 of CPC for grant of interim injunction, forthwith, after grant of leave to the plaintiff to institute the present suit without serving any notice on the defendants No. 1 to 3 as required under Section 80(1) of CPC in the interest of justice, for which acts of kindness the plaintiff shall ever pray as in duty bound. (ii) Any other relief which this Hon’ble Court deems fit in the circumstances of the case be also awarded to the plaintiff.” 24. The Court below in pursuant to the aforesaid application granted leave to the plaintiff-revisionist to institute a suit without serving any notice as required by sub-section (1) of Section 80 of CPC. Thus the contention of learned counsel for the revisionist that the Court below did not pass any order on the application under Section 151, of CPC seeking leave of the Court to institute the suit without serving any notice to the State Govt. and Union of India is not correct and unfounded. The impugned order dated 18.9.2008 clearly shows that the Courts below while disposing of the application under Section 151, CPC of the revisionist granted leave to institute the suit without any notice to the Govt. In urgent matters if the Court is satisfied as provided under sub-section (2) of Section 80 of CPC, it may grant leave or it may refuse leave but where it grants leave the legislature has put a restriction that in that circumstance a reasonable opportunity is required to be given to the State and Union of India and other public functionaries before passing any order. 25. For ready reference the provisions of sub-section (2) of Section 80 of CPC is quoted below : "80(1).............. (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 need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).” 26. Sub-section (2) of Section 80 of CPC imposes a statutory duty and unqualified obligation upon the Court to grant opportunity to the Government before passing any interim or otherwise any order in respect of the relief prayed for in the suit. Thus giving of reasonable opportunity to the State and Union of India and other public functionaries is mandatory under sub-section (2) of Section 80 of CPC and no interim or otherwise order can be passed by the learned Court below without notice to the Govt. or any other public functionaries. Thus the legislative intends can be noticed from perusal of sub-section (2) of Section 80 of CPC which confers power on the Court to avoid genuine hardship and is therefore, an empowering provision to confer power on the trial Court couple with the duty to grant leave to institute the suit without applying with the requirement of sub-section (1) of Section 80 of CPC thereof bearing in mind only the urgency of the relief prayed for and not the merits of the case. Therefore, even in the urgent matters relief in the suit whether interim or otherwise shall not be granted without giving a reasonable opportunity to the Govt. or public officer to show cause in respect of the relief prayed for. 27. The revisionist has placed reliance upon a decision of the Apex Court in Amalgamated Electricity Company v. Municipal Committee, Ajmer, AIR 1969 SC 227 (supra). It is relevant to point out that sub-section (2) of Section 80 of CPC has been inserted by Act No. 104 of 1976 w.e.f. 1.2.1977 and the aforesaid judgment relates prior to 1976, as such the amended provision of Section 80 of CPC was not under the consideration of the Apex Court. In the said case the suit was filed claiming a sum of Rs. 93,000/- and odd as surcharge due under certain notification issued by the Chief Commissioner of Ajmer. The Apex Court in the said case held that if the suit does not relate to any act or illegal omission purported to be done by a public officer in his official capacity, the Section 80 will not have any application. The Apex Court in para 13 of the judgment observed as follows : "Mr. The Apex Court in the said case held that if the suit does not relate to any act or illegal omission purported to be done by a public officer in his official capacity, the Section 80 will not have any application. The Apex Court in para 13 of the judgment observed as follows : "Mr. Sharma read to us several decisions of the various High Courts wherein it has been laid down that a suit brought in respect of breach of contract by a public official is an “act” within the meaning of Section 80 of the Civil Procedure Code. Similarly illegal omissions have been held to be ‘acts’ under that Section. In some of the decisions it was held that the second part of Section 80 of the Civil Procedure Code applies only to actions on torts committed by public officials, in the discharge of their public functions. There is conflict of judicial opinion on that point. For our present purpose it is not necessary to resolve that conflict. Suffice to say that in the present case, the plaint does not complain of any ‘act’ or even an illegal omission on the part of the defendant. Hence we agree with Mr. Purshottam Tricumdas that no notice under Section 233 of the Ajmer Merwar Municipalities Regulation was necessary before instituting the suit. In that view it is not necessary to consider whether the notice relied on by the plaintiff meets the requirements of the law”. 28. The aforesaid authority does not in any way help the revisionist. The judgment has absolutely no bearing on the case in hand and in my opinion it is clearly distinguishable on the facts. 29. Learned counsel for the applicant has argued that the interim relief sought by the revisionist included, amongst others, relief in respect of act(s) which had not been committed by the public official (Cane Commissioner) till the date of institution of the suit itself, as such, the bar of Section 80 did not apply. 29. Learned counsel for the applicant has argued that the interim relief sought by the revisionist included, amongst others, relief in respect of act(s) which had not been committed by the public official (Cane Commissioner) till the date of institution of the suit itself, as such, the bar of Section 80 did not apply. This argument of the applicant is totally misconceived and cannot be sustained for the simple reason that in the present case the revisionist by way of interim injunction application has sought prayer to stay the operation, effect and implementation of the no objection certificate dated 13.4.2007 issued by the defendant No. 2 on the basis of the distance certificate dated 19.4.2005 issued by the Survey of India for establishing a new sugar factory as such the petitioner has challenged the order dated 13.4.2007 and 19.4.2005 issued by the public officer in his official capacity. Hence it is a suit in respect of an act already done by him in his official capacity and as per provision of General Clauses Act the Expression Act also includes illegal omission. Therefore, the contention of the revisionist cannot be sustained that Section 80 of CPC is not applicable. The requirement of sub-section (2) of Section 80, CPC for providing reasonable opportunity of hearing is mandatory and therefore the impugned notice which has been issued by the learned Court below in furtherance of the mandatory requirement, cannot be termed as failure to exercise jurisdiction. 30. Learned counsel for the respondent No. 4 has placed reliance on the decision of State of U.P. and others v. Pioneer Builders A.P. (supra). The relevant paragraphs 14, 16 and 17 of the said judgment is reproduced below : "14. From a bare reading of sub-section (1) of Section 80, it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer, as the case may be. It is well settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The Section imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with Section 80, the suit is not maintainable. It is well settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The Section imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with Section 80, the suit is not maintainable. (See Bhagchand Dagadus v. Secy of State for India in Council, Sawai Singhai Nirmal Chand v. Union of India and Bihari Chowdhary v. State of Bihar). The service of notice under Section 80 is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the Section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so what it may reconsider the decision and decide for itself whether the claim made could be accepted or not. As observed in Bihari Chowdhary the object of the Section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation. 16. Thus, in conformity therewith, by the Code of Civil Procedure (Amendment) Act, 1976 the existing Section 80 was renumbered as Section 80(1) and sub-sections (2) and (3) were inserted with effect from 1.2.1977. Sub-section (2) carved out an exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months’ notice has been served on such Government or public officer. The provision mitigates the rigours of sub-section (1) and empowers the Court to allow a person to institute a suit without serving any notice under sub-section (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer. But, the Court cannot grant relief under the sub-section unless a reasonable opportunity is given to the Government or public office to show cause in respect of the relief prayed for. The proviso to the said sub-section enjoins that in case the Court is of the opinion that no urgent and immediate relief should be granted. It shall return the plaint for presentation to it after complying with the requirements of sub-section (1). Sub-section (3), though not relevant for the present case, seeks to bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1). It shall return the plaint for presentation to it after complying with the requirements of sub-section (1). Sub-section (3), though not relevant for the present case, seeks to bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1). 17.Thus, from a conjoint reading of sub-sections (1) and (2) of Section 80, the legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the Court. Leave of the Court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how the leave is to be sought for or given, yet the order granting leave must indicate the ground(s) pleaded and application of mind thereon. A restriction on the exercise of power by the Court has been imposed, namely, the Court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit." 31. Thus the Apex Court has very clearly held that the Court cannot grant relief whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit. 32. Learned counsel for the applicant also relied upon the decision of Apex Court in Bajaj Hindustan Sugar v. Balrampur Chini Mills, 2007(9) SCC 43 (supra). The said decision does not help in any way to the revisionist. In fact the Apex Court emphasized the mandatory nature of the provisions of Section 80 of CPC and has held that suit may be filed against the Government or public officer without serving notice as required by sub-section (1) with the leave of the Court. When such leave is refused the question of institution of suit does not arise and accordingly no interim relief could also be granted at that stage. 33. When such leave is refused the question of institution of suit does not arise and accordingly no interim relief could also be granted at that stage. 33. Thus giving of reasonable opportunity to the State and Union of India and other public functionaries is mandatory under sub-section (2) of Section 80 of CPC and no interim relief or otherwise can be passed by the learned Court below without issuing notice to the State and Union of India and other public functionaries. In the instant case the learned trial Court had issued notice in consonance with the mandatory statutory duty imposed on it under sub-section (2) of Section 80, CPC, therefore, no interim injunction can be granted by the learned Court below without giving a reasonable opportunity of showing cause in respect of the relief prayed for in the suit without notice to the Government or public officer as provided under sub-section (2) of Section 80, CPC. 34. In view of the above, the issue No. 1 is decided against the revisionist and it is held that the provisions of Section 80 (2) of CPC which provides, that Court shall not grant relief in the suit whether the interim or otherwise except after giving to the Government or officer as the case may be a reasonable opportunity of showing cause in respect of the relief prayed in the suit is mandatory and the Court below has not committed any illegality in issuing notice to the Government in terms of Section 80(2) of CPC before considering the application for interim relief. Issue No. 2 35. One of the controversy involved in the present revision is that as to whether the issuance of notice under Section 80, CPC on an application for interim injunction will amount to “case decided” within the meaning of Section 115 of CPC. 36. Learned counsel for the respondent No. 4 has submitted that merely issuance of notice on an interim injunction application read with Section 80(2) of CPC will not amount to case decided. 36. Learned counsel for the respondent No. 4 has submitted that merely issuance of notice on an interim injunction application read with Section 80(2) of CPC will not amount to case decided. On the other hand the counsel for the revisionist has contended that it will amount to “case decided” and further submitted that since the Apex Court in Shiv Shakti Co-operative Housing Society Ltd. Nagpur (supra) did not consider the provisions of Section 115 as amended by U.P. Act No. 14 of 2003 as such the same cannot be relied upon for considering the maintainability of the revision. 37. At this juncture it would be relevant to refer the original text of Section 115 of CPC as stood present under the Central Act as well as after U.P. Amendment Act, 2003, which are reproduced as under : Central Amendment Act to Section 115 of CPC "115. Revision.—[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears : (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit : Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court. Explanation.—In this Section, the expression "any case which has been decided” includes "any order made, or any order deciding an issue, in the course of a suit or other proceedings.” U.P. State Amendment to Section 115, CPC as incorporated in 2003 "115. Revision.—[(1)] A superior Court may revise an order passed in a case decided in an original suit or other proceedings by a subordinate Court where no appeal lies against the order and where the subordinate Court has : (a) exercised a jurisdiction not vested in it by law, or (b) failed to exercise a jurisdiction so vested, or (c) acted in the exercise of its jurisdiction illegally or with material irregularity, (2) A revision application under sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district Court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district Court. (3) The superior Court shall not, under this Section, vary or reverse any order made except where— (i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. (4) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the superior Court. (4) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the superior Court. Explanation I.—In this Section (i) the expression ‘superior Court’ means— (a) the district Court, where the valuation of a case decided by a Court subordinate to it does not exceed five lakh rupees; (b) the High Court, where the order sought to be revised was passed in a case decided by the district Court or where the value of the original suit or other proceedings in a case decided by a Court subordinate to the district Court exceed five lakh rupees; (ii) the expression ‘order’ includes an order deciding an issue in any original suit or other proceedings. Explanation II.—The provisions of this Section shall also be applicable to orders passed, before or after the commencement of this Section, in original suits or other proceedings instituted before such commencement.” 38. It is a settled law that every word of statute should be given a meaning. While interpreting a statutory provisions, the entire section or whole of the statute should be considered as the case may be. According to Maxwell on the Interpretation of Statutes (12th edition page 36) any construction which may leave without affecting any part of the language of a statute should ordinarily be rejected. Keeping in view the above settled principle of interpretation while considering the Section 115 of CPC, sub-sections (1), (2), (3) and (4) should be read as a whole and not in isolation. 39. Hon’ble Supreme Court in S. S. Khanna v. F.J. Dillon, AIR 1964 SC 497 had settled the law that the word “case” has got comprehensive import which includes civil proceedings other than suits and is not restricted by anything contained in the Section to the entirety of the proceeding in a Civil Court. Accordingly any decision given by the competent Court at intermediary stage while disposing an issue shall amount to case decided. There must be determination of an issue or a controversy or dispute or an application or grievance raised by a party during the course of a proceeding. Unless grievance or claim installed by a party is determined finally though it may not relate to final adjudication of the suit it cannot be said that a case has been decided. There must be determination of an issue or a controversy or dispute or an application or grievance raised by a party during the course of a proceeding. Unless grievance or claim installed by a party is determined finally though it may not relate to final adjudication of the suit it cannot be said that a case has been decided. Therefore to attract the provision contained in sub-section (1) of Section 115 of the Code of Civil Procedure it is necessary that there should be final adjudication or determination of an application or issue pending before the subordinate Court and such determination can be challenged on the ground enumerated under Clauses (a), (b) or (c) of sub-section (1) of Section 115 of the Code of Civil Procedure. 40. A perusal of Section 115 of CPC as available after Central Amendment Act, 1999 and U.P. State Amendment Act to Section 115 sub-section (1) is concerned it is common in both the situation. Therefore, while interpreting sub-sections (2), (3) and (4) of Section115 the provision contained in sub-section (1) of Section 115 cannot be side tracked. As discussed hereinabove while interpreting the provision contained in Section 115 of the Code of Civil Procedure the entire Section should be read as a whole and not merely sub-section (3)(i) and (ii) of Section 115 of CPC. Accordingly, the effect of sub-section (1) of Section 115 of CPC cannot be diluted by provisions of Section 115 (3) sub-clause (ii) of CPC which has been retained by the U.P. State Amendment Act. 41. It will also be useful to refer the judgment of the Apex Court in Baldev Das v. Shiv Lal and another, AIR 1970 SC 406 , wherein it has been held in paragraph 10 as follows : "It may also be observed that by ordering that a question may properly be put to a witness who was being examined, no case was decided by the Trial Court. The expression “case” is not limited in its import to the entirety of the matter in dispute in an action. This Court observed in Major S.S. Khanna v. Brig. The expression “case” is not limited in its import to the entirety of the matter in dispute in an action. This Court observed in Major S.S. Khanna v. Brig. F.J. Dillon, (1964) 4 SCR 409 : ( AIR 1964 SC 497 ) that the expression “case” is a word of comprehensive import: it includes a civil proceeding and is not restricted by anything contained in Section 115 of the Code to the entirety of the proceeding in a civil Court. To interpret the expression “case” as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. But it was not decided in Major S.S. Khanna’s case (supra) that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy ; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of CPC." 42. The Apex Court in Shiv Shakti Co-operative Housing Society, Nagpur (supra) has held in para 32 as follows : ”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. Therefore, if the impugned order is interim in nature cannot be the subject-matter of revision under Section 115.” 43. The following conditions ought to be complied with before invoking the revisional jurisdiction under Section 115 of CPC. Firstly the impugned order under challenge must be a “case decided” in an original suit or other proceedings by a subordinate Court, secondly there should be a jurisdictional error as provided under Section 115 (1) (a), (b) and (c) of CPC. The sub-section (3) of Section 115 of CPC will come into play only when first two requirements namely “case decided” and “jurisdictional error” are satisfied. The sub-section (3) of Section 115 of CPC will come into play only when first two requirements namely “case decided” and “jurisdictional error” are satisfied. Sub-section (3) of Section 115 of CPC merely imposes additional statutory conditions for making to the already existing condition laid down under sub-section (1) of Section 115 of CPC. Unless and until preliminary conditions laid down under Section 115 (1) of CPC (“case decided” and “jurisdictional error”) are not complied with, provisions of Sub-section (3) of Section 115 of CPC will not operate and the revision shall liable to be dismissed for non-compliance of sub-section (1) of Section 115 of CPC alone. 44. This Court in Cantonment Board, Lucknow and another v. District Judge (Incharge), Lucknow and others, has observed that the amendment made in sub-section (1) of Section 115 cannot be read in a piecemeal but the entire Section should be read as a whole. The U.P. amendment does not affect the conditions prohibited by the sub-section (1) of Section 115 of CPC. Under sub-section (3) of Section 115 of CPC, it has been provided that the superior Court shall not interfere under this Section, means under Section 115 of the CPC, to reverse or vary any order made by subordinate Court except in case order stands would have finally disposed of the suit or other proceeding or if it allowed to stand would occasion a failure of justice or may cause irreparable injury to the party against whom it has been made. 45. It has been further observed in the case of Cantonment Board, Lucknow (supra) that using the words “under this Section” in sub-section (3) with all clarity Legislatures had provided that revisional right may be available to an aggrieved party under Clause (i) or Clause (ii) of sub-section (3) shall be subject to sub-section (1) of Section 115 of the Code of Civil Procedure. Sub-section (3) adds additional ground for interference under Section 115 of the Code of Civil Procedure (incorporated by State amendment) to the already existing ground provided by sub-section (1) of Section 115 of the Code of Civil Procedure. Sub-section (3) cannot be read in isolation. 46. A combined reading of sub-sections (1), (2), (3) and (4) of Sections 115 of the Code of Civil Procedure is confined to decision where a controversy has been decided by the Court while determining the issue or dispute in question. 47. Sub-section (3) cannot be read in isolation. 46. A combined reading of sub-sections (1), (2), (3) and (4) of Sections 115 of the Code of Civil Procedure is confined to decision where a controversy has been decided by the Court while determining the issue or dispute in question. 47. In Shiv Shakti case (supra) the Apex Court though was not dealing with the provisions of Section 115 of CPC as amended in U.P. but non-consideration of the provisions of Section 115(3) (ii) will not have any effect on the ratio laid down by the Apex Court in Shiv Shakti. The Apex Court in that case has clearly held that if the impugned order is interim in nature cannot be the subject matter of revision under Section 115 of CPC and once when the order does not come within the meaning of Section 115 (1) of CPC, it would not qualify the condition laid down under Section 115 (1) of CPC and as such the amended provision 115 in U.P. will not have any effect and the ratio laid down by Apex Court in Shiv Shakti (supra) will apply with full force in the present matter. 48. As discussed hereinabove in the case of Shiv Shakti (supra), the Apex Court had not only interpreted Section 115 of CPC by applying the settled rules of interpretation but in the same judgment under Para 32 had provided yardstick to decide by observing that if the impugned order is interim in nature cannot be the subject matter of revision under Section 115 of CPC. The case of Shiv Shakti (supra) has been followed by the Apex Court again in judgment of Gayatri Devi (supra). Apex Court had reaffirmed the principle laid down by Shiv Shakti (supra) and held that an order which is interim in nature or which does not finally decide the lis cannot be challenged by filing a revision under Section 115 of CPC. For convenience relevant portion from the judgment of Gayatri Devi (supra) is reproduced as under : "In the first place, it appears to us that the revision petition before the High Court was wholly incompetent in view of the amended provision of Section 115 of CPC. The revision petition was entertained at the stage of interlocutory proceedings. For convenience relevant portion from the judgment of Gayatri Devi (supra) is reproduced as under : "In the first place, it appears to us that the revision petition before the High Court was wholly incompetent in view of the amended provision of Section 115 of CPC. The revision petition was entertained at the stage of interlocutory proceedings. As laid down by this Court in Shiv Shakti Co-operative Housing Society v. Swaraj Developers an Order interim in nature or which does not finally challenged by way of a revision under Section 115 of CPC. 49. Learned counsel for the revisionist has placed reliance upon the judgment of Single Judge passed in Algoo v. Bhola, 2006 (67) ALR 383, to support his contention that the issuance of notice on the interim injunction application is a “case decided”. Hon’ble Single Judge in a case of Algoo (supra) had only tried to distinguish the judgment of Shiv Shakti (supra) with finding that the provisions contained in Maharastra is not same. Though nowhere it has been pointed out as what is the provision operative in State of Maharashtra relating to revisional power under Section115 of CPC. It is settled law that while interpreting the judgment its ratio should be seen. The law laid down by Apex Court is binding under Article 141 of the Constitution of India. Moreover, the subsequent judgment of Apex Court in Surya Dev Rai (supra) and Gayatri Devi (supra) has not been considered by Hon’ble Single Judge while deciding the controversy in Algu’s case (supra). Though provisions of 115 after Central Amendment made in 1999 and provisions of 115 under U.P. Amendment may not be wholly identical or parallel but the ratio laid down by Apex Court in Shiv Shakti is fully applicable when merely notice is issued on interim injunction application. Learned Single Judge in Algu case (supra) has also ignored the decision of this Court in Cantonment Board, Lucknow (supra) where it has been held after referring to number of decisions of this Court as well as decisions of the Apex Court, that the revision against the order issuing notice is not maintainable and it is further held that it is interlocutory order deciding nothing as such no revision maintainable against the order directing issuance of notice on application for temporary injunction. 50. 50. This Court in Lalit Mohan Srivastava and others v. District Judge, Ambedkar Nagar, 2007(25) LCD 390, while referring to the judgment in Algoo (supra) has held that “at the face of record the case of Algoo (supra) seems to be per incurrium to various Apex Court judgments” and has further held as follows : "A plain reading of all the three judgments namely; Shiv Shakti (supra), Surya Dev Rai (supra) and Gayatri Devi show that revision under Section 115 of the code of Civil Procedure shall not be maintainable at the stage of interlocutory proceeding. A close reading of provision contained in Maharashtra as well as in the State of U.P. at the face of record shows that order passed by the trial Court while issuing a notice on an application under Order 39 Rules 1 and 2 of CPC shall be interlocutory order and it cannot be termed as case decided. Needless to say that provision under Section 115 of CPC is a procedural law and ipso facto the provision itself cannot be termed to be declaration that revision shall be maintainable even if case is not decided.” 51. Moreover, in view of Apex Court judgment in the case of Gayatri Devi (supra) it is not necessary to consider other judgments. The case of Gayatri Devi (supra) puts the final seal on the issue and settled the law that merely issuance of notice by the trial Court on an application filed by plaintiff shall not amount to case decided and revision shall not be maintainable. Law laid down by the Apex Court in the case of Shiv Shakti (supra) followed by Gayatri Devi (supra) is binding under Article 141 of the Constitution of India. 52. Not only the judgment of Shiv Shakti (supra) but in the judgment of Gayatri Devi (supra) and Surya Dev Rai (supra) their Lordships of the Apex Court held that revision against the order passed by the trial Court which may not amount to “case decided” shall not be maintainable. 53. In view of the above discussion the issue No. 2 is decided against the revisionist and it is held that mere issuance of notice under Section 80 (2) of CPC on an application for interim injunction is not a “case decided” as required under Section 115 of CPC. Issue No. 3 54. 53. In view of the above discussion the issue No. 2 is decided against the revisionist and it is held that mere issuance of notice under Section 80 (2) of CPC on an application for interim injunction is not a “case decided” as required under Section 115 of CPC. Issue No. 3 54. Before deciding this issue, it is useful to refer the sub-section 1 of Section 115 of CPC which is reproduced as below : ”115. Revision.—[(1)] A superior Court may revise an order passed in a case decided in an original suit or other proceedings by a subordinate Court where no appeal lies against the order and where the subordinate Court has— (a) exercised a jurisdiction not vested in it by law, or (b) failed to exercise a jurisdiction so vested, or (c) acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: 55. It is necessary that apart from satisfying the other requirements of Section 115, the revisionist has to satisfy the provisions of Section 115(1) (a) (b) and (c). 56. Even if, it is assumed that the impugned order amounts to ‘case decided’ then also the revision would not be maintainable if the Court below has not committed any jurisdictional error in the order. In the present case the Court below while issuing notice has exercised jurisdiction in accordance with mandatory statutory provisions contained in Section 80(2) of CPC. The contention of the plaintiff-revisionist that the Court has refused to exercise jurisdiction so vested in it by law, is incorrect. The trial Court has not yet refused the prayer to grant injunction, it has simply followed the statutory mandate of issuing notice to the Government under Section 80(2) of CPC while exercising jurisdiction and as such it could not be said to have acted illegally or with material irregularity or the Court below has committed jurisdictional error by merely issuing notice to the Government and public officers. The impugned order has not yet finally decided the controversy, the requirement of Clause (b) of Section 115(3) of CPC regarding prejudice or injustice depends on the facts of the case, which in the present case are yet to be looked into by the trial Court. 57. The impugned order has not yet finally decided the controversy, the requirement of Clause (b) of Section 115(3) of CPC regarding prejudice or injustice depends on the facts of the case, which in the present case are yet to be looked into by the trial Court. 57. In view of the above discussions, issue No. 3 is decided against the revisionist and it is held that in the present case the Court below has not failed to exercise a jurisdiction so vested or acted in the exercise of his jurisdiction illegally or with material irregularities. Issue No. 4 58. The Order XXXIX Rule 3 of CPC cannot over-ride the mandatory provision contained under Section 80(2) of CPC. The provisions of Order XXXIX Rule 3 is general in nature and does not cover the matters provided under Section 80(2) of CPC. Section 80 of CPC is a special provision dealing with those suits which are instituted inter alia against the Government or against the public officer in respect of any act purporting to be done by such public officer in his official capacity. Both the provisions namely Order XXXIX Rule 3 is subject to Section 80 (2) of CPC. Moreover the issue No. 1 has already been decided against the revisionist wherein I have held that the provisions of Section 80(2) of CPC is mandatory in nature. In view of the above discussions the provisions of Order XXXIX Rule 3 of CPC are not applicable in the present case. Thus the issue No. 4 is also decided against the revisionist. 59. The revisionist has sought relief for quashing the order passed in 2005 granting no objection certificate and distance certificate and if the plaintiff-revisionist had waited since 2005, there appears to be no urgency in the matter. There is no reason that the petitioner cannot wait further for sometime. It is made clear that this Court has not dealt with the merit of the case but has only considered the maintainability of the present revision. This Court in the present writ petition cannot investigate and adjudicate upon the merits of the disputed question of facts even though the Courts below has not yet applied its mind to the merits of the rival contentions. This Court cannot be persuaded to do re-appraisal of the evidence and the material on record. This Court in the present writ petition cannot investigate and adjudicate upon the merits of the disputed question of facts even though the Courts below has not yet applied its mind to the merits of the rival contentions. This Court cannot be persuaded to do re-appraisal of the evidence and the material on record. The learned Court below is competent to deal with the disputed question of facts. Conclusion 60. I sum up my conclusion in a nutshell even at the risk of repetition and state the same as hereinunder : (i) The provisions of Section 80(2) of CPC is mandatory which provides that the Court shall not grant relief in the suit whether interim or otherwise except after giving to the Govt. or public officer as the case may be, a reasonable opportunity or showing cause in respect of the relief prayed for in the suit. (ii) Merely issuing a notice under Section 80, (2) CPC to the defendant on an application for grant of temporary injunction is not a “case decided” within the meaning of Section 115 of CPC. (iii) The Court below in the present matter has neither failed to exercise a jurisdiction so vested nor has acted in the exercise of his jurisdiction illegally or with material irregularity. (iv) The provisions of Order XXXIX Rule 3 of CPC are not applicable in the present case. 61. In view of discussion made hereinabove this revision is accordingly dismissed as not maintainable and the interim order granted by this Court on 23.9.2008 is hereby vacated. It is clarified that while deciding the present controversy this Court has not recorded any finding on merit relating to rival claim of parties. However, in the interest of justice, trial Court is directed to dispose of the application filed by the applicant for interim injunction expeditiously if possible within a period of two months. ————