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2008 DIGILAW 964 (ORI)

Gyanajeet Moharana v. Binodini Pattanaik

2008-10-30

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
JUDGMENT DR. B.S. CHAUHAN, C.J. — This writ appeal has been filed against the judgment and order dated 28.8.2008 passed by the learned Single Judge by which the writ petition has been allowed to the extent that the Court has set aside the order dated 18.8.2008 passed by the learned Civil Judge (Senior Division), Bhubaneswar rejecting the application filed by the plaintiff-respondent under Section 80(2) of the Code of Civil Procedure, 1908 (hereinafter called 'CPC'). Learned Single Judge while setting aside the order of the learned Civil Judge (Senior Division), Bhubaneswar has remanded the case to the said Court for deciding the matter afresh. However, the writ Court has directed that in the interest of justice the plaintiff-respondent shall not be dispossessed from the disputed property till the application is decided afresh by the Court below. 2. The instant appeal has been filed challenging only that direction on the ground that as the suit cannot be treated as having been instituted, unless the application for grant of leave is allowed. There is no suit pending, hence, question of grant of interim relief could not arise. 3. We have heard learned counsel for the parties and perused the record. The facts are not in dispute. The only legal issue is required to be decided as to whether Court has a power to grant interim relief prior to grant of leave to file the suit without serving notice on the Government or Public Officer as required under Section 80 (1) CPC. 4. The Hon'ble Supreme Court in M/s. Bajaj Hindustan Sugar and Industries Ltd., v. Balrampur Chini Mills Ltd. & Ors., AIR 2007 SC 1906 considered the issue and held as under : "31. From the above, it would be evident that a suit may be filed against the Government or a 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 the suit does not arise and accordingly, no interim relief could also be granted at that stage. xx xx xx 34. The law, in our view, has been succinctly expressed in the aforesaid judgment. When such leave is refused, the question of institution of the suit does not arise and accordingly, no interim relief could also be granted at that stage. xx xx xx 34. The law, in our view, has been succinctly expressed in the aforesaid judgment. The language of Section 80(2) of the Code leads us to hold that if leave is refused by the original Court, it is open to the superior Courts to grant such leave as otherwise in an emergent situation a litigant may be left without remedy once such leave is refused and he is required to wait out the statutory period of two months after giving notice." 5. A Full Bench of the Gujarat High Court in Union of India v. Natwar Lal Badiani, 2001 (4) Civil LJ 335; considered a similar case and held that the language of Section 80 CPC makes it evident that furnishing the said notice for institution of a suit against the Government or the Public Officer or in respect of any act purporting to be done by such Public Officer in his official capacity is a condition precedent. However, under Sub-section (2) of Section 80 for obtaining an urgent or immediate relief against the Government or any Public Officer, a suit may be instituted with the leave of the Court without serving any notice required under Sub-section (1). Even if the Court grants leave, interim order should not be passed without giving opportunity of showing cause in respect of the relief prayed for in the suit. While deciding the said case the Court relied upon the judgments of the Supreme Court in Dhian Singh Sobha Singh & Anr. v. Union of India, AIR 1958 SC 274 ; S.N. Dutt v. Union of India, AIR 1961 SC 1449 ; and Raghunath Das v. Union of India & Anr., AIR 1969 SC 674 . 6. In State of Orissa & Anr., v. Ganeshjew Mahapravu & Ors., AIR 1986 Orissa 134, this Court held that while making a relaxation for entertaining a suit for injunction without a notice under Section 80 (1), CPC the Legislature made it clear that no relief by interim order or otherwise can be granted without taking the said notice. 6. In State of Orissa & Anr., v. Ganeshjew Mahapravu & Ors., AIR 1986 Orissa 134, this Court held that while making a relaxation for entertaining a suit for injunction without a notice under Section 80 (1), CPC the Legislature made it clear that no relief by interim order or otherwise can be granted without taking the said notice. In Sawai Singhai Nirmal Chand v. The Union of India; AIR 1966 SC 1068 and Bihari Chowdhary and another v. State of Bihar and others, AIR 1984 SC 1043 , the Apex Court held that a suit against the Government or Public Officer, to which the requirement of a prior notice under Section 80 CPC is attracted, cannot be validly instituted until the expiration of the period of two months after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable. 7. A similar view has been reiterated by this Court in Harihar Mahapatra & Ors. v. Hari Otha & Ors., AIR 1950 Orissa 257 wherein it has been held that in case notice has been served by the father and he died before institution of the suit the benefit of notice cannot be taken by his son and if the suit had been filed by the son without serving fresh notice under Section 80(1), CPC the suit as a whole become liable to be dismissed. 8. Thus, the settled legal proposition is that permission to institute a suit without notice is to be granted by a speaking and reasoned order and showing that the order has been passed by application of mind and not in a mechanical manner. In doing so, the Government or Public Officer shall be in a position to challenge the said order before the same Court or before the higher Court. (Vide Sahebrao Rangrao Patil v. State of Maharashtra & Ors., 2001(1) Civil Court Cases (Bombay) 530). 9. A Division Bench of this Court in Simanchal Padhy v. State of Orissa & Ors., 2001 (2) Civil Court Cases 336 (Orissa) held that exemption from notice can be granted only when an urgent relief is prayed for or no irreparable loss is caused to the defendant, and while considering such an application discretion is to be exercised judicially. 10. A Division Bench of this Court in Simanchal Padhy v. State of Orissa & Ors., 2001 (2) Civil Court Cases 336 (Orissa) held that exemption from notice can be granted only when an urgent relief is prayed for or no irreparable loss is caused to the defendant, and while considering such an application discretion is to be exercised judicially. 10. In fact by the Amendment Act of 1976 the rigour of Clause (1) of Section 80 CPC has been relaxed by inserting Clause (2) so that a person may not be deprived of the opportunity of obtaining an urgent or immediate relief, where such relief is essential and in case of urgency the plaintiff may institute a suit for obtaining an urgent or immediate relief against the Government or any public officer without serving any notice under Section 80, CPC. In such a case, however, the Court shall not grant any relief except 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 sought for in the suit. 11. In view of the above, we are of the opinion that the learned Single Judge could not have granted any interim relief till the application for grant of leave is taken up by the Court below as it cannot be held that the suit has been instituted or is pending. The order of the learned Single Judge to that extent is set aside. In case the plaintiff-respondent has served the notice required under Section 80 (1) CPC upon the respondent No.4, the trial Court is requested to take up the application for interim relief at the earliest and in case such a notice has not already been served, the Court may take up the application for exemption of service of notice and proceed with the matter expeditiously. 12. With the aforesaid modification of the order of the learned Single Judge, the writ appeal is disposed of. B.N. MAHAPATRA, J. I agree. Writ appeal disposed of.