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2012 DIGILAW 1825 (PNJ)

Subhash Chander Sharma v. State of Punjab

2012-12-13

A.N.JINDAL

body2012
JUDGMENT Mr. A.N. Jindal, J. (Oral) - Order dated 5.2.2011 allowing the application under Section 80 (2) of the Code of Civil Procedure (for short ‘the Code’) for return of the plaint is under challenge. 2. Factual back ground of the case is, that a suit for declaration and permanent injunction was filed by the petitioner alongwith an application under Section 80 (2) of the Code for dispensing with the required statutory notice. The trial court, after hearing the parties, vide order dated 30.8.2005, allowed the application, vide following order:- “Suit received by transfer, it be registered. Alongwith the suit, plaintiff has filed an application under Section 80 CPC to file this suit without service of prior notice upon the defendant. Since matter is of urgent nature, so prior notice to the defendant is dispensed with. Notice of this suit as well as notice of application u/o 39 Rule 1 and 2 CPC be sent to the defendant for 13.9.2005 on filing of PF/RC”. 3. The application for ad-interim injunction was dismissed on 10.11.2005. Thereafter, on the application of the respondents dated 6.8.2010 under Order 7 Rule 10 of the Code the trial court returned the plaint on the ground that since the application for temporary injunction was declined on 10.11.2005, therefore, it stood proved that the suit was not of urgent nature, as such, the plaint was liable to be returned. 4. Heard. 5. The trial Court at the time of dispensing with the notice, as prayed by the petitioner, had not intended to decide the application for permanent injunction but had considered the facts and circumstances of the whole case and had extended the leave. The said order was never challenged by the respondents-State. However, after the evidence was recorded and the case was at the argument stage, the State had moved the application on 6.8.2010 for return of the plaint. As a matter of fact, the object of dispensing with the notice was to make alive the State of the issue before awarding any relief which may affect the State. 6. However, after the evidence was recorded and the case was at the argument stage, the State had moved the application on 6.8.2010 for return of the plaint. As a matter of fact, the object of dispensing with the notice was to make alive the State of the issue before awarding any relief which may affect the State. 6. The object of dispensing with the notice has been discussed in detail in the judgment delivered in Raghunath Das Versus Union of India and another AIR 1969 SC 674 , which is reproduced as under:- “The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity’ to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in s. 80, Civil Procedure Code are not intended to. be used as booby traps against ignorant and illiterate persons. In this case we are concerned with a narrow question. Has the person mentioned in the notice as plainsong brought the present suit or is he someone else ? This question has to be decided by reading the notice as a whole in a reasonable manner.” 7. Thus, non-issuance of the notice was never made a condition to outrightly reject/return the plaint but it was left upto discretion of the Court to decide whether some urgency requiring dispensing of notice. The purpose of serving of notice was to give chance to the State to have notice of the grievances of the aggrieved person so that the genuine problems/rights/grievances could be readdressed before the State is dragged into litigation, but once the notice has been dispensed by the Court, the plaint could not be returned or rejected. Such is not the scope of Order 7 Rule 10 or 11 of the Code. 8. Learned counsel for the State has relied upon the judgment delivered in Jit Singh and others Vs. Such is not the scope of Order 7 Rule 10 or 11 of the Code. 8. Learned counsel for the State has relied upon the judgment delivered in Jit Singh and others Vs. State of Punjab and others 2004 (3) Civil Court Cases 261, where the Court observed that there must be specific order granting leave to entertain the suit without notice, otherwise the suit could not be filed. Similarly in the judgment delivered in Union Territory of Chandigarh and others Vs. V.K. Khanna and others AIR 1985 Punjab and Haryana 32, it was observed that since the Court reaches the conclusion that no urgent or immediate relief need be granted in the suit, the plaint will be returned. The aforesaid judgments are not applicable to the facts of the present case. 9. When once on a proper application accompanied by the reasons, leave has been granted and the same having not been set aside by any court of law, then by virtue of any subsequent event be that it may, by virtue of declining the relief under Order 39 Rules 1 and 2 of the Code would not make the suit redundant and liable to be returned. 10. Resultantly, this petition is allowed, impugned order is set aside and the trial court is directed to proceed in accordance with law.