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2012 DIGILAW 1935 (BOM)

Rajaram M. Caisukar v. Joseph Chapel

2012-10-09

F.M.REIS

body2012
Judgment Heard Shri A.D. Bhobe, learned Counsel appearing for the petitioner and Shri P. Dangui, learned Additional Government Advocate appearing for respondents no.2 & 3. 2. The above petition challenges an order dated 4/04/2012 passed by the learned District Judge-1, North Goa, Panaji in Stamp No.233/2012 whereby an application under Section 80(2) of the Civil Procedure Code filed by the petitioner for leave to file the suit without statutory notice under Section 80 of the Civil Procedure Code came to be rejected. 3. Shri A.D. Bhobe, learned Counsel appearing for the petitioner has assailed the impugned order essentially on the ground that the learned Judge has dismissed the application on the ground that no urgent relief is sought against the Government. The learned Counsel has taken me through the provisions of Section 80 of the Civil Procedure Code and pointed out that a statutory notice has to be served on the Government before filing the suit, whereas Section 80(2) only gives a liberty to a party to seek leave of the Court in case of urgent relief to dispense with the requirement of such statutory notice. The learned Counsel further pointed out that in case after hearing the matter the Court comes to the conclusion that the petitioner is not entitled for any urgent relief it is always open to the Court to return the plaint for the purpose of issuing a statutory notice and filing the suit in accordance with law. The learned Counsel has taken me through the impugned order as well as the suit filed by the petitioner and pointed out that the urgent relief sought by the petitioner was to stop the illegal construction being carried out by the respondent no.1 on the basis of the sanction issued by the Town Planning Authorities and as such the State Government is a necessary and proper party to such suit. The learned Counsel further pointed out that without making State Government as a party the suit itself will be defected and as such the learned Judge was not justified to refuse leave under Section 80(2) of the Civil Procedure Code. The learned Counsel further pointed out that despite of an opportunity being given to the Government to oppose the application under section 80(2) of the Civil Procedure Code, none appeared for the Government to oppose the application under Section 80(2) of the Civil Procedure Code. The learned Counsel further pointed out that despite of an opportunity being given to the Government to oppose the application under section 80(2) of the Civil Procedure Code, none appeared for the Government to oppose the application under Section 80(2) of the Civil Procedure Code. The learned Counsel, as such, submits that the impugned order deserves to be quashed and set aside. 4. On the other hand, Shri P. Dangui, learned Additional Government Advocate appearing for the respondents no.2 & 3 has pointed out that the statutory notice under Section 80 of the Civil Procedure Code is mandatory. The learned Additional Government Advocate further pointed out that there is no urgent relief sought against the State Government and as such the question of granting any leave under Section 80 (2) of the Civil Procedure Code does not arise. The learned Counsel further pointed out that there was no urgency in the matter and as such the learned Judge rightly refused the leave under Section 80(2) of the Civil Procedure Code. The learned Counsel, as such, submits that the above petition deserves to be rejected. 5. I have carefully considered the submissions of the learned Counsel appearing for the respective parties and have also gone through the records. On perusal of the impugned order the only ground on which the relief has been refused is that the learned Judge found that there was no urgent relief sought as against the respondents. On perusal of para 5 & 6 of the application under Section 80(2) of the Civil Procedure Code there is a specific avement to the effect that the State Government is a proper and necessary party to the suit in view of the fact that the licence has been issued to the respondent no.1 at their behest. Hence, once such allegations are made in the proceedings irrespective as to whether there is actually an urgent relief directly against the State Government would not in any way preclude the learned Judge in granting leave under Section 80(2) of the Civil Procedure Code without such notice. Once it is contended by the petitioner that the State Government is a proper or necessary party to the suit in the circumstances of the allegations made in the application the learned Judge was not justified to refuse leave under Section 80 (2) of the Civil Procedure Code. Once it is contended by the petitioner that the State Government is a proper or necessary party to the suit in the circumstances of the allegations made in the application the learned Judge was not justified to refuse leave under Section 80 (2) of the Civil Procedure Code. Taking note of the fact that the petitioner is seeking for an urgent relief as against the respondents, the learned Judge ought to have granted such leave and in case after hearing the parties the petitioner was not entitled for any interim relief the plaint could be returned for the purpose of complying with such statutory notice. 6. Considering the facts and circumstances of the case, I find that the learned Judge was not justified to pass the impugned order which cannot be sustained and deserves to be quashed and set aside. Hence, I find that the petitioner has made out a case for relief under Section 80(2) of the Civil Procedure Code at this stage and in case application for temporary injunction is decided against the petitioner the consequences in law as provided under the Civil Procedure Code would follow. 7. Subject to the above, rule is made absolute in terms of prayer (a). The petition stands disposed of accordingly with no order as to costs.