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2016 DIGILAW 3427 (ALL)

Khursheed Ahmad v. State of U. P.

2016-10-06

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. Heard Sri P.N. Saxena, Senior Advocate, assisted by Sri Mahipal Singh, learned counsel for the revisionists. Learned Standing Counsel has appeared for respondents No.1, 4 & 5 and Sri Manish Goyal, on behalf of respondents No. 2 & 3. 2. The revision is directed against the order dated 21.09.2016 passed by the court of first instance in original misc. suit No.116 of 2016, Khursheed Ahmad and others Vs. State of U.P. & others. 3. The revisionists applied under Section 80(2) of the Code of Civil Procedure for the leave to institute the suit for a decree of permanent injunction without serving the statutory notice upon the authorities as contemplated by Section 80(1) C.P.C. for the reason that the matter is urgent. 4. The aforesaid application has been rejected and the permission to sue or to present suit without the statutory notice has been declined to the revisionists. 5. The submission of Sri P.N. Saxena, learned counsel for the revisionists is that the matter is urgent and in case the grant of interim injunction is delayed, the respondents would construct and block the road which would hamper the accessibility of the revisionists to their fields. 6. The court below in refusing permission to institute the suit without notice under Section 80(1) C.P.C. has recorded a finding that the cause of action for the suit had arisen to the revisionists on 04.07.2016 and the revisionists have presented the suit in September, 2012 that is after expiry of two months from the cause of action which itself shows that there is no urgency in the matter so as to dispense with the statutory notice. 7. I have perused the plaint and find that in paragraph 16 the cause of action is stated to have arisen for the last time to the revisionists on 04.07.2016. The plaint was presented admittedly after two months of the said cause of action. 8. In the application filed under Section 80(2) C.P.C. the only averment is that the respondents have collected material for the construction and have started digging the foundation and as such the matter is urgent. 9. The application does not state as to when the digging or the collection of the material had started whether it was prior to the date of the cause of action as mentioned in the plaint or thereafter. 9. The application does not state as to when the digging or the collection of the material had started whether it was prior to the date of the cause of action as mentioned in the plaint or thereafter. No specific date in this regard has been given which gives an impression that the story of urgency has been concocted to seek leave of the court without there being any extreme urgency. 10. Accordingly, if the revisionists could wait for the presentation or filing of the suit for about two months, there is no difficulty if they can await for another two months and come to the court after serving a proper notice as contemplated by Section 80(1) of the Code of Civil Procedure. 11. This apart if any constructions in the interim period are raised by the respondents, the revisionists in filing the suit for a decree of permanent injunction may also seek the relief of mandatory injunction for the demolition of the constructions so raised. 12. In view of above, it is not a case where any injustice would be done if the order impugned is allowed to stand. 13. The revision lacks merit and is dismissed with the above observation.