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2019 DIGILAW 1821 (MAD)

P. Kandasamy v. Family Manager, A. Subramanian

2019-07-05

SENTHILKUMAR RAMAMOORTHY

body2019
ORDER : Senthilkumar Ramamoorthy, J. 1. This Civil Revision Petition is filed by the third Defendant in O.S. No. 134 of 2003 in order to challenge the order dated 23.07.2013 in I.A. No. 173 of 2012 in O.S. No. 134 of 2003. 2. The case of the Revision Petitioner is that the 2nd and 3rd Defendants are the Government and an officer of the Government and that, therefore, prior notice under section 80 of C.P.C. should have been issued by the first Respondent herein/Plaintiff before instituting the suit. In view of the non-issuance of such a notice under section 80 C.P.C, it is contended that the suit is barred by law. For this purpose, I.A. No. 173 of 2012 was filed under Order 7 Rule 11(d) C.P.C. so as to reject the plaint on the ground that it is barred by law. 3. The learned counsel for the Revision Petitioner submits that the issuance of a notice under section 80 C.P.C. is a condition precedent to the filing of a suit against the Government or its officer. He further submits that the non-issuance of such notice is fatal to the suit. In respect of section 80(2) C.P.C., which enables the Court to dispense with the notice, the learned counsel submits that the power to dispense with is to be exercised only if the Court is satisfied that it is necessary to do so in view of the requirement for emergent relief. Otherwise, the plaint is liable to be returned so as to comply with the requirement of section 80 C.P.C. 4. In order to substantiate his submissions, the learned counsel referred to the judgment of the Hon'ble Supreme Court in State of Andhra Pradesh vs. Pioneer Builders 2007-2-L.W. 522. In particular, he relied upon paragraph nos. 13 & 16 of the said judgment, wherein it was held that 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 of the Government may be instituted with the leave of the Court. 5. According to the learned counsel, in this case, the first Respondent/Plaintiff did not seek interim relief. 5. According to the learned counsel, in this case, the first Respondent/Plaintiff did not seek interim relief. Nevertheless, an application was filed under section 80(2) C.P.C. to dispense with the notice under section 80(1) C.P.C. and the said application was allowed by merely recording 'dispensed with' without assigning any reasons for dispensing with section 80 C.P.C. notice. Consequently, he submits that the plaint is liable to be rejected as barred by law. 6. In response, the learned counsel for the first Respondent submits that the suit was filed in the year 2003 and the written statement was filed by the Revision Petitioner herein in the year 2004. He further submits that the present objection with regard to non-issuance of notice under section 80 C.P.C. was not raised in the written statement. He further states that by order dated 22.09.2010 in C.R.P.(MD) No. 752 of 2010, this Court directed the trial Court to dispose of the original suit in two months. He further submits that the interim application under Order 7 Rule 11 (d) C.P.C. was filed after the cross examination of P.W. 1 by the Revision Petitioner was completed on 13.06.2012. In fact, he submits that nothing survives in this Civil Revision Petition on account of the fact that O.S. No. 134 of 2003 was disposed of by judgment and decree dated 21.08.2013. 7. In order to substantiate his submissions that the suit is maintainable, the learned counsel referred to the judgment of a Division Bench of this Court in the Board of Trustees of the Port of Madras vs. Sun Export Pvt. Ltd. 2017-2-L.W. 29 : 2017 (1) MWN (Civil) 261 wherein, at paragraph no. 16, the Division Bench of this Court held that the object and purpose of section 80 C.P.C. is to give the Government sufficient warning of the case proposed to be instituted, so as to enable the Government to settle the claim without litigation. In view of the fact that the defendant in that case had conducted the trial before the trial Court, it was held that non-issuance of the statutory notice does not prejudice the Defendant. 8. In view of the fact that the defendant in that case had conducted the trial before the trial Court, it was held that non-issuance of the statutory notice does not prejudice the Defendant. 8. By relying on the said judgment, the learned counsel for the first Respondent submitted that, in this case, the 2nd and 3rd Respondents/Defendants, namely the Government and its officer did not object to the institution of the suit without issuance of a notice under section 80 C.P.C. Consequently, he submitted that the principle laid down by the Division Bench of this Court applies squarely to the facts of this case. He also relied upon the judgment of this Court in N. Kuttahngam and others vs. State of Tamil Nadu (2008) 3 MLJ 624 wherein it was held that section 80(2) C.P.C. does not require a notice to be served on the Respondent to the said application before dispensing with notice under section 80(1) of C.P.C. The learned counsel relied upon this judgment so as to substantiate his submission that notice under section 80(1) C.P.C. was dispensed with in this case at the time of filing of the suit by order dated 28.04.2003 and therefore, the plaint is not liable to be rejected. 9. The pleadings, impugned order and oral submissions of the parties were carefully considered. 10. It is the admitted position that this Civil Revision Petition arises out of the rejection of an application under Order 7 Rule 11 C.P.C. for rejection of the plaint. In this regard, it is the settled legal position in several judgments of the Hon'ble Supreme Court that an application under Order 7 Rule 11 C.P.C. should be decided on the basis of averments made in the plaint and that evidence cannot be looked into for the purpose of deciding such an application. In this regard, reference may be made to the judgments of the Supreme Court in (i) Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557 ; (ii) Vishnu Dutt Sharma vs. Daya Sapra, (2009) 13 SCC 729 ; and (iii) Kamala and others vs. K.T. Eshwara Sa and others, (2008) 12 SCC 661 . 11. In the afore cited Vishnu Dutt Sharma case, the Hon'ble Supreme Court further held that the embargo must be apparent from the averments in the plaint and that an application under Order 7 Rule 11 should be strictly construed. 11. In the afore cited Vishnu Dutt Sharma case, the Hon'ble Supreme Court further held that the embargo must be apparent from the averments in the plaint and that an application under Order 7 Rule 11 should be strictly construed. If the plaint in O.S. No. 134 of 2003 is examined, it is evident that the Plaintiff has stated that in view of the fact that the first and second Defendants are Government parties, an application is being filed separately to dispense with the notice under section 80 C.P.C. Therefore, it cannot be concluded by examining the averments in the plaint that the plaint is liable to be rejected on the ground that it is barred by law. 12. In this case, apart from making the above mentioned averments in the plaint, the first Respondent/Plaintiff filed such an application to dispense with the section 80 C.P.C. notice and the said application was ordered by the trial Court on 28.04.2003. Moreover, it was pointed out that the suit was disposed of on 21.08.2013. 13. In addition, the second and third Respondents herein, who are the Government and its officer, did not object to the suit on the ground that a notice under section 80 C.P.C. was not given to them. Instead, the said objection is being raised by a private party, namely, the third Defendant in the suit. Accordingly, the principle laid down in the judgment of the Division Bench of this Court in the case reported in 2017-2-L.W. 29 : 2017 (1) MWN 261 would apply squarely. Keeping in mind all these factors, this Civil Revision Petition is liable to be and is hereby dismissed. No costs. Consequently, connected M.P.(MD) No. 1 of 2014 is closed.