JUDGMENT : 1. On a perusal of the records and after hearing both sides, the substantial questions of law re-framed are as follows: i. Are not the defendants under a duty and obligation to maintain a public road in good condition and to place a sign board in case of any danger? Will not a failure to do so fasten a liability on the State in tort to compensate a person for the injuries sustained on account of such breach? ii. Whether the 1st defendant State is vicariously liable for the negligence of its employees? iii. Whether the plaintiff's suit for compensation for injuries sustained in an accident can be regarded as a suit to obtain an urgent or immediate relief against the Government under Section 80(2) of the Code of Civil Procedure, 1908 (in short, “the Code”) merely because an application for issuance of a commission was filed along with the suit? iv. What is the legal effect of the trial court's omission to order return of plaint under the Proviso to Section 80(2) of the Code, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted to the plaintiff in a suit against the Government? 2. In order to resolve the controversy, it is essential to understand the bare minimum facts involved in the case. Parties are hereinafter referred to as the plaintiff and defendants for brevity. 3. Plaintiff is a widow with three children. She ekes out a livelihood by manual labour. On 14.12.21997, she along with her children went to attend “Balakalolsavam” held in a nearby school. At about 7.00 p.m., she along with her children returned home on foot through the side of Adoor-Kaipattoor public road. A neighbour by name Anandakumari also accompanied them. As it was dusk and there was no street light available, the road and its margin were dark. Plaintiff's left leg was trapped in a two feet deep pot hole on the road causing multiple fracture on her left ankle. The pit was formed on the tar road due to soil erosion caused by rain water. It is alleged that the defendants 2 and 3, the authorities under the Public Works Department did not display any sign board to indicate the existence of a pot hole. The pit was formed on the tar road due to soil erosion caused by rain water. It is alleged that the defendants 2 and 3, the authorities under the Public Works Department did not display any sign board to indicate the existence of a pot hole. Although the road was repaired shortly before the incident in connection with Sabarimala pilgrimage, the defendants failed to do proper maintenance of the road and they failed to fill up the dangerous pit developed on the road. The plaintiff would allege that it was a duty cast upon the defendants to do timely repairs. Plaintiff contended that she was earning Rs. 2,000/- per month. On account of the accident, she is disabled from pursuing job as a labourer. She claimed a total compensation of Rs. 1,42,000/- towards the damages including medical expenses. 4. Defendants 1 to 3 filed a joint written statement contending that the road at the place of the incident, i.e., Anandapally-Kaipattoor road, has a width of 5.5 metres with a road margin on either side and a side drain on the eastern side. According to them, there was no pit on the road as alleged by the plaintiff. Absence of an electric light was not because of any fault on the part of the defendants. The entire stretch of road was repaired during Sabarimala pilgrimage season shortly before the alleged incident. As there was no pot hole on the road, there was no necessity to display any sign board. As the defendants were doing timely maintenance work, they cannot be held liable; if at all the plaintiff had sustained any injuries it was on account of her own negligence. The accident could have been averted if the plaintiff had been careful and cautious. Defendants are not liable to pay any compensation to the plaintiff. 5. Trial court dismissed the suit mainly on the ground that there is no evidence to show that the plaintiff sustained injuries in an accident as claimed by her. It also found that the best evidence in the form of testimony of Anandakumari, who was present with the plaintiff at the time of the alleged incident, was not tendered before the court. For finding so, the trial court considered the testimony of PWs 2 and 3, who are the doctors examined on the side of the plaintiff. It also found that the best evidence in the form of testimony of Anandakumari, who was present with the plaintiff at the time of the alleged incident, was not tendered before the court. For finding so, the trial court considered the testimony of PWs 2 and 3, who are the doctors examined on the side of the plaintiff. Trial court also criticized the plaintiff for not being careful and vigilant, in which event she could have averted the accident. 6. In the appeal preferred by the plaintiff, the lower appellate court went a step ahead and held that the medical evidence available is not sufficient to show that the plaintiff had sustained injuries by falling into a hole on the road. It affirmed the findings of the trial court. 7. Heard the learned counsel for the appellant/plaintiff and the learned Government Pleader for the respondents/defendants. 8. Answers to the substantial questions of law (i) and (ii) above mainly depends on appreciation of the evidence. Keeping in mind the restrictions in re-appreciating evidence in a second appeal, I shall examine whether the courts below seriously went wrong to the extent of saying that they perversely appreciated the evidence, resulting in a wrong decision. 9. Testimony of the plaintiff as PW1 was meticulously considered by the courts below. Her examination-in-chief was through an affidavit, that too prepared in English, a language in which she was apparently not fluent, and it is actually a verbatim re-production of the plaint. It is doubtful if she had understood the contents. The cross--examination on PW1 was done in Malayalam. She admitted that there was sufficient light at the place of alleged incident at 7.00 p.m. The commissioner has reported that there was a pot hole on the tar road as described in the plaint. However, the courts below did not think it proper to rely on the testimony of the plaintiff to find that a deep pit on the tar road was dangerous to the pedestrians. 10. Courts below were not inspired by the testimony of PW4, who is an independent witness cited to prove that the plaintiff sustained left ankle fracture on account of a fall on the road. 10. Courts below were not inspired by the testimony of PW4, who is an independent witness cited to prove that the plaintiff sustained left ankle fracture on account of a fall on the road. Testimony of PWs 2 and 3, who are the doctors attached to N.S.S. Medical Mission Hospital, Pandalam and Mercy Hospital, Valakam, also did not establish the fact that the plaintiff sustained fracture as alleged in the plaint. True, Exts.A1 to A5 would show that she was treated in the said hospitals for bimalleolar fracture (left ankle) and she was admitted in N.S.S. Medical Mission Hospital, Pandalam on 04.12.1997, but none of the medical records nor the testimony of PWs 2 and 3 would show that she sustained the injury on account of a fall on the tar road. Learned Government Pleader contended that the courts below are perfectly right in entering a factual finding that merely for the reason that the plaintiff sustained a fracture on 04.12.1997, it cannot be held that she was trapped in a hole on the tar road, resulting in an ankle fracture. It is to be remembered that the trial court and the first appellate court, while dealing with the evidence, have clearly entered a finding that the documents and oral evidence adduced on the side of the plaintiff is insufficient to hold that she sustained injury as stated in the plaint. By no stretch of reasoning it can be found that the concurrent findings of fact are either perverse or unjust. Therefore, I find no scope to interfere in these findings in this second appeal. 11. If that be so, the substantial questions of law raised as (i) and (ii) are only of academic interest. No doubt, this Court can only find that the State and its Public Works Department are under a duty and obligation to maintain all public roads in a good condition and to place sign boards, wherever necessary, cautioning the users of the road of the impending danger, if any. Any breach in that duty certainly will fasten a liability on the State in tort to compensate any person suffering an injury on account of the dereliction of the State's duty. It is also indisputable that the State will be vicariously liable for the negligence on the part of its employees. Any breach in that duty certainly will fasten a liability on the State in tort to compensate any person suffering an injury on account of the dereliction of the State's duty. It is also indisputable that the State will be vicariously liable for the negligence on the part of its employees. Although these questions can be answered as aforementioned, it will yield no result to the plaintiff in this case as she failed to establish that the injury sustained was on account of any negligence or dereliction of duty on the part of the State or its officers. 12. Nevertheless, the substantial questions of law (iii) and (iv) above require definite answers. On a perusal of the original plaint, it is seen that the plaintiff filed the suit as an indigent person, invoking the provisions under Order XXXIII of the Code. From the recitals in the plaint, it is evident that the only relief claimed is that the plaintiff should be allowed to realise Rs. 1,42,000/- as damages from the 1st defendant State with 12% interest from the date of suit till realisation and she claimed costs of the proceedings as well. To be precise, no other relief is claimed. It is also admitted that the plaintiff did not issue a notice under Section 80 of the Code, which is mandatory for institution of a suit against the State. I shall re-produce Section 80 of the Code for clarity. “Notice. To be precise, no other relief is claimed. It is also admitted that the plaintiff did not issue a notice under Section 80 of the Code, which is mandatory for institution of a suit against the State. I shall re-produce Section 80 of the Code for clarity. “Notice. - (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of- (a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of the railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in their behalf; (c) in the case of suit against any other State Government, a Secretary to that Government or the Collector of the district; and in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. (2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit; Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely reason of any error or defect in the notice referred to in sub-section (1), if in such notice – (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section(1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.” 13. As it stood before amendment of the Code by Act 104 of 1976 (w.e.f.01.02.1977), it was held to be explicit and mandatory, admitting no exceptions. In other words, a suit against the State could not have been instituted without sending a notice as contemplated in Section 80 of the Code. Addition of Sub-section (2) to Section 80 of the Code in the said amendment has made a visible change in the operation of the Section. In other words, a suit against the State could not have been instituted without sending a notice as contemplated in Section 80 of the Code. Addition of Sub-section (2) to Section 80 of the Code in the said amendment has made a visible change in the operation of the Section. It is clear from Sub-section (2) that a suit to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purported to be done by such public officer in his official capacity, may be instituted, with the leave of the court, without serving any notice as required by Sub-section (1) of Section 80 of the Code. However, the court shall not grant an urgent relief in the suit, whether interim or otherwise, except after giving a reasonable opportunity to the Government or public officer, of showing cause in respect of the relief prayed for in the suit. What is important is to take note of the expression “relief” employed in the Section. Whether an application filed in a money suit for issuance of an urgent commission to gather evidence can be said to be an “urgent relief” contemplated under Section 80 of the Code? This is the precise question to be answered. 14. Various precedents can be seen to the effect that the object of a notice under Section 80 of the Code is to give the Government or the public officer concerned an opportunity to reconsider the legal position and to make amends or settle the claim, if so advised, without a litigation. It is also settled that when a statutory notice is issued to public authorities, they must take the notice in all seriousness and they should not sit over it and force the citizen to the vagaries of a litigation. The Section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against Government or a public officer, the Government or officer concerned is afforded an opportunity to scrutinise the claim and if it be found a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay (see Bihari Chowdhary v. State of Bihar - AIR 1984 SC 1043 ). 15. Now I shall explain the concept “relief” appearing in Section 80 of the Code. Any English dictionary may define the word “relief” as “reassurance, consolation, comfort, solace, calmness, relaxation, etc.” Another set of meanings ascribable to the word are “help, aid, assistance, succour, care, sustenance, etc.” But in the legal parlance, the word “relief” may acquire different shades of meaning, depending on the context. “Relief” in terms of Section 114 of the Transfer of Property Act, 1882 may mean deliverance from some hardships, burden or grievance. It has been held that the word means legal redress or remedy. It may mean lightening or removal of any burden under Chapter 18 of the Income Tax Act, 1961. 16. At times, it may deceptively appear that the expressions “relief” and “remedy” are synonymous. According to P. Ramanatha Aiyar's Advanced Law Lexicon (4th Edition, Volume 4, page 4156) the word “remedy” as a legal term means to recover a debt or enforce a right; a mode prescribed by law to enforce a duty or redress a wrong; that which gives relief to the party aggrieved; the means by which an obligation is effectuated; the means employed to enforce a right or redress an injury; the mode of procedure by which the liability of property to the satisfaction of a debt is enforced; the particular result to obtain which an action is brought; and the action or means given by law for the recovery of a right. 17. It is therefore clear that a remedy is a means employed to enforce a right or redress an injury. It is simply the means by which the obligation or corresponding action is effectuated. Hence, it is clear that the expressions “remedy” and “relief” are distinct, although the distinction may appear to be very thin. 18. In law, there is a distinction between “cause of action” and “right of action”. These terms are not synonymous and interchangeable. A right of action is a right to presently enforce a cause of action - a remedial right affording redress for the infringement of a legal right belonging to some definite persons. In other words, a cause of action is the operative facts, which give rise to such a right of action. These terms are not synonymous and interchangeable. A right of action is a right to presently enforce a cause of action - a remedial right affording redress for the infringement of a legal right belonging to some definite persons. In other words, a cause of action is the operative facts, which give rise to such a right of action. Cause of action should also be distinguished from “remedy” which is the means or method whereby the cause of action or corresponding obligation is effectuated by which a wrong is redressed and a relief is obtained. 19. Black's Law Dictionary defines the term “relief” as a redress or benefit, especially equitable in nature (such as an injunction or specific performance), that a party asks of a court. The term “remedy”, according to Black's Law Dictionary, is the means of enforcing a right or preventing or redressing a wrong; legal or equitable relief. 20. It can be ratiocinated that “remedy” signifies the judicial means of enforcing a right or redressing a wrong and it is simply the means by which an obligation or corresponding action is effectuated. “Relief” means the remedy which a court of justice may afford in relation to some actual or apprehended wrong or injury. It can be understood as deliverance from some hardship, burden or grievance. Grant of relief is the ultimate purpose for which the suit or proceeding is laid by a plaintiff or petitioner, as the case may be. In other words, remedy is the means to achieve redressal of a man's grievance in the form of a relief. To put it in simple terms, remedy is the recourse to get a relief. 21. On understanding the meaning of the word “relief” as above, I am of the view that it is used in Section 80 of the Code in no different manner. Surely, an application for issuance of an urgent commission in a suit for compensation cannot make it one for an urgent or immediate relief. It will be all the more clear if one understands the scope of a commission for local investigation under Order XXVI of the Code. 22. Order XXVI Rule 9 of the Code empowers a court to appoint a commission in any suit to conduct local investigation for the purpose of elucidating any matter in dispute. It will be all the more clear if one understands the scope of a commission for local investigation under Order XXVI of the Code. 22. Order XXVI Rule 9 of the Code empowers a court to appoint a commission in any suit to conduct local investigation for the purpose of elucidating any matter in dispute. It has been held in Maroli Achuthan v. Kunhipathumma (AIR 1968 Kerala 28) that the object of local inspection is not to collect evidence which can be taken in court, but to obtain evidence which, from its peculiar nature, can only be had at the spot. It is therefore clear that the purpose of issuance of a commission is to collect evidence which may be useful for a proper adjudication of the case. Order XXVI Rule 10(2) of the Code clearly says that the report of the commission and the evidence taken by him (but not the evidence without the report) shall be the evidence in the suit and shall form part of the record. On a conjoint reading of Order XXVI Rules 9 and 10, it can be seen that the ultimate purpose of issuance of commission is to gather evidence and law gives a sanctity to the report and evidence collected by the commissioner saying that they will form part of the case records. Issuance of urgent commission is only a step in the trial process to collect material evidence for proper adjudication of the case. I find no tangible reason to hold that in a suit of this nature merely by filing an application for issuance of an urgent commission, the plaintiff can alter its nature to one for obtaining an urgent or immediate relief against the Government. Still it remains a money suit, despite an urgent application for issuance of commission has been filed along with the suit. Therefore, the suit does not qualify to be reckoned as one instituted under Section 80(2) of the Code. 23. It that be so, the trial court has committed a grave error in not returning the plaint as provided in the proviso to Section 80(2) of the Code. Therefore, the suit does not qualify to be reckoned as one instituted under Section 80(2) of the Code. 23. It that be so, the trial court has committed a grave error in not returning the plaint as provided in the proviso to Section 80(2) of the Code. Without any ambiguity the proviso to Section 80(2) of the Code says that the court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of Subsection (1) of Section 80 of the Code. This step was not taken by the trial court, despite the fact that the defendants in their written statement has raised a specific plea that the suit is bad for non-issuance of a notice under Section 80 of the Code. Trial court seriously erred in not framing an issue in this regard. This aspect was not properly considered by the lower appellate court also. I have no hesitation to hold that both the trial court and lower appellate court flouted the mandate of Section 80 of the Code in entertaining the suit. After elapse of 22 years from the date of institution of the suit and 9 years after filing this second appeal, it may not look nice if this Court orders return of the plaint by invoking the proviso to Section 80(2) of the Code. Learned counsel for the appellant contended that the maxim “actus curia neminen gravabit” (an act of the court shall prejudice no man) can be applied to this case. In support of the above proposition, the learned counsel for appellant relied on large volumes of case laws. 24. There cannot be a dispute regarding this proposition. But the lucid declaration of law by the Supreme Court in various pronouncements, including State of A.P. and others v. Pioneer Builders, A.P. ( (2006) 12 SCC 119 ) would show that service of notice under Section 80(1) of the Code is a condition precedent for institution of a suit against the Government or a public officer. It imposes a statutory and non-qualified obligation and in the absence thereof, the suit is not maintainable, except where the Section 80(2) of the Code applies. It imposes a statutory and non-qualified obligation and in the absence thereof, the suit is not maintainable, except where the Section 80(2) of the Code applies. In this case I have clearly found that there is no urgent relief claimed in the suit and therefore this is a case to which Section 80(2) of the Code does not apply. 25. In State of Kerala and others v. Sudhir Kumar Sharma and others ((2010) 10 SCC 178) the Supreme Court has held as follows: “19. It is an admitted fact that no order had been passed on the application filed under Section 80(2) CPC whereby leave of the court had been sought for filing the suit without complying with the provisions of Section 80(1) CPC. In our opinion, a suit filed without compliance with Section 80(1) cannot be regularised simply by filing an application under Section 80(2) CPC. Upon filing an application under Section 80(2) CPC, the court is supposed to consider the facts and look at the circumstances in which the leave was sought for filing the suit without issuance of notice under Section 80(1) to the government authorities concerned. For the purpose of determining whether such an application should be granted, the court is supposed to give hearing to both the sides and consider the nature of the suit and urgency of the matter before taking a final decision. By mere filing of an application, by no stretch of imagination can it be presumed that the application is granted. If such a presumption is accepted, it would mean that the court has not to take any action in pursuance of such an application and if the court has not to take any action, then we failed to understand as to why such an application should be filed. 20. It is an admitted fact that no order had been passed on the application filed under Section 80(2) CPC. Till a final order is passed granting the said application, in our opinion, the irregularity in filing of the suit continues. If ultimately the application is rejected, the plaint is to be returned and in that event the application filed on behalf of the appellants under Order 7 Rule 11 CPC is to be granted. Till a final order is passed granting the said application, in our opinion, the irregularity in filing of the suit continues. If ultimately the application is rejected, the plaint is to be returned and in that event the application filed on behalf of the appellants under Order 7 Rule 11 CPC is to be granted. If the application filed under Section 80(2) is ultimately granted, the objection with regard to non-issuance of notice under Section 80(1) CPC cannot be raised and in that event the suit would not fail on account of non-issuance of notice under Section 80(1) CPC.” In this case, the position is still worse because no application under Section 80(2) of the Code has been filed. 26. Upshot of the discussion is that incorporating an application for issuance of an urgent commission in a money suit against the State without any substantive or interim relief, which can be qualified as an urgent or immediate relief, cannot be instituted without a notice under Section 80(2) of the Code. Trial court should have returned the plaint in accordance with the proviso to Section 80(2) of the Code. Although it failed to do so, it may not be proper for this Court to order return of the plaint at this distance of time. In this case it is all the more clear that by doing so no purpose will be served. Law is very clear that normally courts' omission to order return of a plaint under the aforementioned provision could be remedied even in a second appeal, as it is a serious flaw in the procedure which may impact on the rights of parties. 27. Be that as it may, in this case I do not propose to return the plaint for the reason that the second appeal is worthy only to be dismissed for the reason that the plaintiff has failed to establish her legal right to claim compensation from the defendants. In the result, the second appeal is dismissed. There is no order as to costs. All pending interlocutory applications will stand dismissed.