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2022 DIGILAW 70 (CHH)

Awdhesh Prasad Sharma v. Reeta Mishra

2022-02-03

PARTH PRATEEM SAHU

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JUDGMENT : Parth Prateem Sahu, J. 1. As private respondents have not noticed before trial Court and they have not caused their appearance, I find it appropriate to finalize the writ petition without issuing notice to respondents. 2. Petitioners have preferred this writ petition under Article 227 of the Constitution of India challenging the order dated 23.12.2021 passed by Civil Judge, Class-II, Saja, District Bemetara, Chhattisgarh whereby learned trial Court has rejected the application filed by the petitioners under Section 80(2) of the Code of Civil Procedure, 1908 (for short 'CPC') and return the plaint. 3. Ms. Sharmila Singhai, learned senior counsel for the petitioners would submit that petitioners have filed civil suit before trial Court for declaration of title, injunction and removal of encroachment along with an application under Order 39 Rules 1 & 2 read with Sections 94 and 151 of CPC, application under Order 39 Rule 3 of CPC and an application under Section 80(2) of CPC on the ground that respondents No. 1 to 6/defendants, elected Sarpanch, Secretary and residents of village Morai Khurd have constructed one Jaystambh in front of land bearing Khasra Nos. 1099 and 652 owned by petitioners. Subsequently, respondents No. 1 to 6 further started construction of Sanskritik Bhawan (Cultural Building) encroaching upon the land of petitioners. As Panchayat resolved to construct Cultural Building in front of land of petitioners, notice under Section 80(2) of CPC read with Section 108 of Chhattisgarh Panchayat Raj Adhiniyam has been sent to State Government/respondent No. 7, respondent No. 3 as well as respondents No. 1 and 2 on 07.12.2021. Thereafter, when respondents No. 1, 2 and 4 to 6 started construction work by digging land, looking to the urgency, petitioners have filed civil suit before concerned Court on 22.12.2021 with application under Section 80(2) and under Order 39(3) of CPC. She submits that learned trial Court erroneously rejected application under Section 80(2) of CPC returned back the plaint observing that there is no urgency. She submits that in plaint, it has been categorically mentioned that on 18.12.2021, respondents started digging land of petitioners for raising permanent construction. In application under Order 39 Rule 3 of CPC and in application under Section 80(2) of CPC also, they have pleaded that respondents have already started construction by encroaching upon land of petitioners. She submits that in plaint, it has been categorically mentioned that on 18.12.2021, respondents started digging land of petitioners for raising permanent construction. In application under Order 39 Rule 3 of CPC and in application under Section 80(2) of CPC also, they have pleaded that respondents have already started construction by encroaching upon land of petitioners. While considering application under Section 80(2) of CPC, learned Court below without considering pleadings made in plaint as well as application under Order 39 of CPC in entirety, erroneously came to conclusion that there is no urgency and rejected the same. When there is urgency of seeking any relief against Government Officials or any authority, under the provision of Section 80(2) of CPC, suit can be instituted with the leave of Court, without serving any notice as required by sub-section (1) of Section 80 of CPC. 4. In the case at hand, petitioners have issued notice to respondents/defendants under Section 80(1) of CPC, prior to expiry of period of notice, respondents No. 1, 2 and 4 to 6 started construction over land of petitioners by encroaching upon it, hence, petitioners filed a civil suit with application for leave under Section 80(2) of CPC. Learned Court below wrongly came to conclusion that plaintiffs have not brought to the notice of the Court of their suffering. She also submits that demarcation report is not specific and it does not mention that there is no construction on the land of petitioners. 5. Per contra, Mr. Gurudev I. Sharan, learned Government Advocate for respondent No. 7/State opposes submissions of learned counsel for the petitioners and would submit that based on the direction issued by the Court, respondent No. 7 submitted affidavit of Sub-Divisional Officer along with supporting documents. From perusal of documents, it is apparent that no construction is being raised over the land of petitioners/plaintiffs and construction is being done over Khasra Nos. 649 and 650, which is Government grass land, hence, learned Court below justified in rejecting application under Section 80(2) of CPC and returning plaint to petitioners to file after expiry of the period of notice under Section 80(1) of CPC. There is no illegality in the order passed by Court below. 649 and 650, which is Government grass land, hence, learned Court below justified in rejecting application under Section 80(2) of CPC and returning plaint to petitioners to file after expiry of the period of notice under Section 80(1) of CPC. There is no illegality in the order passed by Court below. He also pointed out that Revenue Inspector submitted a demarcation report on the basis of application filed by petitioners, in which, it is mentioned that land bearing Khasra No. 1099, measuring 0.900 hectare is of petitioner No. 1 where pond is situated and land bearing Khasra No. 629, measuring 0.29 hectare is in possession of petitioner No. 1. 6. I have heard learned counsel for the parties. 7. From the pleadings made in plaint as also application under Order 39 Rules 1 and 2, application under Section 80(2) of CPC, and 39 Rule 3 CPC, it is apparent that petitioners have very specifically pleaded in plaint at paragraph No. 8 of plaint that on 18.12.2021, respondents have started digging over land bearing Khasra Nos. 1099 and 1100 for raising permanent construction. Resolution dated 26.02.2021 (Annexure P/4) would further mentions that place of construction of Sanskritik Bhawan (cultural building) near Shiv Temple and hand pump, but subsequently vide resolution dated 22.11.2021, village panchayat resolved to raise construction over Khasra Nos. 649 and 650, which is grass land adjacent to land of petitioners. Petitioners sent notice under Section 80 to respondents on 07.12.2021. 8. At this stage, I find it appropriate to extend provisions of Sections 80(1) and 80(2) of CPC for ready reference: “80. 649 and 650, which is grass land adjacent to land of petitioners. Petitioners sent notice under Section 80 to respondents on 07.12.2021. 8. At this stage, I find it appropriate to extend provisions of Sections 80(1) and 80(2) of CPC for ready reference: “80. Notice.-(1) [Save as otherwise provided in sub-section (2), no suits [shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such 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 railway, the General Manager of that 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 this behalf;] (c) in the case of a 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 this 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 & 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).” 9. Inspection report dated 29.01.2022 submitted by Revenue Inspector is enclosed with the affidavit filed by State. Order impugned is dated 23.12.2021. On the date of passing order by learned Court below, there was no document on record to controvert the plea of urgency to grant leave to file suit before expiry of notice period under Section 80 of CPC. While considering the application for leave to file suit under Section 80(2) of CPC, Court is only required to consider whether the plaintiff/applicant able to make out a case of urgency and not to consider whether there is any merit or not. 10. At the time of considering application under Section 80(2) for leave to file suit, trial Court has to consider the nature of plaint, its averment and it is also necessary to read it in meaning full manner to find out real intention behind the suit. 11. Hon'ble Supreme court in case of Bajaj Hindustan Sugar & Industries Ltd. v. Balrampur Chini Mills Ltd. And others reported in (2007) 9 SCC 43 held as under:- “34. The law, in our view, has been succinctly expressed in the aforesaid judgment. 11. Hon'ble Supreme court in case of Bajaj Hindustan Sugar & Industries Ltd. v. Balrampur Chini Mills Ltd. And others reported in (2007) 9 SCC 43 held as under:- “34. The law, in our view, has been succinctly expressed in the aforesaid judgment. The language of Section 80(2) of the Code leads us to hold that if leave is refused by the original court, it is open to the superior courts to grant such leave as otherwise in an emergent situation a litigant may be left without remedy once such leave is refused and he is required to wait out the statutory period of two months after giving notice.” 12. In view of above, in the opinion of this Court, when specific pleading is made by petitioners with respect to starting of digging for raising construction over the land of petitioners, there was urgency shown by petitioners for filing of suit prior to expiry of notice period and learned Court below erred in rejecting the application under Section 80(2) of CPC and not granting leave. There is no discussion in the order as to why ground of urgency pleaded is not meeting the requirement of Section 80(2) of CPC. 13. For the foregoing, writ petition stands allowed. Impugned order passed by Court below is set aside. Application filed under Section 80(2) of CPC is allowed. Trial Court is directed to proceed with the civil suit in accordance with law.