We reiterate that till the application filed under Section 80(2) of the
CPC is finally heard and decided, it cannot be known whether the suit filed
without issuance of notice under Section 80(1) of the CPC was justifiable.
According to the provisions of Section 80(2) of the CPC, the court has to be
satisfied after hearing the parties that there was some grave urgency which
required some urgent relief and therefore, the plaintiff was constrained to
file a suit without issuance of notice under Section 80(1) of the CPC. Till
arguments are advanced on behalf of the plaintiff with regard to urgency in
the matter and till the trial court is satisfied with regard to the urgency or
requirement of immediate relief in the suit, the court normally would not
grant an application under Section 80(2) of the CPC. We, therefore, come to
the conclusion that mere filing of an application under Section 80(2) of the
CPC would not mean that the said application was granted by the trial court.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7364 OF 2013
(Arising out of SLP (C) No. 10956 of 2005)
Govt. of Kerala & Ors.
.....Appellants
Versus
Sudhir Kumar Sharma & Ors.
.....Respondents
JUDGMENT
ANIL R. DAVE, J.1
Citation;(2013) 10 SCC 178
1. Leave granted.
2. Being aggrieved by the judgment delivered in Civil Revision Petition
No. 5189 of 2001 dated 20th January, 2005 by the High Court of Karnataka,
this appeal has been filed by the Government of Kerala & other officials.
The facts giving rise to the present litigation, in a nutshell, are as
under:
Respondent No. 1 has filed a civil suit, being OS No. 11286 of 1998
in the Court of the Additional City Civil Judge at Mayo Hall in Bangalore.
According to respondent no.1, he had been wrongfully detained by the State
Authorities and therefore, in the said suit he has prayed that he should be
awarded Rs.55,00,000/- as damages with interest thereon at the rate of 18%.
As the suit has been filed against the State, he was supposed to give a notice
under Section 80 of the Civil Procedure Code, 1908 ( hereinafter referred to
as ‘the CPC’) but he had not given the statutory notice under Section 80 of
the CPC in accordance with law. In fact, the notice was issued by him on
24th October, 1998 whereas the suit had been filed on 28 th October, 1998.
At the time of filing the suit, he had not even received acknowledgment
from the authority to whom he had issued the notice. He had not even
affixed requisite court fee stamp to the plaint when the plaint was filed in the
Court. Respondent No. 1 being conscious of the defects in the suit filed by
him, had also filed two interlocutory applications along with the plaint on
the date on which the plaint had been filed. An I.A. No. I was filed under
the provisions of Section 80(2) of the CPC seeking leave of the court to file
the suit without serving a notice under Section 80(1) of the CPC and an I.A.
No. II was filed under Section 151 of the CPC praying for extension of time
for payment of the court fee.
4.
On 29th October, 1998, the I.A. No. II had been granted by the court,
whereby respondent no. 1 was granted time up to 28th November, 1998 for
paying the court fee stamp and the same was paid by him on 28 th November,
1998 and therefore, summons had been issued on 28th November, 1998.
Thereafter, hearing had been adjourned from time to time.
5.
In the said suit, I.A. Nos. III & IV were filed on behalf of the present
appellants under Order VII Rule 11 of the CPC praying for rejection of the
plaint.
6.
The said applications filed by the appellants had been heard by the
Trial Court and ultimately, by an order dated 3rd September, 2001, the said
applications praying for rejection of the plaint had been rejected.
7.
Being aggrieved by the Order dated 3 rd September, 2001, whereby the
applications praying for rejection of the plaint had been rejected, the
appellants had filed Civil Revision Petition No. 5189 of 2001, which was
also rejected by the High Court by an order dated 20 th January, 2005 and the
said order has been challenged by the appellants in this appeal.
8.
The Trial Court had rejected the I.A. Nos. III & IV praying for
rejection of the plaint for the reason that it did not find any justifiable reason
for rejecting the plaint.
9.
So far as the High Court is concerned, it came to the conclusion that
the Trial Court was right in rejecting the applications praying for rejection of
the plaint as there was no justifiable reason for rejecting the plaint. The
High Court also came to the conclusion that I.A. No. I filed by respondent
No. 1 seeking leave of the Court to permit the filing of the suit without
serving notice under Section 80(1) of the CPC had been presumed to have
been granted and therefore, there was no reason for rejecting the plaint. The
High Court also found that the deficit court fee stamp had also been paid
within the extended period granted by the Trial Court. Thus, there was no
justifiable objection to the plaint and therefore, according to the High Court
the decision of the Trial Court was just and proper.
10.
The High Court noted that I.A. No. I was pending before the Trial
Court and yet applications praying for rejection of the plaint had been heard
by the Trial Court. The High Court, therefore, presumed that I.A. No. I,
filed under Section 80(2) of the CPC, was granted and therefore, the
objection with regard to non-compliance of Section 80(1) of the CPC was
not justifiable.
11.
In the aforestated circumstances, what is to be examined by this court
is whether there can be any presumption with regard to grant of the
application filed under Section 80(2) of the CPC, even if no order was
passed on the said application and whether the Trial Court was justified in
dismissing the applications of the appellants filed for rejection of the plaint
though the application filed by respondent No.1- plaintiff under Section
80(2) of the CPC was not finally decided.
12.
The learned counsel appearing for the appellants had submitted that as
no order had been passed on the application filed under Section 80(2) of the
CPC, it had not been finally disposed of and therefore, the High court was in
error in presuming that the said application had been granted.
13.
It had been also submitted that without deciding the application filed
by respondent No.1 under Section 80(2) of the CPC, the Trial Court as well
as the High Court could not have come to the conclusion that the plaint was
not liable to be rejected under Order VII Rule 11 of the CPC. It had been
further submitted that without deciding the application filed by respondent
No.1, the Trial Court should not have even heard the applications filed by
the appellants for rejection of the plaint under Order VII Rule 11 of the CPC.
It had been thus submitted that the High Court as well as the Trial Court had
committed a grave error by coming to the conclusion that the plaint could
not have been rejected under the provisions of Order VII Rule 11 of the
CPC.
14.
So as to substantiate the aforestated submissions made by the learned
counsel appearing for the appellants, he had relied upon the judgment
delivered by this Court in the case of State of A.P. & Ors. vs. Pioneer
Builders [(2006) 12 SCC 119].
He had drawn our attention to the
observations made by this court on the requirement of giving statutory
notice to the Government and the object of giving notice under Section 80(1)
of the CPC. He had drawn our attention specifically to para 14 of the
aforestated judgment, which reads as under:
“From a bare reading of sub-section (1) of Section 80, it is plain that
subject to what is provided in sub-section (2) thereof, no suit can be
filed against the Government or a public officer unless requisite notice
under the said provision has been served on such Government or
public officer, as the case may be. It is well-settled that before the
amendment of Section 80 the provisions of un-amended Section 80
admitted of no implications and exceptions whatsoever and are
express, explicit and mandatory. The Section imposes a statutory and
unqualified obligation upon the Court and in the absence of
compliance with Section 80, the suit is not maintainable. (See:
Bhagchand Dagdusa Gujrathi & Ors. Vs. Secretary of State for India ;
Sawai Singhai Nirmal Chand Vs. The Union of India and Bihari
Chowdhary & Anr. Vs. State of Bihar & Ors. ). The service of notice
under Section 80 is, thus, a condition precedent for the institution of a
suit against the Government or a public officer. The legislative intent
of the Section is to give the Government sufficient notice of the suit,
which is proposed to be filed against it so that it may reconsider the
decision and decide for itself whether the claim made could be
accepted or not. As observed in Bihari Chowdhary (supra), the object
of the Section is the advancement of justice and the securing of public
good by avoidance of unnecessary litigation.”
15.
Thereafter, the learned counsel had relied upon the judgment
delivered in the case of M/s. Bajaj Hindustan Sugar & Industries Limited
vs. Balrampur Chini Mills Ltd. & Ors. [2007 (9) SCC 43] which also lays
down law to the effect that a suit may be filed against the Government or a
public officer without serving notice as required by Section 80(1) of the
CPC only with the leave of the court.
16.
He had further submitted that as the suit was defective on account of
non- compliance of Section 80(1) of the CPC and as leave had not been
granted by the Trial Court to respondent no. 1 plaintiff under Section 80(2)
of the CPC, the plaint ought to have been rejected by the Trial Court and
alternatively he had submitted that hearing of applications praying for
rejection of the plaint filed under the provisions of Order VII Rule 11 of the
CPC should have been postponed till the application filed under Section
80(2) of respondent No. 1 was finally decided.
17.
On the other hand the learned counsel appearing for respondent No.1-
original plaintiff had made an effort to justify the reasons given by the Trial
Court as well as by the High Court for rejecting the applications filed under
Order VII Rule 11 of the CPC.
18.
It had been submitted by the learned counsel appearing for respondent
No. 1 that the High Court was right in presuming that the application filed
under Section 80(2) of the CPC had been entertained and granted. The
learned counsel had relied upon the judgment delivered in the case of
Irappa Basappa Kudachi vs. State of Karnataka [1996 (2) Karnataka
Law Journal 591] wherein it has been held on the facts of the case that even
if no order is passed on an application filed under Section 80(2) of the CPC,
it can be presumed that the said application is granted.
19.
Relying upon the aforestated judgment of the Karnataka High Court,
it had been submitted by the learned counsel for Respondent No.1 that
though no order was passed on the application made under Section 80(2) of
the CPC, it was rightly presumed that the Trial Court had granted the said
application and therefore, there could not have been any objection with
regard to filing of the suit in violation of the provisions of Section 80(1) of
the CPC.
20.
It had been also submitted that had the application filed under Section
80(2) been rejected by the Trial Court, the plaint would have been returned
to respondent No.1-plaintiff but as the plaint had not been returned, the
presumption would be that the application under Section 80(2) had been
granted.
21.
For the aforestated reasons, the learned counsel appearing for the
respondents had submitted that the appeal should be dismissed by this court.
22.
We have heard the learned counsel at length and have also perused the
judgments cited by them.
23.
Looking to the facts of the case and the provisions of law, we do not
agree with the view expressed by the Trial Court as well as by the High
Court.
24.
It is an admitted fact that no order had been passed on the application
filed under Section 80(2) of the CPC whereby leave of the court had been
sought for filing the suit without complying with the provisions of Section
80(1) of the CPC. In our opinion, a suit filed without compliance of Section
80(1) cannot be regularized simply by filing an application under Section
80(2) of the CPC. Upon filing an application under Section 80(2) of the
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 concerned Government
authorities. 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 it
can 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.
25.
It is an admitted fact that no order had been passed on the application
filed under Section 80(2) of the 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 VII Rule 11 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) of the CPC cannot be raised and in that event
the suit would not fail on account of non-issuance of notice under Section
80(1) of the CPC.
26.
We reiterate that till the application filed under Section 80(2) of the
CPC is finally heard and decided, it cannot be known whether the suit filed
without issuance of notice under Section 80(1) of the CPC was justifiable.
According to the provisions of Section 80(2) of the CPC, the court has to be
satisfied after hearing the parties that there was some grave urgency which
required some urgent relief and therefore, the plaintiff was constrained to
file a suit without issuance of notice under Section 80(1) of the CPC. Till
arguments are advanced on behalf of the plaintiff with regard to urgency in
the matter and till the trial court is satisfied with regard to the urgency or
requirement of immediate relief in the suit, the court normally would not
grant an application under Section 80(2) of the CPC. We, therefore, come to
the conclusion that mere filing of an application under Section 80(2) of the
CPC would not mean that the said application was granted by the trial court.
27.
In the aforestated circumstances, we hold that the trial court had
wrongly rejected the applications filed by the appellants under Order VII
Rule 11 of the CPC. The trial court ought to have heard and decided the
application filed under Section 80(2) of the CPC before hearing the
applications under Order VII Rule 11 of the CPC.
28.
As a result of the above discussion, the appeal is allowed. The
impugned judgment delivered by the High Court confirming the order of the
Trial Court dated 30th September, 2001 is quashed and set aside. The order
of the Trial Court rejecting applications under Order VII Rule 11 is also
quashed and set aside. It is directed that the trial court shall first of all
decide the application filed by respondent no. 1 under Section 80(2) of the
CPC and only after final disposal of the said application, the applications
filed by the appellants under Order VII Rule 11 of the CPC shall be decided.
29.
The appeal is allowed with no order as to costs.
..................................................J.
(ANIL R. DAVE)
.....................................................J.
(DIPAK MISRA)
New Delhi
September 02, 2013
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