Whether any presumption be raised with regard to grant of application filed under Section 80(2) of CPC, even if no order under section 80(2) of CPC was passed on the said application?

Submitted by  ISHA SACHDEVAIN 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.
Versus
Sudhir Kumar Sharma & Ors.



J U D G M E N T
ANIL R. DAVE, J.
The question that requires determination is : 
1) Pending an application under section 80(2) of CPC(hereinafter called ‘CPC’), whether suit filed be rejected, due to non service of statutory notice as required under section 80 of CPC, under Order VII Rule 11 of CPC? 
2) Whether any presumption be raised with regard to grant of the application filed under Section 80(2) of the CPC, even if no order under section 80(2) of CPC was passed on the said application?


Held:

With regard to the first issue, it was contended 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. 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. Thus, pending an application under section 80(2) of CPC, Suit cannot be rejected.

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 court.

With regard to the second issue, 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 court.

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