Yashod Kumari And Anr. vs Mcd And Ors.
2003 Latest Caselaw 101 Del

JUDGMENT

B.A. Khan, J.

1. Appellants filed a suit for a declaration and permanent injunction claiming to be the owners in possession of plot of land measuring 436.5 sq. yds. comprising Khasra No. 52/18/2 with a structure thereon at village Kishangarh, which was free from acquisition proceedings. The suit was filed before this Court first wherein an ex parte interim injunction was also granted. It was later transferred to District Courts at Tis Hazari and was assigned to learned A.D.J. for trial who framed the following preliminary issue for decision first:

"Whether the present suit is not maintainable as alleged in para 2 of the preliminary objections in the WS?'

2. While examining this issue the whole debate seems to have turned on the non-service of notice under Section 80, CPC.

3. While appellants (plaintiffs) contended that the suit was maintainable even in the absence of notice under Section 80, they also prayed for grant of leave in the facts and circumstances of the case under Section 80(2). Respondents (defendants) opposed this and Trial Court dismissed the suit for want of notice under Sections 80, CPC and 53-B of DD Act and dismissed the suit.

4. Appellants assail this on twin grounds : first that notice under Section 80 should have been deemed waived after this Court had registered the suit and passed ex parte interim order and secondly, the suit could not have been dismissed without consideration and disposal of the appellants' application under Section 80(2).

5. Appellants' Counsel Mr. Valmiki Mehta referred to and relied upon Supreme Court judgment in "Vannattankandy Ibrayi v. Kunhabdulla Hajee, 2001 (1) SCC 564, to show that notice under Section 80 was liable to be waived and one Calcutta High Court judgment in "Subhro Kamal Mukherjee v. Chandrabati Devi and Anr.," AIR 2002 Cal 11, to suggest that even grant of leave under Section 80(2) could also be presumed in the circumstances of the case as in the present case.

6. Relevant provisions of Sections 80, CPC and 53-B, DDA Act read thus:

"80. Notice--(1) Save a otherwise provided in Sub-section (2), no suit shall be 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, until the expiration of two months next after notice in writing has been delivered to, or left at the office......."

"(2) A suit to obtain an urgent or immediate relief against the Government 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."

Section 53-B of DDA Act

"Notice to be given of suits.--(1) No suit shall be instituted against the authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the authority or any member or any officer or other employee of the authority in respect of any act done or purporting to have been clone in pursuance of this Act or any rule or regulation made there under until the expiration of two months after notice in writing has been, in the case of the authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaintiff contains a statement that such notice has been so left or delivered.

2...........

(3) Nothing contained in Sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."

7. Section 80, CPC affords two options to the plaintiff. He may either file a suit against the Government or the public officer after serving two months notice under Sub-section 1 or he may file it without serving the notice and for this seek the leave of the Court under Sub-section 2 on satisfying it that an immediate and urgent relief was required in the facts and circumstances of the case. He can do this by filing an accompanying application to show the urgency which is to be considered and disposed of by the Court. In the event it is rejected, the Court has to return the plaint to the plaintiff who could refile it after service of two months notice under the proviso of Section 80.

8. The object of Section 80 notice is to afford the Government or the public officer an opportunity to examine the nature of the claim to settle it, if so advised and to avoid any futile litigation and to save the public money and time which would be otherwise wasted on unnecessary litigation.

9. The Supreme Court in Raghunath Das v. Union of India and Anr., , holding this:

"The object of the notice contemplated by Section 80, CPC is to give to the concerned Government and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigation. The purpose of law is advancement of justice. The provisions in Section 80 are not intended to be used as booby trap against ignorant and illiterate persons."

10. In the present case there is no dispute that appellants had filed an application for grant of leave under Section 80(2) which was not dealt with and considered by the Court. On the contrary the Court had proceeded to frame a preliminary issue on the preliminary objection taken by respondents in their written statement and dismissed the suit for want of service of notice under Section 80. This, in our view, could not have been done, because once the Court was seized of appellant's application under Section 80(2) it ought to have disposed of this application first by either granting leave or refusing it in which case it was to return the plaint to them which they could refile after service of two months notice. It would not have dismissed the suit without doing and this renders the impugned dismissal order straightaway unsustainable. The order warrants setting aside on this ground alone.

11. Apart from this, we find that the appellant's suit was already registered by the Court first and ex parte interim order was also passed in this. It was thereafter transferred to District Court along with the application for grant of leave. From this it could also be easily presumed that the Court had impliedly granted the leave to institute the suit or that the notice stood waived in the facts and circumstances of the case. This aspect seems to have gone totally unnoticed with Trial Court proceedings mechanically; in the matter to dismiss the suit for want of notice under Section 80, CPC.

12. Mr. Munjal, learned Counsel for respondent DDA, however, submitted that if the dismissal of the suit under Section 80, CPC could be held bad, it was justifiable under Section 53-B of DDA Act under which no suit could be instituted against the Authority or its officers without service of two months notice and which did not contain any proviso to this section allowing filing of the suit with the leave of the Court like Section 80(2).

13. It is true that Section 53-B of DDA Act does not carry a provision analogous to the provisions of Section 80(2) to provide for grant of leave in filing the suit without service of two months notice. But it also contains a proviso in Sub-section (3) which makes the embargo contained in Sub-section (1) inapplicable in a suit in which relief claimed is that of injunction only.

14. But this apart, taking in regard that this Court had registered the suit and granted the stay order and that respondents had contested it all through, even notice under Section 53-B should be deemed waived in the facts and circumstances of the case. After all the purpose of notice under Section 53-B of DDA Act is the same as that of Section 80, CPC i.e. to bring the claim to the authority's notice so that it may concede or contest it. Once the authority had contested it on merits even at preliminary stage, it could not complain of non-service of notice under Section 53-B now. Nor could it be held fatal to justify the dismissal of the suit.

15. Viewed this, we allow this appeal and set aside the impugned dismissal order. Technically this would revive appellant's suit for consideration of appellant's application for grant or refusal of leave but we feel that much water had flowed down since and doing so would be an exercise in futility because parties have already contested the suit on merit all through and all these years. It would be ridiculous and hyper-technical to take them back to squate one for a fresh debate on service of two months' notice under Section 80, CPC or Section 53-B of DDA Act. Both notices shall, therefore, be deemed waived in the facts and circumstances of the case and appellant's suit No. 316 shall be revived and disposed of under law on merit.