Sh. Gian Chand vs Gaon Sabha Aya Nagar & Ors.
2009 Latest Caselaw 3671 Del

..*        HIGH COURT OF DELHI : NEW DELHI

+          IA No.176/2009 in CS (OS) No.1578/2006

%                                 Reserved on : 17th July, 2009

                                  Decided on : 10th September, 2009

Sh. Gian Chand                                      ...Plaintiff
                       Through: Mr. Pankaj Vivek, Adv.

                       Versus

Gaon Sabha Aya Nagar & Ors.                     ...Defendants
                   Through : Ms. Ruchi Sindhwani, Adv. with
                             Ms. Akanksha Sharma, Adv. for
                             Defendants No.1-2
                             Mr. Sanjeev Sabharwal, Adv. for
                             MCD

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                  No

2. To be referred to Reporter or not?                               Yes

3. Whether the judgment should be reported                          Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The plaintiff has filed the present suit for declaration and

injunction seeking, inter alia, a declaration to the effect that the

plaintiff is the proprietor/owner of the suit property bearing Khasra

No.1658, measuring 2 bighas situated in the revenue estate of Village

Aya Nagar, Delhi and that vesting of the said land in the Gaon Sabha,

defendant No.1 was illegal and unlawful.

2. The present application being IA No.176/2009 has been filed

by the defendant No.1 under Order VII Rule 11 read with Section 151 of

CPC for rejection of the plaint under Section 80 of CPC. It is submitted

by the defendants that the plaintiff has not served upon them the

statutory and mandatory notice required to be filed two months prior to

the filing of the suit under Section 80 CPC. It is further stated that the

plaintiff has not even filed any application under Section 80(2) of CPC

seeking leave of the Court to file the present suit if there is any urgency

or immediate relief sought against the defendants. The defendant No.1

therefore, has prayed for the dismissal of the suit on the ground of

violation of Section 80 CPC.

3. The plaintiff in reply to the application filed by the defendant

No.1 stated that the suit was filed claiming urgent and immediate

reliefs under Section 80(2) CPC and therefore, the suit is not liable to be

dismissed. Defendant No.1 was served on 19th December, 2006, 7th

February, 2006, 13th March, 2007 and 21st May, 2007 and has also filed

written statement.

4. It is submitted that in para 22 of the plaint, the plaintiff has

sought dispensing of the notice under Section 80(2) CPC by requesting

leave of the court for institution of the present suit without serving

notice under Section 80 CPC. It is urged that the procedures are nothing

but the handmade of justice. No separate application is required as

claimed by defendant No.1 for obtaining leave of the court to institute

the suit under Section 80 (2) of CPC. The plaintiff's counsel relied

upon the case of T.V. Parangodan vs. District Collector, Trichur and

Ors., AIR 1989 Kerala 276 wherein it was held that the plaintiff need

not file a separate application under Section 80(2) CPC. Request for

leave can be in any form provided it is capable of conveying the prayer

and grounds to the court and the opposite party, enabling effective

objection as well as a considered decision. He also relied upon the case

of State of A.P. and Ors. vs. M/s. Pioneer Builders, A.P., AIR 2007

SC 113 wherein the Apex Court observed that if the plea of want of

notice is not raised by the Govt. in the written statement filed in a suit,

defect is deemed to be waived.

5. Apparently in the present case, the suit was registered on 1st

November, 2006 and notice was issued to the defendants. Defendant

no. 1 was duly served on 13th February, 2007. However, none appeared

on its behalf. Thereafter, a court notice was issued to the standing

counsel for defendant nos. 1, 2 and 3. No written statement was filed by

the defendant nos. 1 and 2 till 6 th August, 2007. Thus, the right of the

said defendants to file the written statement was closed vide order dated

17th September, 2008. The defendant nos. 1 and 2 filed an appeal being

FAO (OS) No. 462/2008 against the order dated 17 th September, 2008

before a Division Bench of this court for extension of time to file the

written statement. The appeal was allowed by the Division Bench.

6. Before the Division Bench the counsel for the plaintiff made

a statement that he would not press the relief of declaration as prayed

in the suit. He stated that he would take appropriate proceedings in this

regard under the Land Reforms Act.

7. I have heard learned counsel for both the parties and perused

the record. To deal with the contention as to whether the present suit is

in violation of Section 80 CPC, we must look at Section 80 itself which

is reproduced herein below :

"Section 80. 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 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 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)."

8. From a reading of the abovesaid provision, it is clear that

service of notice is a condition precedent for the institution of a suit

against the Government or a public officer. It imposes a statutory and

unqualified obligation and in the absence thereof, the suit is not

maintainable, except where S. 80(2) applies. Section 80 in effect

provides that an advance copy of the plaint should be served on the

defendant and no suit should be instituted in court until the expiry of

two months after such service. Section 80 does not define the rights of

parties nor does it confer any right on the parties. It only provides a

procedure for getting relief in respect of a cause of action. It is a part of

the machinery for obtaining legal rights, i.e. machinery as distinguished

from its products.

9. In the case of Ghanshyam Dass vs. Dominion of India,

(1984) 3 SCC 46, it was held that Section 80 of the Code is but a part of

the procedure code passed to provide the regulation and machinery, by

means of which the courts may do justice between the parties. It is

therefore, merely a part of the adjective law and deals with procedure

alone and must be interpreted in a manner so as to subserve and advance

the cause of justice rather than to defeat it. As far as possible, no

proceedings in a court of law should be allowed to be defeated on mere

technicalities. This is the principle on which our laws of procedure are

based.

10. Section 80(2) provides that if the court is satisfied that

immediate relief needs to be given the plaintiff, it would not insist that

the plaintiff should approach the court after expiry of two months after

service of notice on the Government or the public officer. Section 80(2)

does not prescribe any form or manner in which leave has to be granted.

Leave need not be granted by a formal order. It can be implied also and

can be gathered from the actions of the court. Hence, proceeding with the

suit after the objection while considering any relief could be a visible

manifestation of an implied leave being granted. Consequently, the

finding that the suit is not maintainable for the reason that the leave was

not sought for by a separate application is too hypertechnical and not

conducive to justice. [Ref. Smt. Janak Raji Devi vs. Chandrabati Devi

and Anr., AIR 2002 Cal 11(15)]. It is not necessary that the

notice should be in any particular or technical form. [Ref: Nannah vs.

Union of India, AIR 1964 Raj 41(44)].

11. The Court can judicially exercise its discretion under Section

80(2) of the CPC to grant leave to institute a suit without notice under

Section 80(1) or before the expiry period under the notice in a case where

urgent relief is prayed for and no irreparable loss would be caused to the

defendant and the suit can be decided on merits instead of on technical

grounds.

12. In view of my above discussion, I consider that the plaintiff in

para 22 of the plaint sought leave of this Court to dispense with the

mandatory requirement of serving notice under Section 80(1) by claiming

urgent or immediate relief against the government. A reasonable

opportunity of show cause is also afforded to the defendants and the suit

was duly registered by the court by order dated 1st November, 2006. No

separate application for leave needs to be filed if the Court is satisfied,

after hearing the parties, that urgent or immediate relief is prayed for

in the suit. Sub section (2) of Section 80 does not provide any form or

manner in which leave has to be granted or the mode or form of

leave/request. It could be in any form provided it contains the proper

reasons/request for leave. Since the defendant has already filed the

written statement in the suit and admission/denial of documents has

also been completed, in my view, even if there is no urgent or immediate

relief sought by the plaintiff, the plaint should not be returned at this

stage to complete the requirements of sub section (1) of Section 80.

13. I, therefore, hold that the suit cannot be dismissed on account

of non-filing of the application to obtain leave of this Court under

Section 80(2) CPC. I find no merit in the contentions raised by the

defendant. The application IA No.176/2009 being devoid of merits is

hereby dismissed.

CS (OS) No.1578/2006

List this matter before the Court on 3rd November, 2009.

MANMOHAN SINGH, J September 10, 2009 SD