Kerala High Court
Parent Teacher Association vs E.Ambikadevi Amma on 25 August, 2025
2025:KER:64138
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
RSA NO. 61 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2015 IN AS
NO.132 OF 2009 OF ADDITIONAL DISTRICT COURT-VI, KOLLAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2009 IN
OS NO.290 OF 2000 OF MUNSIFF COURT, SASTHAMCOTTA
APPELLANTS/RESPONDENTS/DEFENDANTS IN O.S.:
1 GOVERNMENT COLLEGE, CHAVARA
REPRESENTED BY ITS PRINCIPAL.
2 KERALA STATE
REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM.
SRI.K.P.JAYACHANDRAN - ADDL. ADVOCATE GENERAL
SRI.K.DENNY DEVASSY - SR GP
SRI.JAFFER KHAN Y. - SR GP
RESPONDENT/APPELLANT/PLAINTIFF IN O.S.:
1 E. AMBIKADEVI AMMA [DIED & LHRS IMPLEADED]
W/O RAJA BHOOSHAN NAIR, VALLOLIL VEEDU,
CHERUSSERIBHAGAM MURI, CHAVARA VILLAGE - 691583
ADDL.R2 HARIKRISHNAN. R
AGED 62 YEARS
S/O LATE E. AMBIKADEVI AMMA, VALLOLIL, TC
12/440, PLAMOOD, PATTOM, THIRUVANANTHAPURAM -
695004
RSA Nos.61 &
897/2016
2
2025:KER:64138
ADDL.R3 GIRISH.R
S/O LATE E. AMBIKADEVI AMMA, RESIDING AT
VALLOLIL, SANKARAMANGALAM, CHAVARA P.O, KOLLAM-
691583
(LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 2 AND 3 AS
PER ORDER DATED 28/07/2025 IN IA 2/2025)
BY ADVS.
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
30.07.2025, ALONG WITH RSA.897/2016, THE COURT ON
25.08.2025 DELIVERED THE FOLLOWING:
RSA Nos.61 &
897/2016
3
2025:KER:64138
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
RSA NO. 897 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2015 IN AS
NO.132 OF 2009 OF ADDITIONAL DISTRICT COURT-VI, KOLLAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2009 IN
OS NO.290 OF 2000 OF MUNSIFF COURT, SASTHAMCOTTA
APPELLANT IN THE RSA (LEAVE TO APPEAL SOUGHT FOR VIDE
SEPARATE APPLICATION):
PARENT TEACHER ASSOCIATION
BABY JOHN MEMORIAL GOVERNMENT COLLEGE, CHAVARA,
REPRESENTED BY ITS SECRETARY, DR.ANIL PRASAD,
RESIDING AT VILAYIL (PRARTHANA), THODIYOOR P.O.,
KARUNAGAPPALLY.
BY ADVS.
SHRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SEBASTIAN
RESPONDENTS/APPELLANT & RESPONDENTS/PLAINTIFF & DEFENDANTS
1 & 2:
1 E.AMBIKADEVI AMMA [DIED & LHS IMPLEADED]
AGED 67 YEARS, D/O. RAJA BOOSHAN NAIR, VALLOLIL
VEEDU, CHERUSSERIBHAGOM MURI, CHAVARA VILLAGE,
PIN-691 583.
2 GOVERNMENT COLLEGE
CHAVARA, REPRESENTED BY ITS PRINCIPAL,
GOVT.COLLEGE, CHAVARA-691 583.
RSA Nos.61 &
897/2016
4
2025:KER:64138
3 KERALA STATE
REPRESENTED BY DISTRICT COLLECTOR, KOLLAM-691
001.
ADDL.R4 HARIKRISHNAN. R
S/O LATE E. AMBIKADEVI AMMA, VALLOLIL, TC
12/440, PLAMOOD, PATTOM, THIRUVANANTHAPURAM
695004.
ADDL.R5 GIRISH.R
S/O LATE E. AMBIKADEVI AMMA, RESIDING AT
VALLOLIL, SANKARAMANGALAM, CHAVARA P.O, KOLLAM
691583
[LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 4 AND 5 AS
PER ORDER DATED 25.08.2025 IN IA 1/2025]
BY ADVS.
SMT.MEENA.A. - R4, R5
SRI.T.KRISHNANUNNI (SR.)-R4, R5
SRI.VINOD RAVINDRANATH - R4, R5
SRI.K.P.JAYACHANDRAN - ADDL. ADVOCATE GENERAL
SRI.K.DENNY DEVASSY - SR GP - R3
SRI.JAFFER KHAN Y. - SR GP - R3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
30.07.2025, ALONG WITH RSA.61/2016, THE COURT ON 25.08.2025
DELIVERED THE FOLLOWING:
RSA Nos.61 &
897/2016
5
2025:KER:64138
"C.R"
EASWARAN S., J.
---------------------------------------------------------
R.S.A Nos.61 and 897 of 2016
---------------------------------------------------------
Dated this the 25th day of August, 2025
JUDGMENT
These appeals raise a common question of law regarding the scope of
Section 80 of the Code of Civil Procedure, 1908 and hence, are being
considered together. The Principal of the Government College, Chavara
and the Parent Teacher Association, Baby John Memorial Government
College, Chavara, are questioning the judgment dated 26.09.2015 in
A.S.No.132/2009 of the Additional District Court-VI, Kollam, in RSA
Nos.61 of 2016 and 897 of 2016, respectively.
2. The brief facts necessary for the disposal of these appeals are
as follows:
2.1. The respondent/plaintiff in RSA No.61/2016 claimed that she is
the owner in possession of the plaint 'A' schedule property. The title to the
aforesaid property is traced to a Partition Deed No.459 executed in the year
1950. According to the plaintiff, she has been in possession and enjoyment
of the property ever since she was assigned the property. The plaint 'A'
schedule property is demarcated with well-defined boundaries.
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897/2016
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Approximately 11/2 Acres of land laying adjacent to the plaint 'A' schedule
property was acquired by the Government for Government Girls High
School, Chavara. Subsequently, that property was transferred for
establishing Government College, Chavara. The property situated on the
western side of the plaint 'A' schedule property and the property acquired
for the construction of the Government College, Chavara, are now in the
possession of the 1st defendant. There is a pathway starting from the N.H.47
situated on the eastern side of the property of the 1 st defendant and used by
the plaintiff for ingress and egress to the plaint 'A' schedule property. The
said pathway, which is mentioned in the Panchayat Register and maintained
by the Panchayat, is scheduled as 'B' schedule property. The pathway
further runs towards the north and thereafter turns to the east and going to
Vengoli. The said pathway is having a width of 5 1/2 metres and a length of
35 metres. The property of the Government College, Chavara, is situated on
the north of the said 'B' schedule pathway and there are electric posts in the
'B' schedule pathway and that the defendants have no right to close down
the said pathway and obstruct the right of the plaintiff. The defendants are
attempting to construct boundary wall for the properties of the Government
College, Chavara enclosing 'B' schedule pathway, and since the plaintiff
received reliable information from the contractor, who is making
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897/2016
2025:KER:64138
constructions for the 1st defendant, to the above effect and also that the
construction will start on 07.10.1998, the suit has been instituted.
2.2. The 2nd defendant entered appearance and resisted the claim.
The 1st defendant alone filed a written statement raising a preliminary
objection as regards the maintainability of the suit. According to the 2 nd
defendant, no notice under Section 80 of the Code of Civil Procedure, 1908
was issued prior to the filing of the suit. The plaintiff has approached the
court by suppressing the material facts and the litigation is only vexatious.
According to the defendants, the property of the Government College is
lying as a single plot having an extent of 316.530 cents comprised in
Resurvey Nos.248/1 and 247/3 of Chavara Village. The 'B' schedule
pathway is not mentioned in the resurvey plan. Since the plaintiff has an
alternate way for ingress and egress to the plaint scheduled property, the
plaintiff cannot raise any objection to the exclusive use of the property by
the Government.
2.3. After the filing of the written statement, the plaintiff sought
amendment of the plaint seeking to incorporate a prayer for mandatory
injunction in the plaint on the ground that the defendants have closed 'B'
schedule pathway after the filing of the suit. An additional written statement
was filed on behalf of the 1st defendant, contending that since there is non-
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897/2016
2025:KER:64138
compliance of the provisions of Section 80 of the Code of Civil Procedure,
1908, the plaint ought to have been returned. On behalf of the plaintiff,
Exts.A1 to A6 documents were produced and PW1 to PW6 were examined.
On behalf of the defendants, Exts.B1 to B11 series were produced and no
oral evidence was adduced. Ext.C1 is the report and Ext.C1(a) is the rough
sketch prepared by the advocate commissioner. The extract of the
panchayat road under the protection of the Chavara Grama Panchayat was
produced and marked as Ext.X1. The trial court framed the following issues
for consideration:
"1. Whether the plaintiff's prayer for permanent prohibitory
injunction is maintainable or not?
2. Whether the plaintiff's prayer for mandatory injunction is
maintainable or not?
3. Other reliefs and cost?
Addl.Issue No.4 : If there any pathway in existence as
described in plaint 'B' schedule?"
2.4. The suit was initially decreed by the trial court. Aggrieved by
the judgment and decree, the defendants preferred A.S.No.166/2006. By
judgment dated 18.01.2008, the first appellate court set aside the judgment
of the trial court and remanded the suit for fresh consideration. On remand,
the matter was extensively reconsidered and the plaintiff adduced additional
evidence in the form of PW4 to PW6. The trial court by judgment and
RSA Nos.61 &
897/2016
2025:KER:64138
decree dated 31.03.2009 dismissed the suit, finding that the plaintiff has got
an alternate way to have ingress and egress to the plaint 'A' schedule
property. Aggrieved, the plaintiff preferred A.S.No.132/2009. By judgment
dated 26.09.2015, the first appellate court reversed the finding of the trial
court and decreed the suit and hence, the present second appeal.
3. Heard, Sri.Jaffer Khan Y. and Sri.K.Denny Devassy - learned
Senior Government Pleaders appearing on behalf of the State,
Sri.T.Krishnanunni - learned Senior Counsel, assisted by Smt.Meena A,
appearing for the respondents/plaintiff and Sri.George Varghese
Perumpallikuttiyil - learned counsel appearing for the appellant in RSA
No.897/2016.
4. Sri.Jaffer Khan Y. - learned Senior Government Pleader
appearing for the State, contended that the suit as framed could not have
been entertained by the courts below, since no notice under Section 80 of
the Code of Civil Procedure, 1908 was issued. The non-issuance of notice
under Section 80, though specifically raised before the trial court, was not
addressed. Even before the first appellate court, the issue was raised, but the
court did not go into the contention in detail. According to the learned
Senior Government Pleader, the first appellate court misdirected itself to the
entire issues in finding whether the State has proved that, there exists no
RSA Nos.61 &
897/2016
2025:KER:64138
pathway, whereas it should have been the other way around. According to
the learned Senior Government Pleader, the oral testimony of the Advocate
Commissioner and the Secretary of the Grama Panchayat will evidently
show that the 'B' schedule pathway as claimed does not exist. The rough
sketch produced along with Ext.C1 report clearly evidences that the
existence of a pathway is around the southern side of the property of the
Government College. If the plaintiff is given right on the plaint schedule
property, the same will cut the property of the Government College into two
halves and it will necessarily affect the smooth functioning of the College
for various security reasons. The plaintiff has an alternate pathway to enter
into the plaint A schedule property and therefore, the 'B' schedule property
cannot be claimed as a matter of right. At any rate, there is no pleading to
evidence any kind of easementary right over the 'B' schedule pathway and
therefore, the first appellate court went wrong in setting aside the well-
reasoned judgment of the trial court and decreeing the suit. Lastly, it is
contended that, prescriptive right, if any, has since been lost due to
acquisition of the land by the State Government.
5. Sri.George Varghese Perumpallikuttiyil - learned counsel
appearing for the appellant in RSA No.897/2016, would support the
arguments of the State and, in addition, would contend that, going by the
RSA Nos.61 &
897/2016
2025:KER:64138
schedule to the plaint, the plaintiff had claimed right over 5 1/2 metres width
pathway having a length of 35 metres. However, in the report of the
advocate commissioner, it is clearly found that the pathway, as described in
'B' schedule to the plaint does not exist. Therefore, according to the learned
counsel, since the description of the pathway as made in 'B' schedule is not
available, the plaintiff is not entitled to any relief.
6. The learned Senior Counsel - Sri.T.Krishnanunni appearing on
behalf of the plaintiff, countered the submissions of the learned Senior
Government Pleader and contended that, it is not necessary and an
inevitable rule that in a suit of this nature, it is mandatory for the plaintiff to
have issued notice under Section 80 of the Code of Civil Procedure, 1908.
It is submitted that the suit was once decreed, against which an appeal was
preferred by the State and the appeal was allowed allowing the State to
adduce substantial evidence to prove that the pathway as alleged by the
plaintiff did not exist in the property. On remand, though the plaintiff
adduced substantial evidence, the defendants did not adduce any evidence
and therefore, the objection on the ground of non-issuance of notice under
Section 80 is deemed to have been waived and that the trial court was bound
to consider the suit, since it was bound by the order of remand by the first
appellate court. He further submitted that even assuming for argument sake,
RSA Nos.61 &
897/2016
2025:KER:64138
that the notice under Section 80 of the Code of Civil Procedure, 1908 is
required, the same is deemed to have been waived by the State and there is
an implied grant of permission by the trial court. In support of his
contention, he relied on the Division Bench judgment of the Calcutta High
Court in Niranjan Agarwalla v. Union of India [1960 SCC Online Cal
111]. He further pointed out that in a suit complaining of an attempt made
for disturbance of an easement, the trial court is justified in granting an
injunction if it is established that disturbance has been caused. According to
the learned Senior Counsel, the requirement of seeking a declaratory relief
does not exist in such a case. In support of his contention, relied on the
decision of this Court in Unnikrishnan v. Ponnu Ammal [1999 KHC 93].
It is further pointed out that even if there is any deficiency in the suit as
regards the non-issuance of notice under Section 80 of the Code of Civil
Procedure, 1908, the said objection is deemed to have been waived by the
State, especially since the point was not touched upon by the first appellate
court in the earlier round of litigation. In support of his contention, relied
on the decision of the Hon'ble Supreme Court in State of A.P. and Ors. v
Pioneer Builders, A.P. [2006 (12) SCC 119].
7. In reply, the learned Senior Government Pleader would point
out that the concept of waiver of the mandatory requirement of Section
RSA Nos.61 &
897/2016
2025:KER:64138
80(2) of the Code of Civil Procedure, 1908 is unknown to the procedural
law and that, there is a catena of decisions on this point, including the
decisions rendered by this Court, to show that the mandatory requirement of
Section 80 of the CPC cannot be waived and the irregularity in passing
orders on the application for dispensation of notice under Section 80 would
carry throughout the proceedings and is fatal to the existence of the suit.
8. I have considered the rival submissions raised across the Bar
and have perused the judgments of the courts below and the records
summoned in the case.
9. On 18.08.2016, while admitting RSA No.61/2016, this Court
framed the following substantial questions of law for consideration:
"i. Whether the suit is maintainable for want of notice under
Section 80 of the Code of Civil Procedure especially when it
was amended, adding a prayer for a mandatory injunction
decree ?
ii. Whether the courts below are legally correct in holding
that the directions in the judgment in A.S.No.166/2006 on
the file of the District Court, Kollam show only a restricted
remand ?"
10. The consideration of the above questions of law hinges upon
the appreciation of the interparty judgments in this present case and further
as to whether there can be a waiver of the statutory requirement under
Section 80 of the Code of Civil Procedure, 1908. The respondent-plaintiff
RSA Nos.61 &
897/2016
2025:KER:64138
will only succeed if this Court finds on both the questions of law against the
appellants.
11. The question regarding the requirement of notice under Section
80 of the Code of Civil Procedure, 1908, can be dealt with first. Section 80
of the Code of Civil Procedure, 1908 reads as under:
"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 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 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 authorized 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;
(d) omitted
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.
RSA Nos.61 &
897/2016
2025:KER:64138
(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).
(3) No suit 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 shall be dismissed
merely by reason of any error or defect in the notice referred to
in sub-section (1), if in such notice--
(a) the name, description and the residence of the plaintiff had
been so given as to enable the appropriate authority or the
public officer to identify the person serving the notice and such
notice had been delivered or left at the office of the appropriate
authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff
had been substantially indicated.
12. There cannot be any doubt as regards the requirement to issue a
notice under Section 80 of the Code of Civil Procedure, 1908, especially in
the light of the nature of the reliefs claimed in the suit. One could easily
decipher from the records that the plaintiff was aware of this requirement
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897/2016
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and accordingly, filed I.A.No.1636/1998 in O.S.No.62/1998, when it was
initially filed before the Munsiff's Court, Karunagappalli. The prayer in the
interlocutory application is to dispense with the notice under Section 80 of
the CPC. The proceeding sheet of the case shows that, the suit along with
the interlocutory application, was moved on 10.12.1998 and on the same
date, the Court passed an interim order of injunction without passing
separate orders on the interlocutory application. The appellant, at the first
available opportunity, raised the question of non-issuance of notice under
Section 80 of the CPC. But, however, it appears that the trial court did not
deem it fit to consider the same in its correct perspective at the initial stage
and proceeded to decree the suit. It is also pertinent to mention that when
the plaintiff sought amendment of the plaint by including a relief for
mandatory injunction, the 1st defendant had filed an additional written
statement wherein the question regarding the non-issuance of the notice
under Section 80 of the CPC was specifically raised.
13. Be that as it may, the judgment of the trial court decreeing the
suit was set aside by the first appellate court in A.S.No.166/2006 and
remanded the suit for a fresh consideration, in accordance with law. On
remand, the trial court proceeded to consider the case on merits, but did not
address as regards the demand of notice under Section 80 of the CPC,
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because probably the trial court felt that on the merits the plaintiff did not
establish the case. Before the first appellate court also the appellant raised a
specific plea regarding the non-issuance of a notice under Section 80 of the
CPC, which is not seen properly addressed by the first appellate court also.
The first appellate court on contrary, appears to have saddled the burden on
the shoulders of the State to prove a negative fact rather than asserting as to
whether the plaintiff has established the existence of 'B' schedule pathway,
as well as her right over the same.
14. With the above perspective in mind, this Court proceeds to
consider the precedents which have been cited across the Bar. In State of
Kerala and Ors. V. Sudhir Kumar Sharma and Ors. [2013 (10) SCC 178],
the consequences of not having passed an order on an application filed
under Section 80(2) of the CPC were considered. Paragraph 26 of the
judgment reads as under:
"21. 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
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897/2016
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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."
15. In Lucknow Development Authority v. Yashraj Singh and
Ors. [2018 KHC 4010], a Division Bench of the Allahabad High Court held
that for granting dispensation of the mandatory requirement of issuance of
notice under Section 80 of the Code of Civil Procedure, 1908, a reasonable
opportunity of hearing ought to be granted to the State.
16. In Bajaj Hindustan Sugar & Industries Limited v. Balrampur
Chini Mills Ltd. [2007 (9) SCC 43], the Supreme Court held that, it is
possible to maintain a suit against the Government or a public office without
serving a notice and that it was mandatory for the trial court to have
considered the application filed under Section 80(2) of the Code of Civil
Procedure, 1908 before proceeding further.
17. In Prem Lala Nahata and Anr. v. Chandi Prasad Sikaria [2007
(2) SCC 551], the Supreme Court held that in a case where the notice under
Section 80 of the Code of Civil Procedure, 1908 is mandatory and if the
court finds that the requirement has not been met, the suit is liable to be
rejected.
18. In Santhamma v. Kerala State and Ors. [2019 (2) KHC 585], a
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Single Bench of this Court held that the omission of the trial court to pass
orders in an application under Section 80(2) of the Code of Civil Procedure,
1908 would carry forward and that the irregularity cannot be regularised by
filing an application under Section 80(2) of the CPC. Paragraph 23 of the
judgment reads as under:
"23. It that be so, the trial court has committed a grave
error in not returning the plaint as provided in the proviso to
S.80(2) of the Code. Without any ambiguity the proviso to
S.80(2) of the Code says 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) of
S.80 of the Code. This step was not taken by the Trial Court,
despite the fact that the defendants in their written statement
has raised a specific plea that the suit is bad for non- issuance
of a notice under S.80 of the Code. Trial Court seriously erred
in not framing an issue in this regard. This aspect was not
properly considered by the lower Appellate Court also. I have
no hesitation to hold that both the Trial Court and lower
Appellate Court flouted the mandate of S.80 of the Code in
entertaining the suit. After elapse of 22 years from the date of
institution of the suit and 9 years after filing this second
appeal, it may not look nice if this Court orders return of the
plaint by invoking the proviso to S.80(2) of the Code. Learned
counsel for the appellant contended that the maxim "actus
curia neminen gravabit" (an act of the Court shall prejudice no
man) can be applied to this case. In support of the above
proposition, the learned counsel for appellant relied on large
volumes of case laws."
19. Before delving further on this issue, it is imperative for this
Court to consider the precedents cited by the learned Senior Counsel for the
respondent/plaintiff on the issue as to whether the right under Section 80 of
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the Code of Civil Procedure, 1908 can be waived by the State. In Niranjan
Agarwalla v. Union of India [1960 SCC Online Cal 111], a Division Bench
of the Calcutta High Court held that, if notice under Section 80 is not a part
of the plaintiff's cause of action although it is a condition precedent which
must be pleaded and if necessary, proved unless waived, before a suit can be
instituted and maintained against the Government, and that there cannot be
any mandatory requirement to follow the condition precedent under Section
80 of the Code of Civil Procedure, 1908.
20. In State of A.P. and Ors. v Pioneer Builders, A.P. [2006 (12)
SCC 119] the question arose as to whether the mandatory requirement of
Section 80 of the Code of Civil Procedure, 1908 could be waived or not.
Paragraphs 17 to 19 of the decision are extracted as under:
"17. Thus, from a conjoint reading of sub-sections (1)
and (2) of Section 80, the legislative intent is clear, namely,
service of notice under sub-section (1) is imperative except
where urgent and immediate relief is to be granted by the
Court, in which case a suit against the Government or a public
officer may be instituted, but with the leave of the Court.
Leave of the Court is a condition precedent. Such leave must
precede the institution of a suit without serving notice. Even
though Section 80(2) does not specify how the leave is to be
sought for or given yet the order granting leave must indicate
the ground(s) pleaded and application of mind thereon. A
restriction on the exercise of power by the Court has been
imposed, namely, the Court cannot grant relief, whether
interim or otherwise, except after giving the Government or a
public officer a reasonable opportunity of showing cause in
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respect of relief prayed for in the suit.
18. Having regard to the legislative intent noticed
above, it needs little emphasis that the power conferred in the
Court under sub-section (2) is to avoid genuine hardship and
is, therefore, coupled with a duty to grant leave to institute a
suit without complying with the requirements of sub-section
(1) thereof, bearing in mind only the urgency of the relief
prayed for and not the merits of the case. More so when want
of notice under sub-section (1) is also made good by providing
that even in urgent matters relief under this provision shall not
be granted without giving a reasonable opportunity to the
Government or a public officer to show cause in respect of the
relief prayed for. The provision also mandates that if the Court
is of the opinion that no urgent or immediate relief deserves to
be granted it should return the plaint for presentation after
complying with the requirements contemplated in sub-section
(1).
19. Bearing in mind the aforenoted legal position, we
advert to the facts in hand. As noted above, the subordinate
Judge, vide Order dated 2nd February, 1993 came to the
conclusion that "there was no tenable ground to refuse the
relief asked for". Though there may be some substance in the
submission of Mr. Choudhary, learned senior counsel
appearing for the State, that the order allowing the application,
seeking dispensation of the requirement of notice, is cryptic
but the fact remains that by allowing the application, after
hearing the defendant State, the Judge has opined that the suit
is for the purpose of obtaining an urgent and immediate order.
Had the satisfaction been against the contractor, the Court was
bound to return the plaint to the contractor for re-presentation
after curing the defect in terms of sub- section (1) of Section
80. Although we do not approve of the manner in which the
afore-extracted order has been made and the leave has been
granted by the subordinate Judge but bearing in mind the fact
that in its reply to the application, the State had not raised any
specific objection about the maintainability of the application
on the ground that no urgent and immediate relief had either
been prayed for or could be granted, as has now been
canvassed before us, we are of the opinion that having regard
to the peculiar facts and the conduct of both the parties it is not
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a fit case where the matter should be remanded back to the
subordinate Judge for re-consideration. We find it difficult to
hold that the order passed by subordinate Judge on contractor's
application under Section 80(2) C.P.C. was beyond his
jurisdiction. Accordingly, we decline to interfere with the
finding recorded by the High Court on this aspect of the
matter. The High Court has held that having participated in the
original proceedings, it was not now open to the State to raise
a fresh issue as to the maintainability of the suit, in view of
waiving the defect at the earliest point of time. The High Court
has also observed that knowing fully well about non-issue of
notice under Section 80 C.P.C. the State had not raised such a
plea in the written statement or additional written statement
filed in the suit and therefore, deemed to have waived the
objection. It goes without saying that the question whether in
fact, there is waiver or not necessarily depends on facts of
each case and is liable to be tried by the Court, if raised,
which, as noted above, is not the case here."
21. The cumulative effect of the decision of the Supreme Court in
Pioneer Builders, A.P. (supra) and the decision of the Calcutta High Court
in Niranjan Agarwalla (supra) leads to a conclusion that, if a State
participates in the proceedings without raising an objection regarding the
non-issuance of notice under Section 80 of the Code of Civil Procedure,
1908, the State cannot agitate the said issue later. But insofar as the
judgment of the Division Bench of the Calcutta High Court is concerned,
this Court finds itself in complete disagreement with the views expressed by
the Bench. Though, the decision of the Division Bench of the Calcutta High
Court can only have a persuasive value, in the nature of the relief sought for
by the plaintiff and also her conscious act of preferring I.A.No.1636/1998,
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seeking dispensation of notice under Section 80 of the CPC, this Court is
not persuaded to hold that, in the present case, a case for dispensation of
notice under Section 80 nor a case of waiver of right under Section 80 is
made out.
22. As regards the mandatory requirement to comply with the
requirement of Section 80 of the Code of Civil Procedure, 1908, this Court
does not wish to burden itself with more precedents on the point. Suffice to
say, a suit which fails to comply with the mandatory requirement of Section
80 must necessarily fail. As regards the question of waiver, this Court
requires to consider the impact of the decision of the Supreme Court in
Pioneer Builders (supra) a little deeper.
23. It is worthwhile to mention that, in paragraphs 17 and 18 of the
above decision, the Supreme Court has discussed in extenso the mandatory
requirement of issuance of notice under Section 80 of the Code of Civil
Procedure, 1908. It was further held that the failure of the State to take up
the plea regarding non-issuance of notice under Section 80 may lead to a
case of waiver. However, the Supreme Court in U.P.Avas Evam Vikas
Parishad Vs Om Prakash Sharma [(2013 ) 5 SCC 182] gave a different
perspective to the concept of waiver while dealing with a case of non-
issuance of notice under Section 80 of the Code of Civil Procedure, 1908. It
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was held that the plea regarding lack of notice can be raised at any stage,
including even at the second appellate stage and that not taking the plea
earlier will not amount to waiver.
24. It is further pertinent to mention that when Bajaj Hindustan
Sugar & Industries Limited v. Balrampur Chini Mills Ltd. [2007 (9) SCC
43] was rendered by the Supreme Court it was held that the issuance of
notice under Section 80 is mandatory, and the Supreme Court took note of
the earlier decision in Pioneer Builders, A.P. (supra) and thereafter held
that the grant of interim relief without issuance of notice under Section 80 or
without passing an order in an application for dispensation of the notice is
bad.
25. In the light of the discussion above, it is to be concluded that
the requirement of issuance of notice under Section 80 of the Code of Civil
Procedure, 1908 is mandatory and failure to issue the same will entail in
dismissal of the suit. Be that as it may, this Court needs to address the
argument of the learned Senior Counsel for the plaintiff that, on the facts, a
case of implied waiver is made out. While addressing this argument, this
Court must notice that, no case of express waiver is made out by the
plaintiff. As far as the implied waiver is concerned, this Court is not in a
position to uphold the views of the learned Senior Counsel for the plaintiff,
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especially since the 1st defendant, in his additional written statement, has
specifically raised this issue. If the courts below did not deem it fit to
address the issue, the plaintiff cannot be heard to contend that, a case of
implied waiver is made out. Further, the understanding of the plaintiff
regarding the necessity to issue notice under Section 80 of the Code of Civil
Procedure, 1908 is evident from her attempt to seek dispensation of the
same through filing of I.A.No.1636/1998. Having failed to obtain any
specific orders dispensing with the notice under Section 80 of the Code of
Civil Procedure, 1908, it is inevitable for this Court to hold that the suit
framed and instituted as such was not maintainable since no notice under
Section 80 was issued.
26. As a result of the above finding, the consequence is that, the
suit should be remanded further for further consideration, going by the
decision of this Court in Santhamma (supra). However, this Court cannot
remain oblivious of the fact that more than 27 years have since passed after
institution of the suit, and therefore, before remanding the matter, it is
obligatory for this Court to consider the question, as to whether, the plaintiff
has made out a case for the relief sought for in the plaint, and if so, whether
the relief can be denied merely for the want of notice under Section 80, or
for that matter, failure of the trial court to pass orders on an application for
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dispensation of notice. It is in this context that the second question of law
assumes significance.
27. Going by the averments in the plaint, the plaintiff claims 'B'
schedule property as a right to ingress and egress to the plaint 'A' schedule
property. Therefore, it is imperative for this Court to consider as to whether
the plaintiff has established her right over the property. No doubt, going by
the report of the Advocate Commissioner, 'B' schedule property is in
existence but then, it is not in the same form as claimed by the plaintiff and
going by the description in the plaint, the measurement of the plaint 'B'
schedule property does not tally with the report of the Advocate
Commissioner. In support of her claim, PW2 and PW4 were examined
along with the plaintiff to show that they have used the 'B' schedule
pathway for several years. But, however, it has come out in evidence that
PW2 is an interested witness and that PW4 is a local Panchayath Ex-
member. It is in this context, this Court should consider the impact of the
acquisition by the State Government for the establishment of the
Government College. The evidence in this case is not clear as regards the
nature of plaint B schedule property prior to the acquisition and as to
whether the document of title in respect of the properties in question
mentioned about the existence of a way. However, going by the plaint
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averments, it is indisputable that the Government acquired the land for
establishing a school. A reading of the plaint in its entirety would leave no
room for doubt that the plaintiff had specifically admitted that defendant
State had acquired the land and further apprehended that in pursuance to
such acquisition, if the pathway is blocked, serious prejudice will be caused
to the plaintiff.
28. While it could be said that any form of easement constitutes an
encumbrance over the land, will such encumbrance subsist even after the
acquisition of land. The word "Encumbrances" with regard to a person or an
estate denotes a burden which ordinarily consists of debts, obligations and
responsibilities. In the sphere of law, it connotes a liability attached to the
property arising out of a claim or lien subsisting in favour of a person who is
not the owner of the property. Thus, a mortgage, a charge and a vendor's
lien are all instances of encumbrances. The essence of an encumbrance is
that it must bear upon the property directly and indirectly and not remotely
or circuitously. It is a right in re aliena circumscribing and subtracting from
the general proprietary right of another person. An encumbered right, that is
a right subject to a limitation, is called servient, while the encumbrance
itself is designated as dominant. Dealing with encumbrances, Salmond in
his book on Jurisprudence, eleventh edition, at page 294, observes as
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follows:
"It frequently happens that a right vested in one person
becomes subject or subordinate to an adverse right vested in
another. It no longer possesses its full scope or normal
compass, part of it being cut off to make room for the
limiting and superior right which thus derogates from it.
Thus the right of a landowner may be subject to, and limited
by, that of a tenant to the temporary use of the property; or to
the right of a mortgagee to sell or take possession; or to the
right of neighbouring landowner to the use of way or other
easement; or to the right of the vendor of land in respect of
restrictive covenants entered into by the purchaser as to the
use of it; for example, a covenant not to build upon it."
In its widest sense, the word "encumbrances" must necessarily include a
right of easement such as a right of way.
29. Coming to the nature of land acquired under the provisions of
the Land Acquisition Act, 1894, it becomes clear that on operation of
Section 16, the land acquired vests with the Government free of all
encumbrances. In E.Taylor Vs The Collector of Purnea [ILR (1887) 14
Cal 423], it was held that the word 'encumbrance' under the Land
Acquisition Act [X of 1870] is understood to include easements. Going by
operation of Section 16 of the Land Acquisition Act, 1894, it can be safely
concluded that, once acquisition takes place, any existing right of easement
if any, gets extinguished, and therefore no claim for easement will lie
against the State.
30. Even otherwise, this Court is not persuaded to hold that, the
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plaintiff has established any such right. The evidence adduced by the
plaintiff is inconclusive as regards the right of easement by prescription.
Pertinently, the plaintiff's claim is not one for easement of necessity. The
evidence PW5, the Secretary of the Chavara Grama Panchayath, shows that,
the pathway used by the plaintiff goes around the Government College.
Therefore, it is not a case where the ingress and egress of the plaintiff is
completely obstructed. Hence, this Court also cannot subscribe to the
findings of the first appellate court to the effect that, it was the duty of the
Government to have established that the 'B' schedule pathway did not exist.
The first appellate court has completely gone on a wrong tangent by casting
a negative burden on the State, especially when the plaintiff failed to
establish her right at first instance.
31. Equally so, this Court is not impressed with the argument of
the learned Senior Counsel that, once the first appellate court in
A.S.No.166/2006 has remanded the matter back to the trial court for fresh
consideration, the requirement of notice under Section 80 of the Code of
Civil Procedure, 1908 no longer exists. The defect, if any, in not granting
leave as sought for in I.A.No.1636/1998 will carry forward, and unless and
until the leave is granted, there cannot be any proper suit in the eye of law.
Though normally, on finding that the non-issuance of Section 80 notice, or
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for that matter, non-consideration of the application for dispensation of the
notice under Section 80 should necessarily require a reconsideration of the
case on merits, inasmuch as this Court has found that the plaintiff has not
succeeded in proving the case as pleaded in the plaint, this Court is of the
considered view that no useful purpose will be served in remanding the suit
for a fresh trial even after the lapse of 27 years.
32. Resultantly, this Court finds that the appellant-State is entitled
to succeed. Accordingly, RSA No.61/2016 is allowed, reversing the
judgment and decree in A.S.No.132/2009 on the files of the Additional
District Court - VI, Kollam and restoring the judgment and decree in
O.S.No.290/2000 on the files of the Munsiff's Court, Sasthamcotta. The
parties are directed to suffer their respective costs.
In the light of the decision of this Court in RSA No.61/2016, RSA
No.897/2016 will also stand allowed. No costs.
Sd/-
EASWARAN S.
JUDGE
ACR
