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Wednesday, September 4, 2013

Or.VII, rule 11 Rejection of plaint - Pending sec. 80(2) C.P.C. = 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.=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. 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. 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. 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. 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.


published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40715


                                 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






                               J U D G M E N T


1 ANIL R. DAVE, J.




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.


3.    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
28th 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  28th  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 3rd 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  20th  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  theplaintiff 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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