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Bhalchandra Nathalal Acharya Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR250
AppellantBhalchandra Nathalal Acharya
RespondentState of Gujarat and anr.
Excerpt:
- - 3. the learned civil judge, it appears, was of the opinion that since no interim relief was granted, the initial leave granted under sub-section (2) of section 80 was bad. the view which i am taking is also borne out by the proviso which enjoins the court that if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, it should return the plaint for presentation to it after complying with the requirement of sub-section (1). in other words, the court can exercise the power to return plaint for representation after complying with the requirement of sub-section (1). this could be done only at the lime of granting leave......petitioner, who is the plaintiff of regular civil suit no. 437 of 1977 on the file of the court of civil judge (s.d.) at baroda, sought leave of the court under sub-section (2) of section 80 of the civil procedure code which is inserted by civil procedure code (amendment) act, 1976, to file suit without serving any notice as required by sub-section (1) thereof. it is an admitted position that the leave was granted by the then civil judge (s.d.) who was then presiding in the court. it appears this leave was granted when the plaint was presented in the court on april 29, 1977. the leave was sought from the court because the petitioner was made to retire with effect from april 30, 1977 by the appellate order of the state government of april 16, 1977 and, therefore, there was no sufficient.....
Judgment:

B.K. Mehta, J.

1. This revision application must be allowed obviously for the following reasons:

The petitioner, who is the plaintiff of Regular Civil Suit No. 437 of 1977 on the file of the Court of Civil Judge (S.D.) at Baroda, sought leave of the Court under Sub-section (2) of Section 80 of the Civil Procedure Code which is inserted by Civil Procedure Code (Amendment) Act, 1976, to file suit without serving any notice as required by Sub-section (1) thereof. It is an admitted position that the leave was granted by the then Civil Judge (S.D.) who was then presiding in the Court. It appears this leave was granted when the plaint was presented in the Court on April 29, 1977. The leave was sought from the Court because the petitioner was made to retire with effect from April 30, 1977 by the appellate order of the State Government of April 16, 1977 and, therefore, there was no sufficient time for the plaintiff to serve the notice as required under Section 80 of the Civil Procedure Code. It appears that the plaintiff had also sought some interim relief of injunction restraining the State Government from implementing the impugned order of retirement and enjoining the State Government to retain the plaintiff in service till October 30, 1979 which according to the plaintiff, was the date of superannuation.

2. The application for interim relief was turned down by the learned Civil Judge and, therefore, the plaintiff carried the matter in appeal before the District Court by his Appeal No. 81 of 1977 which was heard by the learned Extra Assistant Judge, who also confirmed the order of the trial Court. However, the Appellate Court directed the trial Court to dispose of the suit within three months. Instead of disposing of the suit within three months on merits as directed by the Appellate Court, the learned trial Judge raised a preliminary issue, whether the suit was competent in absence of the statutory notice under Section 80. By order of December 31, 1979, the learned Civil Judge held the suit to be defective and, therefore, directed that the plaint be returned to the plaintiff for presentation to the Court after complying with the requirement of Section 80 of the Civil Procedure Code. It is this order which is challenged in this revisions before this Court.

3. The learned Civil Judge, it appears, was of the opinion that since no interim relief was granted, the initial leave granted under Sub-section (2) of Section 80 was bad. With respect to the learned Judge, I am unable to agree with his opinion. The interim relief may be denied to a plaintiff possibly on all or any of the grounds, namely, want of prima facie case, repairable loss or balance of convenience. However, that will not, in my opinion, affect the leave which had been already granted under Sub-section (2) of Section 80 since the only consideration which would weigh with the Court at the time of granting leave is whether the suit is for obtaining urgent and immediate relief against the Government or a Public Officer where there would not be sufficient time at the disposal of the party concerned to serve the notice as required under Section 80(1) of the Code. It is the urgency or immediate nature of the relief which would weigh with Court in deciding whether leave should or should not be granted not the merits of the case. The only limitation which has been prescribed under Sub-section (2) is that the Court, while granting relief to file suit, would not grant any interim relief except without notice to the Government or Public Officer concerned of showing cause against the interim relief. The view which I am taking is also borne out by the proviso which enjoins the Court that if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, it should return the plaint for presentation to it after complying with the requirement of Sub-section (1). In other words, the Court can exercise the power to return plaint for representation after complying with the requirement of Sub-section (1). This could be done only at the lime of granting leave. If the leave is once granted, the same Court has no power to review its earlier order under the proviso. As a matter of fact, in the present case, the plaintiff had served notice upon the Secretary in Education Department of the Government of Gujarat at Gandhinagar on January 4, 1977 after he received the initial order on 4-12-1976 retiring him with affect from March 5, 1977. The plaintiff had filed an appeal against the said order and the Appellate Authority had by the impugned order of April 15, 1977 directed retirement of the petitioner with effect from April 30, 1977. If is no doubt true thai the statutory notice which has been served on the Government is immediately pursuant to the initial order of December 4, 1976. But that order was substantially confirmed by the appellate authority with the slight modification as to the actual date of retirement of the plaintiff, namely, instead of 5th March 1977 it was directed that he will retire with affect from April 30, 1977. The petitioner has, therefore, moved this Court for amendment of the plaint so as to insert the necessary averments after the receipt of the initial order of retirement and served statutory notice as required under Section 80 of the Code to the State Government.

4. In that view of the matter, therefore, I am of the opinion that the order of the learned Civil Judge (S.D. ) Baroda returning the plaint to the plaintiff for compliance of the requirement of Section 80(1) is set aside and the petitioner is permitted to amend the plaint as prayed for in the Civil Application presented to this Court. The trial Court shall now dispose of the suit after permitting the plaintiff to incorporate the amendment as sought herein and giving an opportunity to the State Government to file written statement, if they so desire, to the amended plaint, and after raising necessary issues and permitting the parties to lead evidence in support and/or rebuttal of the respective cases. The trial Court shall dispose of the suit within a period of three months from the date of the receipt of the record from this Court.

5. Rule is made absolute accordingly with no order as to costs. Civil Application is disposed of accordingly with no order as to costs.


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