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State of Madras Through the District Collector and anr. Vs. A.K. Vetham Pillai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1974)2MLJ151
AppellantState of Madras Through the District Collector and anr.
RespondentA.K. Vetham Pillai
Cases ReferredKrishnaswami Sastri v. Syed Ahmed
Excerpt:
.....therefore, to be set aside and the suit filed in this case before the expiry of two months period from the issue of section 80 notice is bad and cannot be..........it will be clear that every suit, including a suit for injunction will have some reference to a past state of right, claim or denial, as between the public authority and the concerned party and hence will come within the ambit of the phraseology of section 80, civil procedure code. the decisions of the supreme court above referred to as well as the recent bench decision of this court have not been cited before the court below. in these decisions, the earlier decisions in arunachalam chetty v. david i.l.r. (1927) mad. 339. and in krishnaswami sastri v. syed ahmed (1931) 34 l.w. 993. which have been relied on by the court below have been considered and dissented from. the order of the lower court has, therefore, to be set aside and the suit filed in this case before the expiry of two.....
Judgment:
ORDER

G. Ramanujam, J.

1.The only question that arises in this revision is as to whether the suit filed by the plaintiff in a representative capacity on behalf of the entire ayacutdars of one Palakulam tank in Tirunelveli district for an injunction is bad for want of proper notice under Section 80, Civil Procedure Code. The Court below has held that suit being one for an injunction does not require a notice under Section 80 Civil Procedure Code, and that therefore, the suit is maintainable.

2. In this revision, it is contended on behalf of the State of Madras, that the suit which has been filed in this case before the expiry of 60 days from the date of issue of notice under Section 80 is bad and therefore is not maintainable. The plaintiff sought an injunction in the suit restraining the State of Madras from closing a weir in Periakulam tank through which the ayacutdars received their supply of water to their tank. They issued a notice under Section 80, Civil Procedure Code, on 27th January, 1968, but they filed the suit on 1st February, 1968, before the expiry of the 60 days period referred to in that section. The question is whether the suit filed before the expiry of the 60 days referred to in the Section 80 notice could be maintainable.

3. The contention that was put forward before the Court below on behalf of the plaintiff was that the suit being one for injunction, an anticipatory relief, could be maintained in view of the decisions in Arunachalam Chetty v. David (1931) 34 L.W. 993. In the first case Ramesam and Reilly, JJ., held that the words 'in respect of any act purporting to be done,' in Section 80, Civil Procedure Code included only a past act and have no reference to a future or contemplated act, that incomplete or threatened acts are not within the ambit of these words, and that, therefore, a suit for bare injunction seeking to restrain a public officer from doing something which he threatens to do, will not require notice under Section 80, Civil Procedure Code. Curgenvan, J., in the second case not only followed the above view, but also sought to distinguish the observation of the Privy Council in Bhagckand Dagadusa v. Secretary of State for India . on the ground that the Judicial Committee cannot be taken to lay down anything more than that Section 80, Civil Procedure Code, would apply to all kinds of suits, including a suit for injunction. The learned Judge held that only if a suit for an injunction was based on past acts, the notice under Section 80 would be essential. In the judgment of the Judicial Committee in Bhagchand Dagadusa v. Secretary of State for India2 Viscount Sumner explicitly stated that section So was express and mandatory and admitted of no implications or exceptions, that it imposed a statutory and unqualified obligation upon the Court, and that to read any qualification into it is an encroachment of the function of the Legislature. Later the Supreme Court in Sawai Singhai v. Union of India : [1966]1SCR988 . also considered this question. In that case it was contended on behalf of the State that the suit did not require notice because on the particular facts it was advantageous for the State to raise such a plea, and the Supreme Court held that the observations of Viscount Sumner in the above case applied with equal force to the suit and that Section 80, Civil Procedure Code, applies to all suits whether it related to past acts or future acts, of a State or Public Officer. In a recent decision a Division Bench of this Court in State of Madras v. Ramalinga Reddiar : (1967)2MLJ131 . held that the earlier view that the words in respect of any act purporting to be done', in Section 80, Civil Procedure Code, include only a past act and have no reference to a future act or contemplated act and that therefore a suit for a bare injunction will not require a notice under that section cannot be sustained. The Bench pointed out that 'we are unable to conceive of a suit even for an injunction simpliciter against any public officer, which does not have reference to some action in the past, upon which that authority has bared it, maybe a claim of right, or a notice, or a threat to do something, within what that authority' regards as the scope of its power. After all, there cannot be a suit for an injunction based on a future apprehension, pure and simple, and suspended in the air, so to speak, without a foundation of something that had already occurred or had already been claimed, asserted or denied. Once this is made evident, it will be clear that every suit, including a suit for injunction will have some reference to a past state of right, claim or denial, as between the public authority and the concerned party and hence will come within the ambit of the phraseology of Section 80, Civil Procedure Code. The decisions of the Supreme Court above referred to as well as the recent Bench decision of this Court have not been cited before the Court below. In these decisions, the earlier decisions in Arunachalam Chetty v. David I.L.R. (1927) Mad. 339. and in Krishnaswami Sastri v. Syed Ahmed (1931) 34 L.W. 993. which have been relied on by the Court below have been considered and dissented from. The order of the lower Court has, therefore, to be set aside and the suit filed in this case before the expiry of two months period from the issue of Section 80 notice is bad and cannot be maintained. The order of the lower Court is therefore set aside and the suit will stand dismissed as not maintainable. This will not, of course, prevent the plaintiff from filing a separate suit on the same cause of action. The revision petition is allowed. There will be no order as to costs.


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