Writ Petition No.129 of 2012

17th February, 2012

Petitioner Counsel: Mr. A.D. BHOBE
Respondent Counsel: Ms. SUSAN LINHARES

Cases Cited:
Bajaj Hindustan Sugar & Industries Ltd., Vs. Balrampur Chini Mills Ltd. & Ors., 2007(4) ALL MR 318 (S.C.)=(2007) 9 SCC 43 [Para 7]
Motilal Mahadev Sharma (deceased through LRs.) Vs. The Municipal Corporation of Greater Bombay, 2005(3) ALL MR 869 [Para 7]

JUDGMENT

JUDGMENT :- Heard Shri A. D. Bhobe, learned Counsel appearing for the Petitioner and Ms. Susan Linhares, learned Addl. Government Advocate for the Respondent

2. At the outset, Shri Bhobe, learned Counsel appearing for the Petitioner, seeks leave to delete the name of the Respondent no.1 as no reliefs are sought in the above Petition against the Respondent no.1. Leave granted. The name of the Respondent no.1 stands deleted from the cause title at the risk of the Petitioner.

3. Rule. Heard forthwith with the consent of the learned Counsel appearing for the parties. Learned Counsel appearing for the Respondent nos. 2 and 3, waive service.

4. The above Petition challenges the Order dated 08.02.2012, passed by the learned District Judge-I, North Goa, at Panaji, whereby, the application under Section 80(2) of the Civil Procedure Code, came to be rejected.

5. Shri Bhobe, learned Counsel appearing for the Petitioner, has pointed out that the suit filed by the Petitioner was, inter alia, for permanent injunction to restrict the defendant no.1-St. Joseph Chapel, from carrying out any construction or interfering with the suit property or digging or excavation therein. There are further reliefs sought by the Petitioner to declare the permission dated 04.11.2011, issued by the Respondent no.3 herein, as illegal. The learned Counsel further pointed out that pending the hearing of the suit, an application for temporary injunction has also been filed. It is further pointed out by the learned Counsel that the apprehension that the said Defendant no.1 may carry out the construction on the basis of the licence, which is claimed to be illegal. It is further pointed out that the Respondents herein are unnecessary parties to the suit who were instrumental to grant the licence as there was apprehension that such construction could start at any moment. As such, the Petitioner filed the suit and sought for dispensation of the notice under Section 80(2) of the Civil Procedure Code by filing an application. Learned Counsel further pointed out that the learned Judge without reading the plaint as a whole nor giving any reasons, passed the impugned Order.

6. Ms. Susan Linhares, learned Addl. Government Advocate, pointed out that under the provisions of Section 80(2) of the Civil Procedure Code, in any event, the satisfaction of the learned Judge to ascertain as to whether there is urgency or not is a matter to be considered after hearing the Respondents and, in case no such urgency is found, the plaint can be returned to the Petitioner.

7. Upon hearing the learned Counsel and on perusal of the record, Section 80(2) of the Civil Procedure Code, clearly provides that in order to grant dispensation in filing the suit without the statutory notice under Section 80(2) of the Civil Procedure Code, the Court has to be satisfied as to whether any urgency has been made out by the Petitioner/Plaintiff. Such satisfaction is to be arrived at after hearing the other side. In case after hearing the parties the Court comes to the conclusion that no such urgency is found, the Court has powers to return the plaint to the Petitioner/Plaintiff and direct them to file such suit after such statutory notice is issued. In the present case, I find that the learned Judge has not applied its mind to the well settled principles of law whilst dealing with the application under Section 80(2) of the Civil Procedure Code. The suit ought to have been taken for consideration and after hearing the Respondents, appropriate Orders can be passed on the application under Section 80(2) of the Civil Procedure Code. This aspect has been well settled by the Apex Court reported in (2007) 9 S.C.C. 43 : [2007(4) ALL MR 318 (S.C.)] in the case of Bajaj Hindustan Sugar & Industries Ltd., vs. Balrampur Chini Mills Ltd. & Ors., the Apex Court at Paras 33 and 34 has held thus :

"33. The decision cited by Mr. Shanti Bhushan on the question of implied leave was countered by Mr. Mukul Rohatgi with the decision of this Court in State of A.P. v. Pioneer Builders, A.P. Wherein in para 16 it has been observed as follows: (SCC p. 126, para 17)

"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 respect of relief prayed for in the suit."

34. The law, in our view, has been succinctly expressed in the aforesaid judgment. The language of Section 80(2) of the Code leads us to hold that if leave is refused by the original court, it is open to the superior courts to grant such leave as otherwise in an emergent situation a litigant may be left without remedy once such leave is refused and he is required to wait out the statutory period of two months after giving notice.

35. However, in the instant case, the High Court has not granted such leave while disposing of the revision filed by the appellant Company and the trial court was bound to reconsider the question of grant of leave in the light of the observations made by the High Court."

This Court in another Judgment reported in 2005 (3) ALL M.R. 869 in the case of Motilal Mahadev Sharma (deceased through LRs.) vs. The Municipal Corporation of Greater Bombay, has taken the view that in case of injunction the party need not wait for the statutory period of notice to elapse.

8. On perusal of the impugned Order, I find that the learned Judge appears to have not perused the plaint as a whole nor given any appreciable reasons to reject the application filed by the Petitioner. Hence, the impugned Order passed by the learned Judge dated 08.02.2012, cannot be sustained and deserves to be quashed and set aside. The learned Judge shall decide the application after hearing the parties in the light of the observations made herein above and proceed to pass appropriate reliefs in according with the provisions of Section 80(2) of the Civil Procedure Code.

9. In view of the above, I pass the following :

ORDER

(i) The impugned Order dated 08.02.2012, is quashed and set aside.

(ii) The learned Judge is directed to decide the application filed by the Petitioner under Section 80(2) of the Civil Procedure Code, after hearing the Respondents in the light of the observations made herein above in accordance with law.

(iii) Rule stands disposed of accordingly with no Orders as to costs.

(iv) The Petition stands disposed of accordingly with no orders as to costs.

Ordered accordingly.