“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 JUDGMENT 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 JUDGMENT 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 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.
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. JUDGMENT 29. The appeal is allowed with no order as to costs.
New Delhi September 02, 2013