Dismissed

Shakriben Lavjibhai Gohel (Decd.) Thru Legal Heir Mohanbhai Lavjibhai Gohel v. District Collector

Gujarat HC31 Jul 2018FA/1952/2016

Case brief

AI extract

What is this about?

In this appeal, the aggrieved appellant challenged the dismissal of a suit instituted without serving the mandatory two-month notice to the government under Section 80 of the CPC. The High Court held that although leave was granted for urgency, the trial court was right to dismiss the suit when no urgent relief was awarded, as the statutory notice requirement remains mandatory unless satisfied aft

What the court decided

AI extract

Shakriben Lavjibhai Gohel (Decd.) Thru Legal… — Civil Procedure and Limitation | Gujarat HC (2018)

¶1

C/FA/1952/2016 JUDGMENT

¶2

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

¶3

R/FIRST APPEAL NO. 1952 of 2016

¶4

FOR APPROVAL AND SIGNATURE:

¶5

HONOURABLE MR.JUSTICE J.B.PARDIWALA

¶6

==========================================================

¶7

1 Whether Reporters of Local Papers may be allowed to see the judgment ?	Yes
2 To be referred to the Reporter or not ?	Yes
3 Whether their Lordships wish to see the fair copy of the judgment ?	No
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	No
Circulate this judgment in the subordinate judiciary.

¶8

==========================================================

¶9

SHAKRIBEN LAVJIBHAI GOHEL (DECD.) THRU LEGAL HEIR MOHANBHAI

LAVJIBHAI GOHEL

Versus

DISTRICT COLLECTOR

==========================================================

¶14

Appearance:

¶15

MR SAVAN N PANDYA(5600) for the PETITIONER(s) No. 1 MR. RAKESH PATEL, ASST. GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1

¶16

==========================================================

¶17

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

¶18

Date : 31/07/2018

¶19

ORAL JUDGMENT

¶20

This first appeal under section 96 of the CPC is at the instance of the original plaintiff and is directed against the judgment and decree dated 15^th June, 2016 passed by the

¶21

Page 1 of 12

¶22

C/FA/1952/2016 JUDGMENT

¶23

Judge of the City Civil Court, Court No.5, Ahmedabadi in the Civil Suit No.2161 of 2005.

¶24

It appears from the materials on record that the applicant herein preferred a civil suit for declaration and injunction in connection with the agricultural land bearing Survey No.234, situated at Mouje Shahwadi, Taluka & District: Ahmedabad. It is the case of the plaintiff that although the State Government is the owner of the land in question, yet he is in possession of the land since 1965. It is also his case that his mother late Shakriben Lavjibhai Gohel had preferred an application dated 31^st December, 1984, addressed to the Collector for regularization of the possession of the land. The application was forwarded by the Collector to the City Mamlatdar for his opinion, but, thereafter, nothing was heard at the end of the Collector as well as the Mamlatdar.

¶25

On 2^nd September, 1985, Shakriben, i.e, the mother of the plaintiff passed away. According to the plaintiff he had to prefer the civil suit as the defendant passed an order under section 61 of the Bombay Land Revenue Code for removal of the encroachment and also issued notice to handover the vacant and peaceful possession of the land in question. According to the plaintiff, the officials of the Collector Office visited the suit property on 21^st November, 2005 and pressurized the plaintiff to vacate the land. In such circumstances, the plaintiff had to rush to the City Civil Court at Ahmedabad for obtaining urgent relief. It appears that an application Exh.10 was filed along with the suit, seeking leave to institute the suit without serving notice under section 80 of the CPC. Having regard to the urgency in the matter, the City

¶26

Page 2 of 12

¶27

C/FA/1952/2016 JUDGMENT

¶28

Civil Judge, at the relevant point of time, granted leave to institute the suit without notice to the defendant under section 80 of the CPC.

¶29

It appears that, thereafter, the injunction application filed by the plaintiff was taken up for hearing, but the same was not pressed. The same came to be disposed of as not pressed. It is not clear as to on which date the injunction application filed by the plaintiff was not pressed and disposed of accordingly. However, this fact is confirmed by the learned counsel appearing for the plaintiff.

¶30

Later, having regard to the pleadings of the parties, the following issues were framed at Exh.29;

¶31

“(1) Whether the suit is tenable for want of statutory notice?

¶32

(2) What order and decree?”

¶33

The two issues, referred to above, came to be answered by the court below as under;

¶34

“(1) In negative. (2) As per final order.”

¶35

It appears that the suit, ultimately, came to be dismissed on the ground that the same could not have been instituted and was not maintainable in law for want of the statutory notice under section 80 of the CPC. The reasons assigned by the court below are extracted hereunder;

¶36

“5) Now, on perusal of records which are brought on record by the plaintiff at the time of filing along with the

¶37

Page 3 of 12

¶38

C/FA/1952/2016 JUDGMENT

¶39

suit viz., copy of notice issued by Shahvadi Gram Panchayat dt. 27.7.1980; copy of electricity bill of the suit property dt. 11.1.2007, tax bills of the suit property; copy of Form No.7/12 of the suit property and copy of the death certificate of the mother of the plaintiff dated 2.9.1985 and the request letter addressed to Talati to prove copies of revenue record.

¶40

6) It is pertinent to note that after filing the suit, the plaintiffs moved an application for appointment of Court Commissioner for local inspection which has been allowed and the Court Commissioner filed his report.

¶41

7) Moreover, on perusal of records, it appears that even after passing of couple of years, the plaintiff remained absent from the court. It needless to say, after framing of issues the plaintiff is bound to adduce evidence, but she has failed to adduce the same.

¶42

8) It appears from the copies of the revenue record village Form No.7/12, the suit property is in possession of one Mohanbhai Lavjibhai from 2004-05 to 2006.-07. it is not found from the record that the plaintiff has legal rights and interest in the suit property. It is also not clear from the record that the plaintiff Mohanbhai Lavjibhai was issued notice to handover possession by the defendant.

¶43

9) The learned Advocate for the plaintiff submitted that as per permission obtained from the Court under sec. 80 of the Code of Civil Procedure, the present suit is filed and therefore, the suit is maintainable. Mr. Brahmbhatt also submitted that in the next day of hearing, he may produce the authorities or adduce evidence in support of his say. However, thereafter he did not produce the same.

¶44

10) On the other hand, in the written statement filed by the defendant at Exh.18, the defendant contended that the plaintiff has not served any statutory notice to the defendant under section 80 of the Code of Civil Procedure Code and therefore, the suit is not maintainable.

¶45

12) Now, on perusal of Sec.80 of CPC, Court may dispense with the issuance of statutory notice and in the

¶46

Page 4 of 12

¶47

C/FA/1952/2016 JUDGMENT

¶48

present case, the Court has passed order below Exh.10 and dispensed with the notice and in emergency and urgency permission was granted to institute the suit. But when the defendant in para 3 of its written statement, defendant State Government has raised a contention that the plaintiff has not served any statutory notice to it under section 80 of the Civil Procedure Code and therefore the suit is not maintainable, the plaintiff is unable to satisfy the court that the without statutory notice, the suit is tenable. Not only that as earlier discussed, in case of urgency and emergency the Court may grant permission to institute the suit but that does not mean that the other side should not raise the plea under sec. 80 of the Code. Hence, under the facts and circumstances of the case on our hand, considering the facts and circumstances of the case and looking to the material brought on record, the relief as prayed for by the plaintiff cannot be granted as the suit is not maintainable. Hence, I answer issue No.1 in negative. Hence, I pass the following order.”

¶49

Being dissatisfied with the judgment and decree passed by the court below, dismissing the suit, the plaintiff has come up with this first appeal.

¶50

Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the city civil court committed any error in dismissing the suit for want of statutory notice under section 80 of the CPC.

¶51

Section 80 of the CPC is extracted hereunder;

¶52

“"80.(1) Save as otherwise provided in sub-section (2) no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity,until the expiration of two months next after notice in writing has been delivered to or left at the office of-

¶53

Page 5 of 12

¶54

C/FA/1952/2016 JUDGMENT

¶55

(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

¶56

(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;

¶57

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

¶58

(c) in the case of a suit against any other State Government, a Secretary to the Government or the Collector of the district;

¶59

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

¶60

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

¶61

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice-

¶62

(a) the name description and the residence of the

¶63

Page 6 of 12

¶64

C/FA/1952/2016 JUDGMENT

¶65

plaintiff has been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

¶66

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated."

¶67

As noted above, leave was granted to institute the suit by the Trial Court at the relevant point of time as there was urgency and the threat of being dispossessed from the land in question was looming large over the head of the plaintiff. However, when time came for the plaintiff to obtain the necessary relief in the nature of injunction, restraining the defendant from dispossessing him from the land in question, the application was not pressed. I fail to understand what prompted the plaintiff, at the relevant point of time, not to press the injunction application. The whole idea in seeking leave to institute the suit in the absence of the statutory notice under section 80 was to seek immediate relief from the Court, but the same was not done. I am of the view that the day and date on which the injunction application was not pressed, and the same came to be disposed of by the court below, the court should have returned the plaint to the plaintiff for presentation once again after complying with the requirement of section 80 of the CPC.

¶68

12 It is axiomatic to say that the objects of the notice under Section 80 of the Civil Procedure Code are to enable the Government or public servant concerned to reconsider its or his stand in the matter and to amend or settle the claim out of the Court if the stand is not well founded. It is also established

¶69

Page 7 of 12

¶70

C/FA/1952/2016 JUDGMENT

¶71

beyond doubt that the provision contained in Section 80 of the Civil Procedure Code is mandatory and the failure to comply with the requirement of the statute would necessarily be fatal to the suit. It is equally established that the notices under sec 80 of the Code of Civil Procedure are not to be literally construed nor the Court should approach in a pedantic manner for the purpose of finding out whether the notice is not according to the requirement of Section 80 and consequently the suit is premature. In order to find out whether the requirement of the statute is complied with or not, the Court should take into account (I) whether the name, description and residence of the plaintiff are correctly given; (2) whether the cause of action and reliefs are set out in necessary particulars; (3) whether the notice has been delivered or left at the office of the appropriate authority, and (4) whether the suit is instituted after the expiry of the prescribed period of two months (vide Beohar Rajendra Sinha and Ors. v. Sta te of M.P. and Ors., (1969) Vol.1 Supreme Court Cases 796."

¶72

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 the 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 the suit, would not grant any interim

¶73

Page 8 of 12

¶74

C/FA/1952/2016 JUDGMENT

¶75

relief except without notice to the Government or Public Officer concerned of showing cause against the interim relief. The Court can exercise the power of return of the plaint for representation after complying with the requirement of subsection (1). This could be done only at the time of granting leave.

¶76

In such circumstances, referred to above, I am constrained to observe that the plaint should have been returned to the plaintiff at the relevant point of time itself when the injunction application was not pressed.

¶77

In the aforesaid context, let me refer to and rely upon a Full Bench decision of this Court in the case of Union of India & Anr. vs. Natwerlal M. Badiani , reported in 2001 (2) GLR 1378 FB . I may quote the relevant observations;

¶78

“15. In the case of N.V. Ashar v. State of Gujarat, reported in 1984(2) GLR 1333, a decision rendered by single Bench of this Court, it was held that the only consideration at the time of granting leave without serving statutory notice under S.80(1) of C.P.C. is whether the suit for obtaining urgent and immediate relief against the Government. It is the urgency or immediate nature of the relief which would be relevant for deciding whether leave should be granted or not and not whether the plaintiff has good case for obtaining such immediate and urgent relief by way of interim order. Merely because the interim relief is refused on merits, it cannot be said that there was no urgent or immediate need for interim relief in the suit. When the leave is granted, there is no question of the Court reviewing the grant of leave or returning the plaint and the Court having once satisfied about the urgency, the requirement of statutory notice fades into total insignificance and the suit has to be tried as any other suit and merely because the interim relief is refused, the leave granted and the

¶79

Page 9 of 12

¶80

C/FA/1952/2016 JUDGMENT

¶81

suit instituted will not become incompetent.”

¶82

Mr. Pandya, the learned counsel appearing for the plaintiff placed reliance on a decision of this Court in the case of N.V. Ashar vs. State of Gujarat , 1984 (2) GLR 1333 to contend that once leave is granted, then irrespective of the fact whether interim relief is refused or the interim injunction application is not pressed, would not make any difference and the suit instituted will not become incompetent. To put it in other words, according to Mr. Pandya, the Trial Court could not have dismissed the suit on the ground of want of statutory notice under section 80 of the CPC because at the time of institution of the suit, leave was granted by the court concerned.

¶83

Even if the leave is granted for institution of the suit without notice under S.80(1) of the C.P.C. on the question of urgent and immediate relief, if the Court is satisfied after hearing the parties, which would include both the sides, that no urgent or immediate relief may be granted in the Suit, it has to return the plaint for presentation to it after complying with the requirements of sub-section (1). The question of returning the plaint arises only when the Court is satisfied after hearing both the sides that there is no need for any urgent or immediate relief and this stage cannot be reached unless the leave is granted for institution of the Suit and, therefore, the mere grant of leave for institution of suit for the purpose of considering the question as to whether the urgent or immediate relief is needed or not, does not become a fait accompli for the purpose of dispensing with the requirement of notice under S.80(1) of the C.P.C. and it is very clear from the

¶84

Page 10 of 12

¶85

C/FA/1952/2016 JUDGMENT

¶86

plain reading of the language of the proviso to S.80(2) of C.P.C. that after hearing both the sides if the Court is satisfied that no urgent or immediate relief need be granted in the suit, the plaint has to be returned for presentation after complying with the requirements of sub-section (1) of Se.80 C.P.C. The words used in the proviso are that "the Court shall" and thus the proviso is mandatory in nature and, therefore, in my opinion, even if the Court grants leave on being satisfied about the urgency, but after hearing both the sides it comes to the conclusion that no urgent or immediate relief is required to be granted, it has to return the plaint. It is not open for the Court to try the suit as any other suit once the interim relief is refused and the leave granted automatically comes to an end, if the Court is satisfied that no urgent or immediate relief is needed. It will be pertinent to mention that at the time when the leave is granted to institute a Suit and the urgency is determined, the Court only hears the plaintiff and not the other side. But after the grant of leave, whether urgent and immediate relief is to be granted or not, is a question which is decided after hearing both the sides. The proviso also speaks of the satisfaction of the Court for not granting urgent and immediate relief after hearing both the sides and, therefore, only after the grant of the leave the stage is there for returning of the plaint and Court shall return the plaint if it is satisfied after hearing the parties that no urgent or immediate relief may be granted.

¶87

N.V. Ashar (supra) did not find favour with the Full Bench of this Court and has been overruled. Thus, the ratio as propounded in N.V. Ashar (supra) is, in no manner, helpful to the plaintiff.

¶88

Page 11 of 12

¶89

C/FA/1952/2016 JUDGMENT

¶90

19. The Supreme Court in the case of Gangappa Gurupadappa & Ors. vs. Rachawwa & Ors . , AIR 1971 SC 442 , observed as under;

¶91

“If for instance the plaintiff's cause of action is against a Government and the plaint does not show that notice under section 80 of the Code of Civil- Procedure claiming relief was served in terms of the said section,, it would be the duty of the court to reject the plaint recording an order to that effect with reason for the order. In such a case the court should not embark upon a trial of all the issues involved and such rejection. would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by s. 80 of the Code is being claimed, it would be the duty of the court to go into all the issues which may arise on the pleadings including the question as to whether notice under S. 80 was necessary. If the court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties, apart from the question as to the applicability of s. 80 of the Code and absence of notice thereunder should not operate. as, res judicate in a subsequent suit where the identical questions arise for determination between same parties.”

¶92

The fact remains that no statutory notice under section 80 of the CPC was served on the defendant. In such circumstances, if the city civil court thought fit to dismiss the suit, then in my opinion, no error, not to speak of any error of law, could be said to have been committed.

¶93

In the result, this first appeal fails and is hereby dismissed. Notice stands discharged.

¶94

(J.B.PARDIWALA, J)

¶95

Vahid

¶96

Page 12 of 12

Shakriben Lavjibhai Gohel (Decd.) Thru Legal Heir Mohanbhai Lavjibhai Gohel v. District Collector

Case brief

What is this about?

What the court decided

Shakriben Lavjibhai Gohel (Decd.) Thru Legal Heir Mohanbhai Lavjibhai Gohel v. District Collector

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Patel Vithal Karman Vs State of Gujarat

Patel Mansukh Gordhan Dadhaniya Vs State of Gujarat

Babulal Padamshi Vs State of Gujarat

Parvatiben Tulsibhai Patel Vs Paschim Gujarat Vij Company Ltd.

Aminaben Wd/O Yusufbhai Sheikh Vs Rauf Alias Aslambhai Rajakbhai Bachau

Siddharth Organics Industries through Proprietor Sunil B Das Vs Atul Ltd.