BHALCHANDRA NATHALAL ACHARYA Vs. STATE OF GUJARAT

JUDGEMENT

(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-sec. (2) of sec. 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-sec. (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 sec. 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 sec. 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 sec. 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-sec. (2) of sec. 10 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 reparable loss or balance of convenience. However that will not in my opinion affect the leave which had been already granted under sub-sec. (2) of sec. 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 sec. 80 (1) of the Cote. 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-sec. (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-sec. (1). In other words the Court can exercise the power to return plaint for representation after complying with the requirement of sub-sec. (1). This could be done only at the time 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 It is no doubt true that 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 averment after the receipt of the initial order of retirement and served statutory notice as required under sec. 80 of the Code to the State Government.