N V ASHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner (original plaintiff) sought an interim junction against his transfer from Junagadh to Bharuch. He is junior Employment Officer a Class 111 employee in the employment of State Government- The learned Trial Judge rejected the application. He carried the matter in appeal- There the learned District Judge held that the appeal and the suit were not maintainable on the ground that the plaintiff had not fulfilled the conditions under sec 80 C.P.C. for filing a suit without statutory notice.

(2.) It must be noted that alongwith the plaint the petitioner- plaintiff had given an application Ex. 2 to the trial Court and obtained permission for instituting the suit without notice. That had become necessary because there was urgent and immediate need to obtain interim relief against the order of transfer. Thus the suit was competently instituted under sec. 80(2). However the learned District Judge came to the conclusion that when the trial Court refused interim relief it meant that there was no urgency and no need for immediate relief and therefore a suit was held not maintainable. This reasoning by the learned District Judge is clearly erroneous The only consideration at the time of granting leave without serving statutory notice under sec. 80 is whether the suit is 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 immediate and urgent relief by way of it rim 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. The Court having been 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 suit instituted will not become incompetent. In the case of Bhalchandra N. Acharya v. State of Gujarat reported in 1981 G.L.H. 119 Mr. Justice B. K. Mehta has taken the same view.

(3.) Therefore the order of the learned District Judge holding that the suit and the appeal were not competent and directing the trial Court to deal with the suit under proviso to sub-sec. (2) to sec. 80 is