PRAKASH ABAJI KAMBLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule, returnable forthwith.

(2.) IN this case, the Petitioner filed a suit being Suit No. 6669 of 1970 as against the Respondent -the State of Maharashtra on 10th September 1970. Apparently, he filed the said suit without giving any notice under section 80, Code of Civil Procedure (for short C.P.C.) as there was urgency. Soon after filing the suit, the Petitioner issued a notice dated 21 -9 -1970 addressed to the Secretary to the Government of Maharashtra and that notice was served as required under section 80, C.P.C. Thereafter in 1973 the Petitioner amended the plaint, in which he stated that he had issued such a notice under section 80, C.P.C. and in the event the Court comes to the conclusion that such a notice was necessary to be given to the Defendants before commencement of the suit, the Plaintiff would seek permission of the Court to withdraw the suit with liberty to refile the same on the basis of the said notice. That notice was, in fact, annexed to the plaint.

(3.) IN 1981 when the suit came up on board, issues are framed and it is an admitted position that there was no issue relating to want of notice under section 80. C.P.C. and for dismissal of the suit on that ground. The suit remained pending for nearly another ten years. The Plaintiff's evidence came to be recorded on 9 10 -1990. It appears that at this stage the learned Judge felt that there should be an additional issue, namely, "whether the suit is barred for want of necessary notice under section 80, Code of Civil Procedure - The Plaintiff objected to the framing of such an issue. As soon as that issue was framed, the Plaintiff was advised to take out a chamber summons with the prayer that he may be allowed to withdraw the suit with liberty to file a fresh suit on the same subject -matter on the basis of the said notice dated 21 - -9 -1970 and he also asked for certain consequential reliefs. It was this chamber summons which was heard at length by the learned Judge, who by his order dated 13 -11 -1990 dismissed the chamber summons. The present revision is against this order.