STATE OF ANDHRA Vs. PRASADA RAO

JUDGEMENT

(1.) THIS Civil Revision Petition was directed to be posted before a Bench by Govinda Menon J., when the matter was pending in the High Court of Madras, as it raised an important question of law regarding the construction of Section 80 of the Civil Procedure Code. The suit was instituted by the 1st respondent in theDistrict Munsif's Court, Rajahmundry, for a declaration that defendants 1 and 2, i. e,, the State of Madhya Pradesh represented by the Chief Secretary, and the Divisional Forest Officer, South Bastar Division (Jagadalpur), were not entitled to levy any alleged forest dues from him and for a permanent injunction restraining the defendants from levying any money by distraint of properties or otherwise. The District Collector of East Godavari was impleaded as the 3rd defendant. In the plaint it was alleged that one Ramachandrayya represented to the plaintiff that he was the auction-lessee for gathering tumki leaf (used in the manufacture of beedie) from the Konta and Gollapalli Ranges of the forest in the South Bastar Division of the Bastar State for Rs. 1,18,000/- to be paid in ten instalments in three years, i. e. 1949, 1950 and 1951, that the plaintiff and Ramachandrayya entered into an agreement of partnership on 5th March 1949 for working the said forest ranges, on the understanding, that Ramachandrayya should get the leases transferred in the name of the plaintiff and that the plaintiff should advance the necessary funds for carrying on the business. Ramachandrayya was unable to secure a transfer of the leases. The plaintiff however paid a sum of Rs. 38,000/- by way of instalments of forest revenue on behalf of the said Ramachandrayya and the Forest Department created troubles by reason of the fact that the permits were in favour of Ramachandrayya and so there were considerable difficulties in gathering and transporting leaf to the market at Rajahmundry. The plaintiff paid three instalments but fearing that Ramachandrayya was not in solvent circumstances, the 2nd defendant, in collusion with him, wrote a letter on 15-12-1949 to the plaintiff stating that he was willing to transfer the said lease in his favour. Transfer forms were also sent but the plaintiff refused to enter into an agreement. Notwithstanding the refusal of the plaintiff to enter into a contract with the 2nd defendant, with a view to collect the amount of arrears from the plaintiff, the 2nd defendant sent directions requesting the 3rd defendant. Collector of East Godavari, as the plaintiff owns properties, movable and immovable, in Mirtipadu in Rajahmundry taluk, to distrain the properties of the plaintiff for the forest dues. The Collector communicated the said direction to the Tahsildar, Rajahmundry, and he threatened to distrain the properties of the plaintiff. It is therefore alleged that the action of the 2nd defendant in moving the 3rd defendant to attach and distrain the properties of the plaintiff was highly illegal and that the plaintiff was entitled to pray for a declaration and for a permanent injunction, restraining the defendants from proceeding with the threatened distraint of the plaintiff's movable and immovable properties. Objection was taken also to the action of the 3rd defendant in threatening, by issuing an order of distraint in pursuance of the direction of the 2nd defendant, and that such an action is illegal and ultra vires and arbitrary. For this reason also, he prayed that the 3rd defendant should be restrained by a permanent injunction from proceeding with the threatened action. Cause of action is said to have arisen on the 1st day of August 1951 when the plaintiff came to know that the 3rd defendant under the directions of the 1st and 2nd defendants was threatening to distrain the properties of the plaintiff at Mirtipadu within the jurisdiction of the District Munsif s Court of Rajahmundry. He therefore claimed the two reliefs as stated above. The sum and substance of the defence on behalf of the defendants was that Ramachandrayya requested the transfer of the lease in favour of the plaintiff and that the plaintiff also put in an application on 17th of March 1949 to transfer the lease in his name, which was accepted by the 2nd defend ant. Though the execution of a formal document was delayed there was a concluded contract between the plaintiff and the 2nd defendant and the plaintiff was bound to pay the arrears. Objection was taken in the written statement that as no notice under Sec. 80, C. P. C., was given to any of the defendants, the suit was not maintainable. On the pleadings eight issues were framed, and the fifth issue which covers the contention based on Sec. 80 C. P. C. was tried as a preliminary issue, and the learned District Munsif recorded a finding on that issue that the suit was not bad for want of notice under Sec. 80, C. P. C. The le'arned Judge felt that he was bound by a later decision of the Madras High Court in Krishnaswami Sastry v. Syed Ahmed , which interpreted the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State For India . Against this order the Government have filed this revision, and the applicability of Sec. 80 C. P. C. to the suit as framed was the only point debated before us on behalf of the petitioner. Besides supporting the judgment of the lower court, the 1st respondent's Learned Counsel also raised the question that Sec. 80, C. P. C., offends Article 14 of the Constitution and must therefore be held to be invalid and ultra vires. Judicial opinion was not unanimous regarding the interpretation of Sec. 80, C. P. C. Prior to the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India the Calcutta and Allahabad High Courts held that the section applied to all suits whether they were suits for injunc tion or for other reliefs and that the fact that irremediable harm would ensue to the plaintiff if the strict rule under Sec. 80, C. P. C., were enforced did not find favour with the learned Judges of those two High Courts. The Bombay High Court was however of a different opinion and held that as a remedy by way of injunction in respect of threatened actions related to future acts and as irreparable harm would be done to the plaintiffs if the two months' notice is insisted on, Sec. 80 should not be applied to such cases. In Madras the opinion was fluctuating. The earlier view in Secretary of State v. Kalekhan was that for all suits Sec. 80, applied, and this was the opinion followed in The Superintending Engineer, II Circle, Bezwada v. Chitturi Ramakrishna . In a later decision Arunachalam Chetty v. David , Ramesam and Reilly, JJ., followed the Bombay view. In Krishnaswami Sastri v. Syed Ahmed Gurgenven, J., after the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India applied the decision in Arunachalam Chetty v. David on the ground that in spite of the decision of the Privy Council futtre acts in respect of which relief by way of injunction is asked for in a suit, did not attract the provisions of Sec. 80, C. P C., and the suit without notice was maintainable. It is this decision that was followed by the learned District Munsif as he felt he was bound by that decision. The correctness of the Madras view was canvassed before us by the learned Government Pleader, and that is the point for decision. It will be useful to consider the language of the section before adverting to the conflicting views regarding its interpretation. The section so far as it is pertinent to the discussion of the present question is as follows :