RINA SIKDAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner herein Smt Rina Sikdar had brought a suit against the respondents-Union of India and Divisional Railway Manager, N.F. Railways, Tinsukia, which was registered as Title Suit No. 48 of 1994. Her case in the suit was that she was lawfully in physical possession over a plot of land measuring 1K 10Ls covered by Dag No. 2917 of P.P. No. 195 under Tinsukia Mauza situated at Borpathar Road, Tinsukia Town by paying land revenue to the Government of Assam in her own name. It was her further case that she had been residing on the land by constructing houses thereon paying taxes to the municipality and her Holding No. is 3594(A) of Ward No. 15 of the Tinsukia Municipal Board. The defendants in the suit (respondents herein) allegedly planned to construct wall on the northern side of the suit land and on 2.8.94 the workers of the defendants further allegedly asked the plaintiff to remove her fencing and house. Since she had refused to do so, they had left with a warning to her that they would demolish the fencing and the house. She had filed the suit for declaration that she was in possession of the land with further prayer for grant of permanent injunction restraining the defendants from encroaching upon the suit land. She had also filed an application for temporary injunction, which was allowed on 8.9.94 by the trial Court granting temporary injunction restraining the defendants from disturbing the possession of the plaintiff on the suit land. The Railways filed an appeal against the injunction order dated 8.9.94 of the trial Court. The appellate Court, i.e., the District Judge, Tinsukia allowed the appeal of the Railways by the order dated 6.6.96, inter alia, holding that the three basic principles for grant of temporary injunction, i.e., (1) prima facie case, (2) balance of convenience and (3) irreparable loss did not exist in favour of the plaintiff entitling her to get an order of temporary injunction. Detailed order was passed vacating the temporary injunction.

(2.) When the matter went back, the trial Court by the impugned order dated 2.8.96 ordered the return of the plaint to the plaintiff to be presented after complying with the provisions of sub-section (1) of Section 80 of the Code of Civil Procedure. It may be observed here that the suit by the plaintiff had been filed without issuance of any notice u/s 80 of the Code of Civil Procedure on the defendants. The present revision petition was filed against the aforesaid order of the trial Court dated 2.8.1996. When this revision petition was admitted, the motion Bench had ordered the stay of the order dated. 2.8.96 of the trial Court regarding the return of the plaint to the plaintiff.

(3.) The learned counsel for the petitioner argued that as per the provisions of subsection (2) of Section 80 of the Code of Civil Procedure, if in a suit an urgent or immediate relief is prayed for against the Government, then a suit can be instituted with the leave of the Court without serving a notice as required under sub-section (1) of Section 80 of the Code of Civil Procedure. But the rider on the Court is that it shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government a reasonable opportunity of showing cause in respect of the relief prayed for. According to the counsel, since immediate relief by way of temporary injunction was sought for, the suit had been instituted without serving notice as envisaged by sub-section (1) of Section 80 of the Code of Civil Procedure, which had been entertained by the trial Court and even temporary injunction had been granted after notice had been served on the defendants pursuant to which they had put in their appearance and only after hearing them the temporary injunction had been granted. As per the submission of the learned counsel for the petitioner, simply because the appellate Court vacated the order of temporary injunction on the ground that the basic principles for grant of temporary injunction did not exist, would not mean that there was no urgency in asking for the temporary injunction.