CONSTABLE/DRIVER RAMESH CHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS revision petition is directed against the order of the trial judge directing the return of the plaint to the plaintiff/petitioner.

(2.) THE facts :the petitioner has challenged the notice of discharge and the discharge order dated July 13, 1987 and September 6, 1987 respectively in the Civil suit. Along with the suit, an application under Order 39, Rules 1, 2 G. P. O. was filed for interim injunction for staying the operation of notice of discharge. Along with the suit, an application was moved that issuance of notice under Section 80 C. P. C. be exempted. The trial judge on September 1, 1987 passed the following order:

(3.) WHEN the application for stay was listed for hearing, the trial judge found that there was no urgency in the case and notice under Section 80 CPC ought to have bee a served before filing the suit. Since the notice was not served, he ordered the return of the plaint to the petitioner. The course adopted by the trial judge is unsustainable in law. Section 80 of the Civil Procedure Code (for short the Code) envisages that no suit shall be instituted against the Government or against a public officer in respect of an act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office. The issuance and service of the notice is sine qua non for filing a suit against the Government or against a public servant with regard to their actions which purport to have been done by them in discharge of their official duties. Sub section (2) of Section 80 of the Code provides that in a suit where immediate relief against the Government or against a public servant is sought, the court may grant leave to the plaintiff to file the suit without serving any notice as required under sub section (I) of Section 80 of the Code. In the instant case, as stated above, the Court granted the exemption under Sub-section (2) of Section 80 of the Code to the plaintiff. Once the Court has exercised its discretion, the matter could not be re-opened and in the circumstances of the case, the trial judge was not right in holding that the exemption ought not to have been granted when in fact the exemption was granted and an order was passed on September 1, 1987 Any of the parties aggrieved against that order could assail the same before a competent authority. A judicial order once passed remains in force till it is set aside in appeal or revision or reviewed as provided in law. The trial judge did not review the order whereby exemption was granted under sub-section (2) of Section 80 of the Code. To the contrary, he opined that the order was not warranted in the circumstances of the case. This course was not permissible. The order of the trial judge is patently illegal. The same is set aside.