Bihari Chowdhary & Anr. v. State Of Bihar & Ors.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal Nop. 1048 of *.

“SN

| High Court in Second Appeal 1 No. 215 of 1978

. LN. Sinha, B.P, Singh, Ranjit Kumar and Ravi Prakash for the’

appealants, 4

. D.Goburdhan for the respondents, ‘The Judgment of the Court was delivered by BALAKRISHNA ERADI J. The short question that arsies for consideration in this appeal by special leave concerns the true scope and application of Section 80 of the Civil Procedure Code.

The appellants hertin “are the plaintiffs in a suit instituted in the Munsiff’s Court, Bihar Sharif, seeking the reliefs of declaration of title and delivery of possession with mesne: profits in respect of- the properties described in the plaint. The State of Bihar—the 1st

_ Tesponderit herein is the main defendant inthe suit. Prior to the:

institution of the suit, the plaintiffs had issued a notice to the Ist

From the Judgment and Order dated 15. 12. 1978 of Patna

Ag.

B. CHOWDHARY y, BIHAR (V.B. Eradi, J.) 31 wespondent—State—under section 80 C.P.C. on 18.2.1969 and Exhihit 2 is'a copy ofthe said notice. However, without waiting for

_ the statutory period of two months, the plaintiffs instituted the.suit on 2,4.1969. In-the written statement filed on behalf-of the State. -of Bihar, it was contended, inter alia, that the suit was not maintain- able for want of proper notice under Section 80 C.P.C, . This contention was upheld by the trial court which also recorded findings against the plaintiffs on the remaining issues concerning the ‘title to the property and their entitlement to. reliefs of declaration. cand delivery of possession. The first appellate. court to which the .

‘matter was carried in appeal by the plaintiffs dismissed the appeal

On the ground that ‘the plaintiffs’ suit was not maintainable inasmuch as due notice under Scction 80 C.P.C. liad not been given. A

“second appeal preferred by the appellants to the High Court at . ’ “Patna did not meet with any success and it was dismissed in limine, _ Hence this appeal by the plaintiffs.

We are concerned in this case with Section 80 C.P.C. as it stood prior to its amendment, by Act 104 of 1976 (Even under the. amended provision, the position remains unaltered insofar as a suit of this nature is concerned). We shall extract the Section as it stood at the material time: ,

“80. No suit shall be instituted against the Governsment (including the Government of the State of Jammu and © ‘Kashmir) or against a public officer in respect of any 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 of—

_ (a) in the case-of a suit against the Central Government, except where it relates to-a railway, a ‘Secretary to that Government ; 5 dby in the case of 4 suit against the Central Govern: ment where it relates to a railway, the General Manager of thatrailway ;

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&c) in the case of a suit against the Government _ of the State of Jammu and Kashmir, the Secretary to that Governmept or any other officer authorised by that Government in this behalf ;

) - SUPREME COURT REPORTS ~ [1984] 3 B.CR.

. (d) in the case of -a suit against any other Governe - mént,. a Secretary to that Government or ithe Collector of the district ;

and, in. the casé of a public officer, delivered to hinr or Ifet at his office, stating the cause of action, the name, description and place of residence of the plaintiff and relief which he ‘claims; and plaint.shall contain a statement that ~ such notice has been so delivered or left.” - :

l -

The effect of the Section is clearly to impose a bar against the institution of a. suit against the Government or a public officer in ‘respect of any act purported to be dohe by him in his official capa~ _city until the expiration of two months -after. notice in writing has - been delivered: to or left at the office of the Seeretary to Government or Collector of the concerned district and in the case of a public officer delivered to him or left at his office, . stating the. particulars enumerated in the last part of sub-section (1) of the Section. When we examine the scheme of the Section it becomes obvious that the Section has been enacted as a measure of public:

7 " y policy with’ the object of ensuring that before a sujt is instituted _ against the Government ora public officer, the Government or the - officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate actién and thereby avoid unnecessary litigation and save public time and money by settling the claim- without driving the person, who has issued the notice, to institute the suit involving considerable expenditure and delay. The Government, unlike private parties, is expected to. consider the matter, covered by the notice in a most objective manner, after obtaining such legal advice as they may think fit, and take a decision in public interest within the period of two months.

allowed by the Section as to whether the claim is just and reason-. able and the contemplated suit should, - - therefore, be avoided by speedy negotiations and settlement,or wlicther the claim should be: , . resisted by fighting out the suit if and whea it is instituted. _ There: is‘ clearly a. public purpose underlying the mandatory provision

~ gontained in the Section insisting dn the issuance of a notice setting . out the particulars of the propostd suit and giving two months’

time to Government, or a public officer before a suit can be insti- we

" _B. CHOWDHARY ¥. BIHAR (V.B. Eradi, J.) ° 313 tuted against them. The object of the Section is the advancement of justice and the securing of public good by avoidance of un- .

necessary litigation.

“When the language used in the Statute is clear and unambi- guous, it is the plain duty of tle Court to give effect to it and considerations of hardship will not be a legitimate ground fort not — faithfully implementing the mandate of the legisiature:

“The Judicial Committee of the Privy Council had occasion to consider the scope and.effect of Section 80 C.P.C. in an almost similar situation in Bhagchand Dagadusa and ors. v. Secretary of

_ State for India in Council & Ors.©) In that case, though a notice had been issuéd by the plaintiffs under Section 80 C.P.C. on 26th June 1922, the suit was insitituted before the expiry of the period of two months from the said date. It was contended before the Privy Council, relying on some early decisicns of High Court of Bombay, that because one of the relicfs claimed in the suit was the grant of a perpetual injunction and the claim for the said relief would have become infructuous if the plaintiffs were to wait for the’ statutory period of two months

‘prescribed in Section 80 C.P-C. before they filed the suit, the rigour of the Section should be relaxed by implication of a suitable exception of a qualification in respect of a suit for emergent relief, such as one for injunction.: That contention did not find favour with the Privy Council and it was held that Section 80 is express, expli- cit and mandory and it admits no implications or exceptions. The

Judicial Committee observed :

“To argue as appellants did, that the plaintiffs had a right urgently calling for a remedy, while s. 80 is mere procedure, is. fallacious, for s. 80 imposes a statutory and unqua- _ fified obligation upon the Court.” -

This decision was subsequently - followed by the Judicial Committee in Vellayan v. Madras Proviftee.©) The dictum laid down

_by the Judicial Committee in Bhagchand Dagadusa v: Secretary of

State-for India.@) was cited with approval and fcllowed by a ‘Bench » “ay 541A. 338 (2) 74 LA. 223 Q) S41A. 333

314 ‘SUPREME COURT REPORTS [1984] 3 s.c.k of five Judges of this Court i in Sawai * Singha Nirmal Chand v. Union of India. @ .

It must now be regarded as settled law that a suit against the

Government or a public officer, to which the requirement ofa. _ prior notice under Section 80 C.P.C. is attracted, ‘can not be - yalidly instituted until the expiration of the period of two months next after ‘the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the Section and _ if filed before the expiry of tke said period, the suit has to be dismissed as not maintainable.

On behalf of the “appellants, strong reliance’ was placed on.

the decision of.a JearnedSingle Judge of the High Court of Kerala in Nani Amma Nannini Amma v. State of Kerala: ®) Therein the learned: Judge has expressed the view that Sev. 80 is not a provision of public policy and there is nothing in the Section expressly affecting the jurisdiction of the Court to'try a suit’ instituted before the expiry of the period prescribed therein. : The reasons stated by the learned Judge in justification of his taking.tle said view despite . the clear pronouncement of the Judicial Committee ‘of the Privy Council in Bhagchand’s case do not appeal to us as correct or sound. ‘In the light of the conclusion expressed by us in the foregoing. paragraphs about the true scope and effect of Section 80 C.P.C., the

* aforecited decision of the learned Single Judge of the Kerala High

; ‘Court cannot be neeepted as laying down good law. #

In the result, we confirm the judgment and decree of the High Court and: dismiss this: appeal. The: parties will bear the respective costs in this appeal.

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N.V.K. . . - Appeal dismissed —

(1) [1966] (i) SCR 956 7 (2) AIR. 1969 Kerala 114