Suits Against Govt | Refusal Of Interim Relief After Grant Of Leave To File Suit Without Notice U/S 80 CPC Does Not Require Return Of Plaint: J&K&L High Court

A bench of Justice Vinod Chaterjee Koul observed,

"That even if grant of interim relief is refused, suit filed after the leave is granted by dispensing with the requirement of notice under Section 80 CPC, the suit will continue."

The court was hearing a civil second appeal in terms of which the bench was to consider adjudicating upon two substantial questions of law, i.e.:

• Whether a suit instituted against the Government and its functionaries, in which emergency is invoked, can be maintained and continued, when no interim relief is granted in the case?

• Whether in terms of sub-section (3) of section 80 it was mandatory for the Court to return the plaint to the plaintiff as no interim relief was granted in the case with regard to the appointment of the appellant?

Discussing these questions of law the bench observed Section 80 of CPC clearly specifies that at the time of filing of the suit, if the plaintiff establishes that there is an urgency to seek the relief, the Court on its satisfaction may dispense with the requirement of notice as required under Section 80 CPC, before filing a suit. Ordinarily a suit is to be filed after a notice of two months is given to the Government.

Answering the first question the court explained that the requirement of filing a suit and satisfaction of the Court- is to the filing of the suit. At that time Court may refuse in its finding that there is no urgency of granting immediate relief, refuse such leave and return the plaint. Once the leave has been granted, another requirement is that in case any interim injunction is sought, the same cannot be granted unless notice is given to the respondent. Issuance of notice would follow only when such leave has been granted to the plaintiff for filing the suit.

"So, refusal to grant relief or to grant relief is to be considered at the stage when suit is sought to be filed without issuance of notice as required under Section 80 of CPC. The plaint would be returned in case, at that stage, the Court finds that there is no urgency in the suit or in passing an urgent relief. In case the interim stay sought is not granted after the leave has been granted to the plaintiff that does not mean that the plaint is to be returned on refusing to grant such injunction."

In order to buttress the said position of law the bench placed strong reliance on a supreme court judgement in Raghunath Dass v. Unionof India and another, AIR 1969 SC 674 wherein SC observed .

"The object of the notice contemplated by Section 80, CPC is to give to the concerned Government and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigation. The purpose of law is advancement of justice. The provisions in Section 80 are not intended to be used as booby trap against ignorant and illiterate persons."

While dealing with the second question the bench observed, that the plain reading of Section 80 (3) of CPC along with proviso attached to the said subsection reveals that a plaint can be returned if leave is refused. Grant of leave or refusal of leave would arise at the time of filing of the suit and the consideration of application for grant of temporary injunction would arise after leave is granted and notice in such application is given to the State or Government functionaries. The proviso to subsection (3) does not include in it the cases whereafter the leave is granted and, injunction refused the suit is to be returned back, the bench explained.

Therefore, question as contained in substantial question of law (ii) is also replied that as per the proviso attached to subsection (3), the question of returning of the plaint would arise when, at the time of the filing of suit, Court finds that no urgent relief could be granted, but not later on, the bench concluded.

Case Title: Raisa Banoo vs Mst. Shameema & Ors.

Citation: 2022 LiveLaw (JKL) 78

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