Prakash Industries Limited and anr. Vs. Smt. Maitri Shukla and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - provided thai the court shall, if it is satisfied. where the court is satisfied that urgent on immediate relief is required and the plaintiff would not be in a position to wail for the period of notice to expire, leave may be granted to a plaintiff to file suit against the state without service of notice contemplated under section 80(1). even in such cases where leave is granted, the court is enjoined not to grant relief in the suit, whether interim orotherwise, without giving the state reasonable opportunity of showing cause in respect of the relief sought for in the suit. as indicated in the proviso, if upon hearing the parties, the court is satisfied that no urgent or immediate relief need be granted, the court is to return the plaint for presentation after complying with the requirement regarding service of notice contemplated under section 80(1). it is thus clear that section 80(2) has been introduced with a view to entertain suits where urgent or immediate relief is required to be given. since the suit at bhubaneswar was filed earlier, it would be better if the suit filed as bonai (t.orderp.k. misra, j.1. t. s. no. 12 of 1997 was filed for specific performance of contract or in the alternative for refund of consideration. in the said suit. state was impleaded by the petitioners in the court of civil judge (senior division), bonai. as defendant no. 3. the suit was admittedly filed without service of any notice contemplated under section 80(1),c.p.c. along with the plaint, the petitioners filed a separate application seeking leave under section 80(2). c.p.c. to file the suit without service of statutory notice on the state government. the said application having been rejected by the trial court, the present revision has been filed.2. the main contention of the petitioners is that the trial court has not considered the question in the light of provisions contained in section 80(2), c.p.c. section 80(2). c.p.c. reads as follows :--'80. notice--(1)...(2) a suit to obtain an urgent of immediate relief against the government (including the government of the state of jammu and kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the court, without serving any notice as required by sub-section (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit;provided thai the court shall, if it is satisfied. after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).'section 80(2), c.p.c. has been introduced in the amended code of civil procedure with a view to mitigate the rigours of sub-section (1) of section 80 and to enable a person to seek urgent and immediate relief. it is in the nature of an exception to section 80(1) and enables the plaintiff to file a suit to obtain an urgent and immediate relief without serving any notice as required by sub-section (1) subject to the condition that such a suit has to be filed with leave of the court. the most important condition envisaged under section 80(2) is relating to urgency in the matter. where the court is satisfied that urgent on immediate relief is required and the plaintiff would not be in a position to wail for the period of notice to expire, leave may be granted to a plaintiff to file suit against the state without service of notice contemplated under section 80(1). even in such cases where leave is granted, the court is enjoined not to grant relief in the suit, whether interim orotherwise, without giving the state reasonable opportunity of showing cause in respect of the relief sought for in the suit. as indicated in the proviso, if upon hearing the parties, the court is satisfied that no urgent or immediate relief need be granted, the court is to return the plaint for presentation after complying with the requirement regarding service of notice contemplated under section 80(1). it is thus clear that section 80(2) has been introduced with a view to entertain suits where urgent or immediate relief is required to be given.3. in the present case, the trial court has rejected the application solely on the ground that notice under section 80(1) was necessary to be given. the trial court has nowehre considered the scope and ambit of section 80(2). since the impugned order has been passed without specifically considering the effect of section 80(2), it must be held that the court has exercised its jurisdiction with material irregularity and as such the matter is required to be reconsidered by the trial court. accordingly, i quash the impugned order and direct that the trial court should reconsider the question of grant of leave to the light of provisions contained in section 80(2), c.p.c. 4. in course of hearing of this revision, it transpired that the petitioners had also filed o.s. no. 44 of 1997 which is now pending before the civil judge (junior di vision), bhubaneswar. the said suit which was filed earlier is somewhat inter-related to the present suit. though state is not a party in the said suit, the other parties are common. in such view of the matter, it is desirable that both the suits should be tried analogously by the same court. since the suit at bhubaneswar was filed earlier, it would be better if the suit filed as bonai (t.s. no. 12/97) is transferred to bhubaneswar. however, as the civil judge (junior division), bhubaneswar, would have no pecuniary jurisdiction to try the bonai suit all the parties have fairly suggested that both the suits may be transferred to the civil judge (senior division), bhubaneswar. accordingly, on the basis of submissions made at the bar and for convenience of parties, while disposing of the civil revision, i exercise suo motu power under section 24, c.p.c. and direct that t. s. no. 12 of 1997 in the file of the civil judge (senior division), bonai, shall stand transferred to civil judge (senior division), bhubaneswar. similarly, o.s. no. 44 of 1997 pending before the civil judge (junior division), bhunaneswar, shall stand transferred to the civil judge (senior division), bhubaneswar. this order of transfer in respect of o.s. no. 44 of 1997 pending before the civil judge (junior division), bhubaneswar shall take effect only after disposal of misc. case no. 75 of 1997 under order 39,rulesi and 2, codeof civil procedure, which is now reserved for orders before the said civil judge (junior division).5. in the result, the civil revision is allowed subject to the directions made above. there will be no order as to costs. needless to point out thai with the disposal of the civil revision, all interim orders passed during the pendency of the civil revision stand dissolved. copies of this order be communicated to all the three courts concerned.

Judgment:
ORDER

P.K. Misra, J.

1. T. S. No. 12 of 1997 was filed for specific performance of contract or in the alternative for refund of consideration. In the said suit. State was impleaded by the petitioners in the Court of Civil Judge (Senior Division), Bonai. as defendant No. 3. The suit was admittedly filed without service of any notice contemplated under Section 80(1),C.P.C. Along with the plaint, the petitioners filed a separate application seeking leave under Section 80(2). C.P.C. to file the suit without service of statutory notice on the State Government. The said application having been rejected by the trial Court, the present revision has been filed.

2. The main contention of the petitioners is that the trial Court has not considered the question in the light of provisions contained in Section 80(2), C.P.C. Section 80(2). C.P.C. reads as follows :--

'80. Notice--

(1)...

(2) A suit to obtain an urgent of immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by Sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit;

Provided thai the Court shall, if it is satisfied. after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of Sub-section (1).'

Section 80(2), C.P.C. has been introduced in the amended Code of Civil Procedure with a view to mitigate the rigours of Sub-section (1) of Section 80 and to enable a person to seek urgent and immediate relief. It is in the nature of an exception to Section 80(1) and enables the plaintiff to file a suit to obtain an urgent and immediate relief without serving any notice as required by Sub-section (1) subject to the condition that such a suit has to be filed with leave of the Court. The most important condition envisaged under Section 80(2) is relating to urgency in the matter. Where the Court is satisfied that urgent on immediate relief is required and the plaintiff would not be in a position to wail for the period of notice to expire, leave may be granted to a plaintiff to file suit against the State without service of notice contemplated under Section 80(1). Even in such cases where leave is granted, the Court is enjoined not to grant relief in the suit, whether interim orotherwise, without giving the State reasonable opportunity of showing cause in respect of the relief sought for in the suit. As indicated in the proviso, if upon hearing the parties, the Court is satisfied that no urgent or immediate relief need be granted, the Court is to return the plaint for presentation after complying with the requirement regarding service of notice contemplated under Section 80(1). It is thus clear that Section 80(2) has been introduced with a view to entertain suits where urgent or immediate relief is required to be given.

3. In the present case, the trial Court has rejected the application solely on the ground that notice under Section 80(1) was necessary to be given. The trial Court has nowehre considered the scope and ambit of Section 80(2). Since the impugned order has been passed without specifically considering the effect of Section 80(2), it must be held that the Court has exercised its jurisdiction with material irregularity and as such the matter is required to be reconsidered by the trial Court. Accordingly, I quash the impugned order and direct that the trial Court should reconsider the question of grant of leave to the light of provisions contained in Section 80(2), C.P.C.

4. In course of hearing of this revision, it transpired that the petitioners had also filed O.S. No. 44 of 1997 which is now pending before the Civil Judge (Junior Di vision), Bhubaneswar. The said suit which was filed earlier is somewhat inter-related to the present suit. Though State is not a party in the said suit, the other parties are common. In such view of the matter, it is desirable that both the suits should be tried analogously by the same Court. Since the suit at Bhubaneswar was filed earlier, it would be better if the suit filed as Bonai (T.S. No. 12/97) is transferred to Bhubaneswar. However, as the Civil Judge (Junior Division), Bhubaneswar, would have no pecuniary jurisdiction to try the Bonai suit all the parties have fairly suggested that both the suits may be transferred to the Civil Judge (Senior Division), Bhubaneswar. Accordingly, on the basis of submissions made at the Bar and for convenience of parties, while disposing of the civil revision, I exercise suo motu power under Section 24, C.P.C. and direct that T. S. No. 12 of 1997 in the file of the Civil Judge (Senior Division), Bonai, shall stand transferred to Civil Judge (Senior Division), Bhubaneswar. Similarly, O.S. No. 44 of 1997 pending before the Civil Judge (Junior Division), Bhunaneswar, shall stand transferred to the Civil Judge (Senior Division), Bhubaneswar. This order of transfer in respect of O.S. No. 44 of 1997 pending before the Civil Judge (Junior Division), Bhubaneswar shall take effect only after disposal of Misc. Case No. 75 of 1997 under Order 39,RulesI and 2, Codeof Civil Procedure, which is now reserved for orders before the said Civil Judge (Junior Division).

5. In the result, the Civil Revision is allowed subject to the directions made above. There will be no order as to costs. Needless to point out thai with the disposal of the Civil Revision, all interim orders passed during the pendency of the Civil Revision stand dissolved. Copies of this order be communicated to all the three Courts concerned.