Trivandrum Golf Club Vs. State of Kerala - Court Judgment

Excerpt:
- orders.s. satheesachandran, j.1. revision is directed against the order passed by the learned principal sub judge, thiruvananthapuram, returning the plaint of a suit directing compliance of statutory notice under section 80 of the code of civil procedure to the respondents-state and public officials, and its re-presentation two months after issuing such notice.2. substratum of the facts giving rise to the revision is not in dispute, and so much so, particulars which are necessary for considering the challenges raised against the impugned order need alone be adverted to. petitioner is the trivandrum golf club, represented by its secretary, against which proceedings have been initiated by the government for terminating the licence arrangement with the club and to resume the land under its possession. after issuing show cause notice alleging violation of the conditions of the licence and hearing the petitioner club the government have passed an order terminating the licence agreement with direction to the district collector to resume possession of the land under the enjoyment of the club after giving one month's time to vacate from the premises. annexure 4 is the copy of the proceedings passed by the government for terminating the licence to the club with directions as aforesaid. club, the revision petitioner, laid a suit before the principal sub court for declaration and consequential reliefs imputing annexure 4 proceedings. with the suit, an application, i.a. no. 9540 of 2009, was also moved seeking leave under section 80(2) of the code of civil procedure to dispense with the statutory notice contemplated under the above section for instituting a suit against the state and public officials. learned principal sub judge, after hearing the counsel for the petitioner club and also the learned government pleader, declined the request for leave under the impugned order and returned the plaint with direction for its re-presentation after complying with the statutory notice under section 80 of the code of civil procedure.3. i heard the learned senior counsel mr. t. krishnan unni who appeared for the revision petitioner and also the learned additional advocate general mr. ranjith thampan who appeared for the respondents.4. maintainability of the revision against the impugned order was challenged by the learned additional advocate general banking upon the proviso to sub-section (1) of section 115 of the code of civil procedure contending that there was no final disposal of a suit or proceeding under the impugned order, but, only a direction for compliance of the statutory requirement of issuing a notice under section 80 of the code of civil procedure and for re-presentation of the plaint two months after issuing such notice. reliance was placed on shiv shakthi co-operative housing society v. swaraj developers 2003 (2) klt 503 (sc) by the learned additional advocate general to contend that the impact of the proviso to sub-section (1) of section 115 of the code makes it abundantly clear that the bar of entertaining a revision is based on the question whether the order in favour of the party applying for re vision would have given finality to suit or other proceeding.5. to appreciate the objection raised by the learned additional advocate general challenging the maintainability of the revision against the impugned order reference to the above proviso is called for. proviso to sub-section (1) of section 115 of the code reads thus:(provided that the high court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have a finally disposed of the suit or other proceedings.)that proviso has to be read subject to the supervisory revisional jurisdiction conferred on this court to correct the jurisdictional infirmities in the orders of the subordinate courts in respect of any case which has been decided by any subordinate court and in which no appeal lies thereto. the order challenged in the revision to test its maintainability with reference to the proviso cannot be examined with reference to the question of the final disposal of the suit or other proceeding by such order without reference to the question to 'the case decided' under that order and whether any appeal lies therefrom.6. challenge raised in the present revision is refusal of the court to grant leave to institute a suit dispensing with the statutory notice under section 80 of the code of civil procedure which was applied for by the petitioner club. has any case been decided by the court in declining such relief and if so, whether it amounted to final disposal of the suit or other proceeding also require to be examined to appreciate the challenge raised against the maintainability of the revision. to do so, advertence to sub-section (2) of section 80 of the code of civil procedure is most essential. sub-section (2) of section 80 of the code of civil procedure reads thus:(2) a suit to obtain an urgent or 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 that 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).sub-section (1) of section 80 of the code of civil procedure mandates issue of a statutory notice to the government and public authorities whenever a suit is proposed to be instituted against them giving particulars as to the cause of action to institute the suit. a suit can be instituted against the state and public officials only after the expiration of two months from the delivery of such notice in writing except where leave is granted by the court under sub-section (2) of section 80 of the code of civil procedure.7. before the introduction of sub-section (2) of section 80 of the code of civil procedure under act 104 of 1976 enabling a litigant to sue the state and public official dispensing with statutory notice, after obtaining leave of the court on his showing that the suit is one to obtain an emergent relief, section 80 of the code imposed a statutory and unqualified obligation upon the court and in the absence of a notice complying with the mandate under that section the suit was not maintainable. laudable objective behind the section is to give the government sufficient notice of the suit which is proposed to be filed against it so that it can examine the claim and take a decision, if possible, to avoid the litigation. the object of section 80 of the code of civil procedure is the advancement of justice and securing a public good by avoidance of unnecessary litigation. however, the desired objective could not be achieved since hardly any matter was settled by the government or the public officer despite opportunity extended by the issuance of a statutory notice in advance in compliance with section 80 of the code of civil procedure. most often, the notice issued remained unanswered. it was in that backdrop, the law commission in its 14th report, which was reiterated in 27th and 54th reports as well, pointing out that the above section had worked great hardship and in many number of cases where immediate relief by way of injunction against the government or public officer was necessary to advance ends of justice it is defeated in view of the rigours of issuing advance notice and expiry of two months from the delivery of notice, had recommended for deletion of section 80 from the code. recommending deletion of section 80 from the code law commission has observed thus: 'we have been unable to find a parallel provision in any other country in which the anglo saxon system of law prevails. we think that in a democratic country like ours there should, ordinarily, be no distinction of the kind envisaged in section 80 between the citizen and the state' (27th report law commission of india).8. the requirement of a statutory notice before institution of a suit against the state and public officials had been widely condemned, since it made an unjustified discrimination between the citizens and those against the government and public officials. state, in fact, being the most prominent litigant, as the government have ventured in big way in commercial and trading activities, the discrimination shown in favour of the state demanding a statutory notice and expiration of the period of two months to institute a suit to seek relief against the state and public officials invited condemnation and criticism. it was under such circumstances the law commission recommended for dispensing with section 80 statutory notice to the state, but, the joint parliamentary committee of the parliament to which the proposed bill for such deletion was referred to recommended the retention of the section reducing its rigour incorporating sub-section (2) permitting institution of a suit against the state and public officials without notice if it is for obtaining an immediate or urgent relief subject to obtaining of leave of the court before such institution. so much so, what is contemplated under section 80(2) of the code of civil procedure as to the requirement of leave to institute a suit, no doubt, relate to a step before institution of the suit.9. the only question that emerge for consideration before the court when leave is applied for instituting a suit against the state and public officials is whether it is for obtaining an immediate or urgent relief, and nothing more. an order or decision of the court under section 80(2) of the code of civil procedure is confined to the question whether the suit to be instituted is one for obtaining an urgent or immediate relief. when the court allows or declines such leave, in effect, it is a decision as to whether the party applying for instituting the suit has sought such leave for an urgent or immediate relief. when such leave sought under section 80(2) of the code of civil procedure is declined by the court it amounts to entering a decision that the party who has applied for has no case of an urgent or immediate relief to institute the suit dispensing with leave as contemplated under section 80 of the code of civil procedure. is not such an order of the court declining leave amount to 'a case decided' amenable to revisional jurisdiction of the high court under section 115 of the code of civil procedure? in fact on such decision of the court declining leave there is a finality or cessation of a proceeding before the institution of a suit as the refusal of the leave bars its entertainability. direction of the court or reservation provided under such order declining leave to re-present the plaint after complying with statutory notice does not have any bearing on the finality and cessation of the proceedings, since a party who had been declined such relief has a legal right to institute the proposed suit in respect of which leave had been declined, but, after complying with the statutory direction irrespective of any reservation or permission from the court to do so. under section 80(2) of the code of civil procedure the court is expected to and further it can only determine whether leave has to be granted for dispensing notice under section 80 of the code of civil procedure and that has to be examined solely with reference to the question whether the suit is one for seeking an emergent relief. such being the position any reservation made by the court after declining leave that the party who applied for leave can file such a suit after complying with statutory notice is otiose since his right to file such a suit after issuing notice is no way affected by the refusal of the leave.10. the word 'case' is not defined in the code of civil procedure nor in the general clauses act, 1897. in t.a. balakrishna udayar v. vasudeva iyer air 1917 pc 71 it has been held, the word 'case' is not restricted to a litigation in the nature of the suit in a civil court, but, includes the jurisdiction of the civil court which is invoked for the determination of some claim or right legally enforceable. in appreciating the question whether an order of the court declining leave does finally dispose the suit or proceeding amounts to a 'case which has been decided' it has to be taken note that a legalright has been conferred on a party on showing to the court that he requires to obtain an emergent relief in the suit to be instituted against the state and public officials and so much so, permission may be accorded to institute such suit dispensing with the statutory notice under section 80 of the code of civil procedure. as already indicated, only question which emerge for consideration before the court on such an application or request made in the plaint, since such request could be made in the body of the plaint as well and not separately, is whether in the proposed suit the party seeks to obtain an emergent relief. when the court declines such leave it is a decision on a question before the institution of the suit that the party who has applied for leave failed to show that the proposed suit to be instituted is for an emergent relief and that decision is final and it leads to cessation of that proceeding as well. in a case where the court has decided that question erroneously by exercising the jurisdiction not vested in it by law or in failing to exercise the jurisdiction so vested or have acted in exercise of the jurisdiction illegally or with material irregularity, no doubt, such an order is amenable to the revisional jurisdiction of the court. in that view of the matter, i find that the challenge raised by the additional advocate general that the impugned order is not amenable to revisional jurisdiction under section 115 of the code of civil procedure cannot be accepted. order of the court declining leave to institute a suit under section 80(2) of the code of civil procedure is in fact 'a case decided' terminating the proceedings thereof and such order is amenable to revision.11. the solitary question to be considered, as adverted to earlier, when leave is applied for under section 80(2) of the code of civil procedure to institute a suit against the state and public officials is whether the proposed suit is one to obtain an emergent relief capable of dispensing the notice under section 80 of the code of civil procedure. the apex court in state of a.p and ors. v. pioneer builders, a.p. 2007 (1) klt 49 (c. no. 68) sc : (2006) 12 scc 119 has held:the leave applied for has to be considered looking into the urgency of the relief prayed for and not the merits of the case. where the court is satisfied that urgent and immediate relief is required and the party applying for to institute the suit could not be in a position to wait for the period of notice to expire leave has to be granted to file the suit against the state without service of notice under section 80 of the code of civil procedure.even where such leave is applied for the court is under a mandate not to grant any relief interim or otherwise without giving reasonable opportunity to the state to show cause in respect of the relief sought in the suit. further more the proviso to sub-section (2) of section 80 of the code of civil procedure makes it emphatically clear that even in a case where leave is granted if upon hearing the parties the court is satisfied that no urgent or immediate relief need be granted it has to return the plaint for presentation after complying with the requirement as to service of notice under section 80 of the code of civil procedure. so much so, the introduction of section 80(2) of the code of civil procedure, its purport and object, is to entertain suits where urgent and immediate relief is canvassed against the state and public officials dispensing notice under section 80 of the code of civil procedure.12. perusing the impugned order, it is seen, the learned principal sub judge has declined leave applied for by the revision petitioner, after hearing the counsel on both sides, on three grounds. the court below has expressed the view that the apprehension of the plaintiff that the government officials in the light of annexure 4 order would take sudden action to resume the land vacating the club without folio wing the legal procedure cannot be accepted 'for the purpose of treating the suit making out an urgent relief. secondly the revenue secretary has considered all relevant aspects in issuing annexure 4 order and the attempt of the petitioner club is only to cause obstacles to the government, the paramount title holder, in resuming the land. thirdly, the requirement of issuing notice under section 80 of the code of civil procedure to institute a suit against the state is mandatory, and to hold so reference has been made to two decisions of the apex court, and, further the plaint does not contain an emergent or immediate relief to grant leave under section 80(2) of the code of civil procedure. i am afraid the learned principal sub judge has not examined the leave applied for with reference to the question whether the suit is one to obtain an emergent relief, which alone can be gone into and not the merit of the case when leave is applied for under section 80(2) of the code of civil procedure. plaint does not contain any emergent or immediate relief is one of the reasons formed by the learned sub judge in considering the leave applied for. a relief of interim nature has to be canvassed by filing a separate petition and not under the plaint. even in the application for leave, it is seen, (page 10 of the order), petitioner club has averred that it 'is in need of emergent interim relief by way of temporary injunction to restrain the government from implementing the impugned government order dated 26.11.2009.' i am not adverting to the other circumstances taken note of by the learned sub judge which are referred to earlier to decline leave as those circumstances relate to expressions or views on the merit of the case which is not called for when the question of leave under section 80(2) of the code of civil procedure to dispense with statutory notice is applied for. it is not the merit of the case, but, only the question whether the suit is one to obtain an emergent relief. that alone need be looked into in determining the question of leave applied for. at the time of considering an application under section 80(2) of the code of civil procedure for grant of leave the court has to consider whether the requirement of sub-section (2) of section 80 of the code of civil procedure is satisfied. if it is found that the plaintiff is in need of an urgent or immediate relief against the government or any public officials whose act is challenged the court may grant leave to institute the suit without serving any notice as mandated under sub-section (1) of section 80 of the code of civil procedure. at that stage, there is nothing in sub-section (2) of section 80 of the code of civil procedure which enjoin or require the court to consider whether the suit is prima facie maintainable or that the court has jurisdiction to entertain the suit. if the court refuses leave after appreciating merits of the case on questions of jurisdiction, limitation etc. section 80(2) of the code of civil procedure enabling a party to institute a suit on showing that he requires to obtain an emergent relief dispensing with notice under sub-section (1) of section 80 of the code of civil procedure would be rendered nugatory. even where leave is granted proviso to sub-section (2) of section 80 of the code of civil procedure as indicated earlier clearly spells out that not only refusal of the emergent relief, but, even returning of the plaint can be ordered where the court is satisfied after hearing both sides that no emergent relief need be granted in the suit, directing for its presentation after complying with the requirements of notice under sub-section (1) of section 80 of the code of civil procedure.13. in the course of hearing in the revision it has been brought to my notice that the revision petitioner club has filed a writ petition before this court setting forth a case that the licence arrangement with the government which has been revoked under annexure a4 proceedings is irrevocable seeking almost identical reliefs canvassed in the proposed suit to be instituted dispensing with the statutory notice under section 80 of the code of civil procedure. to my query as to how two parallel proceedings, one by way of suit and the other under a writ petition, and more particularly when a challenge against the order declining leave to institute the suit dispensing statutory notice by way of a revision, as both under the writ petition and in the revision judicial review of this court is invited to, could be pursued by the petitioner club, the learned senior counsel for the petitioner sri. t. krishnan unni submitted that though annexure a4 proceedings of the government are under challenge in the writ petition, in view of the revision, that challenge against annexure a4 proceedings canvassed under the writ petition is not pressed and it has been so re-presented before the court considering the writ petition. i do not wish to express any opinion in the present revision as to whether the issues raised and reliefs claimed in the suit which is proposed to be instituted after obtaining leave dispensing with the statutory notice on the ground that the suit is one to obtain an emergent relief and the writ petition presented before this court have substantially the identical questions for consideration without having reference to the materials in the two proceedings which have not been produced. however, it has to be stated that no court can condone pursuing of parallel proceedings in respect of the same matter at the same time whatever be the grievances of a party to vindicate his right as that would be not only unfair but tantamount to a dubious and unethical ingenious device tampering with the administration of justice which can never be appreciated. i hasten to add i am not expressing any definite view that the club has proceeded with the suit and the writ petition in respect of identical matter claiming more or less the same relief, but in the circumstances presented, a lingering suspicion thereof cannot be ruled out. in the present revision, as indicated earlier, since the challenge is against the order of the subordinate court declining leave to institute the suit, i need not examine whether the writ petition has been filed for the very same or more or less identical reliefs raised in the proposed suit. in case, after remission, the court below grant leave to institute the suit after being satisfied that the proposed suit is one for obtaining an emergent relief if materials are placed showing that parallel proceedings are pursued by way of a writ petition also, relating to the reliefs canvassed in the suit, then, no doubt, that circumstance has also to be considered in determining the entitlement of the club for the emergent relief canvassed taking note of the observations he apex court in jai singh v. union of india and ors. : (1977) 1 scc 1 that a party cannot pursue two parallel remedies in respect of the same matter at the same time'.14. the order challenged in the revision is set aside directing the revision petitioner to re-present the plaint before the court within two weeks from the date of receipt of a copy of this order, and if so represented, the learned principal sub judge shall consider the question of leave applied for under section 80(2) of the code of civil procedure to institute the suit taking note of the observations made above and decide it in accordance with law. learned principal sub judge shall pass appropriate orders on the leave applied for by the petitioner club to institute the suit preferably on the same day of the re-presentation of the plaint and if for any reason it is not possible, then, at any rate within three days from the date of such re-presentation.revision is allowed as indicated above. hand over a copy of the order to the counsel on both sides on usual terms and send a copy to the court concerned forthwith.

Judgment:
ORDER

S.S. Satheesachandran, J.

1. Revision is directed against the order passed by the learned Principal Sub Judge, Thiruvananthapuram, returning the plaint of a suit directing compliance of statutory notice under Section 80 of the Code of Civil Procedure to the respondents-State and public officials, and its re-presentation two months after issuing such notice.

2. Substratum of the facts giving rise to the revision is not in dispute, and so much so, particulars which are necessary for considering the challenges raised against the impugned order need alone be adverted to. Petitioner is the Trivandrum Golf Club, represented by its Secretary, against which proceedings have been initiated by the Government for terminating the licence arrangement with the Club and to resume the land under its possession. After issuing show cause notice alleging violation of the conditions of the licence and hearing the petitioner Club the Government have passed an order terminating the licence agreement with direction to the District Collector to resume possession of the land under the enjoyment of the Club after giving one month's time to vacate from the premises. Annexure 4 is the copy of the proceedings passed by the Government for terminating the licence to the Club with directions as aforesaid. Club, the revision petitioner, laid a suit before the Principal Sub Court for declaration and consequential reliefs imputing Annexure 4 proceedings. With the suit, an application, I.A. No. 9540 of 2009, was also moved seeking leave under Section 80(2) of the Code of Civil Procedure to dispense with the statutory notice contemplated under the above Section for instituting a suit against the State and public officials. Learned Principal Sub Judge, after hearing the counsel for the petitioner Club and also the learned Government Pleader, declined the request for leave under the impugned order and returned the plaint with direction for its re-presentation after complying with the statutory notice under Section 80 of the Code of Civil Procedure.

3. I heard the learned Senior Counsel Mr. T. Krishnan Unni who appeared for the revision petitioner and also the learned Additional Advocate General Mr. Ranjith Thampan who appeared for the respondents.

4. Maintainability of the revision against the impugned order was challenged by the learned Additional Advocate General banking upon the proviso to Sub-section (1) of Section 115 of the Code of Civil Procedure contending that there was no final disposal of a suit or proceeding under the impugned order, but, only a direction for compliance of the statutory requirement of issuing a notice under Section 80 of the Code of Civil Procedure and for re-presentation of the plaint two months after issuing such notice. Reliance was placed on Shiv Shakthi Co-operative Housing Society v. Swaraj Developers 2003 (2) KLT 503 (SC) by the learned Additional Advocate General to contend that the impact of the proviso to Sub-section (1) of Section 115 of the Code makes it abundantly clear that the bar of entertaining a revision is based on the question whether the order in favour of the party applying for re vision would have given finality to suit or other proceeding.

5. To appreciate the objection raised by the learned Additional Advocate General challenging the maintainability of the revision against the impugned order reference to the above proviso is called for. Proviso to Sub-section (1) of Section 115 of the Code reads thus:

(Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have a finally disposed of the suit or other proceedings.)

That proviso has to be read subject to the supervisory revisional jurisdiction conferred on this Court to correct the jurisdictional infirmities in the orders of the subordinate courts in respect of any case which has been decided by any subordinate court and in which no appeal lies thereto. The order challenged in the revision to test its maintainability with reference to the proviso cannot be examined with reference to the question of the final disposal of the suit or other proceeding by such order without reference to the question to 'the case decided' under that order and whether any appeal lies therefrom.

6. Challenge raised in the present revision is refusal of the court to grant leave to institute a suit dispensing with the statutory notice under Section 80 of the Code of Civil Procedure which was applied for by the petitioner Club. Has any case been decided by the court in declining such relief and if so, whether it amounted to final disposal of the suit or other proceeding also require to be examined to appreciate the challenge raised against the maintainability of the revision. To do so, advertence to Sub-section (2) of Section 80 of the Code of Civil Procedure is most essential. Sub-section (2) of Section 80 of the Code of Civil Procedure reads thus:

(2) A suit to obtain an urgent or 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 that 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).

Sub-section (1) of Section 80 of the Code of Civil Procedure mandates issue of a statutory notice to the Government and public authorities whenever a suit is proposed to be instituted against them giving particulars as to the cause of action to institute the suit. A suit can be instituted against the State and public officials only after the expiration of two months from the delivery of such notice in writing except where leave is granted by the court under Sub-section (2) of Section 80 of the Code of Civil Procedure.

7. Before the introduction of Sub-section (2) of Section 80 of the Code of Civil Procedure under Act 104 of 1976 enabling a litigant to sue the State and public official dispensing with statutory notice, after obtaining leave of the court on his showing that the suit is one to obtain an emergent relief, Section 80 of the Code imposed a statutory and unqualified obligation upon the court and in the absence of a notice complying with the mandate under that Section the suit was not maintainable. Laudable objective behind the section is to give the Government sufficient notice of the suit which is proposed to be filed against it so that it can examine the claim and take a decision, if possible, to avoid the litigation. The object of Section 80 of the Code of Civil Procedure is the advancement of justice and securing a public good by avoidance of unnecessary litigation. However, the desired objective could not be achieved since hardly any matter was settled by the Government or the public officer despite opportunity extended by the issuance of a statutory notice in advance in compliance with Section 80 of the Code of Civil Procedure. Most often, the notice issued remained unanswered. It was in that backdrop, the Law Commission in its 14th Report, which was reiterated in 27th and 54th Reports as well, pointing out that the above Section had worked great hardship and in many number of cases where immediate relief by way of injunction against the Government or public officer was necessary to advance ends of justice it is defeated in view of the rigours of issuing advance notice and expiry of two months from the delivery of notice, had recommended for deletion of Section 80 from the Code. Recommending deletion of Section 80 from the Code Law Commission has observed thus: 'We have been unable to find a parallel provision in any other country in which the Anglo Saxon system of law prevails. We think that in a democratic country like ours there should, ordinarily, be no distinction of the kind envisaged in Section 80 between the citizen and the State' (27th Report Law Commission of India).

8. The requirement of a statutory notice before institution of a suit against the State and public officials had been widely condemned, since it made an unjustified discrimination between the citizens and those against the Government and public officials. State, in fact, being the most prominent litigant, as the Government have ventured in big way in commercial and trading activities, the discrimination shown in favour of the State demanding a statutory notice and expiration of the period of two months to institute a suit to seek relief against the State and public officials invited condemnation and criticism. It was under such circumstances the Law Commission recommended for dispensing with Section 80 statutory notice to the State, but, the Joint Parliamentary Committee of the Parliament to which the proposed bill for such deletion was referred to recommended the retention of the Section reducing its rigour incorporating Sub-section (2) permitting institution of a suit against the State and public officials without notice if it is for obtaining an immediate or urgent relief subject to obtaining of leave of the court before such institution. So much so, what is contemplated under Section 80(2) of the Code of Civil Procedure as to the requirement of leave to institute a suit, no doubt, relate to a step before institution of the suit.

9. The only question that emerge for consideration before the court when leave is applied for instituting a suit against the State and public officials is whether it is for obtaining an immediate or urgent relief, and nothing more. An order or decision of the court under Section 80(2) of the Code of Civil Procedure is confined to the question whether the suit to be instituted is one for obtaining an urgent or immediate relief. When the court allows or declines such leave, in effect, it is a decision as to whether the party applying for instituting the suit has sought such leave for an urgent or immediate relief. When such leave sought under Section 80(2) of the Code of Civil Procedure is declined by the court it amounts to entering a decision that the party who has applied for has no case of an urgent or immediate relief to institute the suit dispensing with leave as contemplated under Section 80 of the Code of Civil Procedure. Is not such an order of the court declining leave amount to 'a case decided' amenable to revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure? In fact on such decision of the court declining leave there is a finality or cessation of a proceeding before the institution of a suit as the refusal of the leave bars its entertainability. Direction of the court or reservation provided under such order declining leave to re-present the plaint after complying with statutory notice does not have any bearing on the finality and cessation of the proceedings, since a party who had been declined such relief has a legal right to institute the proposed suit in respect of which leave had been declined, but, after complying with the statutory direction irrespective of any reservation or permission from the court to do so. Under Section 80(2) of the Code of Civil Procedure the court is expected to and further it can only determine whether leave has to be granted for dispensing notice under Section 80 of the Code of Civil Procedure and that has to be examined solely with reference to the question whether the suit is one for seeking an emergent relief. Such being the position any reservation made by the court after declining leave that the party who applied for leave can file such a suit after complying with statutory notice is otiose since his right to file such a suit after issuing notice is no way affected by the refusal of the leave.

10. The word 'case' is not defined in the Code of Civil Procedure nor in the General Clauses Act, 1897. In T.A. Balakrishna Udayar v. Vasudeva Iyer AIR 1917 PC 71 it has been held, the word 'case' is not restricted to a litigation in the nature of the suit in a civil court, but, includes the jurisdiction of the civil court which is invoked for the determination of some claim or right legally enforceable. In appreciating the question whether an order of the court declining leave does finally dispose the suit or proceeding amounts to a 'case which has been decided' it has to be taken note that a legalright has been conferred on a party on showing to the court that he requires to obtain an emergent relief in the suit to be instituted against the State and public officials and so much so, permission may be accorded to institute such suit dispensing with the statutory notice under Section 80 of the Code of Civil Procedure. As already indicated, only question which emerge for consideration before the court on such an application or request made in the plaint, since such request could be made in the body of the plaint as well and not separately, is whether in the proposed suit the party seeks to obtain an emergent relief. When the court declines such leave it is a decision on a question before the institution of the suit that the party who has applied for leave failed to show that the proposed suit to be instituted is for an emergent relief and that decision is final and it leads to cessation of that proceeding as well. In a case where the court has decided that question erroneously by exercising the jurisdiction not vested in it by law or in failing to exercise the jurisdiction so vested or have acted in exercise of the jurisdiction illegally or with material irregularity, no doubt, such an order is amenable to the revisional jurisdiction of the court. In that view of the matter, I find that the challenge raised by the Additional Advocate General that the impugned order is not amenable to revisional jurisdiction under Section 115 of the Code of Civil Procedure cannot be accepted. Order of the court declining leave to institute a suit under Section 80(2) of the Code of Civil Procedure is in fact 'a case decided' terminating the proceedings thereof and such order is amenable to revision.

11. The solitary question to be considered, as adverted to earlier, when leave is applied for under Section 80(2) of the Code of Civil Procedure to institute a suit against the State and public officials is whether the proposed suit is one to obtain an emergent relief capable of dispensing the notice under Section 80 of the Code of Civil Procedure. The Apex Court in State of A.P and Ors. v. Pioneer Builders, A.P. 2007 (1) KLT 49 (C. No. 68) SC : (2006) 12 SCC 119 has held:

The leave applied for has to be considered looking into the urgency of the relief prayed for and not the merits of the case. Where the court is satisfied that urgent and immediate relief is required and the party applying for to institute the suit could not be in a position to wait for the period of notice to expire leave has to be granted to file the suit against the State without service of notice under Section 80 of the Code of Civil Procedure.

Even where such leave is applied for the court is under a mandate not to grant any relief interim or otherwise without giving reasonable opportunity to the State to show cause in respect of the relief sought in the suit. Further more the proviso to Sub-section (2) of Section 80 of the Code of Civil Procedure makes it emphatically clear that even in a case where leave is granted if upon hearing the parties the court is satisfied that no urgent or immediate relief need be granted it has to return the plaint for presentation after complying with the requirement as to service of notice under Section 80 of the Code of Civil Procedure. So much so, the introduction of Section 80(2) of the Code of Civil Procedure, its purport and object, is to entertain suits where urgent and immediate relief is canvassed against the State and public officials dispensing notice under Section 80 of the Code of Civil Procedure.

12. Perusing the impugned order, it is seen, the learned Principal Sub Judge has declined leave applied for by the revision petitioner, after hearing the counsel on both sides, on three grounds. The court below has expressed the view that the apprehension of the plaintiff that the Government Officials in the light of Annexure 4 order would take sudden action to resume the land vacating the Club without folio wing the legal procedure cannot be accepted 'for the purpose of treating the suit making out an urgent relief. Secondly the Revenue Secretary has considered all relevant aspects in issuing Annexure 4 order and the attempt of the petitioner Club is only to cause obstacles to the Government, the paramount title holder, In resuming the land. Thirdly, the requirement of issuing notice under Section 80 of the Code of Civil Procedure to institute a suit against the State is mandatory, and to hold so reference has been made to two decisions of the Apex Court, and, further the plaint does not contain an emergent or immediate relief to grant leave under Section 80(2) of the Code of Civil Procedure. I am afraid the learned Principal Sub Judge has not examined the leave applied for with reference to the question whether the suit is one to obtain an emergent relief, which alone can be gone into and not the merit of the case when leave is applied for under Section 80(2) of the Code of Civil Procedure. Plaint does not contain any emergent or immediate relief is one of the reasons formed by the learned Sub Judge in considering the leave applied for. A relief of interim nature has to be canvassed by filing a separate petition and not under the plaint. Even in the application for leave, it is seen, (page 10 of the order), petitioner Club has averred that it 'is in need of emergent interim relief by way of temporary injunction to restrain the Government from implementing the impugned Government order dated 26.11.2009.' I am not adverting to the other circumstances taken note of by the learned Sub Judge which are referred to earlier to decline leave as those circumstances relate to expressions or views on the merit of the case which is not called for when the question of leave under Section 80(2) of the Code of Civil Procedure to dispense with statutory notice is applied for. It is not the merit of the case, but, only the question whether the suit is one to obtain an emergent relief. That alone need be looked into in determining the question of leave applied for. At the time of considering an application under Section 80(2) of the Code of Civil Procedure for grant of leave the court has to consider whether the requirement of Sub-section (2) of Section 80 of the Code of Civil Procedure is satisfied. If it is found that the plaintiff is in need of an urgent or immediate relief against the Government or any public officials whose act is challenged the court may grant leave to institute the suit without serving any notice as mandated under Sub-section (1) of Section 80 of the Code of Civil Procedure. At that stage, there is nothing in Sub-section (2) of Section 80 of the Code of Civil Procedure which enjoin or require the court to consider whether the suit is prima facie maintainable or that the court has jurisdiction to entertain the suit. If the court refuses leave after appreciating merits of the case on questions of jurisdiction, Limitation etc. Section 80(2) of the Code of Civil Procedure enabling a party to institute a suit on showing that he requires to obtain an emergent relief dispensing with notice under Sub-section (1) of Section 80 of the Code of Civil Procedure would be rendered nugatory. Even where leave is granted proviso to Sub-section (2) of Section 80 of the Code of Civil Procedure as indicated earlier clearly spells out that not only refusal of the emergent relief, but, even returning of the plaint can be ordered where the court is satisfied after hearing both sides that no emergent relief need be granted in the suit, directing for its presentation after complying with the requirements of notice under Sub-section (1) of Section 80 of the Code of Civil Procedure.

13. In the course of hearing in the revision it has been brought to my notice that the revision petitioner Club has filed a Writ Petition before this Court setting forth a case that the licence arrangement with the Government which has been revoked under Annexure A4 proceedings is irrevocable seeking almost identical reliefs canvassed in the proposed suit to be instituted dispensing with the statutory notice under Section 80 of the Code of Civil Procedure. To my query as to how two parallel proceedings, one by way of suit and the other under a Writ Petition, and more particularly when a challenge against the order declining leave to institute the suit dispensing statutory notice by way of a revision, as both under the Writ petition and in the revision judicial review of this Court is invited to, could be pursued by the petitioner Club, the learned Senior Counsel for the petitioner Sri. T. Krishnan Unni submitted that though Annexure A4 proceedings of the Government are under challenge in the Writ Petition, in view of the revision, that challenge against Annexure A4 proceedings canvassed under the Writ Petition is not pressed and it has been so re-presented before the court considering the Writ Petition. I do not wish to express any opinion in the present revision as to whether the issues raised and reliefs claimed in the suit which is proposed to be instituted after obtaining leave dispensing with the statutory notice on the ground that the suit is one to obtain an emergent relief and the Writ Petition presented before this Court have substantially the identical questions for consideration without having reference to the materials in the two proceedings which have not been produced. However, it has to be stated that no court can condone pursuing of parallel proceedings in respect of the same matter at the same time whatever be the grievances of a party to vindicate his right as that would be not only unfair but tantamount to a dubious and unethical ingenious device tampering with the administration of justice which can never be appreciated. I hasten to add I am not expressing any definite view that the Club has proceeded with the suit and the Writ Petition in respect of identical matter claiming more or less the same relief, but in the circumstances presented, a lingering suspicion thereof cannot be ruled out. In the present revision, as indicated earlier, since the challenge is against the order of the subordinate court declining leave to institute the suit, I need not examine whether the Writ Petition has been filed for the very same or more or less identical reliefs raised in the proposed suit. In case, after remission, the court below grant leave to institute the suit after being satisfied that the proposed suit is one for obtaining an emergent relief if materials are placed showing that parallel proceedings are pursued by way of a Writ Petition also, relating to the reliefs canvassed in the suit, then, no doubt, that circumstance has also to be considered in determining the entitlement of the Club for the emergent relief canvassed taking note of the observations he Apex Court in Jai Singh v. Union of India and Ors. : (1977) 1 SCC 1 that a party cannot pursue two parallel remedies in respect of the same matter at the same time'.

14. The order challenged in the revision is set aside directing the revision petitioner to re-present the plaint before the court within two weeks from the date of receipt of a copy of this order, and if so represented, the learned Principal Sub Judge shall consider the question of leave applied for under Section 80(2) of the Code of Civil Procedure to institute the suit taking note of the observations made above and decide it in accordance with law. Learned Principal Sub Judge shall pass appropriate orders on the leave applied for by the petitioner Club to institute the suit preferably on the same day of the re-presentation of the plaint and if for any reason it is not possible, then, at any rate within three days from the date of such re-presentation.

Revision is allowed as indicated above. Hand over a copy of the order to the counsel on both sides on usual terms and send a copy to the Court concerned forthwith.