LexGOVT. OF KERALA & ORS. versus SUDHIR KUMAR SHARMA & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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. [2013] 10 S.C.R. o2
GOVT. OF KERALA & ORS.
v.
SUDHIR KUMAR SHARMA & ORS.
(Civil Appeal No. 7364 of 2013)
SEPTEMBER 02, 2013
[ANIL R. DAVE AND DIPAK MISRA, JJ.]
Code of Civil Procedure, 1908 - s. 80(2) and Or. VII r. 11
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Suit against Government - With application uls. 80(2)
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seeking leave of the court to file the suit without notice uls.
80(1)- Defendant's application u/Or. VII r.11 seeking rejection
of plaint - Rejection of application u/Or. VII r. 11 without
disposing of the application uls. 80(2) - Whether correct -
Held: Rejection of application u/Or. VII r. 11 without deciding
o the application u/s. 80(2) was not correct - Till a final order is
passed granting application uls. 80(2), the irregularity in filing
the suit continues - By mere filing of application it cannot be
presumed that the application, is granted.
Respondent No.1 flied a suit against appellant-State
E with application u/s. 80(2) CPC, seeking leave of the court
to file the suit without serving notice u/s. 80(1) CPC. The
appellant-State filed applications u/Or. VII, r.11 CPC
praying for rejection of the plaint. Trial court dismissed
the applications filed by the State. In Revision, High Court
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confirmed the order of trial court, holding that it can be
presumed that the application u/s. 80(2) was granted
since the trial court entertained the application u/Or. VII,
r.11, while the application u/s. 80(2) was pending. Hence
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the present appeal.
Allowing the appeal, the Court
HELD: 1. The trial court had wrongly rejected the
applications filed by the appellants under Order VII Rule
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GOVT. OF KERALA & ORS. v. SUDHIR KUMAR
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SHARMA & ORS.
11 CPC. The trial court ought to have heard and decided A
the application filed u/s. 80{2) CPC before hearing the
application under Order VII Rule 11 CPC. [Para 27] [71-G]
2. A suit filed without compliance of Section 80(1)
cannot be regularized simply by filing an application u/s. 8
80(2) CPC. Upon filing an application u/s. 80(2) CPC, the
Court is supposed to consider the facts and look at the
circumstances in which the leave was sought for filing
the suit without issuance of notice u/s. 80(1) to the
concerned Government authorities. According to the C
provisions of Section 80(2) CPC, the court has to be
satisfied after hearing the parties that there was some
gra.ve urgency which required some urgent relief and
therefore, the plaintiff was constrained to file a suit without
issuance of notice u/s. 80(1) CPC. Till arguments are
ad•1anced on behalf of the plaintiff with regard to urgency D
in lthe matter and till the trial court is satisfied with regard
to the urgency or requirement of immediate relief in the
suit, the court normally would not grant an application u/
s. 80(2) CPC. For the purpose of determining whether
such an application should be granted, the court is E
supposed to give hearing to both the sides and consider
the! nature of the suit and urgency of the matter before
takoing a final decision. By mere filing of an application,
by no stretch of imagination it can be presumed that the
application is granted. If such a presumption is accepted,
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it would mean that the court has not to take any action
in 1,0ursuance of such an application and if the court has
not: to take any action, then there is no need to file such
application. [Paras 24 and 26] [70-E-H; 71-D-F]
3. Till a final order is passed granting the application
u/s. 80(2), the irregularity in thin~ of.the suit continues and
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it 1;annot be known whether the suit filed without
iss.uance of notice u/s. 80(1) CPC was justifiable. If
ultfmately the application is rejected, the plaint is to be H
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SUPREME COURT REPORTS
[2013] 10 S.C.R.
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returned and in that event the application filed on behalf
of the appellants under Order VII Rule 11 CPC is to be
granted. If the application filed u/s. 80(2) is ultimately
granted, the objection with regard to non-issuance of
notice u/s. 80(1) CPC cannot be raised and in that event
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the suit would not fail on account of non-issuance of
notice u/s. 80(1) CPC. (Paras 25 and 26] [71-A-D]
State of A.P. and Ors. vs. Pioneer Builders (2006) 12
SCC 119: 2006 (6) Suppl. SCR 571; Mis. Bajaj Hindustan
Sugar and Industries Limited vs. Balrampur Chini Mills Ltd.
C and Ors. 2007 (9) SCC 43: 2007 (4) SCR 132; lrappa
Basappa Kudachi vs. State of Kamataka 1996 (2) KLJ 591
- referred to.
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Case Law Reference:
2006 (6) SupplExcerpt shown. Read the full judgment & AI analysis in Lexace.