Heard Sri Samarth Saxena, learned counsel for the revisionist and the learned Standing Counsel for the State-respondents. Sri Vivek Raj Singh, learned Senior Counsel assisted by Sri Shantanu Sharma and Ms. Anantika Singh for respondent no. 4.
The instant Civil Revision has been preferred under Section 115 C.P.C. against the order dated 15.07.2020 passed in Misc. Case No. 133 of 2020 by Civil Judge, Senior Division, Lakhimpur Kheri whereby the leave to institute the Suit as prayed by the revisionist under Section 80 (2) of the C.P.C. was refused.
Briefly, the facts giving rise to the above civil revision are being noticed first:-
The revisionist as plaintiff before the Court of Civil Judge, Senior Division, Lakhimpur Kheri had filed an application under Section 80 (2) C.P.C. along with the copy of the proposed plaint seeking leave of the Court to institute the suit without serving the notice on the State-respondents as provided under Section 80 (1) C.P.C.
The averments as disclosed in the plaint are that the revisionist has been a lessee of the disputed land in question. The aforesaid land, the details of which were mentioned in paragraph 1 of the proposed plaint, copy of which has been brought on record as Annexure No. 6 with the memo of revision, the same vested with Sri Rajagopal Mandir Trust situate in District Lakhimpur Kheri along with many other properties. Since there was a dispute in respect of the properties belonging to the aforesaid trust, hence, in Regular Civil Appeal No. 64 of 2016 pending before this High Court at Lucknow, as an interim measure the Court had appointed the Chief Secretary, Department of Religious Affairs, State of U.P. as the Receiver. In furtherance thereof the SDM, Lakhimpur Kheri was appointed to look after the properties and was also entitled to receive the rent in respect of the properties which were leased out to various persons. In the aforesaid backdrop, 25.44 acres of the land belonging to the Trust was leased out to the revisionist for which he was paying Rs. 14,000/- per acre as lease rent. The aforesaid lease was on yearly basis commencing from the 1st of July till 30th of June of each year.
It was stated that the State-respondents had attempted to dispossess the revisionist some time in the year 2017 and a notice was sent by the revisionist in reply whereof the SDM had admitted the revisionist to be a lessee and also accepted the rent from him.
The cause of action for the instant suit was mentioned in Paragraph 9 of the proposed plaint wherein it was stated that the defendant no. 1 of the suit namely SDM, Lakhimpur Kheri on 02.07.2017 stated that now the plaintiff/revisionist would be given only 12.5 acres of land and the other part would be measured and separated which shall be leased out to some other person. The aforesaid act was not within the domain of the S.D.M. and since he was attempting to dispossess the plaintiff in the aforesaid circumstances, the suit for permanent injunction was sought to be filed.
The application under Section 80 (2) C.P.C. along with the proposed plaint was filed on 04.07.2020 in the Court of Civil Judge, Senior Division, Lakhimpur Kheri registered as Misc. Case No. 133 of 2020. Upon the said application, notice was issued to the State authorities who filed their objections on 14.07.2020, a copy of which has been brought on record as Annexure No. 8.
Referring to the said objections, the learned counsel for the revisionist submits that in paragraph 5 it was pleaded that the plaintiff had not impleaded the District Magistrate nor the Chief Secretary, Religious Affairs, State of U.P. as a party. For the aforesaid non-joinder of parties, the application under Section 80 (2) was liable to be rejected. However, in paragraph 6 of their objection the State-respondents stated that the lease period of the plaintiff was uptil June, 2020 which had expired. The possession from the plaintiff has been taken and has been given to some other persons on twice the lease rent which was being paid by the plaintiff and since the plaintiff has not mentioned the aforesaid facts rather has concealed the same, consequently, no leave as provided under Section 80 (2) C.P.C. could be granted.
It is submitted by the learned counsel for the revisionist that in the aforesaid backdrop the Trial Court has committed a jurisdictional error in rejecting the application of the revisionist on the ground that since the property in question belonged to the Trust and that the High Court in First Appeal No. 64 of 2016 had appointed the Chief Secretary, Department of Religious Affairs, State of U.P. as a caretaker/receiver and as the SDM was exercising delegated powers, hence, without impleading the appropriate party and for the reason that the plaint did not disclose that any leave was granted by the High Court to institute the suit, hence, there did not appear to be any urgency in the matter, consequently, the application has been rejected.
It is further stated that the only issue before the Court was regarding the urgency which was specifically pointed out that the plaintiff was in possession and his possession was being disturbed by the State-respondents which required to be protected and this urgency was sufficient for the Court to have dispensed with the requirement of Notice under Section 80 (1) C.P.C. and this aspect of the matter not having been considered rather the Court below has been swayed by irrelevant consideration and has committed a jurisdictional error.
The learned Standing Counsel appearing for the State-respondents submits that the Trial Court was justified in rejecting the application under Section 80 (2) C.P.C. as the plaint was not appropriately framed and it suffered from the vice of non-joinder of necessary parties. Since as already indicated in the objections that the possession had been taken from the plaintiff, accordingly, there was no urgency in the matter and the Trial Court has not committed any error rather it has exercised its jurisdiction appropriately and the revision for the aforesaid reason deserves to be dismissed.
Sri V.R. Singh, learned Senior Counsel assisted by Sri Shantanu Sharma has urged that the revisionist has not approached the Court with clean hands, inasmuch as, by means of the order dated 31.08.2020, this Court had directed the aforesaid revision to be connected with First Appeal No. 64 of 2016.
Be that as it may, nothing further transpired, however, the revisionist made an application bearing C.M.A. No. 52619 of 2020 seeking interim relief, the copy of the said application was not served on the State-respondents and upon the averments made by the revisionist that he had deposited the rent in question till 30.06.2020 and the SDM is deliberately not accepting the rent only to artificially create the default and moreover the crop of the revisionist was standing over the land in question and in the aforesaid circumstances, the revisionist sought the protection that his crop may be protected from destruction.
It is in this view of the matter that on 06.10.2020 as an interim measure, this Court provided that in case the revisionist deposited rent up to date including all arrears within a period of 10 days from today then the respondents shall not interfere and shall not destroy the standing crop on the property in question.
It is submitted by the learned Senior Counsel that taking the benefit of the order though the petitioner had been dispossessed yet on the strength of the said order, he again trespassed over the land which had been leased out w.e.f. 01.07.2020 to the private respondent no. 4 and who had also sown his crop. In this fashion, the revisionist has misused the order and has also stated incorrect facts. The private respondent has also made an application under Section 340 Cr.P.C. and has impressed upon the Court that once the lease of the revisionist had expired and the private respondent had been granted lease on 01.07.2020, these facts were concealed by the revisionist when he moved an application under Section 80 (2) C.P.C. along with the proposed plaint. Even though the said facts were brought to the notice of the Trial Court by the State-respondents while filing objections and in the aforesaid circumstances, the Court had rightly rejected the application. It is further submitted that on account of order dated 06.10.2020 passed by this Court, the private respondents has suffered losses and his crops/produce worth Rs. 4.5 lakhs have been taken away by the revisionist in such circumstances, appropriate orders be passed against the revisionist.
In rejoinder, the learned counsel for the revisionist has denied the submissions of both the State counsel as well as the learned Senior Counsel for the private respondent. It is submitted that though the arguments of the learned Senior Counsel raises contentious issues which are not the subject matter of the instant revision as the scope is only to adjudge the validity of the order dated 15.07.2019 by which the leave to institute the suit by exempting Section 80 (1) C.P.C. was refused. Nevertheless, it is submitted by the learned counsel for the revisionist that even while filing the objections on 14.07.2020, the State did not disclose to whom the alleged lease was given nor it indicated that what was the lease rent. The only avement in paragraph 6 of the objection was that the lease has been granted to some other person on twice the lease rent as paid by the revisionist. He has pointed out that the record would indicate that the lease rent paid by the private respondents is Rs. 19,000/- per acre whereas the revisionist was paying Rs. 14,000/- per acre, hence the statement made by the State in their objections that the lease rent was twice the lease rent paid by the revisionist is apparently false and was stated only to create prejudice as the State-authorities are in connivance with the private respondent no. 4.
It is also submitted that the revisionist had 25.44 acres of land under his lease, if at all the lease was given to the private respondent no. 4, it was first incumbent on the State-authorities to have demarcated the actual extent since the record indicates that only 13 acres of land has been given on paper to the private respondent no. 4. Thus, without demarcating the actual 13 acres which was sought to be given to the private respondent no. 4, it was not open for the State-authorities to forcibly dispossess or take any action against the standing crop of the revisionist. Hence the revision deserves to be allowed.
The Court has considered the rival submissions as well as meticulously perused the record.
Despite various allegations and counter allegations made by the parties, this Court finds that the only issue to be considered is whether the Civil Judge, Senior Division, Lakhimpur Kheri was justified in refusing the leave to institute the suit as provided under Section 80 (2) C.P.C.
Before embarking upon the aforesaid inquiry in this revision, it is apposite to notice the law laid down by the Apex Court in respect of the aforesaid issue in the case of State of A.P. And Others Vs. Pioneer Builders A.P. reported in 2006 (12) SCC 119 wherein the Apex Court considered the legislative background of Section 80 C.P.C. and its scope and has held in paras 14, 16, 17, 18 as under:-.
14. From a bare reading of sub-section (1) of Section 80, it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer, as the case may be. It is well settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The section imposes a statutory and unqualified obligation upon the court and in the absence of compliance with Section 80, the suit is not maintainable. (See Bhagchand Dagadusa v. Secy. of State for India in Council [(1926-27) 54 IA 338 : AIR 1927 PC 176] ; Sawai Singhai Nirmal Chand v. Union of India [(1966) 1 SCR 986 : AIR 1966 SC 1068] and Bihari Chowdhary v. State of Bihar [(1984) 2 SCC 627] .) The service of notice under Section 80 is, thus, a condition precedent for the institution of a suit against the Government or a public officer. The legislative intent of the section is to give the Government sufficient notice of the suit, which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. As observed in Bihari Chowdhary [(1984) 2 SCC 627] the object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.
16. Thus, in conformity therewith, by the Code of Civil Procedure (Amendment) Act, 1976 the existing Section 80 was renumbered as Section 80(1) and sub-sections (2) and (3) were inserted with effect from 1-2-1977. Sub-section (2) carved out an exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months' notice has been served on such Government or public officer. The provision mitigates the rigours of sub-section (1) and empowers the court to allow a person to institute a suit without serving any notice under sub-section (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer. But, the court cannot grant relief under the sub-section unless a reasonable opportunity is given to the Government or public officer to show cause in respect of the relief prayed for. The proviso to the said sub-section enjoins that in case the court is of the opinion that no urgent and immediate relief should be granted, it shall return the plaint for presentation to it after complying with the requirements of sub-section (1). Sub-section (3), though not relevant for the present case, seeks to bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1).
17. Thus, from a conjoint reading of sub-sections (1) and (2) of Section 80, the legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the court. Leave of the court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how the leave is to be sought for or given, yet the order granting leave must indicate the ground(s) pleaded and application of mind thereon. A restriction on the exercise of power by the court has been imposed, namely, the court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of relief prayed for in the suit.
18. Having regard to the legislative intent noticed above, it needs little emphasis that the power conferred on the court under sub-section (2) is to avoid genuine hardship and is, therefore, coupled with a duty to grant leave to institute a suit without complying with the requirements of sub-section (1) thereof, bearing in mind only the urgency of the relief prayed for and not the merits of the case. More so, when want of notice under sub-section (1) is also made good by providing that even in urgent matters relief under this provision shall not be granted without giving a reasonable opportunity to the Government or a public officer to show cause in respect of the relief prayed for. The provision also mandates that if the court is of the opinion that no urgent or immediate relief deserves to be granted it should return the plaint for presentation after complying with the requirements contemplated in sub-section (1).
Again in the case of State of Kerala and Others Vs. Sudhir Kumar Sharma and Others reported in 2013 (10) SCC 178, the Apex Court referred to the earlier cases and in paras 19 and 21 has held as under:-
19. It is an admitted fact that no order had been passed on the application filed under Section 80(2) CPC whereby leave of the court had been sought for filing the suit without complying with the provisions of Section 80(1) CPC. In our opinion, a suit filed without compliance with Section 80(1) cannot be regularised simply by filing an application under Section 80(2) CPC. Upon filing an application under Section 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 under Section 80(1) to the government authorities concerned. For the purpose of determining whether such an application should be granted, the court is supposed to give hearing to both the sides and consider the nature of the suit and urgency of the matter before taking a final decision. By mere filing of an application, by no stretch of imagination can it be presumed that the application is granted. If such a presumption is accepted, it would mean that the court has not to take any action in pursuance of such an application and if the court has not to take any action, then we failed to understand as to why such an application should be filed.
21. We reiterate that till the application filed under Section 80(2) CPC is finally heard and decided, it cannot be known whether the suit filed without issuance of notice under Section 80(1) CPC was justifiable. According to the provisions of Section 80(2) CPC, the court has to be satisfied after hearing the parties that there was some grave urgency which required some urgent relief and therefore, the plaintiff was constrained to file a suit without issuance of notice under Section 80(1) CPC. Till arguments are advanced on behalf of the plaintiff with regard to urgency in the 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 under Section 80(2) CPC. We, therefore, come to the conclusion that mere filing of an application under Section 80(2) CPC would not mean that the said application was granted by the trial court.
In light of the aforesaid decisions which has succinctly noticed the scope of Section 80 (1) and (2) C.P.C. it would reveal that the purpose of enacting Sub Section 2 of Section 80 is to mitigate the hardship which may be caused to a party who would be required to comply with Sub Section 1 of Section 80 C.P.C. even in the face of urgency and to ensure that a meritorious case regarding urgent relief is not non-suited.
The only consideration before the Court concerned is to ascertain whether in the given facts and circumstances, there is urgency for a party to seek relief against State and its claim may not be frustrated for compliance of Section 80 (1) C.P.C. and this would entitle the Court to exercise its jurisdiction to exempt the issuance of notice under Section 80 (1) and grant the leave to the party to institute the suit.
Applying the principles as laid down by the Apex Court and testing the order passed by the Trial Court, it would indicate that the reasons given in the order are that the plaintiff had not impleaded the Chief Secretary, Religious Affairs, State of U.P. as the property belonged to the Trust and in First Appeal No. 64 of 2016, the High Court appointed the Chief Secretary as the Receiver. Without impleading the Chief Secretary, the SDM was not a competent authority, moreover, the Trial Court has also noticed that there was nothing to indicate that the revisionist had sought any leave from the High Court and in view of the aforesaid, the Trial Court has recorded that there is no urgency.
This Court upon considering the material on record as well as the reasons contained in the impugned order finds that the approach of the Trial Court was completely erroneous. The issue regarding mis-joinder or non-joinder of the parties is something which has to be considered on the merit of the matter. At the stage of considering the the application under Section 80 (2) C.P.C., the only focus of the Court should be on the aspect of urgency. It must be remembered that at this stage, the plaint is not before the Court to enable it to enter into merits.
Apparently, where the revisionist was apprehending dispossession at the behest of the State-respondents and had pleaded that he had been a lessee in possession and especially when the State-respondent in their objections dated 14.07.2020 could not indicate or express how the State-authorities had taken possession nor was it the case of the State as set up in their objections that the revisionist was never a lessee or in its possession. If a person who is or who has been in lawful possession of a property and is under a threat of being dispossessed definitely has a right to institute a suit and threat of dispossession is undoubtedly a circumstance which enables a person to seek an urgent relief from the Court.
It is one thing to say that there is no urgency and it is another thing to say that in a given fact situation the plaint may not be properly framed and the person may not be entitled to any interim relief.
There is another way to view it. Even when a plaint is before the Court and there is any defect regarding mis-joinder or non-joinder of parties, this ipso facto does not render the plaint as non-maintainable nor can it be rejected forthwith. Thus in the present case, where the question of urgency is to be considered by the trial court but it misdirected itself towards merits of the matter which at that point of time was not even before the Court as the plaint in its sense was not yet registered/admitted by the Court.
At the stage of consideration of an application under Section 80 (2) C.P.C., the role of the Court is only confined to examine that whether the facts pleaded give rise to a cause of action upon which the plaintiff is entitled to seek an urgent remedy which otherwise would frustrate the claim or cause of the plaintiff if the suit is not entertained for want of compliance of Section 80 (1) C.P.C.
In the totality of the facts and circumstances, this Court is of the definite view that the impugned order cannot be sustained and the leave ought to have been granted. The refusal of the leave by the trial court was not proper and the Trial Court has failed to exercise jurisdiction vested in it in law.
Before parting another aspect of the matter needs attention. This Courts finds that while filing the aforesaid revision the first order passed by the Court is dated 31.08.2020 wherein the revision was directed to be connected with First Appeal No. 64 of 2016. Thereafter upon the C.M.A. No. 52619 of 2020 an interim order was passed by this Court is 06.10.2020 which reads as under:-
"(C.M. Application No.52619 of 2020-Application for interim relief) Learned counsel for the revisionists/petitioners states that his Revision is pending and in terms of the order passed in the earlier Revision passed by this Court, the petitioners are continuing in possession till date. They have deposited rent of the property in dispute till 30.06.2020 thereafter the Sub Divisional Magistrate is not taking rent only to make out the revisionists as defaulter. The SDM has sent his officials to get the land vacated. The petitioners' crop is standing on the land in question and his Revision is pending before this Court, his crop may be protected from destruction by the Authorities.
Let counter affidavit be filed to the Revision as well as to the application for interim relief filed today by the office of the learned Chief Standing Counsel within three weeks. The petitioners shall file rejoinder affidavit within one week thereafter.
It is provided as an interim measures, in case the petitioners deposit rent upto date including all arrears within a period of ten days from today then the respondent shall not interfere and shall not destroy the crop standing on the property in dispute.
List this matter on 09.11.2020."
From the perusal of the aforesaid order dated 06.10.2020, it would indicate that this is the first time when the respondent was required to file their counter affidavit. Prior to 06.10.2020, no notice was issued to the State-respondents nor a copy of the revision was served on them and practically they were not even aware of the aforesaid revision. It is only thereafter in the month of November,2020 that the private respondents made an application for impleadment and filed an application for vacation of the order dated 06.10.2020.
In the aforesaid backdrop what is evident is the fact that on 06.10.2020 an interim order was passed without notice to the State-respondents. It is a legal maxim that what cannot be done directly cannot be done indirectly either. Where Section 80 (2) C.P.C. provides that even though if the leave is granted yet no interim relief will be granted without hearing the State-respondents and in the instant case, the leave had been refused. The plaintiff preferred the instant revision and the interim order dated 06.10.2020 was passed without notice to the State-respondents. It is also to be noticed that prior to the grant of leave, the suit itself is not before the Court hence in absence of suit, there was no occasion to pass any order much less an interim order.
Thus, this Court is of the view that the interim order dated 06.10.2020 could not have been passed without first grant of leave to institute the suit and then only after hearing the State-respondents, hence, this Court has no hesitation in recalling the order dated 06.10.2020. However, the parties shall be free to raise all their claims and counter claims if any before the Competent Court.
In view of the above, revision deserves to be allowed. The order dated 15.07.2020 passed by the Civil Judge, Senior Division, Lakhimpur Kheri is set aside. However, , there shall be no order as to costs.
In the facts and circumstances, This Court hereby grants leave to the revisionist to institute the suit without complying with the provisions of Section 80 (1) C.P.C. The revisionist shall be at liberty to file the plaint within three weeks from today and if it is so filed, the same shall be considered by the Court on its own merits.
It is made clear that this Court has not adjudicated the rights of either of the parties and any observations made in this order is limited only for the purposes of considering the scope of Section 80 (1) and (2) C.P.C. and it may not be taken as any expression of opinion on merits of the case of either of the parties.
[Jaspreet Singh, J.] Order Date: 08.02.2021 Asheesh