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 REPORTABLE           

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7364  OF  2013  (Arising out of SLP (C) No. 10956 of 2005)

Govt. of Kerala & Ors. .....Appellants

        Versus

Sudhir Kumar Sharma & Ors.         …..Respondents

J U D G M E N T

ANIL R. DAVE, J.

1. Leave granted.

2. Being aggrieved by the judgment delivered in Civil Revision Petition  

No. 5189 of 2001 dated 20th January, 2005 by the High Court of Karnataka,  

this appeal has been filed by the Government of Kerala & other officials.

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3. The facts  giving rise  to  the present  litigation,  in  a  nutshell,  are  as  

under:

Respondent No. 1 has filed a civil suit, being OS No. 11286 of 1998  

in the Court of the Additional City Civil Judge at Mayo Hall in Bangalore.  

According to respondent no.1, he had been wrongfully detained by the State  

Authorities and therefore, in the said suit he has prayed that he should be  

awarded Rs.55,00,000/- as damages with interest thereon at the rate of 18%.  

As the suit has been filed against the State, he was supposed to give a notice  

under Section 80 of the Civil Procedure Code, 1908 ( hereinafter referred to  

as ‘the CPC’) but he had not given the statutory notice under Section 80 of  

the CPC in accordance with law.  In fact, the notice was issued by him on  

24th  October, 1998 whereas the suit had been filed on 28th October, 1998.  

At the time of filing the suit,  he had not even received acknowledgment  

from the authority to whom he had issued the notice.   He had not even  

affixed requisite court fee stamp to the plaint when the plaint was filed in the  

Court.  Respondent No. 1 being conscious of the defects in the suit filed by  

him, had also filed two interlocutory applications along with the plaint on  

the date on which the plaint had been filed.  An I.A. No. I was filed under  

the provisions of Section 80(2) of the CPC seeking leave of the court to file  

the suit without serving a notice under Section 80(1) of the CPC and an I.A.  

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No. II was filed under Section 151 of the CPC praying for extension of time  

for payment of the court fee.

4. On 29th October, 1998, the I.A. No. II had been granted by the court,  

whereby respondent no. 1 was granted time up to 28th November, 1998 for  

paying the court fee stamp and the same was paid by him on 28 th November,  

1998  and  therefore,  summons  had  been issued  on  28th November,  1998.  

Thereafter, hearing had been adjourned from time to time.

5. In the said suit, I.A. Nos. III & IV were filed on behalf of the present  

appellants under Order VII Rule 11 of the CPC praying for rejection of the  

plaint.

6. The said applications filed by the appellants had been heard by the  

Trial Court and ultimately, by an order dated 3rd September, 2001, the said  

applications praying for rejection of the plaint had been rejected.

7. Being aggrieved by the Order dated 3rd September, 2001, whereby the  

applications  praying  for  rejection  of  the  plaint  had  been  rejected,  the  

appellants had filed Civil Revision Petition No. 5189 of 2001, which was  

also rejected by the High Court by an order dated 20 th January, 2005 and the  

said order has been challenged by the appellants in this appeal.   

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8. The  Trial  Court  had  rejected  the  I.A.  Nos.  III  &  IV  praying  for  

rejection of the plaint for the reason that it did not find any justifiable reason  

for rejecting the plaint.   

9. So far as the High Court is concerned, it came to the conclusion that  

the Trial Court was right in rejecting the applications praying for rejection of  

the plaint as there was no justifiable reason for rejecting the plaint.  The  

High Court also came to the conclusion that I.A. No. I filed by respondent  

No. 1 seeking leave of  the Court  to permit the filing of  the suit  without  

serving notice under Section 80(1) of the CPC had been presumed to have  

been  granted and therefore, there was no reason for rejecting the plaint.  The  

High Court also found that the deficit court fee stamp had also been paid  

within the extended period granted by the Trial Court.  Thus, there was no  

justifiable objection to the plaint and therefore, according to the High Court  

the decision of the Trial Court was just and proper.

10. The High Court noted that I.A. No. I was pending before the Trial  

Court and yet applications praying for rejection of the plaint had been heard  

by the Trial Court.  The High Court, therefore, presumed that I.A. No. I,  

filed  under  Section  80(2)  of  the  CPC,  was  granted  and  therefore,  the  

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objection with regard to non-compliance of Section 80(1) of the CPC was  

not justifiable.

11. In the aforestated circumstances, what is to be examined by this court  

is  whether  there  can  be  any  presumption  with  regard  to  grant  of  the  

application  filed  under  Section  80(2)  of  the  CPC,  even  if  no  order  was  

passed on the said application and whether the Trial Court was justified in  

dismissing the applications of the appellants filed for rejection of the plaint  

though  the  application  filed  by  respondent  No.1-  plaintiff  under  Section  

80(2) of the CPC was not finally decided.

12. The learned counsel appearing for the appellants had submitted that as  

no order had been passed on the application filed under Section 80(2) of the  

CPC, it had not been finally disposed of and therefore, the High court was in  

error in presuming that the said application had been granted.   

13. It had been also submitted that without deciding the application filed  

by respondent No.1 under Section 80(2) of the CPC, the Trial Court as well  

as the High Court could not have come to the conclusion that the plaint was  

not liable to be rejected under Order VII Rule 11 of the CPC.  It had been  

further submitted that without deciding the application filed by respondent  

No.1, the Trial Court should not have even heard the applications filed by  

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the appellants for rejection of the plaint under Order VII Rule 11 of the CPC.  

It had been thus submitted that the High Court as well as the Trial Court had  

committed a grave error by coming to the conclusion that the plaint could  

not have been rejected under the provisions of Order VII Rule 11 of the  

CPC.  

14. So as to substantiate the aforestated submissions made by the learned  

counsel  appearing  for  the  appellants,  he  had  relied  upon  the  judgment  

delivered by this Court in the case of  State of A.P. & Ors. vs.  Pioneer  

Builders [(2006)  12  SCC  119].   He  had  drawn  our  attention  to  the  

observations  made  by  this  court  on  the  requirement  of  giving  statutory  

notice to the Government and the object of giving notice under Section 80(1)  

of  the  CPC.   He had  drawn our  attention  specifically  to  para  14 of  the  

aforestated judgment, which reads as under:

“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 un-amended Section 80  

admitted  of  no  implications  and  exceptions  whatsoever  and  are  

express, explicit and mandatory. The Section imposes a statutory and  

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unqualified  obligation  upon  the  Court  and  in  the  absence  of  

compliance  with  Section  80,  the  suit  is  not  maintainable.  (See:  

Bhagchand Dagdusa Gujrathi & Ors. Vs. Secretary of State for India ;  

Sawai  Singhai  Nirmal  Chand  Vs.  The  Union  of  India  and  Bihari  

Chowdhary & Anr. Vs. State of Bihar & Ors. ). 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 (supra), the object  

of the Section is the advancement of justice and the securing of public  

good by avoidance of unnecessary litigation.”

15. Thereafter,  the  learned  counsel  had  relied  upon  the  judgment  

delivered in the case of M/s. Bajaj Hindustan Sugar & Industries Limited  

vs. Balrampur Chini Mills Ltd. & Ors. [2007 (9) SCC 43] which also lays  

down law to the effect that a suit may be filed against the Government or a  

public officer  without serving notice as  required by Section 80(1) of  the  

CPC only with the leave of the court.

16. He had further submitted that as the suit was defective on account of  

non- compliance of Section 80(1) of the CPC and as leave had not been  

granted by the Trial Court to respondent no. 1 plaintiff under Section 80(2)  

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of the CPC, the plaint ought to have been rejected by the Trial Court and  

alternatively  he  had  submitted  that  hearing  of  applications  praying  for  

rejection of the plaint filed under the provisions of Order VII Rule 11 of the  

CPC should have  been postponed till  the application  filed under  Section  

80(2) of respondent No. 1 was finally decided.   

17. On the other hand the learned counsel appearing for respondent No.1-  

original plaintiff had made an effort to justify the reasons given by the Trial  

Court as well as by the High Court for rejecting the applications filed under  

Order VII Rule 11 of the CPC.   

18. It had been submitted by the learned counsel appearing for respondent  

No. 1 that the High Court was right in presuming that the application filed  

under  Section 80(2)  of  the CPC had been entertained and granted.   The  

learned  counsel  had  relied  upon  the  judgment  delivered  in  the  case  of  

Irappa Basappa Kudachi vs.  State  of  Karnataka [1996 (2)  Karnataka  

Law Journal 591] wherein it has been held on the facts of the case that even  

if no order is passed on an application filed under Section 80(2) of the CPC,  

it can be presumed that the said application is granted.

19. Relying upon the aforestated judgment of the Karnataka High Court,  

it  had  been  submitted  by  the  learned  counsel  for  Respondent  No.1  that  

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though no order was passed on the application made under Section 80(2) of  

the CPC, it was rightly presumed that the Trial Court had granted the said  

application  and  therefore,  there  could  not  have  been  any  objection  with  

regard to filing of the suit in violation of the provisions of Section 80(1) of  

the CPC.

20. It had been also submitted that had the application filed under Section  

80(2) been rejected by the Trial Court, the plaint would have been returned  

to  respondent  No.1-plaintiff  but  as  the  plaint  had not  been returned,  the  

presumption would be that  the application under  Section 80(2) had been  

granted.

21. For  the  aforestated  reasons,  the  learned  counsel  appearing  for  the  

respondents had submitted that the appeal should be dismissed by this court.

22. We have heard the learned counsel at length and have also perused the  

judgments cited by them.

23. Looking to the facts of the case and the provisions of law, we do not  

agree with the view expressed by the Trial Court as well as by the High  

Court.

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24. It is an admitted fact that no order had been passed on the application  

filed under Section 80(2) of the CPC whereby leave of the court had been  

sought for filing the suit without complying with the provisions of Section  

80(1) of the CPC.  In our opinion, a suit filed without compliance of Section  

80(1) cannot be regularized simply by filing an application under Section  

80(2) of the CPC.  Upon filing an application under Section 80(2) of the  

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  concerned  Government  

authorities.   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 it  

can 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.   

25. It is an admitted fact that no order had been passed on the application  

filed under Section 80(2) of the CPC.  Till a final order is passed granting  

the  said  application,  in  our  opinion,  the  irregularity  in  filing  of  the  suit  

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continues.   If  ultimately  the  application  is  rejected,  the  plaint  is  to  be  

returned and in that event the application filed on behalf of the appellants  

under Order VII Rule 11 is to be granted.  If the application filed under  

Section 80(2) is ultimately granted, the objection with regard to non issuance  

of notice under Section 80(1) of the CPC cannot be raised and in that event  

the suit would not fail on account of non-issuance of notice under Section  

80(1) of the CPC.

26. We reiterate that till the application filed under Section 80(2) of the  

CPC is finally heard and decided, it cannot be known whether the suit filed  

without issuance of notice under Section 80(1) of the CPC was justifiable.  

According to the provisions of Section 80(2) of the 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) of the 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) of the CPC.  We, therefore, come to  

the conclusion that mere filing of an application under Section 80(2) of the  

CPC would not mean that the said application was granted by the trial court.

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27. In  the  aforestated  circumstances,  we  hold  that  the  trial  court  had  

wrongly rejected the applications filed by the appellants under Order VII  

Rule 11 of the CPC.  The trial court ought to have heard and decided the  

application  filed  under  Section  80(2)  of  the  CPC  before  hearing  the  

applications under Order VII Rule 11 of the CPC.  

28. As  a  result  of  the  above  discussion,  the  appeal  is  allowed.  The  

impugned judgment delivered by the High Court confirming the order of the  

Trial Court dated 30th September, 2001 is quashed and set aside.  The order  

of the Trial Court rejecting applications under Order VII Rule 11 is also  

quashed and set  aside.   It  is  directed that  the trial  court  shall  first  of  all  

decide the application filed by respondent no. 1 under Section 80(2) of the  

CPC and only after final disposal of the said application, the applications  

filed by the appellants under Order VII Rule 11 of the CPC shall be decided.

29. The appeal is allowed with no order as to costs.                      

             ………………................................J.  (ANIL R. DAVE)

….……...........................................J.   (DIPAK MISRA)

New Delhi September 02, 2013

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