IMPORTANT POINT
Suit filed without statutory notice u/s 80(1) cannot be regularized by merely filing an application u/s 80(2). Court has to pass an order thereon.

JUDGMENT

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.

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. 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 28th 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 20th January, 2005 and the said order has been challenged by the appellants in this appeal.

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