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2001 Supreme(Cal) 504
High Court Of Calcutta
SUBHRO KAMAL MUKHERJEE
SWAPAN KUMAR GANGULY - Appellant
Versus
SMIRITIKANA GANGULY - Respondent
Appeal From Original Order 191 Of 1996
Decided On : 08/13/2001
ABHIJIT BASU, BIMAN KANTI BASU, MANJUSRI DAS
The court's interpretation of Section 80(2) of the Code of Civil Procedure allows for implied leave to file a suit without notice in urgent cases, based on substantial compliance with the requirements rather than requiring a separate application and express order.
Headnote:
CIVIL PROCEDURE CODE - SECTION 80 - SUIT AGAINST GOVERNMENT - NOTICE REQUIREMENT - URGENT RELIEF - LEAVE OF COURT - REQUIREMENTS OF SUB-SECTION (2) - INTERPRETATION - LEAVE IMPLIED FROM COURT'S ACTIONS - SUBSTANTIAL COMPLIANCE WITH REQUIREMENTS - DISMISSAL OF SUIT FOR NON-COMPLIANCE - PROTECTION OF ILLITERATE AND PARDANASHIN LADIES - REMAND OF SUIT TO ALLOW PRODUCTION OF EVIDENCE ON MARRIAGE CLAIMS AND CUSTOMARY PRACTICES.
Fact of the Case:
Plaintiff, claiming to be the legally married wife of Trebeni Rabidas, a railway employee, filed a suit against the railway administration and his sister-in-law (defendant) for a declaration of her right as wife and permanent injunction restraining payment of dues to the defendant. The defendant claimed to be the legally married wife of Trebeni Rabidas and entitled to receive the dues. The trial court decreed in favor of the plaintiff, but the lower appellate court remanded the case for further evidence on the marriage claims and custom pleaded by the defendant.
Finding of the Court:
The court held that the suit was maintainable despite being filed before the expiration of the two-month notice period under Section 80 of the Code of Civil Procedure, as the plaintiff had obtained leave of the court under sub-section (2) of Section 80 to file the suit without notice due to the urgency of the matter. The court interpreted sub-section (2) to allow for implied leave from the court's actions and substantial compliance with the requirements, rather than requiring a separate application and express order.
Issues: 1. Whether the suit was maintainable despite being filed before the expiration of the two-month notice period under Section 80 of the Code of Civil Procedure. 2. Whether the plaintiff was the legally married wife of Trebeni Rabidas and entitled to receive the dues from the railway administration. 3. Whether the defendant's claim that she was the legally married wife of Trebeni Rabidas and could legally marry him after the death of her first husband (Trebeni's elder brother) was legally acceptable.
Ratio Decidendi: 1. Section 80 of the Code of Civil Procedure requires a two-month notice before filing a suit against the government or a public officer, but sub-section (2) allows for urgent relief without notice with the court's leave. 2. The court interpreted sub-section (2) to allow for implied leave from the court's actions and substantial compliance with the requirements, rather than requiring a separate application and express order. 3. The court emphasized the special protection given to illiterate and pardanashin ladies in India due to their imperfect knowledge of the world and limited social interaction.
Final Decision: The court dismissed the appeal and directed the trial court to afford opportunities to both parties to produce evidence on their respective claims of marriage with Trebeni Rabidas and the alleged custom pleaded by the defendant. The trial court was directed to dispose of the suit within six months from the communication of the order.
( 1 ) THIS is an appeal by the defendant No. 1 against an order of remand passed by the lower appellate Court whereby the suit was sent back to the trial Court.
( 2 ) TITLE Suit No. 138 of 1984 was instituted by the plaintiff/respondent No. 1 for declaration and permanent injunction alleging that she was the legally married wife of Trebeni Rabidas, who was a railway employee. The marriage was solemnised on 7/06/1969 and after their marriage the plaintiff and her husband used to reside at 52, Bellilious Road, Howrah. The appellant/defendant No. 1 was the sister-in-law (elder brother's wife) of the said Trebeni Rabidas. The husband of the defendant No. 1 died long back and she used to reside at the house of the plaintiff at Howrah. Trebeni Rabidas was a habitual drunker and as such within few days of marriage he was seriously attacked with Tuberculosis. The plaintiff was, also, attacked with Tuberculosis and had to shift to her father's place for treatment. In the said circumstances, the defendant No. 1 took charge of cooking for Trebeni. On 7/10/1983 Trebeni Rabidas was admitted in railway hospital, Liluah and the plaintiff during the said illness of her husband used to look after him, but on 14/11/1983 the defendant No. 1, without giving any information to the plaintiff, took Trebeni Rabidas at their native village at Gorakhpur. On 5/12/1983 the said Trebeni Rabidas died leaving this plaintiff as his only heir. The plaintiff claimed that she being the only heir and legal representative of her husband, she was entitled to receive the entire dues from the Railway Administration on account of her husband. In the meantime, however, the defendant No. 1 made a false representation to the Railway Administration and claimed the dues of Trebeni Rabidas as the alleged wife of the said Trebeni Rabidas. The defendant No. 2 was eager to disburse the payments in favour of the defendant No. 1.
( 3 ) THE defendant No. 1 filed a written statement and contested the suit by contending that Ramnath Rabidas, the elder brother of Trebeni Rabidas, was her first husband and he died in 1965 leaving the defendant No. 1 and three children. After the death of her first husband, she remarried Trebeni Rabidas in the year 1966 and gave birth to three children of Trebeni Rabidas. Railway Administration has accepted her claim as the wife of Trebeni Rabidas and disbursed a sum of Rupees 2,755/- (Rupees two thousand seven hundred fifty five) in her favour.
( 4 ) THE defendant No. 2, Union of India, filed a written statement and contended that Trebeni Rabidas submitted nomination paper during his lifetime admitting the defendant No. 1 as his wife and as, on the death of Trebeni Rabidas, the defendant No. 1 submitted identity certificate as the widow, the Railway Administration paid entire Provident Fund money to the defendant No. 1 on the basis of the nomination paper. Main-tainability of the suit was challenged for non-compliance of the requirements of S. 80 of the Code of Civil Procedure.
( 5 ) BY judgment and decree dated 13/11/1992 the learned Munsif decreed the suit and it was declared that the plaintiff was the legally married wife and only legal heir and successor of Trebeni Rabidas and as such was entitled to receive all the dues from the Railway Administration. It was, further, declared that the defendant No. 1 has no right, title and interest in respect of dues of Trebeni Rabidas and she was perpetually restrained by a decree of permanent injunction from laying any claim in respect of any amount from the Railway Administration and the Railway Administration was perpetually restrained by a decree of permanent injunction from making payment of the dues to the defendant No. 1 or any other person other than the plaintiff.
( 6 ) THE defendant No. 1 preferred Title Appeal No. 1 of 1993 in the Court of the learned District Judge, Howrah, which was eventually transferred to the Court of the learned Assistant District Judge, Thir
