Point of Law: Suit for declaration - Return of plaint - Remedy of appeal under Order XLIII Rule 1 of Code it is applicable where the plaint is returned under the provisions of Order VII Rule 10 of Code - Provision is not applicable where plaint is returned under the Proviso to Section 80(2) of the Code.

JUDGMENT :

NAVIN CHAWLA, J.

CM No.12220/2021 (Exemption)

Allowed, subject to all just exceptions.

CM(M) 273/2021 & CM No.12221/2021 (Stay)

1. This petition has been filed by the petitioners challenging the order dated 08.03.2021 passed by the learned Civil Judge-06 (Central), in Suit No. 637 of 2021, titled Chander Kanta & Ors. v. Govt. of NCT of Delhi, filed by the petitioners.

2. The Suit has been filed by the petitioners praying for the following relief:

“(A) Pass a decree of declaration in favour of the Plaintiffs and against the Defendants thereby declaring the Vacation Notice dated 18.01.2020 and 26.02.2021 as null and void being illegal and non-sustainable; AND

(B) Pass a decree of Permanent Injunction in favour of the Plaintiffs and against the Defendants thereby restraining the defendants and their successors, assigns, representatives etc. from dispossessing the Plaintiffs from their respective kiosks in question as mentioned in para no.2 above without following the due process of law and further without providing them an alternate site.”

3. Alongwith the Suit, the petitioners had filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’), praying for the following relief:

“(i) Pass an ad-interim injunction thereby restraining the defendants from dispossessing the plaintiffs from their kiosks and/or causing any interference in the smooth running/functioning of the said kiosks (including the restrain order from disconnecting the electricity/water connection) by the applicants/plaintiffs while staying the operation of vacation notice dated 26.02.2021 and 18.02.2020 till the pendency of the suit.”

4. The learned Trial Court, however, was pleased to return the plaint to the petitioners, observing that there is no urgency or requirement for an immediate relief justifying dispensation of notice under Section 80(1) of the Code to the respondents.

5. Feeling aggrieved of the said order, the petitioners had earlier filed an Appeal under Order XLIII Rule 1 of the Code, however, as the same was not maintainable, withdrew the same vide order dated 18.03.2021.

6. The learned counsel for the respondents, who appears on advance notice, submits that as the Impugned Order returns the plaint in terms of the proviso to Section 80(2) of the Code, the remedy of the petitioners would be in form of an Appeal under Order XLIII Rule 1 of the Code. He further submits that the petitioners have also not moved any application before the learned Trial Court under Section 80(2) of the Code seeking exemption from sending a prior notice under Section 80(1) of the Code to the respondents. He further submits that the cause of action pleaded by the petitioners dates back to 12.07.2018 and therefore, in any case, this was not a fit case for granting exemption to the petitioners from complying with the provisions of Section 80(1) of the Code.

7. I have considered the submissions made by the learned counsels for the parties. In the present case, as noted hereinabove, the learned Trial Court has pleased to return the plaint under the Proviso to Section 80(2) of the Code.

8. Sub-Sections (1) and (2) to Section 80 of the Code are relevant for the present petition and are reproduced hereinbelow:

“80. Notice. – (1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of—

(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;

(bb) in the case of a suit against the Government of the State o