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1993 Supreme(Gau) 84
GAUHATI HIGH COURT
S.N.Phukan, J.
Bhagwan Chandra Lahkar -Appellant
Versus
Union of India & Ors. -Respondent
Civil Revision No. 31 of 1993
Decided On : 01-04-1993
A.H.Saikia, J.N.Sarma, K.K.Bhatra, M.K.Choudhury, S.Sarma
Leave to file a suit under section 80(2) CPC need not be by a formal order and can be implied from the court's actions.
Headnote:
CIVIL PROCEDURE CODE - SECTION 80 - LEAVE TO SUE GOVERNMENT OR PUBLIC OFFICER - REASONABLE OPPORTUNITY TO SHOW CAUSE - STATUS QUO ORDER - MAINTENANCE - LEGALITY - CONSTRUCTION OF BUILDING IN SEISMIC ZONE - SAFETY - TECHNICAL REPORT - APPOINTMENT OF TECHNICAL PERSON - URGENCY OF MATTER - DISPOSAL WITHIN A MONTH.
Fact of the Case:
The plaintiff filed a suit against All India Radio and the Executive Engineer, Civil Construction Wing, All India Radio, alleging that the construction of a building by the defendants on a plot of land adjacent to his house was not up to the mark and posed a danger to human life in case of an earthquake. The trial court granted an interim injunction maintaining the status quo. The lower appellate court set aside the injunction on the grounds that no reasonable opportunity was given to the defendants under section 80(2) of the Code of Civil Procedure (CPC) and that the plaintiff did not make out a prima facie case of irreparable loss.
Finding of the Court:
The High Court held that the trial court had impliedly granted leave to the plaintiff to file the suit under section 80(2) CPC by passing the status quo order. The court also held that the defendants were given a reasonable opportunity to show cause against the injunction, as they were served with a copy of the petition and their counsel appeared before the court. The court further held that the plaintiff had made out a prima facie case of irreparable loss, as the construction of the building was not up to the mark and posed a danger to human life in case of an earthquake.
Issues: 1. Whether the trial court erred in granting leave to the plaintiff to file the suit under section 80(2) CPC without a formal order? 2. Whether the defendants were given a reasonable opportunity to show cause against the injunction? 3. Whether the plaintiff had made out a prima facie case of irreparable loss?
Ratio Decidendi: 1. Leave to file a suit under section 80(2) CPC need not be by a formal order and can be implied from the court's actions. 2. The defendants were given a reasonable opportunity to show cause against the injunction, as they were served with a copy of the petition and their counsel appeared before the court. 3. The plaintiff had made out a prima facie case of irreparable loss, as the construction of the building was not up to the mark and posed a danger to human life in case of an earthquake.
Final Decision: The High Court set aside the order of the lower appellate court and restored the status quo order granted by the trial court. The court directed the parties to appear before the trial court on a specified date for further proceedings and directed the trial court to dispose of the matter within a month.
2. The suit in question was filed by the present petitioner as plaintiff mainly against the All India Radio and the Executive Engineer, Civil Construction Wing, All India Radio, Guwahati. Shortly stated the grievance of the plaintiff is that the All India Radio, Defendant No. 2 has entrusted construction of building to the Executive Engineer, Civil Construction Wing, Defendant No. 3 for construction of staff quarter of the employees of Defendant No. 2 at Guwahati in a plot of land on eastern side of the house of the plaintiff. The building is the R.C.C. building and the first floor has been constructed. Plaintiff apprehends that the construction of the building is not up to the mark considering that Guwahati is in the seismic zone and as such in case of earthquake the building of the defendants may fall down endangering human life of the building now in occupation of the plaintiff and other persons who may visit 11. No notice under section 80 C.P.C. was served. But the petition was filed under sub-section (2) of section 80 C.P.C. A copy of the petition was served on the defendants and thereafter the learned Munsiff, took up the petition under Order 39 Rule 1 & 2 passed the order on 5.12.92. It may be stated that the said petition was registered ad Misc. (J) Case No. 106/92 in a Title Suit. The order runs as follow :
"5.12.92- Perused the petition u/s 39 Rules 1 and 2 read with section 151 CPC praying for ad-interim temporary injunction. Heard the learned Advocates for both the parties. The learned Advocate for Union of India has verbally prayed lime for filing objection. Prayer allowed. In the meantime, slates quo regarding construction of the suit house as on today is to be maintained. Lei a copy of the petition be furnished to the defendant. Fixing 18.12.92 for objection 18.12.92."
3. Against the said order an appeal was filed before the learned lower appellate Court and it was allowed on two grounds namely, that no reasonable opportunity was given under sub-section (2) of section 80 C.P.C. and that the petition of the plaintiff did not make out a prima facie case and irreparable loss. While arriving at this question of prima facie case (he learned lower appellative court noted that between the boundary of the plaintiff and the land of the defendant No. 2, there is a vacant plot of land. it may be sailed that plaintiff also enclosed an opinion of Civil Engineer in this respect as staled in the plaint. Bui it was submitted before the learned lower appellate Court on behalf of the defendant that the Court erred in law in accepting this opinion of a private Civil Engineer.
4. While this mailer come out, this Court requested the learned Standing Counsel of the Guwahati Municipal Corporation, Mr. A.B. Choudhury to appear and assist this court and also to submit necessary report. This order was passed in view of specific made that the house was constructed by the defendants without obtaining prior permission of the Municipal Corporation.
5. First point that needs consideration regarding notice under section 80 C.P.C. Sub-section (2) of Section 80 C.P.C. inter-alia, provides that a suit to obtain an urgent or immediate relief against the Government or any public officer, may be instituted, with the leave of the court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.
6. As stated above, notice was served on the defendants bef
