Whether in a suit instituted by a party, aggrieved by an order passed by the Commissioner under section 61 of the Act, as provided under section 62 of the Act, a notice under section 80 of the Code of Civil Procedure is necessary?

2. Petitioner is the plaintiff in O.S.273/06 on the file of Sub Court, Kozhikode. The suit was filed against the order passed by the Commissioner under section 62(1) of Madras Hindu Religious and Charitable Endowments Act, (hereinafter referred to as the Act). There are twenty defendants in the suit. Defendants 1 to 14 are ‘A’ party and defendants 15 to 17 ‘B to B4 parties in O.A.4/05 which was originally disposed by the Deputy Commissioner and its appeal by the Commissioner. Defendant No.18 is the Commissioner and defendant No.19 the Deputy Commissioner of H.R. & C.E. Defendant No.20 is the Executive Officer of the temple. As per order dated 29.6.06 passed by defendant No.18 under section 61 of the Act, in the appeal filed by petitioner against the order passed by defendant No.19 under section 57 of the Act, petitioner Trust was restrained from functioning in the temple premises or taking public collection in the name of Azhakodi Devi temple. After the dismissal of the appeal by defendant No.18 petitioner instituted the suit as provided under section 62 of the Act. Along with the parties to the proceedings in the appeal petitioner impleaded the Commissioner who passed the order in the appeal, and the Deputy Commissioner who passed the original order challenged in the appeal. In addition the Executive Officer of the temple was also impleaded. In the suit, petitioner sought a decree to set aside the order passed by defendant No.19 as well as the order passed by defendant No.18, as against the petitioner trust and also a decree for permanent prohibitory injunction restraining any action being taken pursuant to the said orders. Along with the suit, petitioner filed I.A.3903/06 an application under sub section (2) of Section 80 of Code of Civil Procedure for leave of the court to institute the suit as against defendants 18 and 19 without serving a notice as provided under sub section (1) of Section 80 contending that as urgent relief is to be sought in the suit there is no time to send a notice as provided under sub section (1) of Section before instituting the suit. Under Ext.P3 order, learned Sub Judge dismissed the application and returned the plaint for compliance with the provisions of Section 80. Instead of sending a notice as provided under sub section (1) and representing the plaint, this petition is filed under Article 227 of Constitution of India challenging Ext.P3 order passed by the learned Sub Judge. Petitioner contended that as the suit was filed as provided under section 62 of the Act, it is not necessary to send a notice under section 80 of the Code of Civil Procedure and therefore the order to return the plaint for compliance with the provisions of Section 80 is illegal and is to be set aside.

3. Learned counsel appearing for petitioner and respondents and the Government pleader were heard.

4. The argument of learned counsel appearing for petitioner was that petitioner has a statutory remedy of instituting a suit as provided under Section 62 of the Act, after dismissal of the appeal as provided under sub section 61 of the Act and in such a suit, no notice under section 80 is necessary. It was argued that a notice under section 80 is to be sent, so that the Public Officer or the State could consider the claim raised by the petitioner and correct the omission or mistake if any and when defendants 18 and 19 in exercise of their statutory function disposed of the proceedings and appeal, no purpose will be served by sending a notice as provided under section 80 as they are incompetent to correct the order passed by them in the proceedings or in the appeal and therefore there is no necessity to issue a notice as provided under section 80 at all. It was argued that eventhough petition