The main legal point established in the judgment is that implied leave could be presumed under S.80(2) and that the substance of the request for leave and its consideration by the court are more important than the form or manner in which leave is sought.

1. The short question for consideration is this second appeal filed by the plaintiff is whether the leave of Court required under S.80 (2) of the Code of Civil Procedure for instituting a suit without notice under sub-section (1) could only be on the basis of an express order on a separate application filed for that purpose. Facts of the case and contentions of the parties are not relevant for deciding the appeal. Both the trial court and the appellate court held that a prayer in the plaint is not sufficient and a separate application for leave and an order granting leave are the prerequisites for the maintainability of the suit. Therefore without even considering whether it is a suit to obtain an urgent or immediate relief and whether insistence on the compliance of subsection (1) will defeat the purpose of the suit, maintainability of the suit was found against for the simple reason that no application was filed for leave. That finding came only when the suit was finally disposed of after evidence. Even though the trial court considered the rival contentions also on the merits, the appellate court dismissed the appeal solely on the ground that the suit is not maintainable since the plaintiff did not file a separate application for leave and the prayer for that purpose in the plaint is inadequate.

2. I have no hesitation in disagreeing with the court below in this respect. Sub-section (2) was introduced by the amendment of 1976 in order to avoid failure of justice by the purpose of the suit itself being defeated by insistence on notice in cases where urgent or immediate relief is required. Want of notice is made good in such cases by providing that no relief, whether interim or otherwise, shall be granted in the suit except after giving the Government, or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. It is not necessary to mention that such relief, whether interim or otherwise, could be granted in the suit only on satisfaction at least prima facie of the maintainability without the notice, even though such satisfaction may be liable to reconsideration later. Such satisfaction for proceeding with the suit or return of the plaint for re-presentation after curing the defect in the absence of satisfaction are necessary to do justice between the parties. Acts of court should never prejudice any party. If the suit is kept pending for long time and finally dismissed for want of notice without considering that question earlier the rights of the plaintiff may be irreparably lost by lapse of time. That is why the proviso says that the court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

3. In this case the defendant-State entered appearance and objected to the maintainability of the suit for want of notice and requested the plaint to be returned for presentation after curing the defects. That objection was not then considered. Without doing so the prayer for injunction was considered on the merits and disallowed. But the C.M.A filed by the plaintiff was allowed by the appellate court and injunction granted. Then the suit was tried and finally disposed of. Then only maintainability was considered and that too only on the hypertechnical ground and not on the merits.

4. I am not going to decide the question whether there is a suit to obtain urgent or immediate relief justifying leave under sub-section (2) because that question was not considered by the courts below. I shall only decide whether a separate application and an express order are the essential requisites and whether implied leave could be presumed. According to me atleast after the defendant entered appearance and objected to the maintainability, the court ought to have had the satisfaction either way after hearing the