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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
The State of Tamil Nadu, Rep. by the Collector of the Nilgiris, Udhagamandalam – Appellant
Versus
Janaki – Respondents
Second Appeal No. 1249 of 2009 & M.P. No. 1 of 2009
Decided on : 08-09-2020
Section 80 of the Code of Civil Procedure (C.P.C.) requires a mandatory notice to be served on the government or a public officer before instituting a suit against them, unless urgent and immediate relief is sought with the leave of the court. The court analyzed the provisions of Section 80 C.P.C. and the relevant case law, including the judgment of the Supreme Court in State of Andhra Pradesh v. Pioneer Builders. The court concluded that Section 80 C.P.C. notice is mandatory for suits against the government, but an exception exists when urgent and immediate relief is sought with the leave of the court. The court found that the plaintiff had obtained leave from the trial court to dispense with the notice period, and the defendant had not challenged this order. Therefore, the court held that the suit was validly instituted and dismissed the second appeal.
Fact of the Case:
The plaintiff, a landlady, filed a suit against the defendant, a government institution, for recovery of rental arrears. The defendant contested the suit on the grounds of non-joinder of necessary party and non-compliance with the statutory notice requirement under Section 80 of the Code of Civil Procedure (C.P.C). The trial court and the first appellate court both ruled in favor of the plaintiff, allowing the suit and directing the defendant to pay the outstanding amount with interest. In the second appeal, the defendant argued that the suit should be dismissed due to non-compliance with Section 80 C.P.C. The court held that Section 80 C.P.C. notice is mandatory unless urgent and immediate relief is sought, and in this case, the plaintiff had obtained leave from the court to dispense with the notice period. The court dismissed the second appeal, upholding the concurrent finding of the lower courts.
Finding of the Court:
The court analyzed the provisions of Section 80 C.P.C. and the relevant case law, including the judgment of the Supreme Court in State of Andhra Pradesh v. Pioneer Builders. The court concluded that Section 80 C.P.C. notice is mandatory for suits against the government, but an exception exists when urgent and immediate relief is sought with the leave of the court. The court found that the plaintiff had obtained leave from the trial court to dispense with the notice period, and the defendant had not challenged this order. Therefore, the court held that the suit was validly instituted and dismissed the second appeal.
Ratio Decidendi: Section 80 C.P.C. notice is mandatory for suits against the government, but an exception exists when urgent and immediate relief is sought with the leave of the court. The grant of leave must precede the institution of the suit without serving notice. The defendant cannot take advantage of any defect or error in the notice if they have participated in the proceedings without challenging the order dispensing with the notice period.
Result: The second appeal is dismissed with costs.
JUDGMENT :
(Prayer: This Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 29.04.2009 made in A.S.No.22 of 2008 on the file of the District Judge and Appellate Authority of the Nilgiris at Udhagamandalam, confirming the judgment and decree dated 23.11.2007 made in O.S.No.264 of 2001 on the file of the Subordinate Court, Nilgiris, Ootacamund.)
1. The defendant is the appellant in this Second Appeal. This Second Appeal is filed against the concurrent finding of the Courts below. The suit is for recovery of money arose due to the rental arrears. The plaintiff is the Land lady of the suit property, which was let out to the Deputy Commercial Tax Office, Government of Tamil Nadu, for rent of Rs.495/- per month.
2. The plaintiff initiated rent control proceedings against the defendant for fixation of fair rent. In R.C.O.P.No.35 of 1986 on the file of the Kothagiri District Munsif Court. It was allowed exparte on 03.04.1986. Against the said exparte order, the defendant filed an Interlocutory Application to set aside the exparte order. That application was dismissed by the Rent Control Tribunal. Against which, the defendant preferred a Civil Revision Petition before the High Court. This Court remanded the matter back with a direction to the Rent Controller Kothagiri to consider matter afresh and fix the fair rent on merits. On remand, R.C.O.P.No.35 of 1986 was renumbered as R.C.O.P.No.12 of 1996 and the fair rent was fixed at Rs.2,500/- per month vide order dated 08.07.1998. For the differential rent, the suit has been filed by the plaintiff.
3. In the plaint, it has been specifically stated that since the plaintiff is running out of time, they are not in a position to wait for 60 days, the statutory period prescribed under Section 80 C.P.C. The defendant contested the suit on the ground that the Collector of Nilgiris is only the nominal head of the State in the District and has no responsibility for the default of the Commercial Tax Department. Therefore, the suit is bad for non joinder of necessary party and no cause of action against the defendant. Further, it was also contended that the plaintiff before laying the suit, has not issued pre-suit notice or statutory notice as contemplated under Section 80 C.P.C.
4. The trial Court framed five issues and on considering the material evidence placed by the parties, allowed the suit thereby directing the defendant to pay a sum of Rs.1,60,000/- with 12% interest per annum from 01.12.1992 till 23.11.2007 (date of decree) and 6% per annum thereafter.
5. Aggrieved by the judgment and decree of the trial Court, the defendant preferred the appeal to the District Judge, Nilgiris at Udhagamandalam, in A.S.No.22 of 2008. The First Appellate Court on re-appreciating the evidence had dismissed the appeal confirming the judgment and decree of the trial Court.
6. In the second Appeal, the learned Special Government Pleader (CS) appearing for the appellant would submit that the finding of the Courts below regarding non compliance of Section 80 C.P.C., notice for instituting the suit is fatal to the case of the plaintiff. The suit for recovery of money was filed after the period of limitation which was not taken note by the Courts below. It is also contended by the learned Government Pleader (CS) that though the trial Court has framed an issue regarding the non compliance of Section 80 C.P.C notice, it failed to discuss about that issue and give a finding.
7. The learned counsel for the respondent would submit that it is a case of Landlady and Tenant. Because, the Tenant is a Government institution, even after 22 years of the fixation of fair rent, the respondent is unable to see the colour of the coin. The respondent/plaintiff in the plaint itself has specifically mentioned the urgency for filing the suit before expiry of the notice period of 60 days as prescribed under Section 80 C.P.C.
8. The trial Court on considering the urgency, has allowed the I
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