The main legal point established is that the court has discretion to dispense with notice under Section 80 (2) of the Code of Civil Procedure in cases of urgency, and the return of the plaint for non-compliance with Section 80 (1) does not bring finality to the suit.

ORDER :- This writ application is directed against the order dated 21-1-2007 passed by the learned Civil Judge (Senior Division), Balasore in Civil Suit No. 107 of 2007 rejecting an application filed by the plaintiff-petitioner for dispensing with notice on the State under Section 80 (2) of the Code of Civil Procedure and returning the plaint with liberty to re-file the same after compliance of Section 80 (1) of the C.P.C.

2. The learned counsel for the State at the time of admission challenged the maintainability of the writ application on the ground that in view of amendment in the Civil Procedure Code in Section 115, the writ application is not maintainable and the petitioner should have filed a revision under Section 115 of the Code of Civil Procedure challenging the impugned order. In view such objection raised, the learned counsel for the parties were heard on maintainability as well as merit.

3. The plaintiff who is petitioner before this Court had filed a suit for declaration of right, title, interest and for permanent injunction as well as damages. Defendants 1 to 3 are Government officials and defendant No. 4 is a contractor against whom allegation is that he was trying to forcibly evict the plaintiff-petitioner from the suit properties and construct a road thereon. It was the case of the plaintiff-petitioner that the defendants have already cut down some valuable trees from the land of the petitioner over plot Nos. 477 and 178 of Lot No. 1 and were contemplating to construct the road. In view of such urgency, there was no time to serve notice on the State officials as required under sub-section (1) of Section 80 of the Code of the Civil Procedure and a petition was filed under Section 80 (2) of the Code of Civil Procedure for dispensing with the notice. The said petition was rejected by the learned Civil Judge in the impugned order and the plaint was returned with liberty to re-file the same after compliance of the mandatory provisions contained in sub-section (1) of Section 80 of the Code of Civil Procedure.

4. So far as question of maintainability is concerned, it was contended by the learned counsel for the State that once the Court directs for return of plaint, it brings an end to the suit and, therefore, a revision lies under Section 115 of the Code of Civil Procedure. The learned counsel appearing for the petitioner submitted that return of plaint on technical ground with liberty to re-file the same does not bring finality to the suit and there being further scope to file the suit, it cannot be said to be a case decided and, therefore, a revision will not lie against the said order. It was further contended that against the said order only a writ application can lie. Admittedly, along with the plaint an application was filed under Section 80 (2) of the Code of Civil Procedure for dispensing with the notice as required under Section 80 (1) of the Code of Civil Procedure. In the impugned order, the petition was rejected and the plaint was returned which obviously means that the plaint had not been admitted at all and prior to admission such an order was passed and the plaint was returned. Now the question that arises for consideration is as to whether return of a plaint for presentation after compliance of Section 80 (1) of the Code of Civil Procedure amounts to a case decided or not. If it amounts to a case decided and brings finality to the suit, a revision is maintainable and if it does not bring finality to the suit, the revision is not maintainable and consequently a writ can be maintainable.

5. The learned counsel for the State relied upon a decision of this Court in the case of Executive Officer, Notified Area Council, Bhadrak and another v. Prabin Kumar Mohanla alias Mohanlal and another reported in (1995) 80 CLT 529 : 1995 AIHC 5536. While deciding the second appeal, a question was raised before the Court with regard to maintainability of the suit on the ground that notice under Section 349 of the Orissa Mu