The grant of leave to sue without notice under Section 80(2) of the CPC is discretionary and depends on whether the court is satisfied that urgent or immediate relief is needed. Where a temporary injunction is barred by Order 39 Rule 2(2)(f) of the CPC, the trial court is justified in declining to grant leave to sue without notice.

( 1 ) RESPONDENT No. 5 borrowed certain amount as loan from the Industries Department of the State Government. For the recovery of the amount in arrear the State Government intended to proceed by way of attachment and auction of the property claimed to be belonging to the said borrower. The petitioners instituted a suit giving rise to these proceedings on Feb. 24,1983, contending that the property which belongs to them and not to respondent No. 5 was intended to be sold in auction towards the recovery of loan against the said respondent and it was apprehended that the said petitioners may be dispossessed in pursuance of the auction sale thus made. To the suit the State of U. P. and the Tehsildar are also arrayed as co-defendants. The auction has since taken place though it has not been confirmed in view of the interim order granted by this Court. Upon the application made in this behalf by the petitioners before the trial Court, it granted leave as contemplated under sub-s. (2) of S. 80, Civil P. C. on Feb. 24, 1983. An application for temporary injunction was also made by the petitioners before the trial Court; this was, however, rejected. Against this rejection, the petitioners preferred an appeal. In the course of hearing of the appeal an objection was raised from the side of respondent No. 5, inter alia, to the effect that the suit could not be maintained in the absence of notice required under S. 80 (1) of the Code and the interim injunction could not be granted in view of O. 30, R. 2 (2) (f) of the Code as amended in Uttar Pradesh. The appellate Court remanded the matter for consideration to the trial Court setting aside the order whereby the temporary injunction had been declined. The trial Court this time took the view that the suit could not be maintained without notice under S. 80 (1), C. P. C. ; against this order the petitioners preferred a revision which has been dismissed by the revisional Court and aggrieved the petitioners have approached this Court under Art. 226 of the Constitution.

( 2 ) THE question arising in this petition in substance thus is whether in the case where in view of Cl. (f) to the proviso to O. 39, R. 2 (2), C. P. C. , as amended in Uttar Pradesh, temporary injunction cannot be granted, it is incumbent upon the trial Court to grant leave under S. 80 (2) of the Code dispensing with the service of notice under sub-s. (1) of S. 80. A perusal of sub-s. (2) of S. 80, C. P. C. reveals clearly that the grant of leave is left to the judicial discretion of the trial Court. The proviso to sub-s. (2) clearly states 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-s. (1 ). In the matter of grant of leave dispensing with the service of notice under S. 80 (1), C. P. C. , therefore, the trial Court is competent to consider whether on the ultimate analysis there is or not in existence urgency or likelihood of immediate relief being granted to the plaintiff. Where the Court considers that there is no such urgency existing or immediate relief cannot be granted, it is within its powers to decline to grant the leave. Cl. (f) of the proviso to O. 39, R. 2 (2), aforementioned provides that no temporary injunction shall be granted to restrain any auction intended to be made or, the effect of any auction made, by the Government. Therefore, where from the averments of the plaint it appears that temporary injunction asked for amounts to restraining the holding of any auction or giving effect to the same, it would follow that no temporary injunction is grantable and where this is the position, the trial Court would be perfectly within its competence to decline to grant dispensing with the notice required under S. 80 (1), C. P. C.

( 3 ) LEARNED counsel for the petitioners urged that leave had initially been granted in this case by the