IMPORTANT POINT
Incorporating an application for issuance of an urgent commission in a money suit against State without any substantive or interim relief which can be qualified as an urgent or immediate relief, cannot be instituted without notice under Section 80(2) of CPC.

A. Hariprasad, J.—On a perusal of the records and after hearing both sides, the substantial questions of law re-framed are as follows:—

i. Are not the defendants under a duty and obligation to maintain a public road in good condition and to place a sign board in case of any danger? Will not a failure to do so fasten a liability on the State in tort to compensate a person for the injuries sustained on account of such breach?

ii. Whether the 1st defendant State is vicariously liable for the negligence of its employees?

iii. Whether the plaintiff’s suit for compensation for injuries sustained in an accident can be regarded as a suit to obtain an urgent or immediate relief against the Government under Section 80(2) of the Code of Civil Procedure, 1908 (in short, “the Code”) merely because an application for issuance of a commission was filed along with the suit?

iv. What is the legal effect of the trial court’s omission to order return of plaint under the Proviso to Section 80(2) of the Code, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted to the plaintiff in a suit against the Government?

2. In order to resolve the controversy, it is essential to understand the bare minimum facts involved in the case. Parties are hereinafter referred to as the plaintiff and defendants for brevity.

3. Plaintiff is a widow with three children. She ekes out a livelihood by manual labour. On 14.12.21997, she along with her children went to attend “Balakalolsavam” held in a nearby school. At about 7.00 p.m., she along with her children returned home on foot through the side of Adoor-Kaipattoor public road. A neighbour by name Anandakumari also accompanied them. As it was dusk and there was no street light available, the road and its margin were dark. Plaintiff’s left leg was trapped in a two feet deep pot hole on the road causing multiple fracture on her left ankle. The pit was formed on the tar road due to soil erosion caused by rain water. It is alleged that the defendants 2 and 3, the authorities under the Public Works Department did not display any sign board to indicate the existence of a pot hole. Although the road was repaired shortly before the incident in connection with Sabarimala pilgrimage, the defendants failed to do proper maintenance of the road and they failed to fill up the dangerous pit developed on the road. The plaintiff would allege that it was a duty cast upon the defendants to do timely repairs. Plaintiff contended that she was earning Rs. 2,000/- per month. On account of the accident, she is disabled from pursuing job as a labourer. She claimed a total compensation of Rs. 1,42,000/- towards the damages including medical expenses.

4. Defendants 1 to 3 filed a joint written statement contending that the road at the place of the incident, i.e., Anandapally-Kaipattoor road, has a width of 5.5 metres with a road margin on either side and a side drain on the eastern side. According to them, there was no pit on the road as alleged by the plaintiff. Absence of an electric light was not because of any fault on the part of the defendants. The entire stretch of road was repaired during Sabarimala pilgrimage season shortly before the alleged incident. As there was no pot hole on the road, there was no necessity to display any sign board. As the defendants were doing timely maintenance work, they cannot be held liable; if at all the plaintiff had sustained any injuries it was on account of her own negligence. The accident could have been averted if the plaintiff had been careful and cautious. Defendants are not liable to pay any compensation to the plaintiff.

5. Trial court dismissed the suit mainly on the ground that there is no evidence to show that the plaintiff sustained injuries in an accident as claimed by her. It also found that the best evidence in the form of testimony of Anandakumari, who was present with the plaintiff at the time of the alleged incident, was not tendered befor