Failure to serve statutory notice under Section 80 renders the suit against the government unsustainable; the urgency of the case does not negate this requirement.

ORAL JUDGMENT

1. This first appeal under section 96 of the CPC is at the instance of the original plaintiff and is directed against the judgment and decree dated 15th June, 2016 passed by the Judge of the City Civil Court, Court No.5, Ahmedabadi in the Civil Suit No.2161 of 2005.

2. It appears from the materials on record that the applicant herein preferred a civil suit for declaration and injunction in connection with the agricultural land bearing Survey No.234, situated at Mouje Shahwadi, Taluka & District: Ahmedabad. It is the case of the plaintiff that although the State Government is the owner of the land in question, yet he is in possession of the land since 1965. It is also his case that his mother late Shakriben Lavjibhai Gohel had preferred an application dated 31st December, 1984, addressed to the Collector for regularization of the possession of the land. The application was forwarded by the Collector to the City Mamlatdar for his opinion, but, thereafter, nothing was heard at the end of the Collector as well as the Mamlatdar.

3. On 2nd September, 1985, Shakriben, i.e, the mother of the plaintiff passed away. According to the plaintiff he had to prefer the civil suit as the defendant passed an order under section 61 of the Bombay Land Revenue Code for removal of the encroachment and also issued notice to handover the vacant and peaceful possession of the land in question. According to the plaintiff, the officials of the Collector Office visited the suit property on 21st November, 2005 and pressurized the plaintiff to vacate the land. In such circumstances, the plaintiff had to rush to the City Civil Court at Ahmedabad for obtaining urgent relief. It appears that an application Exh.10 was filed along with the suit, seeking leave to institute the suit without serving notice under section 80 of the CPC . Having regard to the urgency in the matter, the City Civil Judge, at the relevant point of time, granted leave to institute the suit without notice to the defendant under section 80 of the CPC .

4. It appears that, thereafter, the injunction application filed by the plaintiff was taken up for hearing, but the same was not pressed. The same came to be disposed of as not pressed. It is not clear as to on which date the injunction application filed by the plaintiff was not pressed and disposed of accordingly. However, this fact is confirmed by the learned counsel appearing for the plaintiff.

5. Later, having regard to the pleadings of the parties, the following issues were framed at Exh.29;

“(1) Whether the suit is tenable for want of statutory notice?

(2) What order and decree?”

6. The two issues, referred to above, came to be answered by the court below as under;

“(1) In negative.

(2) As per final order.”

7. It appears that the suit, ultimately, came to be dismissed on the ground that the same could not have been instituted and was not maintainable in law for want of the statutory notice under section 80 of the CPC . The reasons assigned by the court below are extracted hereunder;

“5) Now, on perusal of records which are brought on record by the plaintiff at the time of filing along with the suit viz., copy of notice issued by Shahvadi Gram Panchayat dt. 27.7.1980; copy of electricity bill of the suit property dt. 11.1.2007, tax bills of the suit property; copy of Form No.7/12 of the suit property and copy of the death certificate of the mother of the plaintiff dated 2.9.1985 and the request letter addressed to Talati to prove copies of revenue record.

6) It is pertinent to note that after filing the suit, the plaintiffs moved an application for appointment of Court Commissioner for local inspection which has been allowed and the