IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE

28TH DAY OF JANUARY 2025/8TH MAGHA, 1946 O.P.(C) NO.1495 OF 2024 (AGAINST THE ORDER/JUDGMENT DATED 12.07.2024 IN UNNUMBERED O.S NO.3 OF 2024 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM)

PETITIONER/PLAINTIFF:

BINDU.V, AGED 48 YEARS, D/O.SASIDHARAN, RESIDING AT KAITHARATHALA PUTHENVEEDU, 11 NEDUMBRAM, KUDAPPANAKKUNNU, THIRUVANANTHAPURAM, PIN 695 001 –

BY ADV V.S.BABU GIREESAN RESPONDENTS/DEFENDANTS:

1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, PIN 695 001 –

2 THE SUPERINTENDENT, DISTRICT MODEL HOSPITAL PEROORKADA, THIRUVANANTHAPURAM, PIN 695 001 –

3 THE THIRUVANANTHAPURAM DISTRICT PANCHAYATH, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, PIN 695 004 –

BY ADV THOMAS ABRAHAM GOVERNMENT PLEADER, SRI. SAYED M. THANGAL THIS OP (CIVIL) HAS COME UP FOR ADMISSION ON 17.07.2024, THE COURT ON 28.01.2025 DELIVERED THE FOLLOWING:

JUDGMENT (Dated : 28^th January, 2025)

The petitioner filed a suit for permanent prohibitory injunction against the respondents from forceful eviction from the scheduled bunk, allotted to the plaintiff by the 2^nd respondent. Along with the plaint, a petition was filed for an interim injunction, marked as Ext.P2. As an urgent order was necessary for forceful eviction, Section

80 notice was not issued.

Section 80(1) describes that- ‘No suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been [delivered to, or left at the office of’.

Sub-clause (2) prescribes that- ‘A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir ) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

2. The suit was filed when Ext.P6 was issued, directing the petitioner to vacate the premises within three days. Taking into consideration the immediate eviction, the suit was filed, and without issuing notice under Section 80(2). The court below by Ext.P9 held that the leave of the court under Section 80(2) cannot be granted, the application was dismissed, and the plaint was directed to be returned to the party for presentation after complying with the requirements under Section 80(1) C.P.C.

3. The counsel for the petitioner relied on the judgment of this court in Parangodan v. District Collector (1989 KHC 385), wherein, in paragraph 5, it was held as follows:

5. The finding that the suit is not maintainable for the reason that leave was not sought for by a separate application is too hypertechnical and not conducive to justice. Whenever and wherever permission, sanction or leave is required and an application is considered necessary for that purpose, the framers of the Code have not forgotten to make specific provisions. I do not mean to say that there are no exceptions. Every rule may have its exceptions. In S.92 of the Code of Civil Procedure, the words used are only "having obtained the leave of court". But a separate application is considered necessary. That is because leave is a condition precedent to the institution of the suit and it has to be obtained before hand. 0.1 R.8 only says "with permission of the court". An application is insisted because R.20 of the Civil Rules of Practice provides for it”.

The question involved in the above decision