Georgey K. Mathews v. Pandanad Immanuel Marthoma Church and others

OP(C) NO. 555 OF 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945** **OP(C) NO. 555 OF 2023** **AGAINST THE ORDER/JUDGMENT IN OS /2023 OF MUNSIFF** ## **COURT,CHENGANNUR** ## **PETITIONER/S:** GEORGY K. MATHEWS AGED 40 YEARS S/O MATHEWS K.GEORGE, KANDATHIL PHILIP BHAVAN, PANDANAD WEST P.O, CHENGANNUR, ALAPPUZHA DIST. (REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MATHEWS K.GEORGE, AGED 72, KANDATHIL PHILIP BHAVAN, PANDANAD WEST P.O, CHENGANNUR, ALAPPUZHA DIST., PIN - 689506 BY ADV BABU PAUL ## **RESPONDENT/S:** - 1 PANDANAD IMMANUEL MARTHOMA CHURCH PANDANAD WEST P.O, CHENGANNUR ALAPPUZHA DIST, REPRESENTED BY ITS TRUSTEE & VICAR, PIN - 689506 - 2 THE TRUSTEE, PANDANAD IMMANUEL MARTHOMA CHURCH PANDANAD WEST P.O, CHENGANNUR ALAPPUZHA DIST,, PIN - 689506 - 3 THE VICAR, PANDANAD IMMANUEL MARTHOMA CHURCH PANDANAD WEST P.O, CHENGANNUR ALAPPUZHA DIST., PIN - 689506 - 4 THE SECRETARY, PANDANAD IMMANUEL MARTHOMA CHURCH PANDANAD WEST P.O, CHENGANNUR ALAPPUZHA DIST,, PIN - 689506 - 5 THE MALANKARA MARTHOMA SYRIAN DIOCESE, CHENGANNUR REPRESENTED BY ITS DIOCESAN EPISCOPE, OLIVET OP(C) NO. 555 OF 2023 2 SEMINARY, THITTAMEL MURI, CHENGANNUR, ALAPPUZHA DIST., PIN - 689506 6 THE MALANKARA MARTHOMA SYRIAN METROPOLITAN PULATHEEN, THIRUVALLA, , PATHANAMTHITTA DIST., PIN - 689101 7 THE VILLAGE OFFICER, PANDANAD VILLAGE OFFICE, CHENGNNUR, ALAPPUZHA DIST., PIN - 689506 - 8 THE PANDANAD GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, PANCHAYAT OFFICE, PANDANAD P.O, CHENGNNUR, ALAPPUZHA DIST, PIN - 689506 9 THE TAHASILDAR TALUK OFFICE, CHENGANNUR, ALAPPUZHA DIST., PIN - 689121 - 10 THE REVENUE DIVISIONAL OFFICER R.D.O OFFICE, CHENGANNUR, ALAPPUZHA DIST, PIN - 689121 - 11 THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR ALAPPUZHA, CIVIL STATION, ALAPPUZHA,, PIN - 688001 12 THE DIVISIONAL OFFICER THE PAMBA IRRIGATION PROJECT, CHENGANNUR, ALAPPUZHA DIST., PIN - 689672 13 THE ASSISTANT ENGINEER PWD ROAD DIVISION, MANNAR, ALAPPUZHA DIST PIN: 689121 14 THE STATION OFFICER FIRE AND RESCUE STATION, CHENGNNUR, ALAPPUZHA DIST., PIN - 689121 BY ADVS. N.ASHOK KUMAR GEORGE A.CHERIAN R.RAJPRADEEP 3 OP(C) NO. 555 OF 2023 BRIJESH MOHAN(K/1851/1999) SREEDEVI S.(K/767/2020) LATHA SUSAN CHERIAN(K/412/2008) GEORGE CHERIAN (SR.)(G-81) ARJUN S.KURUPP(K/114/2023) ## **OTHER PRESENT:** GP ADV S UNNIKRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 555 OF 2023 4 ## **JUDGMENT** The original petition is filed challenging Ext.P3 order passed in IA No.1/2023 in unnumbered suit by the Court of the Munsiff, Chengannur. The petitioner is the plaintiff and the respondents are the defendants in the suit. 2. The relevant background facts leading to Ext.P3 order are: - (i) The petitioner has filed the suit against the respondents for decrees of permanent prohibitory injunction and mandatory injunction. - (ii) Along with the suit, the petitioner filed IA No.1/2023 (Ext.P2) to dispense with notice under Section 80(2) of the Code of Civil Procedure, 1908 (in short, Code). - (iii) The court below, without hearing the respondents 7 and 9 to 14, passed Ext.P3 order returning the plaint to the petitioner for presentation after OP(C) NO. 555 OF 2023 5 complying with the requirements under sub-section (1) of Section 80 of the Code. - (iv) Ext.P3 is erroneous, improper and illegal. Hence, the original petition. 3. Heard; Sri.Babu Paul, the learned Counsel appearing for the petitioner, Sri.N.Ashok Kumar, the learned Counsel appearing for the respondents 1, 3 and 4, Sri.George Abraham, the learned Counsel appearing for the respondents 5 and 6, Sri.Brijesh Mohan, the learned Counsel appearing for the 8[th] respondent and the learned Government Pleader appearing for the respondents 7 and 9 to 14. 4. The short point is whether there is any error in Ext.P3 order. 5. On an evaluation of the pleadings and materials on record, it is seen that the petitioner has filed Ext.P2 application, seeking leave of the Court to institute the suit OP(C) NO. 555 OF 2023 6 by dispensing with notice as provided under sub-section (2) of Section 80 of the Code. 6. A reading of Ext.P3 order substantiates that the court below has passed the impugned order only after hearing the petitioner and perusing the averments in the affidavit filed in support of the application. The court below on being dissatisfied that there is no urgent or immediate relief has declined to grant the relief and has passed Ext.P3 order. ## 7. Section 80 of the Code of Civil Procedure reads as ## follows: 80. Notice.— (1) Save as otherwise provided in sub-section (2), no suits 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— (a) in the case of a suit against the Central Government, [except where it relates to a railway], a Secretary to that OP(C) NO. 555 OF 2023 7 ## Government; (b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf; (c) in the case of a suit against [any other State Government], a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. (2) 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 (I); 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: OP(C) NO. 555 OF 2023 8 Provided 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-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (I), if in such notice— (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated. 8. Interpreting Section 80(2) of the Code, the Honourable Supreme Court in **Government of Kerala and others vs. Sudhir Kumar Sharma and others** ## [2013 (10) SCC 178] held as follows: “24. It is an admitted fact that no order had been passed on the application filed under Section 80(2) of the CPC whereby leave of the Court had been sought for filing the suit without complying with the provisions of Section 80(1) OP(C) NO. 555 OF 2023 9 of the CPC. In our opinion, a suit filed without compliance of Section 80(1) cannot be regularized simply by filing an application under Section 80(2) of the CPC. Upon filing an application under Section 80(2) of the CPC, the Court is supposed to consider the facts and look at the circumstances in which the leave was sought for filing the suit without issuance of notice under Section 80(1) to the concerned Government authorities. **For the purpose of determining whether such an application should be granted, the Court is supposed to give hearing to both the sides and consider the nature of the suit and urgency of the matter before taking a final decision. By mere filing of an application, by no stretch of imagination it can be presumed that the application is granted.** If such a presumption is accepted, it would mean that the Court has not to take any action in pursuance of such an application and if the Court has not to take any action, then we failed to understand as to why such an application should be filed”. 9. Thus it is imperative on the part of the Court to hear all parties before arriving at a conclusion that there is no urgent or immediate relief required in the suit to grant leave to institute the suit without issuing notice under Section 80(1) of the Code. 10. In the light of the categoric declaration of law in OP(C) NO. 555 OF 2023 10 the afore -cited decision and the court below not complying with the mandate under the proviso to sub-section (2) of Section 80 of the Code, I hold that Ext.P3 order passed by the court below is erroneous, and warrants interference by this Court under Article 227 of the Constitution of India. Resultantly, I allow the original petition as follows: - (i) Ext.P3 order is set aside. - (ii) The Court of the Munsiff, Chengannur is directed to reconsider Ext.P1 application in accordance with law and dispose of the same as expeditiously as possible at any rate within one month from the date of production of a certified copy of this judgment. **Sd/-** **C.S.DIAS JUDGE** rkc/28.03.23 OP(C) NO. 555 OF 2023 11 ## **APPENDIX OF OP(C) 555/2023** PETITIONER ANNEXURES Annexure CERTIFIED COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER DT.8/8/2019 Exhibit P1 TRUE COPY OF UNNUMBERED SUIT FILED BEFORE THE MUNSIFF'S COURT, CHENGANNUR Exhibit P2 TRUE COPY OF THE I.A. NO 1/23 IN THE UNNUMBERED SUIT BEFORE THE MUNSIFF'S COURT, CHENGANNUR Exhibit P3 CERTIFIED COPY OF THE ORDER DT.23/2/23 IN I.A.NO.1/23 IN UNNUMBERED SUIT OF MUNSIFF'S COURT, CHENGANNUR