P. Muhammed Haji v. K.P. Prabhakaran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** ## **THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932** **WP(C).No. 31682 of 2008(V)** **--------------------------------------** **OS.100/2006 of SUB COURT, SULTHAN BATHERY** **....................** ## **PETITIONER(S):** - **----------------------** **P. MUHAMMED HAJI, AGED 69 YEARS, S/O. MAMMUNNI HAJI, POOKKATTU HOUSE, VAVAD, VALIYAPARAMBA, KOZHIKODE.** **BY ADV. SRI.R.SREEHARI, SRI.B.G.BHASKAR.** ## **RESPONDENT(S):** **-------------------------** **1. K.P. PRABHAKARAN, S/O. KUTTIRAMAN, RESIDING AT EP 8/660B, NANDANAM, PUTHIYANGADI POST, PUTHOOR AMSOM AND DESOM ELATHUR, KOZHIKODE - 21.** **2. T.P. DHAKSHAYANI, W/O.K.P. PRABHAKARAN, RESIDING AT EP 8/660 B, NANDANAM, PUTHIYANGADI POST PUTHOOR AMSOM AND DESOM, ELATHUR, KOZHIKODE - 21.** **3. ROHINI MACHIYANICKAL BEENA D/O.CHANDRANKUTTY, EP 8/669 B, NANDANAM, PUTHIYANGADI POST, PUTHOOR AMSOM AND DESOM, KOZHIKODE – 21.** **R1 & R2 BY SRI.M.C.SEN, SENIOR ADVOCATE, ADV. SMT.LEKHA SURESH, SMT.S.MEERA, SRI.P.T.MOHANKUMAR, SRI.ASHOK SURESH.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010, ALONG WITH WPC NO. 31690 OF 2008, THE COURT ON 28/10/2010 DELIVERED THE FOLLOWING:** ## **WP(C).No. 31682 of 2008(V)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXT.P1: COPY OF THE PLAINT IN OS NO.100/2006 FILED BEFORE THE SUB COURT, SULTHAN BATHERY.** **EXT.P2: COPY OF THE ORDER PASSED IN C.M.APPEAL NO.54/2007 DATED 31/10/2007 OF DISTRICT COURT (ADHOC-II), KALPETTA.** **EXT.P3: COPY OF THE SUMMONS DATED 29/08/2008 RECEIVED FROM O.S.100/06 SUB COURT, SULTHAN BATHERY.** **EXT.P1(a): COPY OF THE PLAINT IN O.S. NO.100/2006 OF SUB COURT, SULTHAN BATHERY.** **EXT.P4: COPY OF THE ORDER DATED 28/02/2008 IN O.S. NO.100/2006 OF SUB COURT, SULTHAN BATHERY.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1(a): COPY OF THE REPORT OF THE REGIONAL JOINT DIRECTOR (SURVEY), KOZHIKODE DATED 14/05/2008.** **EXT.R1(b): COPY OF THE AFFIDAVIT FILED IN SUPPORT OF I.A.601/06 IN O.S.100/06 OF SUB COURT, SULTHAN BATHERY.** ## **EXT.R1(c): COPY OF THE JUDGMENT IN O.P. NO. 9800/97 DATED 09/08/2005 OF THIS HONOURABLE COURT.** **EXT.R1(d): COPY OF THE JUDGMENT IN R.P.756/05 DATED 08/12/2005 OF THIS HONOURABLE COURT.** **EXT.R1(e): COPY OF THE APPLICATION DATED 20/06/1997 BEFORE THE RESURVEY ASST. DIRECTOR, KOZHIKODE BY P. ABDU.** **EXT.R1(f): COPY OF THE ORDER NO.D2 1682/97/L DIS DATED 26/07/1997 OF THE RESURVEY ASST. DIRECTOR, KOZHIKODE.** **EXT.R1(g): COPY OF THE APPLICATION BEFORE RE-SURVEY ASST. DIRECTOR, KARANI, WAYANAD BY PETITIONER.** **EXT.R1(h): COPY OF THE WRITTEN STATEMENT FILED BY THE GOVERNMENT AUTHORITIES IN O.S.100/06 IN THE SUB COURT SULTHAN BATHERY.** **//TRUE COPY//** **P.S. TO JUDGE** **rs** **HARUN-UL-RASHID,J. -------------------------------** **W.P.(C).NOS.31682 & 31690 OF 2008 ------------------------------DATED THIS THE 28TH DAY OF OCTOBER, 2010** ## **JUDGMENT** Petitioner is the 4[th] defendant in O.S.Nos.100/06 & 101/06 on the file of the Sub Court, Sulthan Bathery. These writ petitions are filed to call for the records leading to the issuance of summons in both suits and for a direction to the Sub Court to close all proceedings therein forthwith. O.S.Nos.100/06 & 101/06, were filed by the respondents in the respective writ petitions challenging the order No.C2-1318/05 dated 27/5/2006 passed by the Assistant director of Resurvey, who is the 2[nd] defendant in the suit and for other ancillary reliefs. The State of Kerala, The Assistant Director of Resurvey and the Superintendent of Survey and Land Records are defendants 1, 2 and 3 respectively in the said suits. 2. The suits were filed seeking the said reliefs under the Kerala Survey and Boundaries Act, 1961 and for injunction as referred above. The plaintiffs in the suit filed interlocutory **-2-** WP(C).No.31682 & 31690/08 application for temporary injunction restraining the respondent, who is the petitioner herein, and his men from committing trespass into the properties, obliterating/destroying the boundaries or from committing any waste in the property in any manner till the disposal of the suit. Though there are 4 defendants in the suits, the only respondent in the petition for injunction is the 4[th] defendant, who is the petitioner herein. State of Kerala and two officials, who are defendants 1 to 3 are not made parties to the said IAs. The writ petitioner opposed the prayer in the IAs. It is contended that the suit is not maintainable for want of notice under Section 80 of the C.P.C. The trial court passed an order of temporary injunction as prayed for. The respondent in the IA, who is the writ petitioner herein filed appeals, namely, C.M.A.No.54/07 against the order in IA.No.603/06 and C.M.A.No.50/07 against the order in IA.No.607/06. Ext.P2 in W.P.(C).No.31682/08 is the copy of the order passed by the Appellate Court in CMA.No.54/07 which arises from I.A.No.603/06 in O.S.No.100/06. Similarly, Ext.P2 in W.P. **-3-** WP(C).No.31682 & 31690/08 (C).No.31690/08 is the copy of the order in C.M.A.No.50/07 which arises from the order in I.A.No.607/06 in O.S.No.101/06. 3. The plaintiffs in the respective suits filed petitions under Section 80(2) of the CPC seeking leave of the court to institute the suit without serving notice as required under Section 80 (1) of the CPC. The court allowed the petitions. In fact the only respondent in the injunction petitions is the 4[th] respondent, who is the private party impleaded in the suits. 4. In this case, apparently no notice under Section 80(1) CPC. has been given to the Government and public officers in the suit. As stated earlier, in the IA the 4[th] defendant alone was made as party. The 4[th] defendant in the suits contended before the Appellate Court against the order granting temporary injunction that the attempt of the plaintiff was to circumvent the provision under Section 80 CPC by making the appellant alone as the respondent in the IAs. The plaintiffs in the suits contended that they did not make the Government officials as party to the **-4-** WP(C).No.31682 & 31690/08 interlocutory applications because no immediate relief was required against them. The Lower Appellate Court, after examining the respective contentions, concluded that if no relief was required against the Government and its officials, the suit could not have been filed against them at all without complying with Section 80 CPC. By Ext.P2 order the Lower Appellate Court also observed that if the suit itself is not maintainable, the respondent therein is not entitled to an order of injunction also. Ext.P2 order is dated 31[st] day of October, 2007. Subsequent to the disposal of the appeals, the petitioner filed IA.Nos.119/08 and 120/08 in O.S.Nos.100/06 & 101/06 stating that the suits are not maintainable, in the light of the order Ext.P2. The trial court returned the plaints to the plaintiffs on 28/2/2008. It is contended by the petitioner that when the suits are returned as not maintainable, the plaintiffs can only file fresh suits. It is also contended that the trial court erred in receiving returned plaints, as if they have been restored to file and the issuance of Ext.P3 WP(C).No.31682 & 31690/08 **-5-** summons calling upon the defendants to appear before court in the same suits is wrong and unsustainable. According to the petitioner, since the plaints are returned, as the suits are found to be not maintainable in CMA No.50/07 and 54/07, the remedy open to the plaintiffs is to file fresh suits and therefore, the act on the part of the trial court in issuing summons directing the defendants to appear in court on a particular day in the same suits is a procedural irregularity and is without jurisdiction and therefore Ext.P3 summons is to be cancelled and it is prayed to issue direction to the trial court to close all proceedings pursuant to the summons issued forthwith. According to the petitioner, when the plaints are returned because it is not maintainable, it cannot be re-presented with endorsements and that the proper course is only to file fresh plaints after issuance of Section 80 notice with necessary averments accompanied by proof of evidence of service of notice which has to be given a new number as on the date of the presentation. It is submitted that Ext.P3 summons shows that the **-6-** WP(C).No.31682 & 31690/08 court will to the same suits filed as proceed adjudicate O.S.Nos.100/06 and 101/06. 5. In this case the suits were filed without issuing Section 80 notice to defendants 1 to 3. Since the plaintiffs wanted urgent relief, they have filed petitions for dispensing with Section 80 notice. The said petitions were allowed by the court. Thereafter, the plaintiffs filed petitions for temporary injunction against the 4[th] defendant alone, who is the writ petitioner herein. The plaintiff did not seek any interim relief against defendants 1 to 3, who are State of Kerala and its officials. The Appellate Court in Ext.P2 order observed that if the suit is not maintainable for want of notice under Section 80, the plaintiffs are not entitled to the relief of temporary injunction and set aside the order of injunction passed by the court. Based on the observation made by the Appellate Court in Ext.P2 order, the petitioner filed petitions pointing out that the suit is not maintainable. The trial court returned the plaints not under Order VII Rule 10 CPC for presenting the same to the court in which the **-7-** ## WP(C).No.31682 & 31690/08 suits should have been instituted. No order was passed under Order VII Rule 10 CPC for return of plaints, since this is not a case where the trial court has no jurisdiction to try the suits. The court also did not pass any order under Order VII Rule 11 CPC rejecting the plaints, instead the court returned the plaints. In fact, the plaints were returned under Section 80(2) CPC, which reads as follows: “(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 (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. 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).” **-8-** WP(C).No.31682 & 31690/08 **6.** Sub Section 1 of Section 80 CPC deals with the requirement of notice against the Government and against the public officers. The plaints were returned on the basis of the observation made by the Appellate Court in Ext.P2 order that the suit is not maintainable for want of notice. Presumably for curing the said defect, the plaint is returned for presentation after complying with the requirement of sub-section (1). On the return of the plaints the plaintiffs issued notice to the defendants 1 to 3 and after complying with the requirement of sub-section (1) of Section 80 CPC, they have re-presented the plaints. It is not a case where the plaint was returned or rejected under Order VII Rules 10 and 11 CPC. In this case the plaints were returned for representation after complying with the requirements under subsection (1) of Section 80 CPC. After re-presentation the plaintiffs filed IAs. to amend the suits mainly to incorporate the pleadings relating to the notice under Section 80 CPC. 7. The plaints were returned for curing the defect of non- **-9-** WP(C).No.31682 & 31690/08 issuance of notice contemplated under Section 80 CPC. Plaintiffs re-presented the same after curing the defect. Therefore the reasons stated by the writ petitioner for cancellation of the summons and all further proceedings in the two suits cannot stand. None of the grounds raised in the writ petition is legally tenable and factually correct. 8. Sub Section (2) of Section 80 CPC introduced by CPC amendment Act 1976 w.e.f. 1-2-1977. Originally there was no provision for return of the plaint for re-presentation, after complying with the requirements of Section 80(1) CPC. 9. The learned counsel for the petitioner brought to the notice of this Court the decision reported in **State of Kerala v. Sankaran (1962 KLJ 360).** It is held that a suit is not maintainable for want of notice under Section 80 and that such suit falls clearly within Order VII Rue 11(d) CPC and the plaint in the suit has to be rejected. The decision was rendered at a time when there was no sub-section (2) and proviso to Section 80(2)CPC. There was no **-10-** WP(C).No.31682 & 31690/08 provision at that time for return of the plaint for re-presentation of the same. Therefore, the said decision has no application to the present case on hand. The learned counsel also cited the decision reported in **Kutikkadan Engineering Company v. Hindustan Steel Ltd.(1977 KLT 488)** which relates to the return of the plaint to be presented before the proper court. The principles laid down in the said decision have no application in the present case because in that case the plaint was returned for re-presentation before the proper court under Order VII Rule 10 CPC. The learned counsel also cited the decisions reported in **Amar Chand Inani v. Union of India (AIR 1973 SC 313), Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. (AIR 2006 SC 646) and Parangodan v. District Collector (1989 (2) KLT 184).** 10. In the first two decisions cited supra the principles laid down is regarding the return of the plaint for presentation before the appropriate court having jurisdiction. In this case the return of the plaint was not under Order VII Rule 10 CPC, but the **-11-** WP(C).No.31682 & 31690/08 return is for re-presentation under the proviso to Section 80(2). The principles laid down in those decisions are not applicable to this case. In the facts and circumstances of the case discussed in detail, the petitioner is not entitled to any relief. Writ Petitions filed under Article 227 of the Constitution of India are devoid of any merit and accordingly they are dismissed. **Sd/HARUN-UL-RASHID, Judge.** **kcv.**