M. Govindaraju vs Air Officer Commanding-in-Chief

Krishnan, J.—The appellants were plaintiffs before the VI Additional City Civil Judge, Bangalore, in O.S.No. 10111/1981 and being aggrieved by the dismissal of their suit filed for grant of permanent and mandatory injunctions against the defendants, have preferred this appeal.

The defendants have resisted the claim of the plaintiffs on various grounds and it is quite unnecessary to refer to the facts of the case put forward in the plaint and written statement in view of the fact that it is practically undisputed on both sides that the order of dismissal of suit is liable to be set aside because of the highly illegal approach made by the Civil Judge in this regard.

The learned Civil Judge raised the following issues:

Whether the suit is maintainable in law?

Will the plaintiffs suffer irreparable injury if no injunction is granted now?

What order?

The learned Civil Judge heard Advocates on I.A.IV, an application filed Under Order 39 Rules 1 & 2 CPC and dismissed it by his order dated 19-12-83, but at the same time the learned Civil Judge also dismissed the suit as not maintainable in law under Order 1 Rule 9 CPC and Section 41(f) of the Specific Relief Act and Order 7 Rule 11(a) CPC.

The learned Advocate for plaintiffs contended that the learned Civil Judge only heard the Advocates on I.A.IV and he never heard the Advocates on any of the issues pertaining to the maintainability of the suit and it was a very strange course adopted by the learned Civil Judge of dismissing the suit while disposing of I.A.IV.

Therefore, the short point that arises for consideration in this appeal is:

"Whether the order of dismissal of the suit passed by the learned Civil Judge could be sustained?"

The proceedings of the learned Civil Judge indicate that he had not posted the case to hear the learned Advocates on any of the issues raised in the suit regarding maintainability of the suit. On the other hand, they positively indicate that he heard the learned Advocate only on I.A.IV and he had posted the case only for orders on I.A.IV. The impugned order also shows that it is an order purported to be passed on I.A.IV. When that is so and when the case was not heard on any of the issues relating to the maintainability of the suit, it was highly impermissible for the learned Civil Judge to have proceeded to pass orders regarding the maintainability of the suit and take the extreme step of dismissal of the suit. If the learned Civil Judge felt that there were some issues relating to the maintainability of the suit and those issues related only to question of law and they could be heard as preliminary issues, he could have called upon both the Advocates to argue on those issues as well and then he could have proceeded to pass a composite order on these issues and also on I.A.IV. Having not done that, it is clear that the learned Civil Judge has taken both the Advocates by surprise by passing the order of dismissal of the suit. Having regard to these proceedings, even the learned Advocate appearing for the respondents could not urge anything to say that the order of dismissal deserves to be sustained. Therefore, there could be no different say in the matter that the order of dismissal of the suit deserves to be set aside and the matter should be remitted back to the learned Civil Judge to proceed to dispose of the case according to law.

Before parting with the case one more aspect deserves to be noticed. Before the lower Court plaintiffs filed I.A.I u/s 91 C.P.C. for grant of leave. It was allowed without notice to defendants. The learned Advocates were heard on the question whether the order passed on I.A.No. I granting leave to the plaintiff to institute the suit without notice to the defendants is liable to be set aside, in exercise of the powers of this Court of suo moto revision as was done by this Court in holding such an order passed u/s 92 CPC under similar circumstances was illegal, in the Decision in CHURCH OF SOUTH INDIA TRUST ASSOCIATES v. REV.D.I. ANAND AND ORS 1980 (2) KLJ 469 It may be noticed that for institution of the suits both under

Sections 91 and 92 CPC the leave of the Court is a condition precedent after 1976 amendment. In the matter which had come up in the aforesaid reported Decision u/s 92 CPC, it was held that the order granting leave was illegal because it had been passed in disregard of the two basic principles of natural justice, namely principle of audi alteram partem and that no reasons had been given in support of the said order. Both the learned Advocates in the first instance made a submission that the above said Decision though rendered u/s 92 CPC would equally apply to the case where leave is sought for and granted u/s 91 CPC. However, it was subsequently noticed that in relation to the granting of leave u/s 92 CPC, the matter had reached the Apex Court in the Decision reported in R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, and it has been observed by the Supreme Court as hereunder:

"The desirability of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave u/s 92 can be granted as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust. Such a construction of the provisions of Section 92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the Court even though the circumstances might warrant such relief being granted. Keeping in mind these considerations, in our opinion, although as a rule of caution, Court should normally give notice to the defendants before granting leave under the said Section to institute a suit, the Court is not bound to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law."

It is noticed that as per these findings of the Supreme Court though normally notice to defendants is necessary as a rule of caution and not as a statutory requirement, the grant of leave without notice to the defendants cannot by itself be held as illegal. Therefore, it has to be held that the Decision by this Court that leave granted without notice to defendants is illegal stands impliedly over-ruled by the Decision of the Supreme Court. In this view of the matter and in view of the fact that the defendants have not challenged the order passed on I.A.No. 1 and the further contention that under exigencies of the circumstances the plaintiff was compelled to apply for such an exparte leave, I do not think it is necessary to exercise the suo moto powers of Revision by this Court in the present case.

However, it was brought to my notice that the plaintiffs have filed I.A.No. 1 not only u/s 91 CPC but also under Order I Rule 8 CPC and no steps have been taken by the plaintiff for giving public notice as per the requirement of the said rule.

The learned Civil Judge shall look into the matter and find out whether public notice has been issued or not and if no such public notice has been given, to take steps according to law in that regard.

In the result, the order passed by the learned Civil Judge also dismissing the suit and the consequent decree passed by it are set aside and the case is remitted back to its file for fresh disposal according to law, in the light of the observations made above.

The Appeal is allowed only to the extent indicated above.