Kerala High Court
Parent Teacher Association vs E.Ambikadevi Amma on 25 August, 2025
2025:KER:64138
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
RSA NO. 61 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2015 IN AS
NO.132 OF 2009 OF ADDITIONAL DISTRICT COURT-VI, KOLLAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2009 IN
OS NO.290 OF 2000 OF MUNSIFF COURT, SASTHAMCOTTA
APPELLANTS/RESPONDENTS/DEFENDANTS IN O.S.:
1 GOVERNMENT COLLEGE, CHAVARA
REPRESENTED BY ITS PRINCIPAL.
2 KERALA STATE
REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM.
SRI.K.P.JAYACHANDRAN - ADDL. ADVOCATE GENERAL
SRI.K.DENNY DEVASSY - SR GP
SRI.JAFFER KHAN Y. - SR GP
RESPONDENT/APPELLANT/PLAINTIFF IN O.S.:
1 E. AMBIKADEVI AMMA [DIED & LHRS IMPLEADED]
W/O RAJA BHOOSHAN NAIR, VALLOLIL VEEDU,
CHERUSSERIBHAGAM MURI, CHAVARA VILLAGE - 691583
ADDL.R2 HARIKRISHNAN. R
AGED 62 YEARS
S/O LATE E. AMBIKADEVI AMMA, VALLOLIL, TC
12/440, PLAMOOD, PATTOM, THIRUVANANTHAPURAM -
695004
RSA Nos.61 &
897/2016
2
2025:KER:64138
ADDL.R3 GIRISH.R
S/O LATE E. AMBIKADEVI AMMA, RESIDING AT
VALLOLIL, SANKARAMANGALAM, CHAVARA P.O, KOLLAM-
691583
(LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 2 AND 3 AS
PER ORDER DATED 28/07/2025 IN IA 2/2025)
BY ADVS.
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
30.07.2025, ALONG WITH RSA.897/2016, THE COURT ON
25.08.2025 DELIVERED THE FOLLOWING:
RSA Nos.61 &
897/2016
3
2025:KER:64138
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
RSA NO. 897 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2015 IN AS
NO.132 OF 2009 OF ADDITIONAL DISTRICT COURT-VI, KOLLAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2009 IN
OS NO.290 OF 2000 OF MUNSIFF COURT, SASTHAMCOTTA
APPELLANT IN THE RSA (LEAVE TO APPEAL SOUGHT FOR VIDE
SEPARATE APPLICATION):
PARENT TEACHER ASSOCIATION
BABY JOHN MEMORIAL GOVERNMENT COLLEGE, CHAVARA,
REPRESENTED BY ITS SECRETARY, DR.ANIL PRASAD,
RESIDING AT VILAYIL (PRARTHANA), THODIYOOR P.O.,
KARUNAGAPPALLY.
BY ADVS.
SHRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SEBASTIAN
RESPONDENTS/APPELLANT & RESPONDENTS/PLAINTIFF & DEFENDANTS
1 & 2:
1 E.AMBIKADEVI AMMA [DIED & LHS IMPLEADED]
AGED 67 YEARS, D/O. RAJA BOOSHAN NAIR, VALLOLIL
VEEDU, CHERUSSERIBHAGOM MURI, CHAVARA VILLAGE,
PIN-691 583.
2 GOVERNMENT COLLEGE
CHAVARA, REPRESENTED BY ITS PRINCIPAL,
GOVT.COLLEGE, CHAVARA-691 583.
RSA Nos.61 &
897/2016
4
2025:KER:64138
3 KERALA STATE
REPRESENTED BY DISTRICT COLLECTOR, KOLLAM-691
001.
ADDL.R4 HARIKRISHNAN. R
S/O LATE E. AMBIKADEVI AMMA, VALLOLIL, TC
12/440, PLAMOOD, PATTOM, THIRUVANANTHAPURAM
695004.
ADDL.R5 GIRISH.R
S/O LATE E. AMBIKADEVI AMMA, RESIDING AT
VALLOLIL, SANKARAMANGALAM, CHAVARA P.O, KOLLAM
691583
[LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 4 AND 5 AS
PER ORDER DATED 25.08.2025 IN IA 1/2025]
BY ADVS.
SMT.MEENA.A. - R4, R5
SRI.T.KRISHNANUNNI (SR.)-R4, R5
SRI.VINOD RAVINDRANATH - R4, R5
SRI.K.P.JAYACHANDRAN - ADDL. ADVOCATE GENERAL
SRI.K.DENNY DEVASSY - SR GP - R3
SRI.JAFFER KHAN Y. - SR GP - R3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
30.07.2025, ALONG WITH RSA.61/2016, THE COURT ON 25.08.2025
DELIVERED THE FOLLOWING:
RSA Nos.61 &
897/2016
5
2025:KER:64138
"C.R"
EASWARAN S., J.
---------------------------------------------------------
R.S.A Nos.61 and 897 of 2016
---------------------------------------------------------
Dated this the 25th day of August, 2025
JUDGMENT
These appeals raise a common question of law regarding the scope of Section 80 of the Code of Civil Procedure, 1908 and hence, are being considered together. The Principal of the Government College, Chavara and the Parent Teacher Association, Baby John Memorial Government College, Chavara, are questioning the judgment dated 26.09.2015 in A.S.No.132/2009 of the Additional District Court-VI, Kollam, in RSA Nos.61 of 2016 and 897 of 2016, respectively.
2. The brief facts necessary for the disposal of these appeals are as follows:
2.1. The respondent/plaintiff in RSA No.61/2016 claimed that she is the owner in possession of the plaint 'A' schedule property. The title to the aforesaid property is traced to a Partition Deed No.459 executed in the year 1950. According to the plaintiff, she has been in possession and enjoyment of the property ever since she was assigned the property. The plaint 'A' schedule property is demarcated with well-defined boundaries.
RSA Nos.61 & 897/2016 6 2025:KER:64138 Approximately 11/2 Acres of land laying adjacent to the plaint 'A' schedule property was acquired by the Government for Government Girls High School, Chavara. Subsequently, that property was transferred for establishing Government College, Chavara. The property situated on the western side of the plaint 'A' schedule property and the property acquired for the construction of the Government College, Chavara, are now in the possession of the 1st defendant. There is a pathway starting from the N.H.47 situated on the eastern side of the property of the 1 st defendant and used by the plaintiff for ingress and egress to the plaint 'A' schedule property. The said pathway, which is mentioned in the Panchayat Register and maintained by the Panchayat, is scheduled as 'B' schedule property. The pathway further runs towards the north and thereafter turns to the east and going to Vengoli. The said pathway is having a width of 5 1/2 metres and a length of 35 metres. The property of the Government College, Chavara, is situated on the north of the said 'B' schedule pathway and there are electric posts in the 'B' schedule pathway and that the defendants have no right to close down the said pathway and obstruct the right of the plaintiff. The defendants are attempting to construct boundary wall for the properties of the Government College, Chavara enclosing 'B' schedule pathway, and since the plaintiff received reliable information from the contractor, who is making RSA Nos.61 & 897/2016 7 2025:KER:64138 constructions for the 1st defendant, to the above effect and also that the construction will start on 07.10.1998, the suit has been instituted.
2.2. The 2nd defendant entered appearance and resisted the claim. The 1st defendant alone filed a written statement raising a preliminary objection as regards the maintainability of the suit. According to the 2 nd defendant, no notice under Section 80 of the Code of Civil Procedure, 1908 was issued prior to the filing of the suit. The plaintiff has approached the court by suppressing the material facts and the litigation is only vexatious. According to the defendants, the property of the Government College is lying as a single plot having an extent of 316.530 cents comprised in Resurvey Nos.248/1 and 247/3 of Chavara Village. The 'B' schedule pathway is not mentioned in the resurvey plan. Since the plaintiff has an alternate way for ingress and egress to the plaint scheduled property, the plaintiff cannot raise any objection to the exclusive use of the property by the Government.
2.3. After the filing of the written statement, the plaintiff sought amendment of the plaint seeking to incorporate a prayer for mandatory injunction in the plaint on the ground that the defendants have closed 'B' schedule pathway after the filing of the suit. An additional written statement was filed on behalf of the 1st defendant, contending that since there is non- RSA Nos.61 & 897/2016 8 2025:KER:64138 compliance of the provisions of Section 80 of the Code of Civil Procedure, 1908, the plaint ought to have been returned. On behalf of the plaintiff, Exts.A1 to A6 documents were produced and PW1 to PW6 were examined. On behalf of the defendants, Exts.B1 to B11 series were produced and no oral evidence was adduced. Ext.C1 is the report and Ext.C1(a) is the rough sketch prepared by the advocate commissioner. The extract of the panchayat road under the protection of the Chavara Grama Panchayat was produced and marked as Ext.X1. The trial court framed the following issues for consideration:
"1. Whether the plaintiff's prayer for permanent prohibitory injunction is maintainable or not?
2. Whether the plaintiff's prayer for mandatory injunction is maintainable or not?
3. Other reliefs and cost?
Addl.Issue No.4 : If there any pathway in existence as described in plaint 'B' schedule?"
2.4. The suit was initially decreed by the trial court. Aggrieved by the judgment and decree, the defendants preferred A.S.No.166/2006. By judgment dated 18.01.2008, the first appellate court set aside the judgment of the trial court and remanded the suit for fresh consideration. On remand, the matter was extensively reconsidered and the plaintiff adduced additional evidence in the form of PW4 to PW6. The trial court by judgment and RSA Nos.61 & 897/2016 9 2025:KER:64138 decree dated 31.03.2009 dismissed the suit, finding that the plaintiff has got an alternate way to have ingress and egress to the plaint 'A' schedule property. Aggrieved, the plaintiff preferred A.S.No.132/2009. By judgment dated 26.09.2015, the first appellate court reversed the finding of the trial court and decreed the suit and hence, the present second appeal.
3. Heard, Sri.Jaffer Khan Y. and Sri.K.Denny Devassy - learned Senior Government Pleaders appearing on behalf of the State, Sri.T.Krishnanunni - learned Senior Counsel, assisted by Smt.Meena A, appearing for the respondents/plaintiff and Sri.George Varghese Perumpallikuttiyil - learned counsel appearing for the appellant in RSA No.897/2016.
4. Sri.Jaffer Khan Y. - learned Senior Government Pleader appearing for the State, contended that the suit as framed could not have been entertained by the courts below, since no notice under Section 80 of the Code of Civil Procedure, 1908 was issued. The non-issuance of notice under Section 80, though specifically raised before the trial court, was not addressed. Even before the first appellate court, the issue was raised, but the court did not go into the contention in detail. According to the learned Senior Government Pleader, the first appellate court misdirected itself to the entire issues in finding whether the State has proved that, there exists no RSA Nos.61 & 897/2016 10 2025:KER:64138 pathway, whereas it should have been the other way around. According to the learned Senior Government Pleader, the oral testimony of the Advocate Commissioner and the Secretary of the Grama Panchayat will evidently show that the 'B' schedule pathway as claimed does not exist. The rough sketch produced along with Ext.C1 report clearly evidences that the existence of a pathway is around the southern side of the property of the Government College. If the plaintiff is given right on the plaint schedule property, the same will cut the property of the Government College into two halves and it will necessarily affect the smooth functioning of the College for various security reasons. The plaintiff has an alternate pathway to enter into the plaint A schedule property and therefore, the 'B' schedule property cannot be claimed as a matter of right. At any rate, there is no pleading to evidence any kind of easementary right over the 'B' schedule pathway and therefore, the first appellate court went wrong in setting aside the well- reasoned judgment of the trial court and decreeing the suit. Lastly, it is contended that, prescriptive right, if any, has since been lost due to acquisition of the land by the State Government.
5. Sri.George Varghese Perumpallikuttiyil - learned counsel appearing for the appellant in RSA No.897/2016, would support the arguments of the State and, in addition, would contend that, going by the RSA Nos.61 & 897/2016 11 2025:KER:64138 schedule to the plaint, the plaintiff had claimed right over 5 1/2 metres width pathway having a length of 35 metres. However, in the report of the advocate commissioner, it is clearly found that the pathway, as described in 'B' schedule to the plaint does not exist. Therefore, according to the learned counsel, since the description of the pathway as made in 'B' schedule is not available, the plaintiff is not entitled to any relief.
6. The learned Senior Counsel - Sri.T.Krishnanunni appearing on behalf of the plaintiff, countered the submissions of the learned Senior Government Pleader and contended that, it is not necessary and an inevitable rule that in a suit of this nature, it is mandatory for the plaintiff to have issued notice under Section 80 of the Code of Civil Procedure, 1908. It is submitted that the suit was once decreed, against which an appeal was preferred by the State and the appeal was allowed allowing the State to adduce substantial evidence to prove that the pathway as alleged by the plaintiff did not exist in the property. On remand, though the plaintiff adduced substantial evidence, the defendants did not adduce any evidence and therefore, the objection on the ground of non-issuance of notice under Section 80 is deemed to have been waived and that the trial court was bound to consider the suit, since it was bound by the order of remand by the first appellate court. He further submitted that even assuming for argument sake, RSA Nos.61 & 897/2016 12 2025:KER:64138 that the notice under Section 80 of the Code of Civil Procedure, 1908 is required, the same is deemed to have been waived by the State and there is an implied grant of permission by the trial court. In support of his contention, he relied on the Division Bench judgment of the Calcutta High Court in Niranjan Agarwalla v. Union of India [1960 SCC Online Cal 111]. He further pointed out that in a suit complaining of an attempt made for disturbance of an easement, the trial court is justified in granting an injunction if it is established that disturbance has been caused. According to the learned Senior Counsel, the requirement of seeking a declaratory relief does not exist in such a case. In support of his contention, relied on the decision of this Court in Unnikrishnan v. Ponnu Ammal [1999 KHC 93]. It is further pointed out that even if there is any deficiency in the suit as regards the non-issuance of notice under Section 80 of the Code of Civil Procedure, 1908, the said objection is deemed to have been waived by the State, especially since the point was not touched upon by the first appellate court in the earlier round of litigation. In support of his contention, relied on the decision of the Hon'ble Supreme Court in State of A.P. and Ors. v Pioneer Builders, A.P. [2006 (12) SCC 119].
7. In reply, the learned Senior Government Pleader would point out that the concept of waiver of the mandatory requirement of Section RSA Nos.61 & 897/2016 13 2025:KER:64138 80(2) of the Code of Civil Procedure, 1908 is unknown to the procedural law and that, there is a catena of decisions on this point, including the decisions rendered by this Court, to show that the mandatory requirement of Section 80 of the CPC cannot be waived and the irregularity in passing orders on the application for dispensation of notice under Section 80 would carry throughout the proceedings and is fatal to the existence of the suit.
8. I have considered the rival submissions raised across the Bar and have perused the judgments of the courts below and the records summoned in the case.
9. On 18.08.2016, while admitting RSA No.61/2016, this Court framed the following substantial questions of law for consideration:
"i. Whether the suit is maintainable for want of notice under Section 80 of the Code of Civil Procedure especially when it was amended, adding a prayer for a mandatory injunction decree ?
ii. Whether the courts below are legally correct in holding that the directions in the judgment in A.S.No.166/2006 on the file of the District Court, Kollam show only a restricted remand ?"
10. The consideration of the above questions of law hinges upon the appreciation of the interparty judgments in this present case and further as to whether there can be a waiver of the statutory requirement under Section 80 of the Code of Civil Procedure, 1908. The respondent-plaintiff RSA Nos.61 & 897/2016 14 2025:KER:64138 will only succeed if this Court finds on both the questions of law against the appellants.
11. The question regarding the requirement of notice under Section 80 of the Code of Civil Procedure, 1908, can be dealt with first. Section 80 of the Code of Civil Procedure, 1908 reads as under:
"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 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;
(d) omitted 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.
RSA Nos.61 & 897/2016 15 2025:KER:64138 (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).
(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 (1), 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.
12. There cannot be any doubt as regards the requirement to issue a notice under Section 80 of the Code of Civil Procedure, 1908, especially in the light of the nature of the reliefs claimed in the suit. One could easily decipher from the records that the plaintiff was aware of this requirement RSA Nos.61 & 897/2016 16 2025:KER:64138 and accordingly, filed I.A.No.1636/1998 in O.S.No.62/1998, when it was initially filed before the Munsiff's Court, Karunagappalli. The prayer in the interlocutory application is to dispense with the notice under Section 80 of the CPC. The proceeding sheet of the case shows that, the suit along with the interlocutory application, was moved on 10.12.1998 and on the same date, the Court passed an interim order of injunction without passing separate orders on the interlocutory application. The appellant, at the first available opportunity, raised the question of non-issuance of notice under Section 80 of the CPC. But, however, it appears that the trial court did not deem it fit to consider the same in its correct perspective at the initial stage and proceeded to decree the suit. It is also pertinent to mention that when the plaintiff sought amendment of the plaint by including a relief for mandatory injunction, the 1st defendant had filed an additional written statement wherein the question regarding the non-issuance of the notice under Section 80 of the CPC was specifically raised.
13. Be that as it may, the judgment of the trial court decreeing the suit was set aside by the first appellate court in A.S.No.166/2006 and remanded the suit for a fresh consideration, in accordance with law. On remand, the trial court proceeded to consider the case on merits, but did not address as regards the demand of notice under Section 80 of the CPC, RSA Nos.61 & 897/2016 17 2025:KER:64138 because probably the trial court felt that on the merits the plaintiff did not establish the case. Before the first appellate court also the appellant raised a specific plea regarding the non-issuance of a notice under Section 80 of the CPC, which is not seen properly addressed by the first appellate court also. The first appellate court on contrary, appears to have saddled the burden on the shoulders of the State to prove a negative fact rather than asserting as to whether the plaintiff has established the existence of 'B' schedule pathway, as well as her right over the same.
14. With the above perspective in mind, this Court proceeds to consider the precedents which have been cited across the Bar. In State of Kerala and Ors. V. Sudhir Kumar Sharma and Ors. [2013 (10) SCC 178], the consequences of not having passed an order on an application filed under Section 80(2) of the CPC were considered. Paragraph 26 of the judgment reads as under:
"21. We reiterate that till the application filed under Section 80(2) of the CPC is finally heard and decided, it cannot be known whether the suit filed without issuance of notice under Section 80(1) of the CPC was justifiable. According to the provisions of Section 80(2) of the CPC, the court has to be satisfied after hearing the parties that there was some grave urgency which required some urgent relief and therefore, the plaintiff was constrained to file a suit without issuance of notice under Section 80(1) of the CPC. Till arguments are advanced on behalf of the plaintiff with regard to urgency in the matter and till the trial court is satisfied with regard to the urgency or RSA Nos.61 & 897/2016 18 2025:KER:64138 requirement of immediate relief in the suit, the court normally would not grant an application under Section 80(2) of the CPC. We, therefore, come to the conclusion that mere filing of an application under Section 80(2) of the CPC would not mean that the said application was granted by the trial court."
15. In Lucknow Development Authority v. Yashraj Singh and Ors. [2018 KHC 4010], a Division Bench of the Allahabad High Court held that for granting dispensation of the mandatory requirement of issuance of notice under Section 80 of the Code of Civil Procedure, 1908, a reasonable opportunity of hearing ought to be granted to the State.
16. In Bajaj Hindustan Sugar & Industries Limited v. Balrampur Chini Mills Ltd. [2007 (9) SCC 43], the Supreme Court held that, it is possible to maintain a suit against the Government or a public office without serving a notice and that it was mandatory for the trial court to have considered the application filed under Section 80(2) of the Code of Civil Procedure, 1908 before proceeding further.
17. In Prem Lala Nahata and Anr. v. Chandi Prasad Sikaria [2007 (2) SCC 551], the Supreme Court held that in a case where the notice under Section 80 of the Code of Civil Procedure, 1908 is mandatory and if the court finds that the requirement has not been met, the suit is liable to be rejected.
18. In Santhamma v. Kerala State and Ors. [2019 (2) KHC 585], a RSA Nos.61 & 897/2016 19 2025:KER:64138 Single Bench of this Court held that the omission of the trial court to pass orders in an application under Section 80(2) of the Code of Civil Procedure, 1908 would carry forward and that the irregularity cannot be regularised by filing an application under Section 80(2) of the CPC. Paragraph 23 of the judgment reads as under:
"23. It that be so, the trial court has committed a grave error in not returning the plaint as provided in the proviso to S.80(2) of the Code. Without any ambiguity the proviso to S.80(2) of the Code says 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) of S.80 of the Code. This step was not taken by the Trial Court, despite the fact that the defendants in their written statement has raised a specific plea that the suit is bad for non- issuance of a notice under S.80 of the Code. Trial Court seriously erred in not framing an issue in this regard. This aspect was not properly considered by the lower Appellate Court also. I have no hesitation to hold that both the Trial Court and lower Appellate Court flouted the mandate of S.80 of the Code in entertaining the suit. After elapse of 22 years from the date of institution of the suit and 9 years after filing this second appeal, it may not look nice if this Court orders return of the plaint by invoking the proviso to S.80(2) of the Code. Learned counsel for the appellant contended that the maxim "actus curia neminen gravabit" (an act of the Court shall prejudice no man) can be applied to this case. In support of the above proposition, the learned counsel for appellant relied on large volumes of case laws."
19. Before delving further on this issue, it is imperative for this Court to consider the precedents cited by the learned Senior Counsel for the respondent/plaintiff on the issue as to whether the right under Section 80 of RSA Nos.61 & 897/2016 20 2025:KER:64138 the Code of Civil Procedure, 1908 can be waived by the State. In Niranjan Agarwalla v. Union of India [1960 SCC Online Cal 111], a Division Bench of the Calcutta High Court held that, if notice under Section 80 is not a part of the plaintiff's cause of action although it is a condition precedent which must be pleaded and if necessary, proved unless waived, before a suit can be instituted and maintained against the Government, and that there cannot be any mandatory requirement to follow the condition precedent under Section 80 of the Code of Civil Procedure, 1908.
20. In State of A.P. and Ors. v Pioneer Builders, A.P. [2006 (12) SCC 119] the question arose as to whether the mandatory requirement of Section 80 of the Code of Civil Procedure, 1908 could be waived or not. Paragraphs 17 to 19 of the decision are extracted as under:
"17. Thus, from a conjoint reading of sub-sections (1) and (2) of Section 80, the legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the Court. Leave of the Court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how the leave is to be sought for or given yet the order granting leave must indicate the ground(s) pleaded and application of mind thereon. A restriction on the exercise of power by the Court has been imposed, namely, the Court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in RSA Nos.61 & 897/2016 21 2025:KER:64138 respect of relief prayed for in the suit.
18. Having regard to the legislative intent noticed above, it needs little emphasis that the power conferred in the Court under sub-section (2) is to avoid genuine hardship and is, therefore, coupled with a duty to grant leave to institute a suit without complying with the requirements of sub-section (1) thereof, bearing in mind only the urgency of the relief prayed for and not the merits of the case. More so when want of notice under sub-section (1) is also made good by providing that even in urgent matters relief under this provision shall not be granted without giving a reasonable opportunity to the Government or a public officer to show cause in respect of the relief prayed for. The provision also mandates that if the Court is of the opinion that no urgent or immediate relief deserves to be granted it should return the plaint for presentation after complying with the requirements contemplated in sub-section (1).
19. Bearing in mind the aforenoted legal position, we advert to the facts in hand. As noted above, the subordinate Judge, vide Order dated 2nd February, 1993 came to the conclusion that "there was no tenable ground to refuse the relief asked for". Though there may be some substance in the submission of Mr. Choudhary, learned senior counsel appearing for the State, that the order allowing the application, seeking dispensation of the requirement of notice, is cryptic but the fact remains that by allowing the application, after hearing the defendant State, the Judge has opined that the suit is for the purpose of obtaining an urgent and immediate order.
Had the satisfaction been against the contractor, the Court was bound to return the plaint to the contractor for re-presentation after curing the defect in terms of sub- section (1) of Section
80. Although we do not approve of the manner in which the afore-extracted order has been made and the leave has been granted by the subordinate Judge but bearing in mind the fact that in its reply to the application, the State had not raised any specific objection about the maintainability of the application on the ground that no urgent and immediate relief had either been prayed for or could be granted, as has now been canvassed before us, we are of the opinion that having regard to the peculiar facts and the conduct of both the parties it is not RSA Nos.61 & 897/2016 22 2025:KER:64138 a fit case where the matter should be remanded back to the subordinate Judge for re-consideration. We find it difficult to hold that the order passed by subordinate Judge on contractor's application under Section 80(2) C.P.C. was beyond his jurisdiction. Accordingly, we decline to interfere with the finding recorded by the High Court on this aspect of the matter. The High Court has held that having participated in the original proceedings, it was not now open to the State to raise a fresh issue as to the maintainability of the suit, in view of waiving the defect at the earliest point of time. The High Court has also observed that knowing fully well about non-issue of notice under Section 80 C.P.C. the State had not raised such a plea in the written statement or additional written statement filed in the suit and therefore, deemed to have waived the objection. It goes without saying that the question whether in fact, there is waiver or not necessarily depends on facts of each case and is liable to be tried by the Court, if raised, which, as noted above, is not the case here."
21. The cumulative effect of the decision of the Supreme Court in Pioneer Builders, A.P. (supra) and the decision of the Calcutta High Court in Niranjan Agarwalla (supra) leads to a conclusion that, if a State participates in the proceedings without raising an objection regarding the non-issuance of notice under Section 80 of the Code of Civil Procedure, 1908, the State cannot agitate the said issue later. But insofar as the judgment of the Division Bench of the Calcutta High Court is concerned, this Court finds itself in complete disagreement with the views expressed by the Bench. Though, the decision of the Division Bench of the Calcutta High Court can only have a persuasive value, in the nature of the relief sought for by the plaintiff and also her conscious act of preferring I.A.No.1636/1998, RSA Nos.61 & 897/2016 23 2025:KER:64138 seeking dispensation of notice under Section 80 of the CPC, this Court is not persuaded to hold that, in the present case, a case for dispensation of notice under Section 80 nor a case of waiver of right under Section 80 is made out.
22. As regards the mandatory requirement to comply with the requirement of Section 80 of the Code of Civil Procedure, 1908, this Court does not wish to burden itself with more precedents on the point. Suffice to say, a suit which fails to comply with the mandatory requirement of Section 80 must necessarily fail. As regards the question of waiver, this Court requires to consider the impact of the decision of the Supreme Court in Pioneer Builders (supra) a little deeper.
23. It is worthwhile to mention that, in paragraphs 17 and 18 of the above decision, the Supreme Court has discussed in extenso the mandatory requirement of issuance of notice under Section 80 of the Code of Civil Procedure, 1908. It was further held that the failure of the State to take up the plea regarding non-issuance of notice under Section 80 may lead to a case of waiver. However, the Supreme Court in U.P.Avas Evam Vikas Parishad Vs Om Prakash Sharma [(2013 ) 5 SCC 182] gave a different perspective to the concept of waiver while dealing with a case of non- issuance of notice under Section 80 of the Code of Civil Procedure, 1908. It RSA Nos.61 & 897/2016 24 2025:KER:64138 was held that the plea regarding lack of notice can be raised at any stage, including even at the second appellate stage and that not taking the plea earlier will not amount to waiver.
24. It is further pertinent to mention that when Bajaj Hindustan Sugar & Industries Limited v. Balrampur Chini Mills Ltd. [2007 (9) SCC 43] was rendered by the Supreme Court it was held that the issuance of notice under Section 80 is mandatory, and the Supreme Court took note of the earlier decision in Pioneer Builders, A.P. (supra) and thereafter held that the grant of interim relief without issuance of notice under Section 80 or without passing an order in an application for dispensation of the notice is bad.
25. In the light of the discussion above, it is to be concluded that the requirement of issuance of notice under Section 80 of the Code of Civil Procedure, 1908 is mandatory and failure to issue the same will entail in dismissal of the suit. Be that as it may, this Court needs to address the argument of the learned Senior Counsel for the plaintiff that, on the facts, a case of implied waiver is made out. While addressing this argument, this Court must notice that, no case of express waiver is made out by the plaintiff. As far as the implied waiver is concerned, this Court is not in a position to uphold the views of the learned Senior Counsel for the plaintiff, RSA Nos.61 & 897/2016 25 2025:KER:64138 especially since the 1st defendant, in his additional written statement, has specifically raised this issue. If the courts below did not deem it fit to address the issue, the plaintiff cannot be heard to contend that, a case of implied waiver is made out. Further, the understanding of the plaintiff regarding the necessity to issue notice under Section 80 of the Code of Civil Procedure, 1908 is evident from her attempt to seek dispensation of the same through filing of I.A.No.1636/1998. Having failed to obtain any specific orders dispensing with the notice under Section 80 of the Code of Civil Procedure, 1908, it is inevitable for this Court to hold that the suit framed and instituted as such was not maintainable since no notice under Section 80 was issued.
26. As a result of the above finding, the consequence is that, the suit should be remanded further for further consideration, going by the decision of this Court in Santhamma (supra). However, this Court cannot remain oblivious of the fact that more than 27 years have since passed after institution of the suit, and therefore, before remanding the matter, it is obligatory for this Court to consider the question, as to whether, the plaintiff has made out a case for the relief sought for in the plaint, and if so, whether the relief can be denied merely for the want of notice under Section 80, or for that matter, failure of the trial court to pass orders on an application for RSA Nos.61 & 897/2016 26 2025:KER:64138 dispensation of notice. It is in this context that the second question of law assumes significance.
27. Going by the averments in the plaint, the plaintiff claims 'B' schedule property as a right to ingress and egress to the plaint 'A' schedule property. Therefore, it is imperative for this Court to consider as to whether the plaintiff has established her right over the property. No doubt, going by the report of the Advocate Commissioner, 'B' schedule property is in existence but then, it is not in the same form as claimed by the plaintiff and going by the description in the plaint, the measurement of the plaint 'B' schedule property does not tally with the report of the Advocate Commissioner. In support of her claim, PW2 and PW4 were examined along with the plaintiff to show that they have used the 'B' schedule pathway for several years. But, however, it has come out in evidence that PW2 is an interested witness and that PW4 is a local Panchayath Ex- member. It is in this context, this Court should consider the impact of the acquisition by the State Government for the establishment of the Government College. The evidence in this case is not clear as regards the nature of plaint B schedule property prior to the acquisition and as to whether the document of title in respect of the properties in question mentioned about the existence of a way. However, going by the plaint RSA Nos.61 & 897/2016 27 2025:KER:64138 averments, it is indisputable that the Government acquired the land for establishing a school. A reading of the plaint in its entirety would leave no room for doubt that the plaintiff had specifically admitted that defendant State had acquired the land and further apprehended that in pursuance to such acquisition, if the pathway is blocked, serious prejudice will be caused to the plaintiff.
28. While it could be said that any form of easement constitutes an encumbrance over the land, will such encumbrance subsist even after the acquisition of land. The word "Encumbrances" with regard to a person or an estate denotes a burden which ordinarily consists of debts, obligations and responsibilities. In the sphere of law, it connotes a liability attached to the property arising out of a claim or lien subsisting in favour of a person who is not the owner of the property. Thus, a mortgage, a charge and a vendor's lien are all instances of encumbrances. The essence of an encumbrance is that it must bear upon the property directly and indirectly and not remotely or circuitously. It is a right in re aliena circumscribing and subtracting from the general proprietary right of another person. An encumbered right, that is a right subject to a limitation, is called servient, while the encumbrance itself is designated as dominant. Dealing with encumbrances, Salmond in his book on Jurisprudence, eleventh edition, at page 294, observes as RSA Nos.61 & 897/2016 28 2025:KER:64138 follows:
"It frequently happens that a right vested in one person becomes subject or subordinate to an adverse right vested in another. It no longer possesses its full scope or normal compass, part of it being cut off to make room for the limiting and superior right which thus derogates from it. Thus the right of a landowner may be subject to, and limited by, that of a tenant to the temporary use of the property; or to the right of a mortgagee to sell or take possession; or to the right of neighbouring landowner to the use of way or other easement; or to the right of the vendor of land in respect of restrictive covenants entered into by the purchaser as to the use of it; for example, a covenant not to build upon it."
In its widest sense, the word "encumbrances" must necessarily include a right of easement such as a right of way.
29. Coming to the nature of land acquired under the provisions of the Land Acquisition Act, 1894, it becomes clear that on operation of Section 16, the land acquired vests with the Government free of all encumbrances. In E.Taylor Vs The Collector of Purnea [ILR (1887) 14 Cal 423], it was held that the word 'encumbrance' under the Land Acquisition Act [X of 1870] is understood to include easements. Going by operation of Section 16 of the Land Acquisition Act, 1894, it can be safely concluded that, once acquisition takes place, any existing right of easement if any, gets extinguished, and therefore no claim for easement will lie against the State.
30. Even otherwise, this Court is not persuaded to hold that, the RSA Nos.61 & 897/2016 29 2025:KER:64138 plaintiff has established any such right. The evidence adduced by the plaintiff is inconclusive as regards the right of easement by prescription. Pertinently, the plaintiff's claim is not one for easement of necessity. The evidence PW5, the Secretary of the Chavara Grama Panchayath, shows that, the pathway used by the plaintiff goes around the Government College. Therefore, it is not a case where the ingress and egress of the plaintiff is completely obstructed. Hence, this Court also cannot subscribe to the findings of the first appellate court to the effect that, it was the duty of the Government to have established that the 'B' schedule pathway did not exist. The first appellate court has completely gone on a wrong tangent by casting a negative burden on the State, especially when the plaintiff failed to establish her right at first instance.
31. Equally so, this Court is not impressed with the argument of the learned Senior Counsel that, once the first appellate court in A.S.No.166/2006 has remanded the matter back to the trial court for fresh consideration, the requirement of notice under Section 80 of the Code of Civil Procedure, 1908 no longer exists. The defect, if any, in not granting leave as sought for in I.A.No.1636/1998 will carry forward, and unless and until the leave is granted, there cannot be any proper suit in the eye of law. Though normally, on finding that the non-issuance of Section 80 notice, or RSA Nos.61 & 897/2016 30 2025:KER:64138 for that matter, non-consideration of the application for dispensation of the notice under Section 80 should necessarily require a reconsideration of the case on merits, inasmuch as this Court has found that the plaintiff has not succeeded in proving the case as pleaded in the plaint, this Court is of the considered view that no useful purpose will be served in remanding the suit for a fresh trial even after the lapse of 27 years.
32. Resultantly, this Court finds that the appellant-State is entitled to succeed. Accordingly, RSA No.61/2016 is allowed, reversing the judgment and decree in A.S.No.132/2009 on the files of the Additional District Court - VI, Kollam and restoring the judgment and decree in O.S.No.290/2000 on the files of the Munsiff's Court, Sasthamcotta. The parties are directed to suffer their respective costs.
In the light of the decision of this Court in RSA No.61/2016, RSA No.897/2016 will also stand allowed. No costs.
Sd/-
EASWARAN S. JUDGE ACR