Patna High Court
Bihar State Electricity Board vs K.N.H. Medicial College And Hospital ... on 29 August, 1977
Equivalent citations: 1978(26)BLJR464
JUDGMENT Madan Mohan Prasad, J.
1. This appeal is directed against an order passed by the Subordinate Judge of Bhagalpur granting ad interim injunction in a suit brought by the plaintiffs respondents first party.
2. It appears that defendants second party were the original owners of suit land under whom the plaintiff-respondent No. 1 (K.N.H. Medical College) was a tenant. Subsequently the aforesaid plaintiff purchased the suit property. Thereafter the suit lands were acquired by the State under the Land Acquisition Act for the purposes of the use thereof by the appellant. The College aforesaid and its President and other officers, therefore filed the present suit impleading the State, its officers and the present appellant for a declaration that the proceeding and action taken for the acquisition of the land and possession thereof are without jurisdiction, ultra vires, mala fide and illegal. There was a further prayer for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs and from doing any act to disturb the possession of the, plaintiff's and from making any construction on the suit land.
3. It appears that the plaintiffs also filed an application under Order 39 of the Code of Civil Procedure (hereinafter referred to as 'the Code') for issue of an ad interim injunction. Rule was issued, the defendants were called upon to show cause and after hearing the parties, by order dated 20th February, 1968 the rule was vacated on the ground that the defendant appellant had already succeeded in completing a fencing around the land acquired and taking possession of the same with the assistance of police force.
4. Thereafter the plaintiffs filed the present application when a different occasion arose, namely, when the defendant-appellant started digging foundation for erecting pucca boundary walls, upon the land aforesaid. Again initial order of ad interim injunction was passed and the defendants were noticed. The only defendants who showed cause were the present appellant and its officers, defendants 5 and 6. Having heard the parties, the learned Subordinate Judge made the order of ad interim injunction absolute. Hence this appeal,
5. Before I come to the merits of the appeal, there are two questions arising with regard to the competency of the appeal which have to be disposed of. It appears that respondent No. 2, the President of the aforesaid college, died during the pendency of this appeal. No step for substitution of his legal heir having been taken, the learned Registrar recorded an order that the appeal had abated so far as the heirs of the aforesaid respondent No. 2 are concerned. It is urged in this connection that the order aforesaid must be set aside. There is good basis for this argument. The present case was one which was filed by an institution, the homoeopathic college. The President, Secretary and other office bearers of the aforesaid college were also made plaintiffs 2 to 4. Obviously, therefore, the other plaintiffs were instituting the suit in their representative character. Respondent No. 2 had no personal interest in the property of the college and he was made a plaintiff in his representative character as the President of the college. It is well known that where a suit is filed by a person or against a person in a representative character, the suit does not abate on account of the non-substitution of the legal heirs of such person. In cases of suits by or against trustees or by Mahanths of Maths or Shebaits of temples, it has been held on numerous occasions that there is no question of the legal representative being substituted or of the suit abating on the ground of non-substitution of their legal representatives. It has been held that in such cases Rules 3 and 4 of Order 22 of the Code have no application see Sadhu Charan Parija and Ors. v. Krishnamani Dei and Ors. A.I.R. 1942 Pat. 181, Keshab Rai Jieu Thakur v. Jyoti Prasad Sinha Deo and Ors. A.I.R. 1932 Cal. 783, Taraprasanna Ganguly and Ors. v. Naresh Chandra Chakrabarty and Ors. A.I.R. 1933 Cal. 329. The main plaintiff being the college itself which is still a party to this appeal, there was no question of the appeal abating on the ground aforesaid. The order of the learned Registrar, therefore, that the appeal had abated on account of the appellant's not impleading the legal representatives of the deceased respondent No. 2 must be set aside. The question thus as to whether the appeal is competent now in view of the same having abated as against respondent No. 2, does not arise.
6. The second difficulty which has been pointed out in this case is in respect of an application filed by the appellant to bring on record as respondent the person who was elected subsequent to the death of the original respondent No. 2, as the President of the college. It appears that the respondents had drawn attention of this court by filing a petition which came up for orders on 13-8-75, to the fact that the original respondent No. 2 was dead and that after his death one Jageshwar Mandal had been elected President in his place. On behalf of the appellant one week's time was prayed for to file a petition stating the above facts. A preemptory order was passed granting the aforesaid time but saying further that failing that "no application in this respect will be entertained". It appears that a petition was filed by the appellant but on the 21st of August, 1975 under Order 1, Rule 10 and Section 151 of the Code for substituting the duly elected President in place of the deceased respondent No. 2. This application, as is obvious, was filed one day roolate. The office has pointed out that the application is not maintainable now in view of the non-compliance of the preemptory order of this Court. In view of the decision that the appeal has not abated and could not abate in the present case on account of the absence of the duly elected President, the institution which filed the present suit being still a party to the appeal, and further in view of the fact that the aforesaid newly elected President has already been impleaded as a plaintiff to the suit in the court below, the application has not been pressed.
7. In view of the aforesaid, the appeal is competent. Turning now to the merits of the case, the learned Subordinate Judge has found with the plaintiff-respondents on all the three questions which are relevant to the grant of an injunction. Besides, he has found that there is now a fresh cause of action for renewing the prayer for grant of ad interim injunction and accordingly the petition is maintainable.
8. At the hearing of this appeal, learned Counsel appearing for the appellant has not challenged any of the findings of the court below on the question of there being a prima facie case for consideration and irreparable injury. Only two points have been raised ; firstly, that in view of the admitted case of the plaintiffs that they had not served any notice under Section 80 of the Code on the State of Bihar, the suit is not maintainable; and secondly, that the balance of convenience is in favour of the defendants. On the first point it has been urged that it is well settled that Section 80 of the Code is mandatory ; it applies to suit for injunction and admits of no exception. Reliance has been placed on a Bench decision of this court in the State of Bihar and Anr. v. Jiwan Das Arya , which followed an earlier Bench decision of this court in State of Bihar and Ors. v. Kamaksha Prasad Sharma and Ors. A.I.R. 1962 Pat. 303. In the former case the suit had been filed before the expiry of the prescribed period of two months. In the other case on which reliance was placed, notice under Section 80 of the Code was not served but it was alleged that there was a waiver of notice on the part of the State of Bihar, and the suit was decreed on that basis. The appeal to this court was filed by the State of Bihar against the aforesaid decree. It was contended on behalf of the other side that by their conduct in giving only 12 days' time to make a certain payment, the State of Bihar had waived their right to notice under the aforesaid provision. The contention was repelled and it was held that the causation of serious and irreparable damage cannot be regarded as a ground for dispensing with the service of notice under Section 80 of the Code.
9. On behalf of the respondents it has been pointed out that the State of Bihar and its officers, defendants to the present suit, have not raised the question of absence of notice under Section 80 of the Code. In other words, they have not claimed the protection. It is said that no written statement has yet been filed by the State of Bihar or its officers and further that even though they had been noticed on the present occasion, no petition showing cause against the grant of injunction was filed by them. That brings to the question as to whether a third party can raise the question of absence of notice under Section 80 of the Code. It is well settled that notice under Section 80 of the Code is by way of a protection to the State as also to its officers when suits are to be instituted against them and to give them an opportunity to reconsider their legal position and to make amendments or settle the claim, if so advised, without litigation Province of Bihar v. Kamakshya Narain Singh . Obviously the provision of Section 80 of the Code does not afford any protection to anybody else. It is equally well settled that even though the provision of Section 80 of the Code is mandatory, it is still open to the State or the officers concerned to waive their right to notice. In the case of the State of Bihar and Anr. v. Jiwan Das Arya, (supra) itself the learned Judges said that even though the provision be mandatory, it is still open to the State to waive their right. It is not, difficult to see that in suitable cases the State may waive their right to notice. It is thus not for a third party to insist that notice under Section 80 of the Code be given to the State or its officers. In the present case, one does not know whether the State would give up its right to notice and whether its officers would do so or act otherwise. The appellant thus cannot be deemed to have the right to raise the absence of notice under Section 80 of the Code as a ground for holding at the present stage that the suit is not maintainable and on that account for vacating the order of injunction.
10. In the view which I have taken I am supported by several decisions of this court and other Courts. In the case of Bhagwan Mahto and Anr. v. Bal Karan Chamar and Ors. 1971 P.L.J.R. 242. K.B. Singh, J (now Chief Justice) held that the plea of want of notice is not open to a third party as the State can waive the plea by not filing the written statement or by not taking the plea in its written statement. Reliance was placed by the learned Judge (as he then was) on several decisions, e. g., Ruplal Agrawal v. Dhansar Coal Co. and Ors. A.I.R. 1944 Pat. 49, Hirachand Himatlal Marwari v. Kashinath Thakurji Jadhav A.I.R. 1942 Bom. 339, and Gaja and Ors. v. Dasa and Ors. . There are similar other decisions in the case of Ruplal Agarwala v. Dhansar Coal Co. and Ors. A.I.R. 1933 Pat. 49, and Ishtiyaq Husain Abbas Hussatn v. Zafrul Islam Afzal Hussain and Ors. . It is unnecessary to multiply decisions on the point, for, it seems to me obviously to follow from the very purpose of Section 80 of the Code that the protection given to one can be claimed by that one only and not by another. It is thus not open to the appellant to raise the question of the non-service of notice under Section 80 of the Code. It will be open to the State of Bihar and its officers to do so at the appropriate time.
11. On the question of balance of convenience, it has been urged that nothing would be lost to the plaintiffs if the appellant is allowed to construct pucca boundary wall in place of the existing wire fencing, or because of raising other structures on the land for the convenient enjoyment thereof by the appellant who are, already in possession thereof. I do not think the argument is well founded. It appears the possession of the land was granted in this case to the appellant by force. It appears next that fencing of the lands having been completed the ad interim injunction granted on the first occasion was vacated. Now admittedly the appellant wants to build pucca boundary walls all around the land. There is not the slightest doubt that this will be a permanent structure on the land changing the features thereof. Further, if there is already a fencing there does not appear to be any necessity of constructing pucca boundary walls a matter which can await the result of the suit. Obviously, therefore, the balance of convenience lies in favour of the respondents and not the appellant.
12. For the reasons aforesaid, I do not find any merit in this appeal. It is accordingly dismissed. In the circumstances of this case, however, there will be no order as to costs.