Patna High Court
The State Of Bihar vs Raghunandan Singh And Anr. on 9 March, 1960
Equivalent citations: AIR1960PAT530, AIR 1960 PATNA 530
JUDGMENT Raj Kishore Prasad, J.
1. This appeal involves the interpretation of Section 80, of the Code of Civil Procedure, 1908. The sole question for determination is, whether a future act or an act threatened or apprehended in the future is outside the scope of Section 80 of the Code ?
2. This appeal by the defendant --- State of Bihar -- arises out of a suit, brought by the plaintiff-respondent, for permanent injunction restraining the appellant and the Circle Officer, defendant 2 --respondent 2, from settling the ghat in suit, with anybody, in near future, which has been decreed by both the courts below.
3. In paragraph 6 of the plaint, which was filed on the 7th July, 1954, the plaintiff averred, inter alia :
"That on behalf of the defendants, through the Circle Officer, Ballia, a proclamation by beat of drum was made in June last that the ferry (ghat) with be settled by public auction in near future and that the intending bidders should approach the Circle Office for the same."
4. The plaintiff, therefore, asked, in paragraph 10(a) of his plaint, for a decree for permanent injunction against the defendants restraining them from settling the ghat with anybody. There is, therefore, no doubt that the act to be restrained was something apprehended in the future, and the suit was begun to restrain the defendants from the threatened settlement of the ferry of the plaintiffs in near future.
5. The suit was contested by the defendants, including the appellant, on several grounds. One of them was that the plaintiff's suit was not maintainable for want of a notice under Section 80 of the Code, and, therefore, it was liable to be dismissed on this ground alone.
6. The trial Judge held that a notice under Section 80 of the Code was not necessary as the suit related to a future act only. On appeal by the appellant to the court of appeal below, the judgment of the trial court was affirmed, and, the learned Subordinate Judge, who heard and decided the appeal, also upheld the view of the first court that a notice under Section 80t of the Code was not necessary in view of the fact that the real object of the suit of the plaintiff was to obtain the relief by injunction against an act not done, or, purporting to have been done, but merely threatened to be done in the future,
7. On the present appeal, therefore, the only point, which has been pressed in support of the appeal, is that the view of the scope of Section 80 of the Code taken by the court below is, wrong in law, because it covers not only a past act, but also a future act, and, as such, the plaintiff's suit for want of a notice under Section 80 of the Code was bad in law, and, therefore, it should have been dismissed in limine. In support of his contention, Mr. G. P. Shahi, the learned Additional Government Pleader, who appeared for the appellant, relied on a decision of the Privy Council in Bhagchand Dagadusa v. Secy, of State, 54 Ind App 338: AIR 1927 PC 176.
8. The learned counsel appearing for the plaintiff-respondent, however, in reply, supported the judgment in appeal, and, submitted that Section 80 of the Code does not apply to future acts or threatened acts, but only to past acts, and, therefore, the view taken of the scope of Section 80 of the Code by the courts below is correct. In support of his contention he relied on a Bench decision of this Court in Rameshwar Prasad Singh v. Md. Ayyub, AIR 1950 Pat 527, which has been relied upon also by the learned Judge of the Court of appeal below.
9. In order to ascertain the scope of Section 80 of the Code, it is necessary first to read the section itself. The material portion of Sec, 80 is in the following terms:
"Section 80. No suit shall be 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, until the expiration of two months next after notice in writing has been delivered to, or left at the office of :
XX XX XX XX"
10. The crux of the whole matter is, what is the true meaning of the words "in respect of any act purporting to be done" occurring in Section 80? In other words, whether these words cover only a past act or do they include also a future or threatened act?
11. Section 80 is intended to afford a protection to all officials, high and low. It protects a public officer in respect of any act purporting to be done by such public officer in his official capacity. Two conditions, however, are clearly necessary, first, he must be a public servant; and, secondly he must purport to act in his official capacity. The plaintiff respondent adds a third requisite, namely, that the act in question is not a future act,
12. As observed by Viscount Sumner, in Bhag-chand's case, (supra), 54 Ind App 338 at p. 357: (AIR 1927 PC 176 at p. 184):
"The Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words."
13. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. Section 80 imposes a statutory and unqualified obligation upon the Court. It is true if a suit a commenced by the plaintiff before the law allowed him to sue, he can get no relief in it either by declaration or otherwise. It is unsustainable in limine. This is the correct position in law if the suit is in respect of a past act or an act already completed.
14. The above observation of the Privy Council was considered by the Supreme Court in Dhian Singh Sobha Singh v. Union of India, AIR 1958 SC 274 and N.H. Bhagwati J., who delivered the unanimous opinion of the Court, observed at p. 281, that, no doubt, the terms of Section 80 should be strictly complied with, as laid down by the Privy Council in the just mentioned case, but that does not, however, mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced from commonsense.
15. In the present case, however, we are not concerned with the terms of any notice under Section 80 of the Code, because admittedly no such notice was given before the suit was begun. We are here concerned only with the terms of the section itself.
16. The appellant strongly relied on the above mentioned Privy Council case in which it was held that Section 80 of the Code is to be strictly complied with and is applicable to all forms of action and all kinds of relief, including a suit for injunction. Relying on the above decision, it was vehemently argued that Section 80 would, therefore, apply also to the present suit notwithstanding that the relief claimed is in respect of a future act or a threatened act.
17. It is true that a suit in which, inter alia, an injunction is prayed is still "a suit" within the words of Section 80, and, as observed by Lord Sumner, in the just mentioned case, "to read any qualification into it is an encroachment on the function of legislation".
18. In the above case, the plaintiffs claimed two kinds of relief; (a) a declaration that certain official notices and orders were ultra vires and invalid, and, (b) an injunction permanently restraining all executive action thereunder. Their Lordships, therefore, observed that unless the right to the first relief was made out, the prayer for the second necessarily failed. The suit was ill respect of orders and notices already completed and issued, and, the act to be restrained was something apprehended in the future on the basis of the official notices and Orders already completed and issued. The suit, clearly, therefore, in that case, was in respect of a past act, which was the order for recovery of the tax, already completed and issued, and therefore, Lord Sumner, in connection with the aforesaid order for recovery of the tax, observed that:
"If that was valid, there was nothing to be restrained. Hence, though the act to be restraind is something apprehended in the future, the act alone in respect of which the suit lies, if at all, is the order already completed and issued".
The present suit was in respect of a future or a threatened act, not at all a past act, as was the case in Bhagchand's case, AIR 1927 PC 176 (Supra).
19. Reliance was also placed on another decision of the Privy Council in Revati Mohan Das v. Jatindra Mohan Ghosh, 61 Ind App 171 : AIR 1934 PC 96, in which Sir George Lowndes, in delivering 'the opinion of the Board, at p. 175 (of Ind App): (at p. 97 of AIR), observed that:
"In the case of a suit against a public officer it is only where the plaintiff complains of some act purporting to have been done by him in his official capacity that notice is enjoined."
20. Relying on the above case, it was urged that their Lordships of the Privy Council have themselves paraphrased Section 80 as if it read "purporting to have been done" instead of "purporting to be done" as occurs in the section itself, and, as such, "section 80 must be held to cover also a threatened or future act.
21. The above mentioned two cases of the Privy Council were considered by a Division Bench of this Court, presided over by Reuben and Jamuar, JJ., in Rameshwar Prasad Singh (supra), AIR 1950 Pat 527, relied upon by the plaintiff-respondent. Reuben, J., at p. 534, observed, in respect of the above paraphrase of Section 80 by the Privy Council, that:
"... ....this has very little weight since the paraphrase related to the facts of the particular case and their Lordships had not in their mind the question which is now in issue."
22. In my opinion, the above observation applies to the present case also. The suit in Revati Mohan Das, 61 Ind App 171 : (AIR 1934 PC 96), was in respect of a past act, in that it was based on a mortgage executed by the then commo manager of the estate, appointed under Section 95 of the Bengal Tenancy Act, 1885, which was duly sanctioned by the local Court, and, there was then no dispute as to its validity or as to the amount due on it. It was not at all in respect of any future or a threatened act.
23. In the instant case, however, the act sought to be restrained is a future act or a threatened act, inasmuch as the settlement although intended to be made by a proclamation by beat of drum a month before the commencement of the suit, by the defendants, had not actually been made till the! institution of the suit but was intended to be made in the near future. For the above reasons, therefore, the above two Privy Council decisions have no application to the present case.
24. The scope of Section 80 of the Code and the meaning of the words "in respect of any act purporting to be done" occurring in Section 80 have been considered by a Division Bench of the Madras High Court presided over by Ramesam and Reilly, JJ. in Arunachalam Chetty v. Official Receiver, Ramnad, AIR 1927 Mad 166 : ILR 50 Mad 239. Their Lordships, proceeding on a strict interpretation of the language of Section 80, held that the section does not extend to future acts.
25. In that case, the facts were these: The action was brought for a declaration that - the suit properties belonged to the plaintiff and defendants 3 and 4 of that suit, and the plaintiff also asked for a perpetual injunction restraining the 1st defendant, who was the official receiver, from selling the properties as the properties of the Second defendant The official receiver advertised the suit properties for sale on 10-11-1924. On the 5th November the plaintiff sent a notice of suit to the 1st defendant and the suit was filed on 7-11-1924. The trial court dismissed the plaintiff's suit on the ground that two months had not elapsed before the filing of the suit and after the giving of notice.
The plaintiff of that suit, in appeal, contended that a notice under Section 80 of the Code was unnecessary, inasmuch as his suit was in respect of a threatened act and not in respect of an act which was begun, and, therefore, the section did not apply. The above contention was accepted, and it was held that as the suit of that plaintiff was a suit to restrain the intended sale, and it was not in respect of past acts completed, or, begun, but incomplete, no notice under Section 80 was necessary, Reilly, J., in a separate but concurring judgment, also held that the word "act" in Section 80 of the Code does not include a future act. In that case, Reilly, J. posed to himself the question:
"Does the insertion of the words purporting to be" not only widen the character of the acts included but also add future acts to past act"?
26. In answering the above question, his Lordships observed that:
"........ It may fairly be said that the phrase in question is susceptible of two interpretations, a wider interpretation including future acts and a narrower confined to past acts, and that at the least the narrower interpretation is as consonant with the wording of the section as the wider one. That being so, let us look at the consequences to which the wider interpretation leads".
His Lordship, therefore, put another question to himself:
"Can we suppose the Legislature, having provided the Courts with the weapon of a temporary injunction for the protection of private rights, intended to tie the hands of the Courts for two months before that weapon may be used against a public officer".
His Lordship answered it in the negative and observed that this suggestion could not be accepted lightly by them, and, held, in agreement with his learned, colleague, Ramesam, J., that the correct interpretation of the words in question was the narrower one," that is, that "act" does not include a future act,
27. The above Madras case was followed by the Division Bench of this Court referred to before, in Rameshwar Prasad Singh's case (supra), AIR 1950 Pat 527, in which their Lordships held that Section 80 does not apply to future acts.
28. It is a well established rule that, when n provision of a statute is susceptible of two interpretations and one of them leads to a manifest absurdity or to a clear risk of injustice and the other leads to no such consequences, the second interpretation, must be adopted,
29. It is also well settled that the words of a statute, where there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etyomological propriety of language, nor even in its popular sense, as in the subject or in the occasion in which they are used, and, the object to be attained.
In order, therefore, to come to a decision as to the true meaning of a word used in a statute one has to enquire as to the subject-matter of the enactment and the object which, the legislature had in view: State of uttar Pradesh v. C. Tobit, AIR 1958 SC 414. In Ramaswamy Nadar v. The State of Madras AIR 1958 SC 56, B. P. Sinha, J., as he then was, who delivered the unanimous opinion of the Supreme Court, went further and observed that:
"If, in construing the section, the Court has to supply some words in order to make the meaning of the statute clear, it will naturally prefer the latter construction which is more in consonance with reason and justice".
30. General words and phrases, however, wide and comprehensive they may be in their liberal sense, must usually be construed as being limited to the actual objects of the Act. If, therefore, in construing a section of a statute, there are two interpretations possible, then effect is to be given to the one that is more in consonance with reason and justice and which does not lead to a manifest absurdity. It is the duty of the Court to interpret a provision restricting ordinary right of every man to come to Court for relief, with the utmost strictness.
31. There is no doubt that if the interpretation, sought to be put on Section 80, that it includes future or threatened acts also, is accepted, then the immediate result of it would be to defeat the object of the Code, and, also to cause serious or irremediable damage to the plaintiff. The observation of Viscount Sumner, in Bhagchand's case, AIR 1927 PC 176, that:
"If the immediate result of the Act would be to inflict irremediable harm, Section 80 does not compel the plaintiff to wait for two months before bringing his suit, though if nothing is to be apprehended beyond what payment of damages would compensate, the rule is otherwise and the section applies".
was quoted with approval by Reuben, J. in the Patna case while repelling the argument of the learned Advocate General in that case that their Lordships of the Privy Council in Bhagchand's case AIR 1927 PC 176 (supra) Bad held that Section 80 does cover future acts. The above observation of their Lordships of the Privy Council, however, does support the view that an the case envisaged by them Section 80 will not come into play.
32. On a consideration of the authorities, mentioned above, and following the Patna case, just referred to, and, applying the well-known canons of construction of a statute, stated above, which may properly be applied here in interpreting the words now in question, in my judgment, the question posed by me in the beginning of this judgment must be answered in the affirmative.
33. The true meaning and the correct interpretation of the words "in respect of any act purporting to be done", occurring in Section 80 of the Code, that they cover only a past act and do not include a future act. Section 80, as such, comes into play only when the suit begun is in respect of past acts, completed, or begun, but incomplete, but it does not apply to future or threatened acts.
34. On the view which I have taken of the. scope of Section 80 of the Code, it is plain that a notice under S, 80 of the Code was not necessary in the present case, and, therefore, the decision of the courts below on this question are correct, and, are affirmed.
35. The result, therefore, is that the appeal fails and is dismissed with costs.