TMI Blog2000 (10) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the civil court is barred; a further declaration was sought that the civil court is not even otherwise competent to entertain any such suit and grant any relief in respect of any proceedings under the Income-tax Act, 1961, coupled with the prayer that the proceedings in Miscellaneous Application No. 236 of 1986, in the court of Civil Judge (S.D.), Jamnagar, including the order dated November 25, 1986, passed therein may be set aside. On December 2, 1986, rule was issued and while issuing rule further proceedings in the respective pending suits were stayed. Briefly stated, the facts giving rise to the Special Civil Application No. 6213 of 1986, are that. (i) A warrant of authorisation under section 132 of the Income-tax Act, 1961, read with rule 112(1) of the Income-tax Rules, 1962, was issued by the Director of Income-tax, Ahmedabad, on November 19, 1986, authorising Shri K. M. Varma and others to enter into the premises of the respondent, namely, Natwerlal M. Badiani, Advocate, Jamnagar, and carry on a search. Two separate warrants of authorisation were issued; one for the search of the office premises and another in respect of the residential premises. (ii) The concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valuables found were sealed there itself and a prohibitory order under section 132(3) was issued. The proceedings in the respective Civil Suits Nos. 1196 of 1986 and 1197 of 1986, and in the Miscellaneous Applications Nos. 234 of 1986 and 236 of 1986, filed therein respectively and the ex parte interim orders dated November 25, 1986, passed therein in both the matters are under challenge in these two petitions as above. In Special Civil Application No. 6213 of 1986, a caveat dated November 26, 1986, had been entered by Natwerlal M. Badiani and after the issue of the rule, an affidavit in reply dated December 10, 1986, had been filed to which an affidavit in rejoinder dated December 19, 1986, was filed. In Special Civil Application No. 6214 of 1986, an affidavit in reply dated December 10, 1986, was filed to which an affidavit in rejoinder dated December 19, 1986, was filed. When these two special civil applications came up before the Division Bench for hearing on February 21, 1994, a question was raised that in view of the provisions of sub-section (2) of section 80 of the Civil Procedure Code, 1908, no relief interim or otherwise could have been granted by the learned Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia, Adaptation of Indian Laws Order, 1937, was as under: "80. No suit shall be instituted against the Secretary of State for India in Council, 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, in the case of the Secretary of State in Council, delivered to, or left at the office of, a Secretary to the Local Government or the Collector of the District, 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." By the Civil Procedure (Amending) Act, 1963, (1) the words "including the Government of the State of Jammu and Kashmir", (2) Clause (bb) was inserted and (3) in clause (c) the words "any other" were substituted for "a". By the Amendment Act, 1976, section 80 of the Civil Procedure Code, was re-structured and the original section was renumbered as sub-section (1) and two new sub-sections (2) and (3) wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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." From the very language of the section it is clear that the provisions of section 80 are mandatory and the giving of a notice under section 80 of the Civil Procedure Code, for institution of a suit against the Government or the public officer or in respect of any act purporting to be done by such public officer in his official capacity is a condition precedent or pre-requisite under section 80(1). However, under section 80(2) for obtaining an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. After considering various cases and the discussion on the point at the end of page 184 in column 2 and column 1 at page 185 the Privy Council held as under: "The Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. A suit in which inter alia an injunction is prayed for is still 'a suit' within the words of the section, and to read any qualification into it is an encroachment on the function of legislation. Considering how long these and similar words have been read throughout most of the courts in India in their literal sense, it is reasonable to suppose that the section has not been found to work injustice, but if this is not so, it is a matter to be rectified by an amending Act. Their Lordships think that this reasoning is right. To argue, as the appellants did, that the plaintiffs had a right urgently calling for a reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation as to the nature of the claim such as would enable the recipient to avert the litigation. The decision of the Privy Council in A the case of Bhagchand Dagdusa Gujrathi v. Secretary of State for India, AIR 1927 PC 176, has been considered in para. 5 and in para. 22 of this judgment, after noticing the amendments made in section 80 of the Civil Procedure Code, by the amending Act of 1976, which came into force from February 1, 1977, that such a change has a legislative acceptance of the rule of substantial compliance laid down by the Supreme Court in Dhian Singh Sobha Singh, AIR 1958 SC 274 and Raghunath Das, AIR 1969 SC 674, it has been observed that as observed in Dhian Singh Sabha Singh's case, AIR 1958 SC 274, one must construe section 80 with some regard to common sense and to the object with which it appears to have been enacted. The decision in S. N. Dutt v. Union a India, AIR 1961 SC 1449, was not found to be in accordance with the view expressed in this judgment and was, therefore, overruled. In para. 23 of the judgment the Supreme Court has further observed as under: "It has frequently come to out notice that the strict construction placed by the Privy Council i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anting leave without serving statutory notice under section 80(1) of the Civil Procedure Code, is whether the suit is for obtaining urgent and immediate relief against the Government. It is the urgency or immediate nature of the relief which would be relevant for deciding whether leave should be granted or not and not whether the plaintiff has good case for obtaining such immediate and urgent relief by way of interim order. Merely because that interim relief is refused on the merits, it cannot be said that there was no urgent or immediate need for interim relief in the suit. When the leave is granted, there is no question of the court reviewing the grant of leave or returning the plaint and the court having been once satisfied about the urgency, the requirement of statutory notice fades into total insignificance and the suit has to be tried as any other suit and merely because the interim relief is refused, the leave granted and the suit instituted will not become incompetent. However, we find that in the facts of the case before us no such leave was granted by the court and without granting the leave the ex parte ad interim injunction order was granted and that too without giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave is granted to institute a suit and the urgency is determined, the court only hears the plaintiff and not the other side. But after the grant of leave, whether urgent and immediate relief is to be granted or not, is a question which is decided after hearing both the sides. The proviso also speaks of the satisfaction of the court for not granting urgent and immediate relief after hearing both the sides and, therefore, only after the grant of the leave the stage is there for returning of the plaint and the court shall return the plaint if it is satisfied after hearing the parties that no urgent or immediate relief may be granted. On this aspect of the matter, the view in the case of N.V. Ashar [1984] 2 GLR 1333 (Guj), is not found to be the correct view in face of the proviso to section 80(2) of the Civil Procedure Code and the same is hereby overruled. In the case of State of Tripura v. Sajal Kanti Sengupta, AIR 1982 Gauhati 76, the court considered the question of granting ex parte temporary injunction as an interim relief in a suit against a public officer by invoking inherent powers under section 151 of the Civil Procedure Code. The court found that where there are provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment or the public officer, as the, case may be, and the question, which has been referred by the Division Bench, is answered accordingly. Mr. N. K. Majmudar appearing on behalf of the respondents while citing a decision of the single Bench of this court in the case of Amtrax Appliances Ltd. v. The Sarpanch, Karannagar Gram Panchayat [1996] GLH 461, submitted that the grounds on which the order granting ex parte injunction by the civil court had been challenged by way of filing these petitions before this court could be very 'well agitated before the same court by the present petitioners and, therefore, these special civil applications should not be entertained. We find that the facts in the case of Amtrax Appliances Ltd. [1996] GLH 461 are entirely different. The petitions had been filed seeking a direction against the Panchayat to consider the application for fixing a lump sum amount in lieu of all or any of the taxes and in particular the octroi to be paid by the petitioner to the Panchayat and to desist from collecting any octroi until the decision is taken on that application. The contract had been given under resolution passed by the Gram Panchayat to collect the octroi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the proceedings in the civil suit as a whole are in question and it was not a case of simple challenge to the order of the civil court, which could have been challenged by way of appeal. The challenge is to the proceedings and the very institution of the suit and in any case, we find that even if the petitioners herein could agitate such grounds before the civil court, there is no bar against entertaining such petitions challenging any order passed by the civil court when it is passed without jurisdiction or in invalid exercise of jurisdiction and defeats the mandatory provisions in the Code. This decision, therefore, in our opinion, does not help the respondents so as to throw away the petitions, which have been pending in this court since 1986 on the said ground. Mr. M.K. Majmudar, also cited the decision of the Supreme Court in the case of Loknath Padhan v. Birendra Kumar Sahu, AIR 1974 SC 505 and submitted that the matter is of 1986 and that the issue is purely academic and that unless there is an effective and living issue between the parties, the court should not decide the same. In the case of Loknath Padhan v. Birendra Kumar Sahu, AIR 1974 SC 505, pending appeal aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Rules and ex parte ad interim order was passed. Section 293 of the Income-tax Act in terms creates a bar of suits in civil courts in such matters against action of the public officer under warrant of authorisation under section 132 of the Income-tax Act and it is certainly a proceeding taken or order made under the Income-tax Act and section 293 in terms says that no prosecution, suit or other proceeding shall lie against the Government or any officer of the Government for anything in good faith done or intended to be done under the Act. In the case of CIT v. Parmeshwari Devi Sultania [1998] 230 ITR 745, the Supreme Court held that the substance and not the form of the suit is to be seen and where a certain asset was seized during search and rejecting the assessee's plea that the same included the shares of his brothers and sisters, the Income-tax Officer passed an order under section 132(5) determining the tax liabilities and directing the asset to be retained by the Department the Suit filed at the instance of the assessee for partition of that very asset was held not to be maintainable. It is, therefore, clear that in the facts of the present case also the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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