IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 CRP.No. 649 of 2007(F) --------------------- AGAINST THE ORDER DATED 06/02/2007 IN IA 773/2006. IN OS.79/1999 of PRL.S.C.,THALASSERY .................... PETITIONERS/PETITIONERS/DEFENDANTS 1 & 6 ---------------------------------------------------------- 1. THE SECRETARY, MINISTRY OF CIVIL AVIATION, GOVT. OF INDIA. 2. THE DIRECTOR GENERAL OF CIVIL AVIATION, NEW DELHI. BY ADV. SRI.THOMASMATHEW NELLIMOOTTIL,SR.PANEL RESPONDENTS: COUNTER PETITIONERS/PLAINTIFFS & DEFENDANTS 2 TO 5&7 --------------------------------------------------------------- 1. R.SAROJINI, W/O.LATE V.DAMODARAN, RITA NIVAS, R.K.V.ROAD, KOWDIAR, THIRUVANANTHAPURAM. 2. S.SUDHA, W/O.LATE CAPT.RAJKUMAR, SIVAN, R.K.V.ROAD, KANAKAKUNNU, THIRUVANANTHAPURAM. 3. HITHYA RAJKUMAR, D/O.LATE CAPT.RAJKUMAR, SIVAM, R.K.V.ROAD, KANAKAKKUNNU, THIRUVANANTHAPURAM. 4. VIVEK RAJKUMAR, SIVAN, R.K.V.ROAD, KANAKAKUNNU, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT. OF KERALA 6. STATE OF KARNATAKA, REPRESENTED BY THE CHIEF SECRETARY, GOVT. OF KARNATAKA. CRP/649/2007 7. THE KERALA AVIATION TRAINING CENTRE, REPRESENTED BY THE PRESIDENT. 8. THE GOVT.FLYING TRAINING SCHOOL, BANGALORE, REPRESENTED BY THE PRINCIPAL. 9. THE AGNI AEROSPORTS ADVENTURE PVT.LTD., BANGALORE, REPRESENTED BY THE MANAGING DIRECTOR. BY ADV. SRI.P.P.JACOB FOR R8 SRI.B.MANIMOHAN FOR R8 SRI.S.B.JAYACHANDRAN FOR R7 SRI.P.M.JOSEPH FOR R7 SRI.BLAZE K.JOSE FOR R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/08/2008, ALONG WITH CRP NO. 207 OF 2007 . THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J --------------------------------------------- C.R.P.NOS. 207 & 649 of 2007 -------------------------------------------- Dated this 5th day of August, 2008 O R D E R The Union of India and Director General of Civil Aviation who are defendants 1 & 6 in I.A.No.773 of 2006 in O.S. No.79 of 1999 on the file of Sub Court, Trivandrum are the petitioners. Respondents 1 to 4 are the plaintiffs and other respondents the other defendents. Suit was filed for realisation of damages on account of death of late Rajkumar the Chief Flight Instructor of Kerala Aviation Centre. C.R.P.207 of 2007 was filed challenging the order dated 7.6.2006 in I.A.No.793 of 2006 whereunder leave was granted to the respondents/plaintiffs as provided in sub-section (2) of Section 80 of Code of Civil Procedure. C.R.P.649 of 2007 has filed challenging the order dated 6.2.2007 in I.A.773 of 2006 an application filed by the petitioners to dismiss the suit as no notice was sent under Section 80 of Code of Civil Procedure. The trial court has earlier passed an order on 7.6.2006 dismissing I.A.773 of 2006 which was challenged before this Court in C.R.P.873 of 2006. Finding that the petitioners specifically contended that there was no notice under Section 80 of Code of Civil Procedure sent to them and learned Sub Judge did not specifically consider that question, earlier order was set aside. I.A.773 of 2006 was remanded for considering the question whether a notice was sent to the petitioners as provided under Section 80 of Code of Civil Procedure and if not, whether the suit is maintainable. Under order dated 6.2.2007 learned Sub Judge dismissed the petition once again which is challenged in C.R.P.649 of 2007. 2. The learned counsel appearing for the petitioners and respondents 1 to 4 the plaintiffs were heard. 3. Learned counsel appearing for the petitioners argued that learned Sub Judge did not consider the question whether a notice as provided under Section 80 of Code Civil Procedure was sent to the Petitioners, though the petition was remanded for that specific purpose. It was argued that petitioners contended in the written statement that they did not receive the notice sent by the petitioners and though learned Sub Judge found that notice was sent evidenced by postal receipt, question whether notice was sent to Union of India as provided under Section 80 of Code of Civil Procedure was not considered. The learned counsel also argued that though learned Sub Judge granted leave under sub-section (2) of Section 80, the leave contemplated is not as sought for in I.A.793 of 2006 and therefore, the order is not maintainable. 4. Learned counsel appearing for respondents 1 to 4 argued that in paragraph 26 of the plaint it was specifically contended that notice under Sec.80 of Code of Civil Procedure was sent to the respondents/defendents and copies of the notice and postal receipts were produced and learned Sub Judge as per order dated 6.2.2007 found that notice was served and therefore, there is no illegality or irregularity warranting interference. It was argued that in OS 79 of 1999 is being dragged on technical reasons when the very purpose of enacting Sec. 80 of Code of Civil procedure is to give opportunity to the State or Union of India to settle the dispute with the plaintiffs. Learned counsel also argued that I.A.793 of 2006 was filed as the defendents contended that instead of Cabinet Secretary, Secretary to Civil Aviation is to be impleaded and therefore the Secretary was impleaded and notice originally sent to the Union of India is to be treated as the notice under Section 80 and their leave is to be granted. It is argued that there is no illegality in that order also. 4. When this Court remanded I.A.773 of 2006, there was a specific direction to consider whether there is notice as provided under Sec.80 of Code of Civil Procedure, learned Sub Judge should have considered the question and rendered a specific finding on that question. 5. Sub Section (1) of Section 80 provides that no suit shall be instituted against the Government or against the Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity until expiration of 2 months, next after notice in writing has been delivered to or left at the office and in the case of a suit against the Central Government, except where it relates to a railway, notice is to be delivered or left at the office of the Secretary to that Government. Therefore the notice contemplated under sub-section (1) of Sec.80, if the suit is against the Central Government is to Secretary to the Central Government. When the defendents contended that no such notice was sent and plaintiffs contended that a notice was sent, learned Sub Judge should have considered the question whether there is material to substantiate the case that a notice was sent. What was found by the Court under the impugned order in I.A.773 of 2006 was only that plaintiff issued a notice as evidenced by postal receipt and that is to be treated as a notice under Section 80 of Code of Civil Procedure. The order does not show that a copy of the notice was produced, addressed to the Secretary the Union Government as provided under Sub Section (1) of Section 80 of the Code of Civil Procedure. In the absence of that finding order dated 6.2.2007 can only be set aside with a direction to consider this question specifically and find whether a notice as provided in Sub section (1) of Section 80 of Code of Civil Procedure was, sent or not. 5. Similarly as per the impugned order in I.A.793 of 2006 learned Sub judge did not consider the question whether the leave sought for by the petitioners is the one provided under Sub section (2) of Section 80 of Code of Civil Procedure. What is provided under Sub section (2) of Section 80 of Code of Civil Procedure is that a suit to obtain an urgent or immediate relief against the Government or any Public Officer in respect of any act purporting to be done by such Officer in his official capacity suit may be instituted with the leave of the Court without serving a notice as required under Sub section (1). Therefore sub section(2) of Section 80 provides for granting leave only in a case where an urgent or immediate relief is to be granted, without waiting for expiry of period of notice provided under Section 80(1). The question whether a notice was sent under sub section (1) of Section 80 to the Secretary of Ministry of Aviation, who was subsequently substituted for the Cabinet Secretary is an entirely different matter. Question is whether leave to institute a suit without sending notice under Sub- section (2) of Section of Code of Civil Procedure is to be decided first. Unfortunately that aspect was not considered in the order dated 7-6-2006 in I.A.No.793 of 2006. Hence that order is also to be set aside. The Revision petition is allowed. Orders passed in I.A.773 of 2006 dated 6-2-2007 and order passed in I.A.793 of 2006 in O.S.79 of 1999 on the file of Sub Court, Thiruvananthapuram are set aside. These petitions are remanded for fresh disposal in accordance with law after hearing the parties. M.SASIDHARAN NAMBIAR, JUDGE bps