IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 19316 of 2009(O) -------------------------- OS.442/2007 of MUNSIFF COURT, THIRUVALLA .................... PETITIONER(S): --------------------------- JOSEPH PUNNEN @ BABU, AGED 64 YEARS, S/O. LATE JOSEPH, KANIYAMTHARA CHERUKARA BUNGLOW, (VADAKKEPARAMBIL), MEPRAL MURI, PERINGARA VILLAGE, THIRUVALLA TALUK. BY ADV. MR.P.HARIDAS RESPONDENT(S): ---------------------------- 1. PERINGARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PERINGARA P.O. 2. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, PATHANAMTHITTA. 3. HEADMISTRESS, ST.JOHNS GOVT. L.P.SCHOOL, MEPRAL P.O., MEPRAL MURI, PERINGARA VILLAGE, THIRUVALLA TALUK. R1 BY ADV. MR. S.SUBHASH CHAND,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.19316 of 2009 - O --------------------------------- Dated this the 30th day of July, 2009 J U D G M E N T This writ petition is filed seeking the following reliefs: “i) To call for the records leading to Exhibit P5 and may set aside the same. ii) To issue any appropriate writ or direction allowing Exhibit P4 application”. 2. Petitioner is the plaintiff in O.S.No.442/2007 on the file of the Munsiff Court, Thiruvalla. Suit is one for decree of perpetual prohibitory injunction and the respondents are the defendants in that suit. In the suit four items of properties are scheduled. In respect of the first item, the plaintiff claimed exclusive title and possession. Item No.2 is a property having an extent of 30 cents comprising a Government School managed by the first respondent, local authority. The case of the plaintiff is that he is in enjoyment of a pathway, which is described as item No.3 running through item No.2 property comprising the school. Item No.4 in the suit is the portion of the pathway over which obstruction is alleged have been caused by the defendants, according to the plaintiff. Suit was laid for a perpetual W.P.(C).No.19316 of 2009 - O 2 prohibitory injunction to restrain defendants from causing any obstruction to the enjoyment of the plaintiff over item No.3 pathway. The defendants, the local authority, State and headmistress of the school, entered appearance and filed counter to the application for interim injunction moved by the plaintiff for an identical relief, till the disposal of the suit. Status quo order was passed by the learned Munsiff on that application of the plaintiff, which continues to be in force. Petitioner/plaintiff moved an application to amend the plaint after issuing notice under Section 80 CPC to the State, to claim additional relief of declaration of his right of prescriptive easement over item No.3 pathway. Ext.P3 is the copy of that application. Defendants filed objections to Ext.P3 application. Ext.P4 is the copy of that objections. The learned Munsiff after hearing both sides dismissed Ext.P3 application holding that it is not entertainable. Ext.P5 is the copy of that order. Propriety and correctness of Ext.P5 order is challenged in the writ petition seeking the aforementioned reliefs invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. W.P.(C).No.19316 of 2009 - O 3 3. I heard the counsel on both sides. 4. The learned counsel for the petitioner submitted that after issuing a notice under Section 80 CPC in a pending suit he can seek additional reliefs by amending the plaint and that alone was canvassed before the court below by filing Ext.P3 application. A number of judicial authorities have been presented to persuade me to accept the proposition canvassed by the counsel. But in none of the decisions I find any authority to sustain the arguments raised by the learned counsel. The apex Court in Bihari Chowdhary and another v. State of Bihar and others (AIR 1984 SC 1043) has held in unmistakable terms that the mandate under Section 80 CPC cannot be flouted in the institution of a suit against Government. In the decision it has been held thus: “A suit against the Government or a public officer, to which the requirement of a prior notice under Section 80, CPC is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable”. W.P.(C).No.19316 of 2009 - O 4 The decisions relied by the counsel as regards the waiver of Section 80 notice with the State and public officer not pressing it at the appropriate stage have no application or parallel to the present case. The argument of the learned counsel is that after institution of the suit by issuing a Section 80 notice, the bar thereunder is not applicable as no different cause of action from that was raised in the suit is canvassed by the amendment proposed. That also cannot be countenanced because prior issuing of notice itself is a fundamental element of the cause of action for filing a suit against the State and public officers. Amendment application filed by the petitioner in Ext.P3 also disclose that he has sought for the present reliefs on the basis of cause of action arising after issue of notice. On that count also, there is no merit in the argument canvassed by the learned counsel. The writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-