RSA No.577 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.577 of 2010. Decided on: February 22, 2011. Surjit Kumar. .. Appellant VERSUS State of Punjab and others. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Sanjeev Pandit, Advocate, for the appellant. Mr.Rajesh Garg, Addl. A.G., Punjab, for the respondent. M.M.S. BEDI, J. (ORAL) The plaintiff-appellant has preferred this appeal against the judgment and decree passed by the lower appellate Court dismissing the suit of the plaintiff-appellant on technical ground of having not complied with the mandatory provisions of Section 80 . . . 1 RSA No.577 of 2010 CPC, holding that the suit of the plaintiff-appellant was not maintainable without issuance of notice under Section 80 CPC. The plaintiff had filed a suit for mandatory injunction seeking compassionate appointment on account of death of his father on 08.10.2000 after having been appointed as Chowkidar on 01.10.1987. The suit of the plaintiff was decreed by the trial Court. The lower appellate Court had avoided adjudication of the matter on merits but opted to dismiss the suit on the ground that the plaintiff- appellant had not sent notice under Section 80 CPC. Counsel for the appellant has placed reliance upon Smt.Yashod Kumari and another Vs. Municipal Corporation of Delhi and others, AIR 2004 DELHI 225, in support of his contention that the plaintiff-appellant had expressly prayed for leave to present the plaint under sub-Section 2 of Section 80 CPC. The trial Court had permitted the registration of the suit and thereafter proceeded with the suit. After hearing the counsel for the petitioner, I am of the opinion that following substantial questions of law are involved in the present appeal:- 1. Whether the lower appellate Court has committed an illegality in dismissing the suit for want of notice under Section 80(2) CPC, ignoring the fact that an application under Section 80(2) CPC, had been filed by the plaintiff and the lower appellate Court proceeded to adjudicate upon the case? . . . 2 RSA No.577 of 2010 2. Whether the lower appellate Court, in the present case, has rightly ignored the adjudication of the appeal on merits solely on the ground that notice under Section 80 CPC had not been sent by the plaintiff-appellant? As per the judgment in case Smt.Yashod Kumari and another (supra), the trial Court under such circumstances will be deemed to have been granted leave to the plaintiff to present the plaint in exercise of its powers under sub-Section 2 of Section 80 CPC. The operative part of the judgment reads as follow:- “10. In the present case there is no dispute that appellants had filed an application for grant of leave under Section 80(2) which was not dealt with and considered by the Court. On the contrary the Court had proceeded to frame a preliminary issue on the preliminary objection taken by respondents in their written statement and dismissed the suit for want of service of notice under Section 80. This, in our view, could not have been done, because once the Court was seized of appellant's application under Section 80(2) it ought to have disposed of this application first by either granting leave or refusing it in which case it was to return the plaint to them which they could refile after service of two months notice. It would not have dismissed the suit without doing and this renders the impugned dismissal order straightaway unsustainable. The order warrants setting aside on this ground alone. . . . 3 RSA No.577 of 2010 11. Apart from this, we find that the appellant's suit was already registered by the Court first and ex parte interim order was also passed in this. It was thereafter transferred to District Court along with the application for grant of leave. From this it could also be easily presumed that the Court had impliedly granted the leave to institute the suit or that the notice stood waived in the facts and circumstances of the case. This aspect seems to have gone totally unnoticed with Trial Court proceedings mechanically; in the matter to dismiss the suit for want of notice under Section 80, CPC.” The said aspect in the present case also seems to have gone unnoticed. Mr.Rajesh Garg, Addl. A.G., Punjab, on behalf of the respondents, has vehemently contended that on merits the plaintiff-appellant does not have any claim for compassionate appointment as the father of plaintiff-appellant died on 08.10.2000 and he has filed the civil suit on 14.01.2006. In support of his contention, he has placed reliance on Umesh Kumar Nagpal Vs. State of Haryana, JT 1994 (3) SC 525, which was subsequently followed in number of cases including Karnail Singh and others Vs. The State of Haryana and others, 1998 (1) ILR Punjab and Haryana, 402, laying down that claim for compassionate appointment cannot be kept alive for awaiting majority because the object of compassionate appointment is to provide immediate relief to the family. . . . 4 RSA No.577 of 2010 I have heard the counsel for the appellant as well as counsel for the respondents and I am of the opinion that the lower appellate Court has wrongly refused to adjudicate the appeal on merits and had erred in dismissing the appeal on technical ground that leave to file case under Section 80(2) CPC, has not been granted. It is an admitted fact that along with the suit, the plaintiff-appellant had filed an application under Section 80(2) CPC. The suit had been registered and adjudicated upon implying thereby that the Court had granted leave to institute the suit or that the notice stood waived. Holding that the suit is maintainable, the judgment and decree passed by the lower appellate Court is set aside. The matter is remanded back to the lower appellate Court to re-adjudicate the matter on merits by passing a speaking order taking into consideration the contentions of both the parties. The parties are directed to appear before the lower appellate Court/successor Court of the lower appellate Court on 02.04.2011, for further proceedings in accordance with law. Disposed of. (M.M.S.BEDI) JUDGE February 22, 2011. rka . . . 5