JUDGMENT
1. This is an appeal by the defendant No. 1 against an order of remand passed by the lower appellate Court whereby the suit was sent back to the trial Court.
2. Title Suit No. 138 of 1984 was instituted by the plaintiff/respondent No. 1 for declaration and permanent injunction alleging that she was the legally married wife of Trebeni Rabidas, who was a railway employee. The marriage was solemnised on June 7, 1969 and after their marriage the plaintiff and her husband used to reside at 52, Bellilious Road, Howrah. The appellant/defendant No. 1 was the sister-in-law (elder brother's wife) of the said Trebeni Rabidas. The husband of the defendant No. 1 died long back and she used to reside at the house of the plaintiff at Howrah. Trebeni Rabidas was a habitual drunker and as such within few days of marriage he was seriously attacked with Tuberculosis. The plaintiff was, also, attacked with Tuberculosis and had to shift to her father's place for treatment. In the said circumstances, the defendant No. 1 took charge of cooking for Trebeni. On October 7, 1983 Trebeni Rabidas was admitted in railway hospital, Liluah and the plaintiff during the said illness of her husband used to look after him, but on November 14, 1983 the defendant No. 1, without giving any information to the plaintiff, took Trebeni Rabidas at their native village at Gorakhpur. On December 5, 1983 the said Trebeni Rabidas died leaving this plaintiff as his only heir. The plaintiff claimed that she being the only heir and legal representative of her husband, she was entitled to receive the entire dues from the Railway Administration on account of her husband. In the meantime, however, the defendant No. 1 made a false representation to the Railway Administration and claimed the dues of Trebeni Rabidas as the alleged wife of the said Trebeni Rabidas. The defendant No. 2 was eager to disburse the payments in favour of the defendant No. 1.
3. The defendant No. 1 filed a written statement and contested the suit by contending that Ramnath Rabidas, the elder brother of Trebeni Rabidas, was her first husband and he died in 1965 leaving the defendant No. 1 and three children. After the death of her first husband, she remarried Trebeni Rabidas in the year 1966 and gave birth to three children of Trebeni Rabidas. Railway Administration has accepted her claim as the wife of Trebeni Rabidas and disbursed a sum of Rupees 2,755/- (Rupees Two thousand seven hundred fifty five) in her favour.
4. The defendant No. 2, Union of India, filed a written statement and contended that Trebeni Rabidas submitted nomination paper during his lifetime admitting the defendant No. 1 as his wife and as, on the death of Trebeni Rabidas, the defendant No. 1 submitted identity certificate as the widow, the Railway Administration paid entire Provident Fund money to the defendant No. 1 on the basis of the nomination paper. Maintainability of the suit was challenged for non-compliance of the requirements of S. 80 of the Code of Civil Procedure.
5. By judgment and decree dated November 13, 1992 the learned Munsif decreed the suit and it was declared that the plaintiff was the legally married wife and only legal heir and successor of Trebeni Rabidas and as such was entitled to receive all the dues from the Railway Administration. It was, further, declared that the defendant No. 1 has no right, title and interest in respect of dues of Trebeni Rabidas and she was perpetually restrained by a decree of permanent injunction from laying any claim in respect of any amount from the Railway Administration and the Railway Administration was perpetually restrained by a decree of permanent injunction from making payment of the dues to the defendant No. 1 or any other person other than the plaintiff.
6. The defendant No. 1 preferred Title Appeal No. 1 of 1993 in the Court of the learned District Judge, Howrah, which was eventually transferred to the Court of the learned Assistant District Judge, Third Court at Howrah. The defendant No. 2, also, filed a cross-objection in connection with the said Title Appeal No. 1 of 1993 urging that the learned trial Judge ought to have dismissed the suit for want of proper notice under S. 80 of the Code of Civil Procedure.
7. By the order impugned the learned judge in the lower appellate Court remitted the suit back to the learned trial Judge. The learned trial Judge was directed to allow the plaintiff an opportunity to adduce evidence with regard to the alleged ceremonies observed at the time of her alleged marriage with Trebeni Rabidas. She was permitted to examine Ram Monahar, who attested the left thumb impression of Trebeni Rabidas. The defendants were permitted to cross-examine the said witness. It was, further, observed that in case of failure on the part of the plaintiff to bring the said witness, as indicated in the body of the order of remand, the learned trial Judge should dispose of the suit on merits after giving hearing to all parties.
8. Being aggrieved the defendant No. 1 has come up with this appeal.
9. Mr. Biman Kanti Basu, learned Senior Advocate, appearing in support of the appeal, argued that the suit instituted by the plaintiff/respondent No. 1 was not maintainable as the suit was filed before expiry of the statutory period as referred to in S. 80 of the Code of Civil Procedure. It is argued that a notice under S. 80 of the Code of Civil Procedure was issued on behalf of the plaintiff addressed to the General Manager, Eastern Railway, Howrah, but admittedly the suit was filed before completion of the statutory period. Mr. Basu argued that as the plaintiff in the present suit prayed for a decree of permanent injunction restraining the defendant No. 2 for making payment of any portion of the dues on account of Trebeni Rabidas to the defendant No. 1 or any person other than the plaintiff and as the suit was admittedly instituted infringing the mandatory provision of S. 80 of the Code of Civil Procedure, the learned Judges in the Courts below ought to have dismissed the suit as not maintainable. Mr. Basu, also, submitted that the order of remand was bad as a party to an appeal is not entitled to get an order of remand to cover up deficiencies due completely to the laches of that party. Mr. Basu cited the decision in the case of Harihar Mahapatra v. Hari Otha reported in AIR 1950 Orissa 257 and contended, on the basis of the said reported decision, that the present suit is liable to be dismissed as a whole as the defendant No. 2, that is, Union of India is a necessary party and as the plaint was filed without following the requirements of S. 80 of the Code of Civil Procedure. Mr. Basu cited the decisions in the cases of Sawai Singhai Nirmal Chand v. The Union of India reported in AIR 1966 SC 1068 and Bihari Chowdhary v. State of Bihar, reported in AIR 1984 SC 1043 and contended, on the basis thereof, that a suit against the Government or a public officer, to which the requirement of a prior notice under S. 80 of the Code of Civil Procedure 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.
10. Mr. Partha Pratim Mukherjee, learned Senior Advocate, appearing on behalf of the respondent No. 1, however, contradicted the said submissions of Mr. Basu and submitted that the defendant No. 1, that is, Union of India was only a formal party and as such the suit was not liable to be dismissed as the same has been filed before the expiration of the period referred to in S. 80 of the Code of Civil Procedure. Mr. Mukherjee contended that in any event the suit could not be dismissed as a whole as in this suit primarily the plaintiff is asserting her claim that she is the lawfully married wife of Trebeni Rabidas against the defendant No. 1, who is, also, claiming that the said Trebeni Rabidas was her husband.
11. From the materials on record following facts are admitted:
(1) Trebeni Rabidas was a railway employee;
(2) the said Trebeni Rabidas was a resident of village Balaowani, District: Gorakhpur, Uttar Pradesh;
(3) Trebeni Rabidas died on December 5, 1983.
(4) Ramnath Rabidas was the elder brother of Trebeni Rabidas and the defendant No. 1 was the legally married wife of the said Ramdas Rabidas and gave birth to three children of the said Ramnath Rabidas;
(5) Trebeni Rabidas in the nomination paper filed in the office of the Railway Administration declared that the defendant No. 1 was his wife.
12. I have considered the rival contentions advanced by the learned Advocates appearing for the parties. In my view, the following points are required to be determined in this appeal:
(1) whether, in view of the admitted position that the suit has been instituted by the plaintiff before expiration of two months next after notice in writing under S. 80 of the Code of Civil Procedure has been delivered, the suit is maintainable as the plaintiff has claimed a decree for permanent injunction in this suit against the defendant No. 2, that is, Union of India?
(2) whether, the learned Judge in the lower appellate Court was justified in remanding the suit to the learned trial Judge for fresh decision to afford opportunities to the plaintiff to examine Ram Monahar when the plaintiff did not produce the said witness during the trial?
13. In this suit the plaintiff has prayed for a declaration to establish her alleged right as the wife of Trebeni Rabidas. In the said suit a decree for permanent injunction is, also, prayed against the defendant No. 2, that is, Union of India restraining it from making payment of any portion of the dues payable on account of the said Trebeni Rabidas in favour of the defendant No. 1 or to any other person. It is an admitted position that a notice under S. 80 of the Code of Civil Procedure has been issued on behalf of the plaintiff addressed to the General Manager, Eastern Railway on June 26, 1984. It is, also, admitted, even in the plaint, that although a notice under S. 80 of the Code of Civil Procedure was issued, as aforesaid, the suit has been filed before the expiration of the statutory period of two months. In paragraph 26 of the plaint the plaintiff prayed for leave to file the suit against the defendant No. 2 in view of the urgencies pleaded in the plaint. Section 80 of the Code of Civil Procedure runs as under:
“80. Notice.— (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) 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—
(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;
(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other authorised by that Government in this behalf;
(c) in the case of suit against any other State Government, a Secretary to that 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.
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit 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 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 has been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice has been delivered or left at the office of the appropriate authority in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.”
14. Section 80 of the Code of Civil Procedure, therefore, provides that 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 after a notice in writing in the manner provided in the said section has been given.
15. The new sub-section (2), inserted by the Code of Civil Procedure (Amendment) Act, 1976, contemplates relaxation of the rigour of the provisions of S. 80 of the Code so that a person may not be deprived of the opportunity of obtaining an urgent or immediate relief, where such relief is essential. The plaintiff may institute a suit, in case of urgency, for obtaining an urgent or immediate relief against the Government or any public officer without serving any notice under S. 80 of the Code of Civil Procedure. In such a case, however, the Court shall not grant any relief except after giving to the Government or the public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. It is, also, provided that if, after hearing the parties, the Court is satisfied that there is no urgency, the Court shall return the plaint for presentation to the Court after complying with the requirements of sub-section (1) of S. 80 of the Code of Civil Procedure.
16. sub-section (2) of S. 80 of the Code of Civil Procedure was inserted in the Code as it was felt that some relaxation of the provisions of S. 80 of the Code of Civil Procedure was necessary so that a person may not be deprived of the opportunity of obtaining an urgent or immediate relief, where such a relief is essential. In the circumstances, it was felt that S. 80 of the Code should provide for institution of a suit for obtaining an urgent or immediate relief against the Government or any public officer without serving any notice under S. 80 of the Code.
17. Therefore, a plaintiff intending to institute a suit against the Government or the public officer, as the case may be, has two options before him. He may file a suit after serving two months notice under S. 80 of the Code or he may file the suit without serving the notice and after satisfying the Court that an urgent and immediate relief is required and, also, after obtaining previous leave of the Court. In the event of the first course being adopted the suit can never be filed before the expiry of the period indicated in S. 80 of the Code, but in the second he has the choice to file the suit even without giving the requisite notice under S. 80 of the Code, but only after obtaining leave of the Court.
18. I have noticed that in paragraph 26 of the plaint, the plaintiff prayed for the leave to file the suit even before the expiration of this statutory period of two months. The plaint was presented on July 4, 1984 and the learned trial Judge directed registration of the suit and, thereafter, proceeded with the suit. The defendant No. 2, that is, Union of India has filed a written statement contending, inter alia, that the suit is bad for want of notice under S. 80 of the Code of Civil Procedure. Nevertheless, the Union of India never prayed for revocation of the leave nor prayed for return of the plaint for presentation of the same to the Court after complying with the requirements of sub-section (1) of Section 80.
19. However, the lower appellate Court held that in view of the nature of the relief claimed against the defendant No. 2, it was not necessary to serve a notice under S. 80 of the Code of Civil Procedure inasmuch as it was not at all a relief in true sense claimed against that defendant. I do not agree with the observations of the learned Judge in the lower appellate Court. Since, the defendant No. 2, that is, Union of India was impleaded as a party in the suit and a decree for permanent injunction was prayed for against it, it was incumbent on the part of the plaintiff either to file the suit after giving a proper notice under S. 80 of the Code of Civil Procedure or to obtain a leave under sub-section (2) of Section 80.
20. However, my reading of sub-section (2) of S. 80 of the Code of Civil Procedure is that no separate application and an express order are the essential requisites; such leave could be presumed; the leave need not be granted by passing a formal order. The leave under sub-section (2) of S. 80 could be implied and could be gathered from what the Court does. The prayer for leave could be in any form. From the reading of the plaint it appears that the plaintiff has expressly prayed for leave to present the plaint under sub-section (2) of S. 80 of the Code of Civil Procedure and gave reasonable explanation in support of such prayers. I hold that the trial Court has granted leave to the plaintiff to present the plaint in exercise of its power under sub-section (2) of S. 80 of the Code of Civil Procedure. I, further, hold that the requirements of S. 80(2) of the Code of Civil Procedure were substantially complied with.
21. I, therefore, hold that the suit cannot be dismissed on account of non-compliance of the requirements of sub-section (1) of S. 80 of the Code of Civil Procedure.
22. In the case in hand, the moot questions are whether the plaintiff was the legally married wife of the said Trebeni Rabidas and, consequently, entitled to receive all the benefits from the Railway Administration on account of her alleged husband and whether the claim of the defendant No. 1 that she was the legally married wife of the said Trebeni Rabidas and that she could legally marry the said Trebeni Rabidas after the death of her first husband, who happened to be the elder brother of the said Trebeni Rabidas, is legally acceptable. It is alleged by the defendant No. 1 that it is the prevailing custom in their society that a marriage between the sister-in-law (elder brother's widow) and the brother of the deceased elder brother is lawful.
23. I find that this is an unfortunate litigation between two illiterate ladies. Law throws a special cloak of protection around the illiterate and pardanashin ladies. In India pardanashin and illiterate ladies have been given a special protection in view of the social condition and they are presumed to have an imperfect knowledge of the world as they are practically excluded from social interaction and communion with outside world.
24. It is true that the plaintiff could have examined the said Ram Monahar at the time of trial, but for her failure to examine the said witness, the suit should not be dismissed having regard to her background and the nature of her claim.
25. I am, therefore, not inclined to interfere with the order of remand on that ground also.
26. I, however, modify the order or remand and direct the learned trial Judge to afford opportunities to the plaintiff to produce finally all the evidences available to her in support of her alleged claim of marriage with Trebeni Rabidas and I, also, direct the learned trial Judge to afford opportunities to the defendant No. 1 to prove her alleged marriage with Trebeni Rabidas and the alleged custom pleaded by her to establish that it was permissible in their society to marry the younger brother of the husband after the death of the husband.
27. With the aforesaid observations the appeal is dismissed. In view of the long pendency of the proceeding and considering the nature of the proceeding, I direct the learned trial Judge to dispose of the suit as early as possible preferably within six months from the date of communication of this order to him.
28. I direct the parties to bear their respective costs in this appeal.
29. Office is directed to send a copy of this order and the lower Courts' records to the learned trial Judge immediately.
30. Drawing up of a formal decree is dispensed with.
31. Let certified photocopy of this order, if applied for, be supplied to the applicants on urgent basis.
Appeal dismissed.