STATE OF PUNJAB Vs. KARNAIL SINGH

JUDGEMENT

(1.) THIS is defendants' petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') dismissing their application in which prayer was made that the mandatory provisions of Section 80 of the Code requiring the plaintiff-respondent to serve prior notice of the suit having not been issued, the plaint he returned to the plaintiff- respondent. It is appropriate to mention that the plaintiff-respondent has filed a suit for declaration and permanent injunction with an application for interim relief that the defendant-petitioners be restrained from effecting any recovery from his salary. On 16.5.2002 after hearing the parties, the interim prayer made by the defendant-petitioners was declined although exemption under Section 80 of the Code to issue advance notice had already been issued on 26.4.2002.

(2.) BRIEF facts of the case are that the plaintiff-respondent filed a civil suit seeking a declaration to the effect that the order bearing endorsement No. 6913-15/BA dated 1.4.2002 passed by the defendant-petitioner imposing a recovery of Rs. 11,515/- for the loss of tickets and deduction of Rs. 2303/- from the salary of the plaintiff-respondent in instalments is illegal and void. It was further prayed that the defendant-petitioner be restrained by issuing a decree for permanent injunction from recovery of the amount from the salary of the plaintiff-respondent. Along with the suit, an application was filed seeking exemption of serving prior notice under Section 80 of the Code. The application was allowed on 26.4.2002 and exemption was given to the plaintiff-respondent. Thereafter, the defendant-petitioner filed an application with the prayer that the plaint be returned to the plaintiff- respondent as the mandatory provisions of Section 80 of the Code has not been complied with by him. The application has been rejected by the Civil Judge and the operative part of the order reads as under :-

(3.) AFTER hearing the learned Additional Advocate General, I do not feel persuaded to take a view different than the one taken by the Civil Judge because when the suit was originally filed, an application seeking exemption to issue notice under Section 80 of the Code was filed and that was accepted vide order dated 26.4.2002. The exemption is not dependent on the success of the application filed under Order XXXIX Rules 1 and 2 of the Code because if that legal proposition is accepted, then in all cases where application for interim relief has been declined, the exemption granted would become bad in law and the plaint will have to be returned to the plaintiff in order to comply with the provisions of Section 80 of the Code.