- (1.) Respondent No.5 borrowed certain amount as loan from the Industries Department of the State Government. For the recovery of the amount in arrear the State Government intended to proceed by way of attachment and auction of the property claimed to be belonging to the said borrower. The petitioners instituted a suit giving rise to these proceedings on Feb. 24,1983, contending that the property which belongs to them and not to respondent No. 5 was intended to be sold in auction towards the recovery of loan against the said respondent and it was apprehended that the said petitioners may be dispossessed in pursuance of the auction sale thus made. To the suit the State of U.P. and the Tehsildar are also arrayed as co-defendants. The auction has since taken place though it has not been confirmed in view of the interim order granted by this Court. Upon the application made in this behalf by the petitioners before the trial Court, it granted leave as contemplated under sub-s. (2) of S. 80, Civil P. C. on Feb. 24, 1983. An application for temporary injunction was also made by the petitioners before the trial Court; this was, however, rejected. Against this rejection, the petitioners preferred an appeal. In the course of hearing of the appeal an objection was raised from the side of respondent No. 5, inter alia, to the effect that the suit could not be maintained in the absence of notice required under S. 80(1) of the Code and the interim injunction could not be granted in view of O. 30, R. 2(2)(f) of the Code as amended in Uttar Pradesh. The appellate Court remanded the matter for consideration to the trial Court setting aside the order whereby the temporary injunction had been declined. The trial Court this time took the view that the suit could not be maintained without notice under S. 80(1), C.P.C.; against this order the petitioners preferred a revision which has been dismissed by the revisional Court and aggrieved the petitioners have approached this Court under Art. 226 of the Constitution.
(2.) The question arising in this petition in substance thus is whether in the case where in view of Cl. (f) to the proviso to O. 39, R. 2(2), C.P.C., as amended in Uttar Pradesh, temporary injunction cannot be granted, it is incumbent upon the trial Court to grant leave under S. 80(2) of the Code dispensing with the service of notice under sub-s. (1) of S. 80. A perusal of sub-s. (2) of S. 80, C.P.C. reveals clearly that the grant of leave is left to the judicial discretion of the trial Court. The proviso to sub-s. (2) clearly states 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-s. (1). In the matter of grant of leave dispensing with the service of notice under S. 80(1), C.P.C., therefore, the trial Court is competent to consider whether on the ultimate analysis there is or not in existence urgency or likelihood of immediate relief being granted to the plaintiff. Where the Court considers that there is no such urgency existing or immediate relief cannot be granted, it is within its powers to decline to grant the leave. Cl. (f) of the proviso to O. 39, R. 2(2), aforementioned provides that no temporary injunction shall be granted to restrain any auction intended to be made or, the effect of any auction made, by the Government. Therefore, where from the averments of the plaint it appears that temporary injunction asked for amounts to restraining the holding of any auction or giving effect to the same, it would follow that no temporary injunction is grantable and where this is the position, the trial Court would be perfectly within its competence to decline to grant dispensing with the notice required under S. 80(1), C.P.C.
(3.) Learned counsel for the petitioners urged that leave had initially been granted in this case by the trial Court on 24th Feb. 1983 and though this was subject to objection, if any, there was no objection raised from the side of the State or even the respondent No. 5 for that matter. It would appear that the ex parte interim injunction asked for by the petitioners was declined by the trial Court against which they went in appeal and in that appeal respondent No. 5 had objected to the effect that the suit was defective for want of notice under S. 80(1) of the Code. It does not appear to me that this objection, even though raised at the appellate stage in the proceedings arising out of the refusal to grant temporary injunction, could be ignored or not taken notice of ultimately for deciding whether the leave had statutorily or properly been granted within the jurisdiction conferred upon the trial Court. Even though there was no objection raised from the side of the State, respondent No. 5 was not precluded from raising such objection in view of the provisions of sub-s. (1) of S. 80, C.P.C. which says that no suit shall ordinarily be instituted without such notice being given. This is the general rule and the dispensing with of the notice under sub-s. (1) is conditional upon the leave being granted on the conditions shown to exist as appearing from sub-s. (2) of S. 80, C.P.C.;