Ujagar Singh, J. - (1.) THIS petition arises out of an order of dismissal of an application under Order 6 Rule 17 of the Code of Civil Procedure and dismissal of another application for permission to file the suit before the expiry of the statutory notice period.
(2.) THE facts of the case are that the Plaintiff -Petitioner filed a suit for permanent injunction against the Defendant -Respondent. During the trial of the suit the Plaintiff -Petitioner filed the said application under Order 6 Rule 17 Code of Civil Procedure and prayed for amendment of the plaint by addition in the following terms: - That the Plaintiff has issued a notice to the Defendant through his counsel Shri Arun Kumar Gupta, Advocate Phillaur on 17.12.1984 through registered post. However, the matter in issue in an urgent one, hence the present suit is being filed before the expiry of statutory period under law otherwise the objective of the notice as well as the suit will stand forfeited. In addition to this, a separate application for permission to file the suit against the Defendant before the expiry of statutory period is also being moved alongwith the plaint. Another application was also filed for permission for filing suit against the Defendants -Respondents before the expiry of the statutory notice period arising out of the notice dated 27th of December 1984 read with Section 5 of the Limitation Act and Section 151 C.P.C.
(3.) I have heard the counsel for the parties and am of the view that dismissal of the two application by the trial Court does not satisfy the ends of justice and will rather involve another similar litigation after the disposal of the present suit. In the absence of the notice which is requisite for filing the suit against the Gram -Panchayat and Defendant -Respondent No. 2 the suit is to be held to be not maintainable. Again provisions of Section 80 of C.P.C make it mandatory for the Plaintiff to serve a notice on a public officer (here in this case Defendant -Respondent No 2) of the two months before filing the suit but the Court has been given discretion to give leave to institute the suit wherein an urgent or immediate relief is prayed and on this ground also the suit can be held to be not maintainable Both these requirements, if not satisfied, will lead to the dismissal of the suit on technical grounds and the Plaintiff as a result thereof, will not be barred to institute a fresh suit on the plea of resjudicata. The dismissal of a suit(sic) on technical grounds does not bar a second suit. In this view of the matter dismissal of these applications does not serve any purpose except that the suit can be disposed of at an early date. The suit is said to be almost at the final stage and if these petitions are accepted the Plaintiff would require only a short adjournment to prove that notice as a matter of fact, was served on the Defendant -Respondent/Defendants -Respondents and thereafter, suit can be decided on merits which will be the end of the litigation between the parties instead of inviting another suit of a similar nature and this step will save lot of time of the Court and expense of the parties. The amendment when allowed relates back to the date of the suit. The power given to the Court to grant leave for instituting a suit without notice being served or before expiry of notice period has to be exercised judicially because in such matters the Defendant -Respondent does not suffer any irreparable loss and the suit can be decided on merits instead of on technical grounds.;