Shree Chandrashekhar, J. - (1.) Aggrieved of order dated 22.01.2016 passed in Title Suit No. 101 of 2013 by which the application under Order XXIII, Rule 1, C.P.C., has been declined, the plaintiffs-petitioners have approached this Court.
(2.) Title Suit No. 101 of 2013 was instituted by Krishna Prasad Jaiswal and others for a declaration of their right, title and interest on the schedule "A" properties and for confirmation of their possession. Another prayer was for a declaration that the plaintiffs are entitled for payment of compensation for the suit schedule properties which were acquired by the defendants. The plaintiffs have asserted that the lands comprised under Plot No. 271 and various other plots admeasuring about 41 decimal out of 35 decimals land appertaining to Khata No. 3 within Mouza-Poddardih (Mouza No. 105), P.S. Nirsa, belonged to Indra Mohan Bhakat who was in peaceful possession of the said land during the cadestral survey settlement operations. He died leaving behind three sons, one son namely, Subha Karan Bhakat had died during his lifetime. His legal heirs thereafter came in peaceful possession of the said land. Meghnath Bhagat the great grandson of Indra Mohan Bhakat transferred his share to Kali Dasi through registered sale deed dated 23.01.1947, however, subsequently he married to the said lady. By giving a detail descriptions of the chain of ownership and possession, the plaintiffs have asserted that schedule "A" lands belonged to them. The defendants contested the suit by filing separate written statements. The defendant Nos. 1 to 3 took a preliminary objection that the suit is barred under Section 80, C.P.C., for no notice was issued to the defendants-State. A similar objection was raised by the defendant No. 4. In the pending suit, when it was posted for plaintiffs' evidence an application dated 18.02.2015 was filed by the plaintiffs seeking permission to withdraw the suit with liberty to file a fresh suit. This application has been rejected by the trial Judge on the ground that it has been filed at a belated stage.
(3.) Section 80, C.P.C. mandates 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 next after notice in writing has been delivered or left at the office of the Government/public officer. Sub-section (2) to Section 80, C.P.C., however, carves out an exception for the urgent and immediate relief against the Government. This provision is only an exception to Section 80(1). The statutory limitation under proviso to sub-section (2) which provides that after hearing the parties if the Court is satisfied that no urgent or immediate relief be granted in the suit, return the plaint for presentation to it after complying with requirement of sub-section (1), makes it clear that requirement under Section 80, C.P.C., is mandatory but not on merits. A bare reading of Section 80, C.P.C., would disclose that the power under proviso to sub-section (2) to Section 80, C.P.C., can be exercised by the Courts suomotu also.;