Himachal Pradesh High Court: Sandeep Sharma, J. contemplated the instant petition filed under Article 227 of the Constitution of India where the order passed by the Civil Judge was challenged.
The factual matrix of the case was that the application under Section 80(2) CPC was filed by the petitioner to seek the permission to institute suit without complying the provisions of Section 80 CPC, which was duly rejected. Petitioner contended that a suit was filed for a permanent prohibitory injunction, to restrain the respondents from interfering in peaceful possession and from dispossessing him forcibly from the place where he was running his business. Along with the aforesaid suit, plaintiff also filed an application under Section 80(2) CPC, seeking therein leave of the Court to institute the suit without compliance of provisions contained under Section 80 CPC. The petitioner contended that the defendants threat him and might remove his business without any authority of law and hence, a direction was sought to prohibit them.
On the contrary, the respondents contended that the relief claimed by the petitioner was not urgent in nature and hence, prayers made on behalf of the petitioner that notice must be exempted under Section 80 were not justified.
Hence, the Civil Judge dismissed the application filed by the petitioner as it was not found that the matter was urgent and the exemption was not needed.
The High Court, observed that, the court below when passed the impugned order, had proceeded to decide the application in slipshod manner without looking into the contents of the plaint as well as an application filed under Section 80(2). A bare perusal of the averments contained in the suit as well as the application under Section 80(2), clearly revealed that plaintiff in the suit had claimed that since 2004 he had been running his business in a peaceful manner. Further, the question was ‘whether valid permission was acquired by the petitioner to set up his tent for running his business?’
It was stated that the question had not been decided by the Civil Judge also it was decided that the case was of urgent nature. It clearly emerged from the pleadings that tents were set up by the various traders on the spot in question temporarily during apple season and in case petitioner, who had claimed that he had been set up tent on the spot in question for so many years, was not heard by the Court below on priority basis, relief prayed for in the suit as well as interim application would render infructuous. It was further observed the respondents will not suffer any prejudice if the exemption was granted of not filing the notice. Hence the petition was allowed.[Hemant Sharma v. State of Himachal, 2019 SCC OnLine HP 1094, decided on 04-07-2019]
