# Committee Of Management, Jami Masjid Sambhal Ahmed Marg Kot Sambhal Revisionist v. Hari Shankar Jain & Ors. Opp. Parties

- **Citation:** (2025) 5 ILRA 1673
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-19
- **Case number:** Civil Revision No. 4 of 2025
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-management-jami-masjid-sambhal-ahmed-marg-kot-sambhal-revisionist-53326
- **Pages:** 33

## Headnote

Civil Law- The Code of Civil Procedure,
1908-Sections-115 & 80(2) - Order XXVI
Rule 9--- Revision filed under Section 115
against orders for grant of leave to institute the
suit before expiry of period of notice under
Section 80 (2) CPC, and the order for
appointment
of
Commission
for
local
investigation under Order XXVI Rule 9 and 10
CPC--- Revisionist being a private individual
cannot object for want of notice under Section
80 which is for the benefit of Government and
its officers--- The order was strictly passed in
consonance with the provisions of Rule 9 of
Order XXVI CPC read with Rule 68 and 69 of the
General Rules Civil, as the court
while
appointing an Advocate Commissioner had
directed for the survey to be made with the help
of police force and necessary photography and
videography was to be carried out of the site to
be inspected and surveyed--- Present suit is not
prima facie barred by provisions of The Place of
Worship (Special Provisions) Act, 1991, in fact, it
has been filed seeking right to access to
property in dispute under Section 18 of The
Ancient Monument and Archaeological Sites and
Remains
Act,
1958
being
a
protected
monument.

Revision dismissed. (E-15)

List of the cases referred-:

## Text

_Characters 0–39,979 of 105,699. This is a partial read: ask again with offset=39979 for what follows._

5 All. Committee Of Management, Jami Masjid Sambhal Ahmed Marg Kot Sambhal Vs. Hari
 Shankar Jain & Ors.
1673

21. In case of breach of any of the
above conditions, the court concerned shall
be at liberty to cancel the bail of applicant,
in accordance with law.
----------
(2025) 5 ILRA 1673
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Civil Revision No. 4 of 2025

Committee Of Management, Jami Masjid
Sambhal Ahmed Marg Kot Sambhal
 ...Revisionist
Versus
Hari Shankar Jain & Ors. ...Opp. Parties

Counsel for the Revisionist:
Sri Syed Ahmed Faizan, Sri S.F.A. Naqvi, Sri
Zaheer Asghar

Counsel for the Opp. Parties:
Sri A.S.G.I., C.S.C., Sri Manoj Kumar Singh,
Sri Prabhash Pandey .

Civil Law- The Code of Civil Procedure,
1908-Sections-115 & 80(2) - Order XXVI
Rule 9--- Revision filed under Section 115
against orders for grant of leave to institute the
suit before expiry of period of notice under
Section 80 (2) CPC, and the order for
appointment
of
Commission
for
local
investigation under Order XXVI Rule 9 and 10
CPC--- Revisionist being a private individual
cannot object for want of notice under Section
80 which is for the benefit of Government and
its officers--- The order was strictly passed in
consonance with the provisions of Rule 9 of
Order XXVI CPC read with Rule 68 and 69 of the
General Rules Civil, as the court
while
appointing an Advocate Commissioner had
directed for the survey to be made with the help
of police force and necessary photography and
videography was to be carried out of the site to
be inspected and surveyed--- Present suit is not
prima facie barred by provisions of The Place of
Worship (Special Provisions) Act, 1991, in fact, it
has been filed seeking right to access to
property in dispute under Section 18 of The
Ancient Monument and Archaeological Sites and
Remains
Act,
1958
being
a
protected
monument.

Revision dismissed. (E-15)

List of the cases referred-:

1. Mohd. Siddiq Vs Mahant Suresh Das, 2020
(1) SCC 1

2. Gopal Singh Visharad Vs Zahoor Ahmad, 2010
SCC OnLine (ALL) Page 1927

3. Civil Appeal No. 16899 of 1996, Karnataka
Board of Waqf Vs Government of India & ors.

4. Raghunath Das Vs Union of India, AIR 1969
SC 674.

5. Ghanshyam Dass Vs Dominion of India,
(1984) 3 SCC 46,

6. Bihari Chowdhary & anr.Vs St. of Bihar & ors.,
(1984) 2 SCC 627

7. St. of A.P. Vs Pioneer Builders, (2006) 12 SCC
119

8. Bajaj Hindustan Sugar & Industries Ltd. Vs
Balrampur Chini Mills Ltd., (2007) 9 SCC 43

9. Smt. Janak Raji Devi Vs Chandrabati Devi,
AIR 2002 Cal 11

10. T.VS Parangodan Vs District Collector,
Trichur & ors., AIR 1989 Ker 276

11. Himachal Steel Rerollers and Fabricators Vs
U.O.I.& ors., AIR 1988 All 191

12. St. of U.P. Vs Jaman Singh & anr., AIR 2007
UTT 10

13. K.K. Sharma Vs Punj. State, AIR 1989 P&H 7

14. St. of Karnataka Vs M. Muniraju, AIR 2002
Kar 287
1674 INDIAN LAW REPORTS ALLAHABAD SERIES
15. St. of Kerala & ors.Vs Sudhir Kumar Sharma
& ors., (2013) 10 SCC 178

16. Dhirendra Nath Goari, Subal Chandra Nath
Saha & ors.Vs Sudhir Chandra Ghosh & ors.,
AIR 1964 SC 1300.

17. Rajinder & Co. Vs U.O.I. & ors., 2000 (6)
SCC 506

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. The present revision filed under
Section 115 of Code of Civil Procedure
(hereinafter called as the 'CPC') questions
the order dated 19.11.2024 passed on
application paper no. 3C filed by plaintiff
respondent nos. 1 to 8 for grant of leave to
institute the suit before expiry of period of
notice under Section 80 (2) CPC, and the
order dated 19.11.2024 for appointment of
Commission for local investigation paper
no. 8C under Order XXVI Rule 9 and 10
CPC.

2. Facts, leading to filing of present
revision, are that plaintiff respondent nos. 1
to 8 instituted a Civil Suit No. 166 of 2024,
which was later numbered as Original Suit
No. 182 of 2024, claiming relief of
declaration
and
permanent
injunction
against revisionist/defendant no. 6 and
respondent nos. 9 to 13.

3. Relief 'A' was for declaration to the
effect that plaintiffs have right to access
into Sri Harihar Temple/alleged Jami
Masjid situated in city Sambhal as
described in paragraph nos. 1 and 2 of the
plaint and declared as protected monument
on 18.11.1920 under Section 3 of the
Ancient Monuments Preservations Act,
1904 (hereinafter referred as the 'Act of
1904'). Relief 'B' was for declaration to
the effect that Archaeological Survey of
India (hereinafter referred as the 'ASI') is
under legal obligation to manage and to
have complete control over Sri Harihar
Temple/alleged Jami Masjid in view of
notification dated 18.11.1920. Relief 'C'
was sought for mandatory injunction
commanding defendant nos. 1 to 5 of the
suit to make appropriate provision for
giving access to the members of public
within Sri Harihar Temple/alleged Jami
Masjid situated in city Sambhal, and lastly
relief 'D' was sought for permanent
injunction restraining the defendants, their
officers, workers and every person acting
under
them
from
creating
any
hurdle/obstacle in entering the plaintiffs
and members of the public into the disputed
place.

4. According to the plaint, there is a
centuries old Sri Harihar Temple dedicated
to Lord Kalki in the heart of city of
Sambhal which is being forcibly and
unlawfully used by the committee known
as Jami Masjid Committee, Sambhal.
Sambhal is a historical city and holds
unique signs deeply routed in Hindu
Shastras according to which it is a sacred
site wherein incarnation of Lord Vishnu
known as Kalki manifest in future, a
divine figure yet to make an appearance.
Kalki is believed to be 10th and last
incarnation of Lord Vishnu destined to
arrive in Kalyug.

5. The old city of Sambhal is situated
at the banks of Mahismat river. In Satyug it
was named as Sabrit or Sabrat and also
Sambleswar, in Tretayug Mahadgiri, in
Dwapar - Pingla and in Kalyug it is named
as Sambhal. It is further alleged that in
ancient times an unique vigrah constituting
of Lord Vishnu and Lord Shiva emerged
and due to this reason it was called 'Sri
Harihar Temple'.
5 All. Committee Of Management, Jami Masjid Sambhal Ahmed Marg Kot Sambhal Vs. Hari
 Shankar Jain & Ors.
1675

6. According to plaint version Sri
Harihar Temple of Sambhal was made by
Lord
Vishwakarma
himself
in
the
beginning of universe. Further, it is alleged
that during invasion of Babar in 1526 AD,
he had destroyed number of Hindu temples.
In 1527-28 one Hindu Beg lieutenant of
Babar partly demolished Sri Harihar
Temple at Sambhal which was occupied by
Muslims for use as mosque.

7. Babarnama is said to be the diary
written by Babar in Turkish language
which was translated by one Annette
Susannah Beveridges in which there is a
mention about Babar coming to Sambhal
in July 1529. Further, it has been stated
that
the
Hindus
had
subsequently
reoccupied the temple from Muslims and
temple was restored, which is proved
from the history written by Abul Fazal in
Persian language during reign of Akbar in
his
book
Ain-e-Akbari
composed
between 1589 to 1600. Further, the plaint
reveals that a report was prepared by ASI
relating to the city of Sambhal about its
ancient
antiquities
after
undertaking
survey of area by Major General A.
Cunningham, the then Director General
of ASI and the same was published in
book titled as 'Tours in Central DeobGorakhpur, 1874-75 and 1875-76'.

8. By a notification No. 1412-M
issued under Section 3 (1) of the Act of
1904 by Lt. Governor of United Province
of Agra and Oudh declaring ancient
monuments to be protected monuments.
The Juma Masjid at Sambhal, District
Moradabad was mentioned at serial no. 3.
Plaintiffs are claiming right of access to
protected monument under Section 18 of
the Ancient Monument and Archaeological
Sites and Remains Act, 1958 (hereinafter
referred as the 'Act of 1958') which is now
governing the field after repeal of the Act
of 1904.

9. On 21.7.2024 some of the plaintiffs
went to visit the property in dispute, but
they were not allowed to enter into the
monument, and as ASI is not taking any
action and is silent spectator, present suit
was filed on 19.11.2024. The plaintiffs had
filed an application paper no. 3C under
Section 80 (2) CPC for granting leave to
institute the suit before expiry of period of
notice which was given on 21.10.2024 and
also application 8C for appointment of
Commission under Order XXVI Rule 9 and
10 CPC. The suit was registered on
19.11.2024 and application paper no. 3C
was allowed granting leave to institute the
suit. The matter was posted post lunch for
consideration
of
application
8C
for
Commission which was allowed and a
report was sought from an Advocate
Commissioner. Hence, the present revision.

10. Sri S.F.A. Naqvi, learned Senior
Counsel, has questioned the action of court
below
in
passing
the
order
dated
19.11.2024 on application paper no. 3C
granting leave to institute the suit before
expiry of period of notice and allowing
application 8C for Commission filed under
Order XXVI Rule 9 and 10 CPC on the
ground that there arose no urgency for the
court to have granted the leave on
19.11.2024 and on the same day allowing
the application for Commission.

11. He submitted that Section 80 CPC
mandates for giving notice of two months
prior to the institution of the suit. As per
the plaint version the notice was given on
21.10.2024 and the suit was filed and leave
was granted on 19.11.2024, as there stood
no urgency in granting the leave it is
evident
from
the
order
impugned.
1676 INDIAN LAW REPORTS ALLAHABAD SERIES
According to him, the court below has not
recorded any finding as to why the leave
was granted for exempting the period of
notice as period of two months have not
expired. He also submitted that non filing
of caveat on behalf of defendants clearly
shows that there was no urgency in the
matter and plaint should have been returned
back for presentation afresh after expiry of
statutory period under Section 80 (1) CPC.

12. He next contended that the trial
court committed another gross error in
allowing the application under Order XXVI
Rule 9 and 10 CPC for Commission which
was moved on the same date and taken post
lunch session. The action of the court
speaks about some collusiveness between
the parties and there was no urgency in the
matter
for
ordering
for
Advocate
Commissioner, the date when the suit was
instituted and leave was granted exempting
the statutory period.

13. He also contended that survey was
conducted on 19.11.2024 and, thereafter,
again on 24.11.2024. The second survey of
24.11.2024 is illegal as the court below
never
ordered
for
such
survey
and
Advocate
Commissioner
would
have
conducted such survey only after the leave
of the court. According to him, once the
survey was done on 19.11.2024 the matter
came to an end and report should have been
submitted to the court, but the Advocate
Commissioner
illegally
conducted
the
second survey on 24.11.2024 which is in
the teeth of the order dated 19.11.2024.

14. He then contended that Rule 68
and 69 of the General Rules Civil, 1957
provides for particulars to be given in the
order for local investigation. In the order
dated 19.11.2024 the court has not defined
the
point
on
which
Advocate
Commissioner has to report. Further, no
time has been fixed for execution of the
Commission and unless and until the time
is extended the Commission cannot be
carried out.

15. Sri Naqvi also contended that the
monument in question which is called as
Jami Masjid or Juma Masjid is a protected
monument under the Act of 1904. An
agreement was executed between the
Collector of Moradabad acting on behalf of
Secretary of State for India in Council and
Mutawallis of Juma Masjid in the year
1927, and the agreement, so executed,
governs the field. He has also relied upon
the judgment rendered on 2.8.1877 in Suit
No. 4 of 1877 between Mohd. Afzalyar
Vs. Chheda Singh and the decision
rendered by this Court on 1.5.1878 in First
Appeal No. 112 of 1878 (Chheda Singh
Vs. Mohd. Afzalyar). The dispute in
regard to the said masjid stood already
settled in the year 1878 and cannot be
adjudicated in the instant suit instituted by
plaintiff nos. 1 to 8. Further, after the Place
of Worship (Special Provisions) Act, 1991
(hereinafter referred as the 'Act of 1991')
came into force there is a prohibition for
conversion of any place of worship and the
religious character of place of worship, as it
existed on 15.8.1947, has to be maintained.
Thus, the present suit is barred by the
provisions of the Act of 1991.

16. Sri Naqvi has put great emphasis
on Sections 5 and 6 of the Act of 1958
according
to
which
the
protected
monument is under the guardianship of
ASI, while the ownership is of the
revisionist. The agreement executed in the
year 1927 is protected by Rule 3 of the
Ancient Monuments and Archaeological
Sites and Remains Rules, 1959 (hereinafter
referred as the 'Rules of 1959'). Reliance
5 All. Committee Of Management, Jami Masjid Sambhal Ahmed Marg Kot Sambhal Vs. Hari
 Shankar Jain & Ors.
1677
has been placed upon the decision of
coordinate Bench of this Court rendered in
Civil Revision No. 47 of 2022 (Khwaja
Moinuddin Chishti Language University
Through Registrar and others Vs. Dr.
Arif Abbas and others), Writ-C No.
41940 of 2013 (Lalti Devi and another
Vs. Bindu Bihari Verma and 10 others),
Rama Shanker Tiwari Vs. Mahadeo and
others, Laws (ALL)-1967-12-21 and the
judgment of Andhra Pradesh High Court
rendered in case of Durgam Mangamma
Vs. P. Mohan and another, 1991 (1) ALT
269.

17. Sri Hari Shankar Jain, plaintiff
respondent no. 1, has appeared in person
through video conferencing and submitted
that plaintiffs had sent an application
through e-mail and registered post on
29.7.2024 to the defendant nos. 1 to 4
demanding that ASI to have complete
control over the subject property and make
appropriate provision giving access to the
members of public within the monument
which figures at serial no. 250 in the list of
Agra circle governed by the Act of 1958.
The notice was received in the office of
defendant nos. 1 to 3 on 2.8.2024, while the
same was received in the office of
defendant no. 4 on 1.8.2024. When no steps
were taken for implementing the provisions
of Section 18 of the Act of 1958, notice
under Section 80 CPC was sent via
registered post on 21.10.2024 to defendant
nos. 1 to 5.

18. The urgency arose in filing the suit
and application under Section 80 (2) CPC
was moved for granting leave to institute
the suit before period expired, as plaintiffs
had reason to believe that revisionist had
come to know about the application dated
29.7.2024 and were intending to remove
the artefacts, signs and symbols of Hindu
Temple hurriedly. The order exempting the
notice period cannot be challenged by any
private party as it does not have locus
standi to challenge the exemption of
remaining period of notice. Reliance has
been placed upon the decision of Full
Bench of this Court in case of Gopal Singh
Visharad Vs. Zahoor Ahmad, 2010 SCC
OnLine (ALL) Page 1927, which has been
affirmed by Apex Court in case of Mohd.
Siddiq Vs. Mahant Suresh Das, 2020 (1)
SCC 1.

19. He then contended that plaintiffs
had reason to believe that after committee
of management had come to know about
the application dated 29.7.2024 and notice
dated 21.10.2024, they were intending to
remove artefacts, signs and symbols of
Hindu Temple hurriedly, while property in
dispute was in possession of the defendant
no. 6 and they had locked a portion of the
property
which
necessitated
for
the
appointment of Advocate Commissioner to
make inspection of the entire subject
property after serving notice to both the
parties and submit report in regard to
existing situation from inside and outside.

20. The order passed on application
under Order XXVI Rule 9 and 10 CPC
cannot be challenged in proceedings under
Section 115 CPC as it does not decide any
lis or issue between the parties. He next
contended that on 19.11.2024 Advocate
Commissioner after serving notice to the
representatives of revisionist at about 6 PM
started inspection, a large crowd had
gathered, who had entered into the property
in dispute and asked the Advocate
Commissioner to stop the Commission
work. Sri Zafar Ali, Advocate of Masjid
Committee, stopped the inspection on the
ground that it was the time for Namaz and,
thus, proceeding of Commission was
1678 INDIAN LAW REPORTS ALLAHABAD SERIES
stopped at about 7.15 PM. As the
Commission work could not be completed,
therefore, Advocate Commissioner on
23.11.2024
had
send
notice
to
the
concerned parties that remaining survey
would be completed on 24.11.2024 from 7
AM to 11 AM.

21. According to him, the remaining
survey work was carried out on 24.11.2024
from 7 AM to 11 AM. According to him,
only one survey has been done by the
Advocate Commissioner appointed by the
court on 19.11.2024. As the Commission
work
could
not
be
completed
on
19.11.2024,
it
was
completed
on
24.11.2024 and it is wrong to say that two
surveys have been conducted by the
Advocate
Commissioner.
He
also
submitted that the order dated 19.11.2024
clearly reflects that provision of Rule 68
and 69 of the General Rules Civil was
complied and the court had directed the
Commission defining the points on which it
has to report. The application 8C was
allowed on the condition that the Advocate
Commissioner, so appointed, shall conduct
photography
and
videography
while
conducting survey.

22. He then contended that the present
dispute is covered by the Act of 1904,
which has now been substituted by the Act
of 1958 and shall not be governed by the
provisions of the Act of 1991, as only right
to access under Section 18 of the Act of
1958 has been claimed, as the monument in
question is a protected monument declared
under Section 3 of the Act of 1904 by ASI
in the year 1920, much before the
enactment of the Act of 1991 and the cut of
date mentioned therein.

23. Sri Rajeshwar Tripathi, learned
Chief Standing Counsel, appearing for the
State has submitted that the alleged
agreement of the year 1927 is not in the
custody
of
the
District
Magistrate,
Sambhal, and on 10.3.2025 a letter was
written
to
the
District
Magistrate,
Moradabad requiring to furnish the said
alleged agreement. According to him, the
city of Sambhal was initially part of the
district Moradabad and subsequent in time
new district Sambhal was carved out. The
property in dispute is admittedly a
protected monument under the Act of 1904
and finds place in gazette notification dated
22.12.1920. Reliance has been placed upon
the Sections 4 and 5 of the Act of 1958.

24. It is further submitted that the
building alleged to be situated on the land
as per the revenue records is a government
land, which is recorded in the record as
Gata No. 33 category 15 (2) nonagricultural land. In the Khewat it is
recorded as Milkiyat Sahi Mundarja. After
the enforcement of U.P.ZA. & L.R. Act,
1950 the land in question, recorded under
the said category, has vested in the State
Government.
Now
no
person
or
organization can claim any right over the
said land.

25. On the question of survey
conducted by the Advocate Commissioner,
he submitted that survey proceedings could
not be completed on 19.11.2024 and in
pursuance of letter dated 20.11.2024,
Superintendent of Police, Sambhal has
informed that since large force has been
deployed in by-assembly election of
Kundarki constituency to be held on
20.11.2024 police force cannot be provided
for survey work and request was made for
fixing another date. 22.11.2024 being
Friday and Namaz was to be held, the
survey was deferred for that date also.
23.11.2024 was fixed for counting of votes
5 All. Committee Of Management, Jami Masjid Sambhal Ahmed Marg Kot Sambhal Vs. Hari
 Shankar Jain & Ors.
1679
of Kundarki by-election and police force
was deployed there, therefore, survey could
not be conducted on the said date.
Therefore, 24.11.2024 was fixed for survey
on the basis of letter written by the
Advocate Commissioner fixing the time 7
AM to 11 AM in the morning. According
to him it is not the second survey but was a
continuance of proceedings initiated on
19.11.2024. He lastly contended that the
State has no objection as to waiver of the
period of notice under Section 80 (2) CPC.

26. Learned ASGI has submitted that
the property in dispute is a protected
monument under Section 3 of the Act of
1904 substituted by the Act of 1958. It is
under the control of ASI but the entry of
officers into the monument has been
objected by the masjid management. Prior
to directions of this Court, an inspection
was done on 25.6.2024 with the help of
district administration, report of which has
been brought on record. He then contended
that defendant nos. 1 to 4, present
respondent nos. 9 to 12, have already filed
their written statement before the trial
court. According to him, the survey was
conducted on 27.2.2025 on the directions
of this Court and a report has already been
submitted before this Court, which is part
of record alongwith pen-drive of the
videography done. The report categorically
reveals that interior of masjid has been
painted with thick layer of enamel paint of
sharp colours like golden, red, green and
yellow concealing the original surface of
monument. The same report further reveals
that exterior of monument has some signs
of flacking of the paint but the condition
doesn't require the immediate treatment at
the moment.

27. He accepted that Section 18 of the
Act of 1958 provides for public access to
the monument but there is obstructions
from the masjid committee. He also
contended
that
centrally
protected
monument cannot be characterized as a
place of worship as there was no mention
found
in
gazette
notification
No.
1645/1133-M dated 22.12.1920. He also
submitted that information has been sought
by ASI regarding listing of centrally
protected monument as waqf property from
Shia Central Waqf Board and Sunni
Central Waqf Board vide letter dated
17.10.2024 which till date has remained
unattended. Reliance has been placed upon
the decision rendered in Civil Appeal No.
16899 of 1996, Karnataka Board of
Waqf Vs. Government of India and
others, wherein it was held that the suit
property is a government property and not
of a waqf character. On Section 80 (2)
CPC, he submitted that no such objection
was taken in the written statement filed by
the answering defendant respondents and,
thus, it amounts to waiver.

28. I have heard respective counsel for
the parties and perused the material on
record. The questions placed before the
Court for consideration are:-

"I. Whether the court below was
correct in granting leave to institute the
suit before expiry of period of notice under
Section 80 (2) CPC?

II. Whether the court below was
correct to direct for local investigation
and appoint Commission exercising power
under Order XXVI Rule 9 and 10 CPC,
and necessary compliance of Rule 68 and
69 of the General Rules Civil was made or
not?

III. Whether the court below
could have proceeded with the matter
1680 INDIAN LAW REPORTS ALLAHABAD SERIES
under the Act of 1958, once the institution
of suit was barred by the Act of 1991?"

Question No. I

29.
Revisionist
has
primarily
questioned the order impugned dated
19.11.2024 on the ground that trial court
could not have granted leave to institute the
suit before expiry of period of notice under
Section 80(2) CPC as there was no
emergent need in doing so.

30. Before delving into this question, a
brief history and legislative changes of
Section 80 CPC is necessary for better
appreciation of the case.

31. Act No. V of 1908 (CPC) received
assent of Governor General on 21.03.1908.
The said Act No. V was enacted to
consolidate and amend the laws relating to
the Procedure of the Courts of Civil
Judicature. Section 1(1) provided that "this
Act may be cited as The Code of Civil
Procedure, 1908". Sub-section (2) provided
"it shall come into force on the first day of
January, 1909".

32. Section 80 modified upto 1st
January 1937 stood as under:-

"80. No suit shall be instituted
against the Secretary of State for India in
Council 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, in the case of
the Secretary of State in Council, delivered
to, or left at the office of, a Secretary to the
Local Government or the Collector of the
district, and, in the case of a public officer,
delivered to him or left at his office, stating
the cause of action, the name, description
and place of residence of the plaintiff and
the relief which he claims; and the plaint
shall contain a statement that such notice
has been so delivered or left."

33. In 1937, the words "the crown"
were substituted by the A.O. 1937 for the
words "the Secretary of State for India in
Council".

34. By amendment made in the year
1948, Section 80 was again amended and
was substituted as under:-

"80. 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 to, or left at
the office of -

(a) in the case of a suit against
the Central Government, [except where it
relates to a railway], a Secretary to that
Government;

[[(b)] in the case of a suit against
the Central Government where it relates to
a railway, the General Manager of that
railway;]

* * *******

(c) in the case of a suit against a
[State] Government, a Secretary to that
Government or the Collector of the
District, ***]

and, in the case of a public
officer, delivered to him or left at his office,
stating the cause of action, the name,
description and place of residence of the
plaintiff and the relief which he claims; and
5 All. Committee Of Management, Jami Masjid Sambhal Ahmed Marg Kot Sambhal Vs. Hari
 Shankar Jain & Ors.
1681
the plaint shall contain a statement that
such notice has been so delivered or left."

35.
By
the
Civil
Procedure
(Amending) Act, 1963 : (i) the words
'including the Government of the State of
Jammu and Kashmir' (ii) Clause (bb) were
inserted; and (iii) in Clause (c), the words
'any other' were substituted for 'a'. Thus,
after the amending Act of 1963, Section 80
stood as under:-

"80. No suit shall be instituted
against the Government (including the
Government of the State of Jammu and
Kashmir) 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 to, or
left at the office of -

(a) in the case of a suit against
the Central Government, except where it
relates to a railway, a Secretary to that
Government;

(b) in the case of a suit against
the Central Government where it relates to
a railway, the General Manager of that
railway.

* * *

(bb) in the case of a suit against
the Government of the State of Jammu and
Kashmir, the Secretary to that Government
or any other officer authorised by that
Government in this behalf;

(c) in the case of a suit against
any other Government, a Secretary to that
Government or the Collector of the district;

* * *

and, in the case of a public
officer, delivered to him or left at his office,
stating the cause of action, the name,
description and place of residence of the
plaintiff and relief which he claims; and the
plaint shall contain a statement that such
notice has been so delivered or left."

36. From the amended provision, the
desired result was not achieved and hardly
any matter was settled by Government or
public officer concerned making use of
opportunity afforded, and in most cases,
notice remained unanswered. The Law
Commission in its 14th Report noted that
provision of Section 80 had worked great
hardship in large number of cases.
Immediate relief by way of injunction
against Government or a public officer was
necessary in the interest of justice, it
recommended omission of the section. The
Joint Committee of Parliament did not
agree with the suggestion of the Law
Commission and recommended retention of
Section 80 with necessary modification/
relaxation and Section 80 was amended by
Amending Act 104 of 1976 which came
into effect from 01.02.1977 and Section 80
was renumbered as Section 80(1) and subsection (2) and (3), which are as under:-

"80. Notice. - [(1)] [ Save as
otherwise provided in sub-section (2), no
suit shall be instituted] against the
Government (including the Government of
the State of Jammu and Kashmir) 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 to, or left at
the office of -

(a) in the case of a suit against
the Central Government, [except where it
1682 INDIAN LAW REPORTS ALLAHABAD SERIES
relates to a railway,] a Secretary to that
Government;

[(b)] in the case of a suit against
the Central Government where it relates to
a railway, the General Manager of that
railway;]

[(bb) in the case of a suit against
the Government of the State of Jammu and
Kashmir, the Chief Secretary to that
Government or any other officer authorized
by that Government in this behalf;]

(c) in the case of a suit against
[any other State Government], a Secretary
to that Government or the Collector of the
district;

[* * * ]

and, in the case of a public
officer, delivered to him or left at his office,
stating the cause of action, the name,
description and place of residence of the
plaintiff and the relief which he claims; and
the plaint shall contain a statement that
such notice has been so delivered or left.

[(2) A suit to obtain an urgent
or
immediate
relief
against
the
Government (including the Government
of the State of Jammu and Kashmir) or
any public officer in respect of any act
purporting to be done by such public
officer in his official capacity, may be
instituted, with the leave of the Court,
without serving any notice as required by
sub-section (1); but the Court shall not
grant relief in the suit, whether interim or
otherwise, except after giving to the
Government or public officer, as the case
may be, a reasonable opportunity of
showing cause in respect of the relief
prayed for in the suit:

Provided 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-section (1).

(3) No suit 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
shall be dismissed merely by reason of any
error or defect in the notice referred to in
sub-section (I), if in such notice -

(a) the name, description and the
residence of the plaintiff had been so given
as to enable the appropriate authority or
the public officer to identify the person
serving the notice and such notice had been
delivered or left at the office of the
appropriate authority specified in subsection (1), and

(b) the cause of action and the
relief claimed by the plaintiff had been
substantially indicated.]"

37. The applicability of Section must
be determined on the law as it stood on the
date of suit. The object of notice required
under
the
Section
is
to
give
the
Government
or
the
public
officer
concerned, an opportunity to reconsider the
legal position and to make amends or settle
the claim, if so advised, without litigation.
This was held by Hon'ble Apex Court in
Raghunath Das Vs. Union of India, AIR
1969 SC 674.

38. When a statutory notice is issued
to a public authority, they must take the
notice in all seriousness, and should not sit
with it and force the citizen to the factories
of litigation. They are expected to let the
5 All. Committee Of Management, Jami Masjid Sambhal Ahmed Marg Kot Sambhal Vs. Hari
 Shankar Jain & Ors.
1683
claimant (who has given notice), know
what stand they take within statutory
period, or in any case before plaintiff
embarks upon litigation. The whole object
of serving a notice under Section 80 is to
give sufficient warning of the case
proposed to be instituted so that the
Government if it so wishes, can settle the
claim without litigation or afford restitution
without recourse to Court of law. In
Ghanshyam Dass Vs. Dominion of India,
(1984) 3 SCC 46, the Apex Court
observed as above.

39. Section 80 has been enacted as a
measure of public policy, with the object of
ensuring that before a suit is instituted
against Government or a public officer,
Government or the officer concerned is
afforded an opportunity to scrutinise the
claim and if it is found a just claim, to take
immediate
action
and
thereby
avoid
unnecessary litigation and save public time
and money by settling the claim without
driving the person, who has issued the
notice, to institute the suit involving
considerable expenditure and delay.

40. Public purpose underlying the
provision of Section 80 is advancement of
justice and securing of public good by
avoidance of unnecessary litigation. Prior
to the amendment of the year 1976, Section
80 clearly mandated that no suit shall be
instituted against Government or against a
public officer, until the expiration of two
months next after notice in writing has been
delivered to, or left at the office.

41. The provision was mandatory with
no exception to it. The Courts were bound
to give plain and simple meaning to the
said provision faithfully implementing the
mandate
of
Legislature.
In
Bihari
Chowdhary and another Vs. State of
Bihar and others, (1984) 2 SCC 627, the
Hon'ble Apex Court had the occasion to
consider Section 80 CPC as it stood prior to
its amendment of 1976 and held as under:-

"4. When the language used in
the statute is clear and unambiguous, it is
the plain duty of the Court to give effect to
it and considerations of hardship will not
be a legitimate ground for not faithfully
implementing
the
mandate
of
the
Legislature.

5. The Judicial Committee of the
Privy Council had occasion to consider the
scope and effect of Section 80 CPC in an
almost similar situation in Bhagchand
Dagadusa v. Secretary of State [AIR 1927
PC 176 : 54 IA 338, 357] . In that case
though a notice had been issued by the
plaintiffs under Section 80 CPC on June
26, 1922, the suit was instituted before the
expiry of the period of two months from the
said date. It was contended before the
Privy Council, relying on some early
decisions of High Court of Bombay, that
because one of the reliefs claimed in the
suit was the grant of a perpetual injunction
and the claim for the said relief would have
become infructuous if the plaintiffs were to
wait for the statutory period of two months
prescribed in Section 80 CPC before they
filed the suit, the rigour of the section
should be relaxed by implication of a
suitable exception or a qualification in
respect of a suit for emergent relief, such as
one for injunction. That contention did not
find favour with the Privy Council and it
was held that Section 80 is express, explicit
and
mandatory
and
it
admits
no
implications or exceptions. The Judicial
Committee observed:

"To argue, as the appellants did,
that the plaintiffs had a right urgently
1684 INDIAN LAW REPORTS ALLAHABAD SERIES
calling for a remedy, while Section 80 is
mere procedure, is fallacious, for Section
80 imposes a statutory and unqualified
obligation upon the Court...."

This decision was subsequently
followed by the Judicial Committee in
Vellayan v. Madras Province [AIR 1947
PC 197 : (1946-47) 74 IA 223] . The
dictum
laid
down
by
the
Judicial
Committee in Bhagchand Dagadusa v.
Secretary of State for India [AIR 1927 PC
176 : 54 IA 338, 357] , was cited with
approval and followed by a Bench of five
Judges of this Court in Sawai Singhai
Nirmal Chand v. Union of India [AIR 1966
SC 1068 : (1966) 1 SCR 986 : 1966 Mah
LJ 371] .

6. It must now be regarded as
settled law that a suit against the
Government or a public officer, to which
the requirement of a prior notice under
Section 80 CPC is attracted, cannot be
validly instituted until the expiration of the
period of two months next after the notice
in writing has been delivered to the
authorities concerned in the manner
prescribed for in the section and if filed
before the expiry of the said period, the suit
has to be dismissed as not maintainable."

42. After the amendment of 1976, subsection (2) and (3) were inserted w.e.f.
01.02.1977. Sub-section (2) is an exception
to the mandatory provision that unless
notice before two months is served upon
the Government or its officer, the suit
cannot be instituted. It has mitigated the
rigours of sub-section (1) of Section 80.
Now, a suit can be instituted against
Government or its officer with the leave of
the Court. Further, proviso to sub-section
(2) provides that in case Court is not
satisfied after hearing the parties that no
urgent or immediate relief need be granted
in a suit, return the plaint for presentation
to it after complying the requirements of
sub-section (1).

43. Thus, leave of a Court is a
condition precedent for the institution of
the suit. The Hon'ble Apex Court had an
occasion to consider the merit of Section
80(1) and sub-section (2) in case of State
of A.P. Vs. Pioneer Builders, (2006) 12
SCC 119. The Court held as under:-

"17. Thus, from a conjoint
reading of sub-sections (1) and (2) of
Section 80, the legislative intent is clear,
namely, service of notice under sub-section
(1) is imperative except where urgent and
immediate relief is to be granted by the
court, in which case a suit against the
Government or a public officer may be
instituted, but with the leave of the court.
Leave of the court is a condition precedent.
Such leave must precede the institution of a
suit without serving notice. Even though
Section 80(2) does not specify how the
leave is to be sought for or given, yet the
order granting leave must indicate the
ground(s) pleaded and application of mind
thereon. A restriction on the exercise of
power by the court has been imposed,
namely, the court cannot grant relief,
whether interim or otherwise, except after
giving the Government or a public officer a
reasonable opportunity of showing cause in
respect of relief prayed for in the suit.

18.
Having
regard
to
the
legislative intent noticed above, it needs
little emphasis that the power conferred on
the court under sub-section (2) is to avoid
genuine hardship and is, therefore, coupled
with a duty to grant leave to institute a suit
without complying with the requirements of
sub-section (1) thereof, bearing in mind
5 All. Committee Of Management, Jami Masjid Sambhal Ahmed Marg Kot Sambhal Vs. Hari
 Shankar Jain & Ors.
1685
only the urgency of the relief prayed for
and not the merits of the case. More so,
when want of notice under sub-section (1)
is also made good by providing that even in
urgent matters relief under this provision
shall not be granted without giving a
reasonable opportunity to the Government
or a public officer to show cause in respect
of the relief prayed for. The provision also
mandates that if the court is of the opinion
that no urgent or immediate relief deserves
to be granted it should return the plaint for
presentation after complying with the
requirements contemplated in sub-section
(1)."

44. The Hon'ble Apex Court in case of
Bajaj Hindustan Sugar & Industries
Ltd. Vs. Balrampur Chini Mills Ltd.,
(2007) 9 SCC 43 again had the occasion to
consider the purport of Section 80(2).