C/CRA/226/2024 ORDER DATED: 05/05/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CIVIL REVISION APPLICATION NO. 226 of 2024 ================================================================ LANCHHIBEN CHANDUBHAI BHARVAD Versus LH OF ABDUL UMARBHAI GHANCHI GULABNABI ABDULBHAI GHANCHI & ANR. ================================================================ Appearance: MRS NISHA M PARIKH(2397) for the Applicant(s) No. 1 MR DAXESH D BAROT(13149) for the Opponent(s) No. 1 NOTICE SERVED for the Opponent(s) No. 2 ================================================================ CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER Date : 05/05/2025 ORAL ORDER 1. The present Revision Application has been filed challenging the order passed below Exhibit-12 in Regular Civil Suit No.172 of 2023 passed by the Civil Judge, Waghodia, District : Vadodara on 13.02.2024, whereby the application under the provisions of Order VII Rule 11 of the Code of Civil Procedure filed by defendant No.1 has been rejected by the Court. 2. For the sake of convenience, the parties are referred to as plaintiff and defendant herein. 3. The brief facts arising in the present Revision Application are that the plaintiff filed Regular Civil Suit No.172 of 2023, on the ground that the easement rights of the plaintiff are affected, as the defendant No.1 is making construction on the said property, and therefore, the suit is filed to restrain the defendants from making any constructions in the suit property and to C/CRA/226/2024 ORDER DATED: 05/05/2025 remove the construction illegally made by the defendant and for a further injunction restraining the defendant from making any construction in the property and from disturbing the plaintiff’s possession of the suit property. In the Regular Civil Suit No.172 of 2023 the plaintiff has joined Talati-cum-Mantri Shri Gram Panchayat Jarod as defendant No.2. The defendant No.1 filed appearance in the said suit and defendant No.1 filed an application under the provisions of Order VII Rule 11 (a)(d) & (f) of the Code of Civil Procedure vide Exhibit-12 and the same is rejected by the trial Court by an order dated 13.02.2024. 4. Learned advocate for the defendant No.1 has mainly contended that the trial Court could not have rejected the application filed vide Exibit-12 and it has been argued that no cause of action has arisen for the plaintiff to file the present suit, and therefore, the plaint was required to be rejected under the provisions of Order VII Rule 11(a) of the Code of Civil Procedure and it has also been argued that in view of the fact that the plaint is barred by law, the plaint is required to be rejected and it has also been argued that as the defendant No.2 has been joined as party defendant the suit could not have been filed unless a notice under Section 80 of the Code of Civil Procedure is issued to defendant No.2, and therefore, the trial Court has erred in not allowing the application filed under Order VII Rule 11 and from the plain reading of the plaint, the plaint is required to be rejected. Page 2 of 7 C/CRA/226/2024 ORDER DATED: 05/05/2025 5. Having heard learned advocate for the original defendant No.1, the fact remains that while deciding the application under Order VII Rule 11, only plaint and the documents filed alongwith the plaint can be looked into by the Court and no defence of the defendant can be looked into. Moreover, the cause of action includes the material and bundles of fact which gives rights to suit. Moreover, in the judgment reported in (2004) 9 SCC 512, more particularly paragraph No.151 it has been held that in ascertaining whether the plaint shows a cause of action, the Court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the Court is restricted to ascertaining whether on the allegations made in the plaint a cause of action is shown. In the present case, the plaintiff is claiming right over the property and the trial Court after leading evidence has to ascertain the said fact. 6. The defendant No.1 in the application filed under the provisions of Order VII Rule 11 of Code of Civil Procedure has taken a contention that as the defendant No.2 has been joined as party defendant, the plaintiff had to issue notice under section 80 of the Code of Civil Procedure before serving defendant No.2, Section 80 of the Code of Civil Procedure reads as under:- “Section 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 C/CRA/226/2024 ORDER DATED: 05/05/2025 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 railway, the General Manager of that railway; (bb) in the case of suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf; (c) in the case of 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 C/CRA/226/2024 ORDER DATED: 05/05/2025 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 (1), 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 has been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.” 7. The fact remains that the said issue has been raised by the defendant No.1 in the suit, defendant No.1 is neither the Government nor a statutory body. Moreover, defendant No.2 has not raised such objection before the trial Court that the suit is not maintainable for want of issuance of statutory notice and the objection as to the non service of notice has been taken by the defendant No.1, and not by the defendant No.2 against whom the notice has to be served, and therefore, the objection as to the non service of notice to defendant No.2 can be taken only by the defendant No.2 i.e. person against whom the notice is not served. 8. 8. Moreover, the question about service of statutory notice, C/CRA/226/2024 ORDER DATED: 05/05/2025 and the ground of non service of statutory notice, is available only to the Government and the statutory body and except the statutory body and/or the Government no other person is entitled to receive the said notice, and therefore, it is only concerned statutory body and/or the Government, itself who can waive the objection or take the objection regarding non service and non issuance of the said statutory notice, and therefore, the non service of notice to defendant No.2 before institution of the suit is only available to defendant No.2 to take the aforesaid issue before the Court and the same is not available to defendant No.1 i.e. present petitioner. 9. The said provision is enacted in order to given protection to the concerned authority against whom any vexatious proceeding is filed. Moreover, the authority can always waive such requirement, in that view of the matter the defendant No.1 had no right to raise such objection before the Court and it is only available to defendant No.2 authority to raise such objection. Moreover, the statutory authority can waive such objection as ultimately the provision is made for their benefit. As such statutory notice has to be given only to the statutory body of the Government as the case may be, and therefore, the said issue cannot be raised by defendant No.1 as the individual party is not even required to be served to such notice, as the statutory notice is intended to grant such authorities special protection for their own benefit and if they choose they can avail the same, and therefore, it is not open for a third party i.e. in the present case, C/CRA/226/2024 ORDER DATED: 05/05/2025 defendant No.1 to raise such an objection that the suit is not maintainable for want of issuance of statutory notice. 10. Considering the submissions made and after examining the findings of the Court on the issue raised in the suit and upon examination of the order of the Court, this Court is of the considered opinion that the learned advocate for the defendant No.1 is unable to point out any infirmity, perversity or impropriety in the findings recorded by the Court below. Not only that the learned advocate for the defendant No.1 is unable to show that the findings recorded by the learned Trial Court is without any reasons and against the provisions of law. 11. In view of the said fact, the present Civil Revision Application is dismissed. (SANJEEV J.THAKER,J) Manoj Kumar Rai Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: MANOJKUMAR RAI(HC01072), PRIVATE SECRETARY, at High Court of Gujarat on 09/05/2025 09:06:04