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Report No. 100

2.2. Relaxation made in section 80(2)-effect of.-

The Law Commission of India had, in successive Reports on the Code of Civil Procedure, 1908, recommended total repeal of section 80 of the Code, but the Amending Act of 1976 merely made certain modifications in the section. We have already stated above1 that the relaxations introduced in the section by sub-sections (2) and (3) touch the fringe of the problem. By sub-section (2) it is, in effect, provided that the cases of urgency, a suit may be entertained by the court without notice required under sub-section (1). However, what the sub-section gives by one hand, it takes away by another hand. For, it also lays down that if notice has then not been given, interim relief (say, by way of an interim injunction) shall not be granted by the court in such a suit.

Not only this, the proviso to sub-section (2) of section 80 goes further and enacts that if (in a suit filed without notice) the court takes the view that there was no urgency, it shall return the plaint to the plaintiff for presentation after the plaintiff has given the requisite notice. It appears to us that this sort of provision is bound to create considerable delay, expense and trouble. A litigant, bona fide believing the case to be one of urgency, institutes a suit without the notice required by section 80(1). The court does not agree with him that the matter is urgent. So the court returns the plaint.

The litigant must now give a notice as required by the section, go to the court again, pay further fees to counsel, incur other incidental expenses again and then present the plaint again. All this time, he would be denied the interim relief that was desired by him. What is more, the litigant would be spending his time going to and coming back from the court, without securing the substantive redress that he sought for his grievance, and without being able to secure even a firm date for an effective hearing of the controversy. Sub-section (2) of section 80 of the Code thus, when read with the proviso, is hardly an improvement on the pre-1976 position.

1. Para. 2.1, supra.

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