80 CPC: Not all parties are government bodies/officials

self employed

This case is about an encroachment on my plot. The party encroaching on my land is the neighboring plot holder (not a government body or government official).
In a demarcation survey carried out by the civic body in my presence, the encroachment was established. However, the town planner carried out two surveys in my absence and claimed that there is no encroachment any more. I have sued the civic body and the encroacher thru section 80 CPC. I am demanding that the encroachment be removed and that I be compensated for the delays and misleading demarcation surveys which did not allow me to develop my land.
I have been told by one person on this website that this is a blunder I have committed.
Is this the wrong course of action? Under Section 80 CPC can I demand that the encroacher (who is not government official) to remove the encroachment?
If not, what is the best course of action given my circumstances?
I had taken advice from two local lawyers who did not point this out to me.
If I've made a mistake here, what shall I do next?
thanks to all who respond
Uma

 
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Advocate-on-Record Supreme Court of India

Dear Querist,

 

As per ordinary practice, Section 80 CPC notice is a mandatory one needs to be issued to a statutory (government) body  before institution of any Suit involving government.

 

As regards said notice to private individual in the same very matter, as per my understaning, it wont be problem if you have issued the same to the enchroacher. I am of the view that it wont weaken your case.

 

Trust this would be fine.

 

Thanks & regards.

Rabin Majumder
Advocate & Attorney
For Nu.Delhi.Law.Fora.
Ch. 91, Sh. AK Sen Chambers Block,
Supreme Court of India
New Delhi - 110001
 


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legal manager

In Uma"s case she has  already given a notice U/s.80 CPC, but it was not necessary, but it is not going to affect her case any way.  Even notice U/s. 80 CPC  can be waived by filing a seperate  petition to dispense with serving of 8O sec notice, if  the subject matter is urgent.  A.N.xavier Advocate -  Tirupur   09345793055


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practicing advocate

u/s 80 CPC notice will be issued to the Govt., before filing the suit, if it is issued to the encrocher it does not affect your case, you need not to worry.

It is not necesary to make Govt., as party to the suit .  You file a suit for mandatory injunction against the encroacher only it is sufficient..  If your suit is decreed  and in an execution petition court will direct the concerned department to remove the encroched area by the encroacher.


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self employed

Thank you for the kind replies, I have one more question about this.

I have already got a case number for the Section 80 case. I realize that I will have to file a separate lawsuit to get the encroachment removed. Can I go ahead and send a notice to the encroacher?

I have also asked for removal of encroachment in my lawsuit under Section 80 CPC. I was not aware that I cannot ask for removal of encroachment under the 80 CPC.
Can anybody object that I cannot file another lawsuit since I have already got a case running in which the encroacher is one of the defendants and I have asked that the encroachment be removed?

Will I need to withdraw my Section 80 suit before filing a suit against encroacher for mandatory injunction?

I'm sorry if my questions are foolish, I had consulted with 2 local lawyers earlier and it's another long story but now, after getting so many enlightened and knowledgeable replies I have to rethink everything.

Thank you for replying
Uma

 
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Govt..Employee

Notice under S.80 is a mandatory notice before filing any civil suit. Notice is for the purpose of informing the other party as to your grievance, and to see if it can be settled/rectified without the legal process. It is an opportunity given tot he other party before actual civil proceedings.

Litigation in  a court begins from the time you files a case before competent civil court. Question of withdrawal of notice does not arise.

 
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civil practice

There cannot be any suit under Sec. 80. It is provision for prior notice to the Govt. If you have filed the case against the Town Planner for wrong measurement and setting it right after giving notice to them,it is fine and in the same suit you have joined the encroacher to remove the possession and you have also asked for damages. I do not find that you have committed any blunder.


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self employed

Thank you for the prompt and knowledgeable replies, I have a lot to learn but I am very encouraged that I am not alone in this.

 
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Advocate practising tax advisor

The cpc proceadure lay  the conditon for giving prior notice to government bodies informing the intention to file civil suit. The purpose is to give an opportunity to the Government body to understnd as to where the contradiction lies and it has got an object of reaching finality and prvent frivoulous court cases as it waste the time of Stutory bodies.

But that does not perse say that your suit will be dismissed only on tht ground of not giving a notice in case if  there is merits. Non giving of notice does not make the issue ab initio void. It is voidable one and the court can decide the issues on merit

In any case you have already included the defendant being the privater person as encroacher and the suit may servive. Adv.A.RSathyan. 9822252492


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Nothing to worry about because under the constitution of India even a civic body like  Municipalites  is a Self-Govt. So therefore even if You have issued  80 CPC Notice u have not committed any wrong.

 

But in any event if u r advised by your legal advisor that you have committed any mistake by issuing 80 CPC notice. Then file an application to Dispence with notice.  

 
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