ORDER
V.K. Shrivastava, J.
1. This appeal is directed against the order dated 26-2-1997 passed by the Additional District Judge, Baikunthpur in Civil Suit No. 1-A/96, whereby temporary injunction in favour of respondent has been granted and appellants have been restrained to recover the fine imposed on respondent.
2. Respondent obtained license for 1-4-1993 to 31-3-1994 in form No. FL-1 for retail sale for foreign liquor in Baikunthpur and Churcha Colliery. The sale of liquor is regulated by the Excise Act and rules framed thereunder. Conditions for running of the shop including lifting of the foreign liquor are mentioned in the license issued to the respondent. Respondent did not lift the quantity agreed upon in the contract and also failed to deposit the license fees in the month of December, 1993 and January, 1994. Therefore, penalty of Rs. 2,56,284/- was levied on him. The department proceeded to recover the sum as arrears of land revenue. Therefore respondent for declaring the imposition of fine against him as illegal and restraining the appellants from recovery of the same, filed a suit bearing Civil Suit No. 1-A/96 and to obtain temporary injunction, filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short, “the Code”).
3. Appellants opposed the application on the ground that respondent did not lift the minimum quantity of liquor in the year 1993-94, and did not deposit the license fees in the month of December, 1993 and January, 1994. Respondent vide application dated 24-3-1994 pray to lift the liquor. Department agreed to issue the permit on depositing the license fees. Respondent violated the conditions of license, therefore, penalty was levied on him and proceeding to recover the same has been started. Appellants further objected the suit and application on various other ground viz., that the respondent did not value the suit properly and also did not pay the requisite Court Fees. No cause of action in his favour arose. No permission under Section 80(2) of the Code has been obtained.
4. Learned Trial Court held that whether respondent committed breach of conditions of the license or not is a matter to be decided after recording evidence of both the parties. Learned Lower Court further held that respondent was not allowed fair opportunity to contest the proceedings of levying fine against him.
5. Both the parties are heard.
6. Section 80(2) of the CPC reads as follows :-
“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).”
7. From bare reading of the said provision, it is manifest that if a party desires to obtain an urgent or immediate relief against the Government, he may institute a suit with permission of the Court without serving notice as required under Section 80 of the Code. Specific objection has been raised by appellants before the Lower Court regarding non-compliance of the aforesaid provision, but the Court below did not care to see that in absence of the compliance of aforesaid provision, respondent was not entitled for grant of any urgent or immediate relief.
8. The appellant very specifically alleged that respondent did not deposit the license fees for the month of December, 1993 and January, 1994. Respondent himself pleaded that he deposited the license fees for lifting minimum quantity of liquor on 24-3-1994. Respondent did not say that he deposited license fee in accordance with condition of the license, in time, therefore, prima facie, it appears that respondent violated the license conditions, Admittedly, license contains a condition that if any condition will be violated, fine will be levied on the licensee. In the instant case prima facie, it was established that respondent committed breach of license conditions, Department was empowered to impose fine against respondent for breach of license conditions and to recover the same. Respondent did not obtain permission of the Court in accordance with Section 80(2) of the Code.
9. In absence of permission under Section 80(2) of the Code respondent was not entitled to obtain any urgent or immediate relief, set apart imposition of fine on respondent who violated the conditions of licence, was within the power of appellants, therefore, recovery of fine in these circumstances, was not such to hold that balance of convenience lies in favour of the respondent or in absence of relief he has to suffer irreparable loss.
10. In the result, the appeal is allowed; the impugned order passed by the Trial Court is set aside.
Parties to bear their own cost.