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2002 DIGILAW 498 (PNJ)

Mahant Ram v. Nankoo Ram

2002-05-03

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This is a revision petition directed against the order dated 8.3.2002 passed by the Civil Judge (Jr. Division), Chandigarh allowing the application filed by the plaintiff-respondents under Order 6, Rule 17 read with Order 1, Rule 10 of the Code of Civil Procedure, 1908 (for brevity, the Code), The Civil Judge has allowed by way of amendment addition of relief of declaration to be added in the plaint to the effect that the plaintiff- respondents are co-owners in the house in suit as previously they were residing alongwith the defendant-petitioner in a Jhuggi and in lieu of aforementioned Jhuggi, the house in suit was allotted to the plaintiff- respondents and the defendant-petitioner jointly as an alternative site by Chandigarh Administration. In this context, they also impleaded the Estate Officer as defendant-respondent No. 2. The argument that original suit was for permanent injunction and allowing the amendment by incorporating the addition in the suit to make it a suit for declaration was rejected by the Civil Judge by observing that such an amendment would not change the nature of the suit and no new cause of action is sought to be introduced. Another ground given by the Civil Judge is that the suit has been instituted on 12.9.2001 and since it is at the threshold, it would not prejudice any one. 2. I have heard Shri S.M. Tripathi, learned counsel for the defendant- petitioner who has argued that the mandatory provisions of Section 80 of the Code have not been followed which required the plaintiff-respondents to serve a legal notice before filing the suit or impleading the Estate Officer as party under Order 1 Rule 10 of the Code. In support of his submission, the learned counsel has relied upon a judgment of the Supreme Court in the case of Smt. Sooraj and others v. S.D.O. Rehli and others, AIR 1995 SC 872 and a judgment of Calcutta High Court in Smt. Janak Raji Devi v. Chandrabati Devi and another, AIR 2002 Calcutta 11. 3. I have thoughtfully considered the submission made by the learned counsel and do not feel impressed with the same. 3. I have thoughtfully considered the submission made by the learned counsel and do not feel impressed with the same. There is no quarrel with the proposition that in any suit instituted against the government or against a public officer, notice under Section 80 of the Code is mandatory as has been held by the Supreme Court in State of Madras v. C.P. Agencies and another, AIR 1960 SC 1309. A Constitution Bench of the Supreme Court reiterated this view in the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424. In order to decide the controversy raised, it is apposite to refer to Section 80 of the Code which reads 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 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 :" A perusal of Section 80 of the Code would make it obvious that notice is mandatory in a suit filed 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. Sub-section (2) of Section 80 of the Code carves an exception where issuance of notice mandated by sub-section (1) of Section 80 of the Code could be dispensed with. It contemplates cases of urgent nature which would not brook delay of two months showing the urgency. Sub-section (2) of Section 80 of the Code carves an exception where issuance of notice mandated by sub-section (1) of Section 80 of the Code could be dispensed with. It contemplates cases of urgent nature which would not brook delay of two months showing the urgency. [(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 authorised 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 to 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 had 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.]" 4. A perusal of Section 80 of the Code would make it obvious that notice is mandatory in a suit filed 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. Sub-section (2) of Section 80 of the Code carves an exception where issuance of notice mandated by sub-section (1) of Section 80 of the Code could be dispensed with. It contemplates cases of urgent nature which would brook delay of two months showing the urgency. 5. In the present case, Suit No. 196 of 12.9.2001 has been filed by the plaintiff-respondents seeking permanent injunction restraining the defendant- petitioner from interfering in the peaceful possession and enjoyment of the plaintiff-respondents in respect of house No. 412, Phase II, Ram Darbar Colony, Chandigarh. The case set up in the plaint appears to be that the plaintiff-respondents and the defendant-petitioner are co-owners of the house. It has further been pleaded that they used to live together alongwith the defendant-petitioner in Jhuggi No. 14, New Power House, Sector 26, Chandigarh and the house in suit was allotted to them as an alternative site by the Estate Officer. The defendant-petitioner has stoutly denied the allegations alleging that the plaintiff-respondents have no right, title or interest in the suit property. It was further alleged that they are nothing but trespassers and has forcibly occupied one room of the house of defendant- petitioner. It is in these circumstances that the Estate Officer has been allowed to be impleaded as party-defendant. 6. It was further alleged that they are nothing but trespassers and has forcibly occupied one room of the house of defendant- petitioner. It is in these circumstances that the Estate Officer has been allowed to be impleaded as party-defendant. 6. The argument that notice is mandatory, could not be available to the defendant-petitioner because such an argument has to be raised by the Estate Officer because if the Estate Officer after appearing before the Court does not raise this argument, it would amount to waiver which has been held to be permissible by a catena of judgments of the Supreme Court as well as this Court. This basic rationale for such a waiver is that notice is required for the benefit of the government or public officer and there is nothing to prevent them from waiving the notice or from being estopped by their conduct from pleading the want of notice. This view has been taken by the Supreme Court in the case of Dhian Singh Sobha Singh and another v. Union of India, AIR 1958 SC 274 and also by a Division Bench of this Court in Salig Ram and another v. Shiv Shankar and others, AIR 1971 Punjab and Haryana 437. Another reason for rejecting the submission made by the learned counsel is that no such argument was raised before the Civil Judge as is apparent from the impugned order. Moreover, the dispute primarily appears to be between the defendant-petitioner and the plaintiff-respondents without involving any act of a public officer done in his official capacity. It is still further that an application under Order 39, Rules 1 and 2 of the Code has also been filed which shows the urgency in the matter and in such a situation the leave to file the suit without notice even in cases where the suit is primarily directed against a public officer is deemed to be granted. There is necessity under sub-section (2) of Section 80 of the Code to file a separate application even in those type of cases. Therefore, the revision petition is liable to be dismissed. 7. For the reasons stated above, this revision petition fails and is dismissed. Petition dismissed.