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2015 DIGILAW 486 (KAR)

A. G. Shivaprakash v. Andanaiah

2015-04-27

N.KUMAR

body2015
ORDER : N. Kumar, J. 1. The plaintiff has preferred this writ petition challenging the order passed by the trial Court directing the plaintiff to strike out the name of the defendant No. 8 from the cause title. 2. The plaintiff has filed O.S. No. 89/2013 for permanent injunction restraining the defendants, their agents, servants, workers or any body claiming right under them from dis-possessing him from the suit schedule property in any manner. 3. The suit schedule property is an agricultural land bearing Sy. No. 100/7 situated at Alkere Village, Huthridurga Hobli, Kunigal Taluk. 4. The case of the plaintiff is that the suit schedule property was purchased by his father under a registered sale deed dated 19.10.1971. His father died on 14.10.2007. Thereafter, he along with his other brothers, sisters and mother jointly inherited the suit schedule property as well as other family properties owned by his father. There was a partition in their family. The suit schedule property has fallen to his share under the Panchayath Parikath dated 18.02.2010; mutation entries were made in his name on the basis of the said Panchayath Parikath. The mutation entries are made not only in his name but also in his wife Smt. Sudhamani's name. The defendants claim these properties as successor to the Office of Thoti of Alkere Village. Their claim was finally decided holding that they have no manner of right, title and interest over the property. However, they are in the habit of filing suit after suits and they are trying to interfere with his possession. 5. In O.S. No. 101/2012 filed by one Ningaiah an order of temporary injunction was granted. By taking advantage of that order, defendants 1 to 7 colluded with defendant No. 8 and started illegal activities. The defendant No. 8 is in the habit of calling the plaintiff to the Police Station, compelling him to sign blank sheets and documents, using his police force and also by misusing the colour of Office. He has also compelled the plaintiff to surrender the properties. Infact, the plaintiff approached the Tahsildar, who passed the order on 17.06.2012 directing the defendant No. 8 to extend police protection to protect his lawful possession and enjoyment of the suit schedule property. Even the Deputy Commissioner also passed an order to that effect. The defendant No. 8 has ravished approach towards plaintiff. Infact, the plaintiff approached the Tahsildar, who passed the order on 17.06.2012 directing the defendant No. 8 to extend police protection to protect his lawful possession and enjoyment of the suit schedule property. Even the Deputy Commissioner also passed an order to that effect. The defendant No. 8 has ravished approach towards plaintiff. He repeatedly calls the plaintiff to Police Station and compels him to sit in the Police Station from morning till evening. During the said period, he forced the plaintiff to sign documents and to surrender the physical possession of the properties to the defendants. The defendant No. 8 using colour of his Office as instructed by defendant Nos. 1 to 7 is attempting to take physical possession of the suit schedule property forcibly. Therefore, he has filed the suit against the defendant Nos. 1 to 8. 6. The trial Court before ordering summons in the suit, noticed that defendant No. 8 is arrayed as a party in his official capacity as Police Sub-Inspector; the plaintiff had not issued any notice as contemplated under Section 80 of CPC, to him before filing the suit and the Government has not been made as a party and therefore, held that the plaint against the defendant No. 8 to be bad in law. It is against that order, the present writ petition is filed. 7. The learned counsel for petitioner/plaintiff submits that defendant No. 8 is not made as party to the suit in his official capacity, but has been made as party in his personal capacity. Therefore, provisions of Order XXVII Rule 5A of C.P.C. are not applicable. 8. The facts set out in the plaint clearly indicates that it is not the grievance of the plaintiff that, defendant No. 8 is claiming any right in the suit schedule property, but he, misusing the Office of Police Sub-Inspector is abetting and encouraging the defendant No. 1 to 7 to take forcible possession of the properties from the plaintiff. In fact, the plaintiff approached the Tahsildar for police protection, wherein an order came to be passed directing the defendant No. 8 to give police protection. Similar order is also passed by the Deputy Commissioner. Therefore, the role of the defendant No. 8 is absolutely in his official capacity and not in his personal capacity. 9. In fact, the plaintiff approached the Tahsildar for police protection, wherein an order came to be passed directing the defendant No. 8 to give police protection. Similar order is also passed by the Deputy Commissioner. Therefore, the role of the defendant No. 8 is absolutely in his official capacity and not in his personal capacity. 9. By Act No. 104/76, which came into effect on 01.02.1977, the parliament inserted the Order XXVII Rule 5A of CPC, which reads as hereunder: "Government to be joined as a party in a suit against a public officer.- Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.' 10. The object of introducing this provision is to see that the liability of the Government, if any, is to be decided in the same suit, whereas damages or other relief is claimed in a suit against the public officer, in any act alleged to have been done by him in his official capacity, the Government shall be joined as party to the suit. In fact, Section 80 of C.P.C. also contemplates that 'no suit shall be 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, until the expiration of two months next after notice in writing has been delivered to, or left at the office .. ..' 11. In the instant case, the defendant No. 8 has no personal interest in the suit schedule property. He is not interfering with the possession of the plaintiff for his benefit. As is noticed from the plaint averments the plaintiff himself has approached the Tahsildar and Deputy Commissioner for police protection, who have passed the orders. Probably the defendant No. 1 to 7 have also might have approached the defendant No. 8 to give effect to the order of injunction against the plaintiff. The defendant No. 8 is purely acting under his official capacity. What he is doing may be right or wrong and that is to be decided by the Court. The defendant No. 8 is the public officer and he is arrayed in his official capacity. The defendant No. 8 is purely acting under his official capacity. What he is doing may be right or wrong and that is to be decided by the Court. The defendant No. 8 is the public officer and he is arrayed in his official capacity. In view of the requirement of Order 27 Rule 5A of CPC, the Government shall be made as party. Thus, in the absence of Government being made as a party, the defendant No. 8 cannot be arrayed as party to the suit. 12. In this view of the matter, the order passed by the trial Court cannot be found fault with. No merit. Dismissed.