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2016 DIGILAW 639 (CAL)

Dharam Singh Neogi v. State of West Bengal

2016-08-12

SAMAPTI CHATTERJEE

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JUDGMENT : Samapti Chatterjee, J. In the present case following issues are to be determined :- (i) Whether an order of dismissal of Suit could be challenged in revisional jurisdiction under Article 227 of the Constitution of India before this Hon'ble Court without preferring an appeal in accordance with the provision of the Code of Civil Procedure? (ii) Whether non-service of notice under Section 80 of the Civil Procedure Code upon the state defendant can be a ground for dismissal of the money suit when admittedly other private defendants are there? 2. Challenging the order dated 11th August, 2015 passed by Sri R.N. Makhal, Learned Civil Judge (Senior Division), 5th Court, Alipore in Money Suit No.130 of 2012 the petitioner/plaintiff filed the present application under Article 227 of the Constitution of India. 3. Mr. Chanchal Nag Chowdhury, learned Advocate appearing for the petitioner/plaintiff vehemently urged that the petitioner filed the Title Suit No.117 of 2009 in the Court of Learned Civil Judge (Senior Division), 5th Court at Alipore praying interalia for defamation. The said suit has been renumbered as Money Suit No.130 of 2012. The reliefs sought for in the said Suit are quoted below :- "a. Decree for defamation and damages assessed at Rs.9,40,47,291/- as set out in paragraph 19 of the plaint; b. Receiver; c. Commissioner; d. Costs; e. Any other relief/reliefs the plaintiff may be found entitled to in law and equity." 4. In the said Suit except the State Government, the other defendants appeared and contested the same by filing their respective written statements. The said suit was in peremptory board and the petitioner/plaintiff also filed his affidavit-in-chief and was cross-examined in full. While on 11th August, 2015, the last witness of the petitioner was due to depose in the suit, it was observed that no notice under Section 80 of the Civil Procedure Code was served upon the State of West Bengal. The Learned Judge instead of dismissing the suit only against the State has dismissed the entire suit also against the private defendants. 5. Mr. Nag Chowdhury further contended that the Learned Judge erred in law by dismissing the entire suit on the ground of non-serving of the notice under Section 80 of the Civil Procedure Code upon the State. 6. Mr. 5. Mr. Nag Chowdhury further contended that the Learned Judge erred in law by dismissing the entire suit on the ground of non-serving of the notice under Section 80 of the Civil Procedure Code upon the State. 6. Mr. Nag Chowdhury further vehemently contended that it is available on record that the other private defendants/respondents have contested the said suit by filing their respective written statements and almost all the witnesses of the plaintiff adduced their evidence. Therefore, at this stage dismissal of the entire suit on the ground of non-service the Section 80 notice upon the State is bad in law. 7. Mr. Nag Chowdhury further contended that since the impugned order is irregular and instance of total non-application of mind, therefore, this impugned order can be tested by this Hon'ble Court in its superintendence jurisdiction under Article 227 of the Constitution of India. In support of his contention Mr. Nag Chowdhury relied on Supreme Court decision reported in (i) AIR 1996 SC 1092 Paragraph-9 (Puran Singh and Others v. State of Punjab and Others) which is quoted below:- "We have not been able to appreciate the anxiety on the part of the different Courts in judgments referred to above to apply the provisions of the Code to Writ Proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all Courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction, have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power, and they are reasonable and rational. It need not be impressed that different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that may procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the person concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious." and Mr. Nag Chowdhury also relied on a decision reported in (ii) 2003 (6) SCC 675 Paragraphs-22,27,29 and 38 (Surya Dev Rai v. Ram Chander Rai And Others). 8. Mr. Nag Chowdhury further urged that since no Section 80 notice has been served upon the State defendant therefore, the suit may be dismissed against the State but the plaint as a whole cannot be rejected since other private defendants who have already contested the said suit by filing their written statements. In support of his contention Mr. Nag Chowdhury relied on Division Bench decision reported in AIR 1962 Calcutta Page-283 Paragraph-2 (P.B. Shah and Co. And Others v. Chief Executive Officer And Others) which is quoted below :- "Para-2-The order rejecting the plaint is in any event erroneous. On the finding that the suit was not maintainable against the defendant No.1, the suit should have been dismissed against him, but the plaint as a whole could not be rejected. It may be that in the absence of the defendant No.1 the suit would become detective for non-joinder of necessary parties, and if so, the suit will have to be dismissed against the other defendants also." 9. Mr. Nag Chowdhury further contended that cause of action against the State is quite distinct and different from the cause of action against the private defendants. Therefore, he contended that suit should have been allowed to be continued against the private defendants. 10. Mr. Nag Chowdhury further contended that private defendants are not entitled to be allowed to go scot free, even if the State is not liable, in as much as independent cause of action arose against the private defendants. 11. Before parting with his argument Mr. 10. Mr. Nag Chowdhury further contended that private defendants are not entitled to be allowed to go scot free, even if the State is not liable, in as much as independent cause of action arose against the private defendants. 11. Before parting with his argument Mr. Nag Chowdhury submitted that Hon'ble High Court has power to entertain this revisional application against the impugned order. 12. Per contra, Mr. Prasanta Bishal, learned Advocate appearing for the opposite party nos. 2 to 8 vehemently urged that against the impugned order appeal lies since the Learned Court dismissed the suit on the ground of noncompliance of Section 80 of the Civil Procedure Code as the State is one of the defendants in the said Suit. 13. Mr. Bishal further contended that since no Section 80 notice has been given upon the State by the plaintiff/petitioner before filing the Suit, therefore, suit has been rightly dismissed by the Learned Court below. 14. Considering the submissions advanced by the learned Advocates appearing for the parties and after perusing the records and the judgment and order dated 11th August, 2015 passed by Sri R.N. Makhal, Learned Civil Judge (Senior Division), 5th Court, Alipore in Money Suit No.130 of 2012 in my opinion since the suit has been dismissed by the impugned order dated 11th August, 2015, regular appeal lies against dismissal of suit under Order 41, Rule 1 before the Appellate Court but unfortunately in the present case the petitioner/plaintiff instead of preferring appeal against the dismissal of the suit chose to file this revisional application. On the face of the impugned order it is apparent that the entire Suit has been dismissed by the Learned Court below on the ground of non-compliance of Section 80 of the Civil Procedure Code. It is trite law that against the order dismissing the suit, appeal lies and not revision. That being the scenario in my considered view this revisional application is not maintainable in law and thus deserves to be dismissed. 15. Accordingly, the C.O No.4050 of 2015 stands dismissed but no order as to costs. 16. Needless to mention that I have not gone into the merit of the case. That being the scenario in my considered view this revisional application is not maintainable in law and thus deserves to be dismissed. 15. Accordingly, the C.O No.4050 of 2015 stands dismissed but no order as to costs. 16. Needless to mention that I have not gone into the merit of the case. However, dismissal of this application will not preclude the petitioner to challenge the impugned order dated 11th August, 2015 passed by Learned Civil Judge (Senior Division), 5th Court, Alipore, District-South 24-Parganas in Money Suit No.130 of 2012 in accordance with law before the appropriate forum, if so advised. 17. Leave is granted to the petitioner to take back the original certified copy of the order dated 11th August, 2015 passed by the Learned Civil Judge (Senior Division), 5th Court, Alipore, District-South 24-Parganas and submit a photocopy of the said order in the record of the Court.