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2017 DIGILAW 162 (GAU)

Birhash Giri Basumatary v. Chandan Chakraborty

2017-02-07

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER 1. Heard Mr. S.S. Sharma, learned Senior Counsel for the petitioner assisted by Mrs. L. Sharma and Sri B.J. Mukherjee as well as Mr. D. Mozumdar, Senior Counsel for the respondent assisted by Mr. P. Borah and Ms. J. Kakoti. 2. The respondent herein is the plaintiff in M.S. No. 2/2009, pending in the Court of learned Civil Judge, Bongaigaon. The petitioner herein, who was the defendant in the suit had contested the suit. On 10.01.2004, i.e. after 5 long years, the respondent filed an application under the provisions of Or.I R.10(2) and Or.VI R.17 read with sec.151 CPC for impleading the State of Assam, represented by Superintendent of Police, Chirang District as Proforma Defendant in the suit. It was stated in the said application that the money suit arose from the acquittal of the respondent in GR Case No. 90/2005, wherein the petitioner herein was the informant. The investigation of the case was conducted by the Bijni Police, which falls under the Superintendent of Police, Chirang. But the said authority was not made a defendant due to bona fide mistake. It was apprehended that the suit would fail on technical grounds for non- joinder of the said necessary party. It was specifically stated therein that the respondent is not seeking any relief against the State of Assam. The said application was registered as Misc.(J) Case No. 1/2014. The learned Civil Judge, Bongaigaon by order dated 20.11.2014, allowed the said application. The said order is impugned in this revision filed under Article 227 of India. 3. The learned Senior counsel for the petitioner submits that (i) the application was filed belatedly after 5 years from the institution of the suit, (ii) as no notice under section 80 CPC was issued to the State, which was mandatory, the State cannot be impleaded as Proforma Defendant in the suit because as per sub-section (1) of section 80 CPC, no suit can be instituted against the Government until expiration of two months from the date of delivery of the notice in writing (iii) as per the provisions of sub-section (1)(b) of section 80 CPC, the Secretary of the Govt. is the prescribed authority, but in the present case in hand, the learned Civil Judge allowed impleading despite the fact that the Superintendent of Police has no authority to represent the State Govt., (iv) From the nature of reliefs claimed in the plaint by the respondent it is apparent that such reliefs are in respect of personal actions of the petitioner and therefore, the State of Assam cannot be held even to be vicariously liable in respect of the claims made by the respondent for which the State of Assam is not a necessary and/or proper party in the suit. 4. The learned Senior Counsel for the respondent submits that as it is specifically pleaded case that the respondent is not seeking any relief whatsoever from the State of Assam, for which the prayer before the learned Court below was to implead the State only as a Proforma Defendant. It is also submitted that only to save the suit from being technically defeated on the ground of non-joinder of necessary party, the prayer for impleading was made. It is also submitted that as no relief is claimed and/or will be claimed from the State of Assam, it would not matter whether the State is represented by the Secretary or the jurisdictional Superintendent of Police, for which the suit cannot be otherwise dismissed. Reliance is placed on (i) the case of Ajith Kumar V. Suresh Kumar, (1998) 1 CivCC 9 : (1997) 0 Supreme (Ker) 306, and (ii) case of Laxmi Paper Depot V. Sub-Divisional Officer, Bangaon, AIR 1998 Cal 195 : (1997) 0 Supreme(Cal) 425. 5. In counter-reply, the learned Senior Counsel appearing for the petitioner has argued that in the two cases cited by the learned Senior Counsel for the respondent, it is clear that in both the suits, the concerned officer was arrayed as defendants and, as such, in the said context both the Kerala High Court and Calcutta High Court had dealt with the matter. Moreover, in the present case in hand, the suit is a defamation suit, seeing compensation and, as such, the State of Assam cannot be called a necessary party because a State cannot be held to be vicariously liable for defamation. Moreover, in the present case in hand, the suit is a defamation suit, seeing compensation and, as such, the State of Assam cannot be called a necessary party because a State cannot be held to be vicariously liable for defamation. He submits that under the circumstances, no purpose would be served to implead the State even as a Proforma Defendant because it would further delay the disposal of the already long pending suit in light of the fact that as the Superintendent of Police cannot represent the Govt. and does not have the authority to file written statement in a civil suit by representing the Govt., no fruitful purpose would be served by merely impleading the said authority as a Proforma Defendant. 6. As the copy of the plaint as well as written statement were not annexed to the present revision application, the parties were asked to furnish a copy thereof. On the perusal of the plaint it is seen that in para 10 thereof, the following statement is made:- “10. That the Plaintiff has now claimed against the defendant, at the termination of the Plaintiff, to pay to the Plaintiff a sum of Rs.50,00,000.00 (Rupees Fifty Lakhs) only as compensation as a consequence of the aforesaid malicious prosecution of the Plaintiff as under: (i) for injury to reputation Rs.49,50,000.00 (ii) for expenses to defend the charge, etc. Rs.50,000.00 Total Rs.50,00,000.00 The defendant is bound to pay the same to the Plaintiff.” 7. On the perusal of the written statement filed by the petitioner herein, it is evident that in para 2 thereof, the petitioner has taken, amongst others, a plea that the suit is bad for non- joinder of the Govt. of Assam. Therefore, when the respondent had filed the application for impleadment, it is not open for the petitioner to find fault with the said application that too when no relief whatsoever is prayed against the State of Assam. Moreover, it has been mentioned in the order dated 20.11.2014, which is impugned in the present revision, the categorical statement made by the learned counsel for the petitioner has been recorded therein as “Heard both sides. Moreover, it has been mentioned in the order dated 20.11.2014, which is impugned in the present revision, the categorical statement made by the learned counsel for the petitioner has been recorded therein as “Heard both sides. Learned counsel for the opposite party submits that though they have no objection if the State of Assam is allowed to be impleaded but the cost may be imposed.” Under the circumstances, it was not open for the petitioner to question the impleading of State of Assam as Proforma Defendant in the suit. In the process, the progress of the suit has been delayed by more than 2 (two) years. In this revision, the petitioner has not disowned the said statement made before the learned trial court. Thus, in the considered opinion of this Court, in view of the concession made at the hearing before the learned trial court, it was not at all open for the petitioner herein to concede to the said prayer before the trial court and question the said consented order before this court by filing a revision under Article 227 of the Constitution of India. 8. As a result of concession made by the learned counsel for the petitioner before the learned Civil Judge, Bongaigaon, allowing impleading of the State of Assam as Proforma Defendant, the question raised in the present case is not required to be answered at all as the same is found only to be academic. Hence, the said issue is left to be decided in a more appropriate case. Accordingly, this revision is found to be devoid of any merit, rather, it is found to be an abuse of the process of court. Hence, the revision is dismissed with a cost in favour of the respondent, which is assessed at Rs.5,000/- (Rupees Five thousand only) for causing delay in the disposal of the suit and for wasting the time of this Court in the process. The petitioner herein shall deposit the aforesaid cost before the Court of learned Civil Judge, Bongaigaon within a period of one month from today, failing which the same shall be recovered in accordance with law. 9. The parties shall appear before the Court of Civil Judge, Bongaigaon on 27.02.2017 for taking further directions from the said learned court.