Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 253 (ORI)

Sabitri Satapathy v. Notified Area Council

2017-03-08

A.K.RATH

body2017
JUDGMENT : DR. A.K.RATH, J. 1. This petition challenges the order dated 21.1.2015 passed by the learned Civil Judge (Junior Division), Gunupur in C.S. No.2 of 2010. By the said order, learned trial court rejected the application of the plaintiffs for amendment of the plaint and to implead the Collector, Rayagada and the Project Administrator, I.T.D.A., Gunupur as defendants. 2. The petitioners as plaintiffs instituted the suit to set aside the registered gift deed No.1054/1987 executed by the donors and to restore the possession of the suit land in their favour. The sum and substance of the case of the plaintiffs is that the defendant has violated the conditions mentioned in the gift deed. While the matter stood thus, the plaintiffs filed an application for amendment of the plant. In the proposed amendment, the plaintiffs sought to incorporate the plea that the defendant has transferred the suit land in favour of the State of Orissa for making construction of Sill Development Centre on the request of the Collector, Rayagada and the Project Administrator, I.T.D.A, Gunupur during pendency of the suit. The defendant filed an objection stating that the donors have gifted the suit property for public purpose. The plaintiffs are not in possession of the suit land. Further, no notice under Section 80 CPC has been issued to the State of Orissa before filing the application for impleadment. Learned trial court came to hold that the plaintiffs had not filed any document that the defendant has delivered the suit land to the Collector, Rayagada and the Project Administrator, I.T.D.A., Gunupur. No notice under Section 80 CPC has been issued to the State. It was further held that the lis pendens purchaser is bound by the decision of the court. Held so, the learned trial court rejected the application. 3. Really two points arise for consideration of this Court; I. Whether the State of Orissa can be impleaded as a defendant without compliance of the notice under Section 80 CPC? II. Whether the Collector, Rayagada and the Project Administrator, I.T.D.A., Gunupur are necessary parties to the suit? 4. This Court in Abhimanyu Nayak and others v. Basanta Mohanty, 123 (2016) CLT 375 held as follows; “7. On a conspectus of the said section, it is evident that service of notice under Section 80(1) C.P.C. is a sine qua non prior to institution of the suit against the Central Government/Railway/State Government. 4. This Court in Abhimanyu Nayak and others v. Basanta Mohanty, 123 (2016) CLT 375 held as follows; “7. On a conspectus of the said section, it is evident that service of notice under Section 80(1) C.P.C. is a sine qua non prior to institution of the suit against the Central Government/Railway/State Government. If the suit is of such nature, urgent or immediate relief sought for against the State Government or any public officer in respect of any act purporting to be done by such officer in his official capacity, suit may be instituted, with the leave of the Court, without serving any notice as required by sub section (1). The provision is imperative. It is not every amendment of plaint, which requires prior notice under Section 80(1) C.P.C. only when new relief is sought for or when the amendment introduces a new cause of action, notice under Section 80(1) is necessary. In the case of amendment which is formal in nature or to elucidate the foundational facts already exist in the plaint, the same does not require any notice under Section 80 CPC. xxx xxx xxx” 5. In Bishandayal and sons Vs. State of Orissa and others, (2001) 1 Supreme Court Cases 555, the apex court in paragraph-16 of the report held as follows:- “16. There can be no dispute to the proposition that a notice under Section 80 can be waived. But the question is whether merely because in the amended written statement such a plea is not taken it amounts to waiver. This contention was argued before the appellate court. Even otherwise, we find that in the suit itself Issue No.4 had been raised as to whether or not there was a valid and appropriate notice under Section 80. Such a point having been taken in the original written statement and an issue having been raised, it was not necessary that in the amended written statement such a plea be again taken. On behalf of the respondents, reliance has been placed on the case of Gangappa Gurupadappa Gugwad vs. Rachawwa and others, wherein it has been held that where the plaintiff's cause of action is against a Government and the plaint does not show that notice under Section 80 was served, it would be duty of the Court to reject the plaint. On behalf of the respondents, reliance has been placed on the case of Gangappa Gurupadappa Gugwad vs. Rachawwa and others, wherein it has been held that where the plaintiff's cause of action is against a Government and the plaint does not show that notice under Section 80 was served, it would be duty of the Court to reject the plaint. In this case the original notice was only in respect of a claim under the plaint as it originally stood. That claim was on the basis that there was a concluded contract and that the appellants had already acquired rights in the mill and the lands. As has been fairly conceded those reliefs were not maintainable and were given up before the appellate court. The amended plaint was on an entirely new cause of action. It was based on facts and events which took place after the filing of the original plant. It was a fresh case. Now the claim was for specific performance of the agreement alleged to have been entered into on 29-12-1978. Admittedly no notice under Section 80 CPC was given for this case. As there was an issue pertaining to notice under Section 80, the trial court should have dealt with this aspect. The trial court failed to do so. It was then pressed before the appellate court. In our view, the finding in the impugned judgment that the suit based on this claim was not maintainable is correct and requires no interference. If a new cause of action is being introduced a fresh notice under Section 80 CPC would be required to be given. The same not having been given, the suit on this cause of action was not maintainable”. (emphasis laid) 6. With regard to the second point, the distinction between a necessary party and a proper party is well known. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, AIR 1963 SC 786 , the apex Court held that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 7. 7. In Razia Begum v. Sahebzadi Anwar Begum and others, AIR 1958 SC 886 , the apex Court held that it is firmly established as a result of judicial decisions that in order that a person may be added as a party to a suit, he should have a direct interest in the subject matter of the litigation whether it raises questions relating to moveable or immoveable property. 8. The proposed amendment is entirely a new cause of action. The same is based on the events, which took place after filing of the plant. It is a fresh case. As has been held in Bishandayal and sons (supra) if a new cause of action is being introduced, a fresh notice under Section 80 CPC would be required to be given. No notice under Section 80 CPC was issued. The suit on this cause of action is not maintainable. Furthermore, no document was filed in the court below that the defendant has delivered possession of the land to the Collector, Rayagada and the Project Administrator, I.T.D.A., Gunupur. Above being the position, the order of the learned trial court is indefeasible. 9. The inescapable conclusion is that the petition, sans merit, deserves dismissal. Accordingly, the same is dismissed.