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2018 DIGILAW 847 (ORI)

Anupama Jena v. Bansidhar Jena

2018-12-14

A.K.RATH

body2018
JUDGMENT Dr. A.K.RATH, J - This petition challenges the order dated 19.9.2018, passed by the learned Civil Judge (Junior Division), Puri, in C.S. No.164 of 2018, whereby and whereunder, the learned trial Court has returned the plaint for non-compliance notice under Sec.80(1) CPC. 2. Plaintiffs-petitioners have instituted the suit for eviction of defendant no.1 from the suit house and delivery of possession. Sri Sri Jagannath Mahaprabhu bije, Sri Jagannath Temple, Puri, has been arrayed as proforma defendant. In paragraph-2 of the plaint it is stated that the property appertaining to Plot No.903, Khata No.392 of Mouza- Kumbharapada has been wrongly recorded in the name of Sri Sri Jagannath Mahaprabhu. The plaintiffs do not seek any relief against defendant no.2 and as such defendant no.2 has been arrayed as proforma defendant. The office has pointed out defect that notice under Sec. 80 CPC has not been complied with. 3. Placing reliance on the decision of the Apex Court in the case of Bihari Chowdhary and another Vs. State of Bihar and others, AIR 1984 SC 1043 and Secs.16 and 21 of Shree Jagannath Temple Act, 1955, the learned trial Judge held that the plaintiffs have not filed any application to waive notice under Sec.80(2) CPC. The land has been recorded in the name of Sri Sri Jagannath Mahaprabhu. The mandatory provision enumerated in Sec.80 CPC has not been complied with. Held so, it returned the plaint. 4. Mr. A. P. Bose, learned counsel for the petitioners submits that neither the State nor its functionaries are parties to the suit. Learned trial Court committed manifest illegality in holding that notice under Sec.80 CPC has not been complied with and as such the impugned order is bad in law. 5. Before adverting to the contentions raised by the learned counsel for the petitioners, it will be necessary to set out Sec.80 CPC. Learned trial Court committed manifest illegality in holding that notice under Sec.80 CPC has not been complied with and as such the impugned order is bad in law. 5. Before adverting to the contentions raised by the learned counsel for the petitioners, it will be necessary to set out Sec.80 CPC. Sub-Sec.(1) of Sec. 80 CPC reads thus:- “80.(1) No suits shall be instituted against the Government including the Government of the State of Jammu & Kashmir or against a public officer in respect of any act purporting to be done by such 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 reltes to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; (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 this 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.” 6. On a bare reading of Sub-Sec.(1) of Sec.80 CPC, it is evident that no suit shall be instituted against the Government including the Government of the State of Jammu & Kashmir or against a public officer in respect of any act purporting to be done by such 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 the Central Govt., Railway, State of Jammu & Kashmir or State Govt., as has been mentioned in clauses (a) to (c) hereinabove. 7. 7. Admittedly, neither the State nor any public officer in respect of any act purporting to be done by such officer in his official capacity is parties to the suit. The Administrator of Sri Sri Jagannath Mahaprabhu is a creature of the statute, namely, Shree Jagannath Temple Act, 1955 (in short “Act”). The Act does not contemplate for issuance of notice to the Administrator before institution of the suit. Secs. 16(1) and 21(1) of the Act, on which reliance has been placed by the learned trial Judge, are operating in different fields. Sec.16 of the Act deals with alienation of temple properties, whereas Sec.21 of the Act deals with powers and duties of the Administrator. The Act does not contemplate any issuance of notice to the Administrator before institution of a suit. Thus, Sec. 80 CPC shall not come into play in a suit instituted against the Administrator of Sri Sri Jagannath Temple. 8. In the case of Bihari Chowdhary (supra), the State of Bihar was a defendant in the suit. Prior to institution of suit, the plaintiffs had issued notice to the defendant under Sec.80 CPC, but then, without waiting for the statutory period of two months, the plaintiffs instituted a suit. In the written statement filed by the State of Bihar, it was contended, inter alia, that the suit was not maintainable for want of proper notice under Sec.80 CPC. This contention was upheld by the trial Court. The First Appellate Court to which the matter was carried in appeal by the plaintiffs dismissed the appeal on the ground that the plaintiffs suit was not maintainable, inasmuch as, due notice under Sec.80 CPC has not been given. The Second Appeal was preferred by the appellant before the High Court at Patna did not meet with any success and it was dismissed in limini. The Apex Court held that : “6. The Second Appeal was preferred by the appellant before the High Court at Patna did not meet with any success and it was dismissed in limini. The Apex Court held that : “6. It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under Section 80 CPC is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable.” The case is distinguishable on facts inasmuch as neither the State Government nor any public officers in respect of any act purporting to be done by such officer in his official capacity are parties to the suit. 9. As a sequel to the above discussion, the impugned order is quashed. The petition is allowed. Learned trial Court shall admit the suit and proceed with the suit. Petition allowed.