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2019 DIGILAW 148 (ORI)

Srinibash Mohanty v. Kalpana Jena

2019-02-20

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. 1. This petition challenges the order dated 28.6.2018, passed by the Civil Judge (Senior Division), Kujang in C.S. No. 122 of 2018, whereby and whereunder, the trial court has allowed the application of the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint. 2. Plaintiff-Opposite party instituted the suit for declaration of easementary right over the suit property, confirmation of possession, recovery possession, in the event he is dispossessed during pendency of the suit, demarcation of the land and permanent injunction against the defendant-petitioner. The case of the plaintiff-opposite party is that she is the owner of the suit property. She has constructed a dwelling house over the same and residing therein. She received a notice from the Tahasidlar, Kujang that the land appertaining to Khata No. 608, Plot No. 990, Ac. 0.07 dec. shall be demarcated on 21.4.2018 by the Amin. The R.I. Rahama Circle called upon the defendant to produce the record and map of Khata No. 608, Plot No. 990. The defendant produced the same. She ascertained that the land has been mutated in the name of the defendant. Defendant asserted that he has purchased the land from the recorded owner. After measurement, defendant threatened to dispossess her from the suit plot. According to the plaintiff, she is in possession of Plot No. 990 from 1993 and amalgamated the suit plot with Plot No. 991. She is using the Plot No. 900 for her ingress and egress. 3. While matter stood thus, the plaintiff filed an application under Order 6 rule 17 CPC to incorporate certain facts and implead Collector, Jagatsinghpur and Tahasildar, Kujanga as defendants. It is stated that in I.A. No. 111 of 2018 filed under Order 39 Rule 1 CPC, the defendant in his show-cause stated that the land appertaining to Khata No. 608, Plot No. 990, Ac. 0.07 dec. was recorded in favour of Maheswar Senapati and others in the Consolidation ROR, published in the year 1986. They sold the same to defendant and one Anil Moharana on 03.07.2015. Thereafter, the land was mutated in favour of the defendant. On enquiry, plaintiff came to know that the land has been wrongly recorded in the name of the defendant in the consolidation ROR. In the proposed amendment, the plaintiff seeks to incorporate the fact that Plot No. 990 appertaining to sabik Plot No. 567, Ac. Thereafter, the land was mutated in favour of the defendant. On enquiry, plaintiff came to know that the land has been wrongly recorded in the name of the defendant in the consolidation ROR. In the proposed amendment, the plaintiff seeks to incorporate the fact that Plot No. 990 appertaining to sabik Plot No. 567, Ac. 0.44 dec. was recorded in the name of Madhu Senapati and others. Out of Ac. 0.44 dec, the State Government has acquired Ac. 0.28 dec. for construction of Cuttack-Paradeep State Highway. Out of the remaining part of Ac. 0.16 dec. the recorded tenant has alienated Ac. 0.05 dec. to one Radhanath Baral in the year 1967 and further alienated Ac. 0.04 dec. to Gunanidhi Baral. After their death, her husband inherited the property and sold the same to her. The ROR has been published in her name. The recorded owner has transferred remaining portion of land i.e. Ac. 0.07 dec. to Taramani Dei and Sapani Baral and Gani Baral. Their names have been recorded in the consolidation ROR. The vendor has no title over the same. The suit land is adjoining to Cuttack-Paradeep State Highway. The Collector, Jagatsinghpur and Tahasildar, Kujang are necessary parties to the suit. Defendant filed objection stating inter alia that no notice was issued to the defendants sought to be impleaded as parties to the suit, under Section 80 CPC. 4. The trial court came to hold that the suit was instituted on 24.4.2018. The petition for amendment was filed within a month. The amendment will not change the nature and character of the suit. Held so, it allowed the application for amendment. 5. Heard Mr. Susanta Kuamr Dash, learned counsel for the petitioner. None appears for the opposite party in spite of valid service of notice. 6. Mr. Dash, learned counsel for the defendant-petitioner submits that the proposed amendment will change the nature and character of the suit. By way of amendment, the plaintiff sought to implead the Collector, Jagatsinghpur and Tahasildar, Kujang as parties to the suit. No notices were issued to them under Section 80 CPC. The trial court has committed manifest illegality in allowing the application of the plaintiff. He placed reliance in the case of Abhimanyu Nayak vs. Basanta Mohanty, 2015 SCC Online (Ori) 450. 7. In Abhimanyu Nayak (supra), this Court has held: "6. No notices were issued to them under Section 80 CPC. The trial court has committed manifest illegality in allowing the application of the plaintiff. He placed reliance in the case of Abhimanyu Nayak vs. Basanta Mohanty, 2015 SCC Online (Ori) 450. 7. In Abhimanyu Nayak (supra), this Court has held: "6. Section 80 (1) C.P.C. which is hub of the issue, is quoted hereunder:- "80. Notice:- (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) 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 of: (a) in the case of a suit against the Central Government, except where it relates 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 his 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. xxx xxx xxx xxx xxx." 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. 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. 8. The Calcutta High Court in the case of Manindra Chandra Nandi vs. Secretary of State for India, 34 Cal 257 held that where a new cause of action is sought to be introduced in addition to a cause of action specified in the plaint against the Government, notice under Section 80 is a pre-requisite. In Province of Madras vs. R.B. Poddar Firm, (1949) AIR Madras 214, an application to amend the plaint by adding a paragraph to the original plaint was allowed by the learned trial court. The Provincial Government represented by the Collector sought to revise that order on the ground that as the amendment introduced a new cause of action, the same could not be allowed without the imperative pre-requisites of a notice under Section 80 C.P.C. The Court held the proposed amendment had introduced a fresh cause of action, which was outside the scope of the suit as originally framed and was inconsistent with the allegation made earlier, the learned Sub-Judge was not justified in allowing the amendment, as ex concesis no previous notice has been served on the Government informing them of the new cause of action. In Sk. Dofian Hossain (supra), the plaintiff filed a suit in representative capacity for a declaration of customary right of the villagers over the suit land. The defendants 1 and 2 countered the plaintiff's claim of customary right and asserted the claim over the same. The learned trial court dismissed the suit. The unsuccessful plaintiffs preferred an appeal before the learned Additional District Judge, Bhadrak. During pendency of the appeal, they filed an application under Order 6 Rule 17 C.P.C. praying for impleadment of State of Odisha as party defendant. The prayer was objected to by the defendants. The learned Additional District Judge allowed the application and remanded the suit to the learned trial court for de novo trial. Defendant no. 1 filed an appeal before this Court challenging the order of remand. The prayer was objected to by the defendants. The learned Additional District Judge allowed the application and remanded the suit to the learned trial court for de novo trial. Defendant no. 1 filed an appeal before this Court challenging the order of remand. This Court set aside the order passed by the learned appellate court and remanded the matter back for fresh disposal. Consequent upon the remand, the learned lower appellate court allowed the application and impleaded the State of Odisha as a party defendant. This Court held that the provision being imperative, failure to serve notice complying with the requirement will entail dismissal of the suit. It was further held that service of notice under Section 80(1) C.P.C. is not an empty formality. The object of such notice is to give the concerned Government or public officer an opportunity to reconsider the legal position and settle the claim, if so advised, without leading to any legal battle. The legislative intention behind such provision is that public money and time should not be wasted on unnecessary litigation and the Government or the public officer should be given reasonable opportunity to examine the claim made against them. In Debakanta Ray (supra), the plaintiff instituted a suit for declaration and other consequential refliefs impleading the opposite party as defendant. Two applications were filed under Order 6 Rule 17 C.P.C. for impleadment of State of Orissa as a party to the suit. Both the applications were rejected. It was submitted on behalf of the plaintiff that a copy of the notice under Section 80 of CPC and a memo in support of the receipt had been received by the Collector, Puri. The undisputed fact was that the suit was instituted on 15.4.2008 whereas notice was sent in compliance of Section 80 C.P.C. on 17.6.2008. Thus, notice was sent after institution of the suit. The learned Judge distinguished the ratio laid down in Sk. Dofian Hossain (supra) on the premises that the court was perhaps of the view that if the requirements of Section 80 C.P.C was complied with prior to filing of the amendment of the petition, the State could have been made as a party by filing an appropriate application. 9. In Bishandayal and Sons vs. State of Orissa and Others, (2001) 1 SCC 555 , the Apex Court in paragraph-16 of the report held as follows:- "16. 9. In Bishandayal and Sons vs. State of Orissa and Others, (2001) 1 SCC 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. 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 plaint. 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. 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." 10. Initially the State of Odisha was not a party to the suit. By way of proposed amendment, the plaintiffs intended to implead the State of Odisha as a party defendant. It is asserted by the plaintiffs that the cause of action against the State of Odisha arose after institution of the suit. But then the provision under Section 80(1) C.P.C. being imperative in nature, prior notice under Section 80(1) CPC to the State of Odisha is a sine qua non. It is not an empty formality. None compliance of requirements of Section 80 C.P.C. will entail dismissal of the suit. Admittedly before moving the application for impleadment of State of Odisha as a party defendant, no notice under Section 80 C.P.C had been issued to the State of Odisha. No material has been brought to the notice of the Court that the case is of urgent in nature for which notice under Section 80 C.P.C. could not be issued to the State of Odisha. Since the new cause of action is being introduced, notice under Section 80 C.P.C. would be required to be given." 8. In view of the authoritative pronouncement of this Court in the case of Abhimanyu Nayak (supra) the inescapable conclusion is that the proposed amendment seeking addition of parties, i.e. Collector, Jagatsinghpur and Tahasildar, Cuttack without issuance of notice to them under Section 80 CPC cannot be allowed. With regard to the facts sought to be incorporated by way of amendment, this Court is of the opinion that the proposed amendment is formal in nature and the same will not change the nature and character of the suit. 9. In view of the foregoing discussion, the proposed amendment is allowed, but the prayer to implead the Collector, Jagatsinghpur and Tahasidlar, Kujang is rejected. 9. In view of the foregoing discussion, the proposed amendment is allowed, but the prayer to implead the Collector, Jagatsinghpur and Tahasidlar, Kujang is rejected. The impugned order is modified to the extent indicated above. No costs.