2008 Supreme(SC) 1444

2008(7) Supreme 373
SUPREME COURT OF INDIA
Tarun Chatterjee and Dalveer Bhandari, JJ.
Ram Kumar and Anr. — Appellants
versus
State of Rajasthan and Ors. — Respondents
Civil Appeal Nos. 115-116 of 2001
Decided on : 29-09-08

IMPORTANT POINT
A notice under Section 80 of the Code of Civil Procedure is to be given against Public Officer in respect of any act purporting to be done in his official capacity.

Headnote:Code of Civil Procedure, 1908 – Section 80 – Rajasthan State Land Acquisition Act – Section 52 –Initiation of proceedings for acquisition of land belonging to father of the appellants – Application filed by appellants for transfer in terms of order passed by Deputy Colonization Commissioner in lieu of his acquired land was allowed – District Collector however invoked earlier order by passing a fresh order -Appellants approached various authorities praying for an order restraining the defendant No. 2 from delivering possession of the said land to the respondent No. 3 to District Education Officer-Appellant thereafter served a notice under Section 80 of the CPC on respondent No.2 in his official capacity –Suit for delivery of possession by appellant – Preliminary objection there against on plea that no notice had been served on respondent No.3 – Order passed by Trial Court holding that respondent No.3 was not needed to be served with a notice under Section 80 of ‘CPC’, as respondent No.3, being a District Education Officer, had not done any act in his official capacity – On Revision petition, High Court however dismissed suit in its entirety on ground of non-service of notice upon respondent No. 3 – Appeal – Evidence on record that it was respondent No.2 who had passed two orders dated 20th of November, 1968 and 20th of April, 1974 in his official capacity and that the notice under Section 80 of the CPC was duly served upon him before filing the suit- Since possession of suit land was taken over from appellants by respondent Nos. 1 and 2 and delivered to respondent No.3, a prayer was made in the plaint to pass a decree directing the respondent No.3 to deliver the possession to the appellants, which was consequential in nature-Since respondent No.3 had not done any act in his official capacity –Hence it was rightly held by trial court that service of notice under Section 80 of the CPC, in the facts and circumstances of the case, was not at all necessary- High Court committed an error in holding that respondent No. 3 in the facts as alleged in the plaint could be said to have acted as a public officer in his official capacity- No reason to disagree with the view expressed by the trial Court when it had held that no act was performed by the respondent No. 3 in his official capacity – Appeals allowed. (Paras 9, 10 & 11)

        AIR 1977 SC 148 – Distinguished. (Para 11)

       Facts of the Case :

        Proceedings were initiated herein in the instant case for acquisition of land belonging to father of appellants. An Application filed by appellants for transfer in terms of order passed by Deputy Colonization Commissioner in lieu of his acquired land was allowed. District Collector however invoked earlier order by passing a fresh order. Appellants approached various authorities praying for an order restraining the defendant No. 2 from delivering possession of the said land to the respondent No. 3 District Education Officer. Appellant thereafter served a notice under Section 80 of the CPC on respondent No.2 in his official capacity. Suit for delivery of possession was filed by appellant thereafter. A Preliminary objection there against was filed on plea that no notice had been served on respondent No.3. Trial Court held that respondent No.3 was not needed to be served with a notice under Section 80 of ‘CPC’, as respondent No.3, being a District Education Officer, had not done any act in his official capacity. On Revision petition, High Court however dismissed suit in its entirety on ground of non-service of notice upon respondent No. 3.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Evidence on record showed that it was respondent No.2 who had passed two orders dated 20th of November, 1968 and 20th of April, 1974 in his official capacity and that the notice under Section 80 of the CPC was duly served upon him before filing the suit. Since possession of suit land was taken over from appellants by respondent Nos. 1 and 2 and delivered to respondent No.3, a prayer was made in the plaint to pass a decree directing the respondent No.3 to deliver the possession to the appellants, which was consequential in nature. Since respondent No.3 had not done any act in his official capacity .Hence it was rightly held by trial court that service of notice under Section 80 of the CPC, in the facts and circumstances of the case, was not at all necessary. High Court committed an error in holding that respondent No. 3 in the facts as alleged in the plaint could be said to have acted as a public officer in his official capacity. No reason was found to disagree with the view expressed by the trial Court when it had held that no act was performed by the respondent No. 3 in his official capacity.

       Result : Appeals allowed.