The Province of Bihar is not a necessary party to a suit challenging the State Management Act, 1949, as ultra vires of the Provincial Legislature.

Reuben, J.

1. This judgment will govern M. a. Nos. 8 and 9 of 1950, both directed against orders of the Subordinate Judge, 2nd Court, Gaya, refusing temporary injunctions in two suits pending in his Court. The appfiala were heard separately but as they covet the same ground and there was necessarily a considerable amount of overlapping in the arguments it will be convenient to deal with them in one judgment.

2. In Title suit No. 1 of 1950 out of which M. A. 8 arises the plaintiffs-appellants are the proprietors of the Sambey Estate in respect of which Estate a notification under Sec.3, Sub-section (i), Bihar State Management of Estate and Tenures Act, 1949 was issued by the Governor of Bihar on 24th November 1949 and was published in the Bihar Gazette on 10th December 1949, designating the defendant Mr. Ayyub, Additional Collector, as the Manager under the Act. Under the provisions of this Act, the Estate was due to come under the management of the Provincial Government on the expiry of one month from the publication of the notice, that is to say, on 11th January 1950, and thereupon Mr. Ayyub as Manager would have been entitled to enter into possession of the Estate and to take such other steps towards management and control as are provided for by the said Act. In preparation for this, Mr. Ayyub called upon the employees of the plaintiffs to make over the papers relating to the Sambey Estate and made known on 6th January his intention of entering into possession on the commencement of the management under the Act. In anticipation of this, the plaintiffs on 7th January 1950 filed the suit challenging the State Management Act as ultra vires of the Provincial Legislature and asking for a permanent injunction restraining Mr. Ayyub from taking possession. They impleaded as a defendant only Mr. Ayyub. No notice as contemplated by Section 80, Civil P. C. was served by them on Mr. Ayyub; they alleged instead that they were suing him in his private capacity and that, therefore, no notice was necessary. Pending the disposal of the suit, the plaintiffs asked for a temporary injunction to the same effect.

3. Title suit No. 2 of 1950 giving rise to M. A. 9 relates to the 9 annas Tikari Raj Estate which is the leasehold of the plaintiff-appellant. The notification under Sec.3, Sub-section (1), State Management Act relating to this Estate is dated 24th November 1949 and was published in the Bihar Gazette on 14th December 1949. The present suit, filed on 7th January 1950, seeks on the same ground as the other suit to restrain Mr. Ayyub, who is designated Manager in the notification, from taking possession of the Estate. The plaint mentions as the cause of action the fact that Mr. Ayyub is "threating to take actual possession." It describes Mr. Ayyub as "Additional Collector, Gaya," but says nothing about the service of notice under Section 80, Civil P. C. A temporary injunction to the same effect was asked for during the pendency of the suit.

4. The Subordinate Judge held that the suits raise a substantial point of law as to the validity of the State Management Act and that the balance of convenience is on the side of the plaintiffs, but refused a temporary injunction on the ground firstly, that the Province of Bihar is a necessary party and has not been impleaded and secondly, that the suits are defective by reason of the absence of notice under Section 80, Civil P. C. According to him the Province of Bihar is a necessary party because it is "responsible" for the Act and because a determination as to whether or not the Act is ultra vires "affects" the province. As regards the other ground he is of the opinion that Mr. Ayyub is a public officer and was purporting to act in his official capacity within the meaning of Section 80, Civil P. C.

5. It is contended before me

(1) that the Provincial Government is not a necessary party; at best it is a proper party, and its absence will not defeat the suits; that if it considers itself a neces