A suit against a government officer in his official capacity requires notice under Section 80, C.P.C., and failure to provide such notice renders the suit bad.

JUDGEMENT :- This second appeal is directed against the decree passed by the Assistant District Judge No. 2, at Gauhati in Title Appeal No. 33 of 1975 affirming the ex parte decree passed by the Munsiff No. II, at Gauhati in favour of the Respondent No. 1 Shri Golok Nath Kakati (hereinafter referred to as the respondent) in Title Suit No. 24 of 1975, which was initially registered as Title Suit No. 136 of 1972.

The respondent who was an employee of the Tax Department of the Government of Assam filed the aforementioned suit for a declaration that he was born on the first day of October, 1923. His case was that his age was wrongly recorded in the Matriculation Certificate issued by the Calcutta University in 1940, as 19 years 5 months on the first of March of 1940 in place of 16 years and 5 months. The mistake in recording the age in his Matriculation Certificate was detected by him on 21-6-72 while he was scrutinising his service record. The plaintiff, thereafter, wrote to the Registrar of the Calcutta University for correction of his age in the Matriculation Certificate but to no effect. He accordingly filed the suit against the Registrar of the Calcutta University for a declaration that he was born on the 1st day of October, 1923. The suit was initially filed against the Registrar of the Calcutta University alone; subsequently the appellant i.e. the Commissioner of Taxes, Assam was impleaded as defendant No. 2, as the plaintiff is an employee under him without any notice under Section 80, C.P.C.

2. The Registrar of the Calcutta University entered appearance and filed a written statement raising various objections, but he did not come to contest the suit. The appellant also entered appearance and took time to file written statement but ultimately he did not file any written statement nor did he contest the suit. The suit was accordingly heard and decreed ex parte.

3. Being aggrieved by the decree, the Commissioner of Taxes, Assam, the appellant herein, filed an appeal before the Assistant District Judge, at Gauhati. That appeal having been dismissed he has now come up with the present second appeal.

4. Mr. J.N. Sarma, the learned counsel appearing for the appellant assailed the decree of the lower Appellate Court on several grounds. His first contention is that the suit against the appellant was bad for want of notice under Section 80, C.P.C. It was submitted by him that Section 80, C.P.C. applies to all suits in which a Government officer, in his official capacity, is made a defendant and the provisions thereunder cannot be relaxed, in any such case, even when a Government officer is impleaded as a pro forma defendant. In the instant case Mr. Sarma submits that the appellant was one of the principal defendants and as such the Court below committed an error in law in holding that the suit was not bad for want of notice. In support of this contention he relied on the decision in Baldeo Prasad v. Sukhi Singh, AIR 1938 Pat 127 and Madras Province v. Maharaja of Jeypore, AIR 1943 Mad 284.

5. Mr. P. Choudhury, the learned counsel for the respondent on the other hand contended that in the instant case the respondent did not institute the suit against the appellant in respect of any act purporting to be done by him in his official capacity, the respondent made no allegation whatsoever against the appellant in his plaint nor has he claimed any relief against him in the plaint. In such circumstances, according to Mr. Choudhury S.80, C.P.C. is not attracted at all. Mr. Choudhury further submitted that even if any notice was necessary, the appellant must be deemed to have waived such notice, as he neither filed any written statement nor contested the suit in the trial Court. In support of this contention he relied on the decisions in Gaja v. Dasa Koeri, AIR 1964 All 471; Lalchand v. Union of India, AIR 1960 Cal 270; State of Rajasthan v. Girdharilal, AIR 1959 Raj 126 (FB) and Dhian Singh v. Union of India, AIR 1958 SC 274.

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