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1998 Supreme(Raj) 277
High Court Of Rajasthan
Judgename : P.C.JAIN
RAJKEA MIDDLE SCHOOL, DAULATPURA - Appellant
Versus
RAMKUMAR - Respondent
C. R. P. 480 Of 1994
Decided On : 03/26/1998
KULVANT SINGH, Prakash Tatia
A suit against a public officer for an act done in his official capacity cannot be entertained without a notice under Section 80, C. P. C.
Headnote:
PUBLIC OFFICER - NOTICE UNDER SECTION 80 C. P. C. - SECTION 2 (17), C. P. C. - SECTION 80, C. P. C. - ORDER 7, RULE 11, C. P. C. - A suit against a public officer for an act done in his official capacity cannot be entertained without a notice under Section 80, C. P. C.
Fact of the Case:
Plaintiffs filed a suit against the defendants seeking a declaration that the order passed by defendant No. 4 dated 20-4-1974 is null and void and ineffective and that the plaintiff be delivered possession of the land described in para 12 of the plaint from defendant-petitioner. The plaintiffs alleged that their father surrendered agricultural land in exchange for land to be allotted by defendant No. 2, District Collector, Sri Ganganagar. The Collector accorded his sanction by order dated 20-11-1968 and the file was remitted to the S. D. O. , Hanumangarh for compliance. The plaintiffs stated that in pursuance of the order of the Collector, relevant entries were made in revenue record. Thereafter the father of the plaintiffs surrendered land in exchange of the other land that was allotted by the Collector on 20-11-1968. The plaintiffs also stated that after the allotment of the new land, the same was partitioned between the plaintiffs and his two brothers. However, defendant No. 2, in flagrant violation of law, revoked his previous order dated 20-11-1968 by which the new land was allotted to the plaintiffs. The plaintiffs agitated the matter before various Authorities and restrained the Collector from delivering possession of the same to defendant No. 3. However, the plaintiffs did not succeed in his efforts to get the order of the Collector cancelled. The land was, therefore, delivered to defendant No. 3 who is the petitioner in this petition.
Finding of the Court:
The court held that the petitioner was a "public Officer" as defined in Section 2 (17), C. P. C. and that the possession of the land in question was delivered to the petitioner-defendant No. 3 in his official capacity. Hence, notice under Section 80, C. P. C. was necessary to be served in respect of the act of defendant No. 3 before the plaintiffs could have filed the above suit.
Issues: Whether a suit against a public officer for an act done in his official capacity can be entertained without a notice under Section 80, C. P. C.
Ratio Decidendi: The court relied on the definition of "public Officer" in Section 2 (17), C. P. C. and held that the petitioner was a "public Officer". The court also held that the possession of the land in question was delivered to the petitioner-defendant No. 3 in his official capacity. Hence, notice under Section 80, C. P. C. was necessary to be served in respect of the act of defendant No. 3 before the plaintiffs could have filed the above suit.
Final Decision: The court allowed the revision petition and rejected the suit filed by the plaintiff-non-petitioners under Order 7, Rule 11, C. P. C.
P. C. JAIN, J.
( 1 ) DEFENDANT No. 3-petitioner has filed this revision petition under Section 115, C. P. C. against the order dated 24-3-1994 of the learned Munsif and Judicial Magistrate, Tibi passed in Civil Original Suit No. 5/93 whereby issue No. 4 was decided against the defendant-petitioner.
( 2 ) NON-PETITIONERS 1 and 2-plaintiffs filed a suit against non-petitioners 3 and 4 and the petitioner seeking declaration that the order passed by non-petitioner No. 4 dated 20-4-1974 is null and void and ineffective and that the plaintiff be delivered possession of the land described in para 12 of the plaint from defendant-petitioner. The plaintiff has alleged in the suit that his father Baluram possessed agricultural land described in para 1 of the plaint. He surrendered the above land in exchange of the land to be allotted by defendant No. 2, District Collector, Sri Ganganagar. Proceedings in respect of the above were initiated and the file was submitted to respondent No. 2 for passing appropriate order. The Collector accorded his sanction by order dated 20-11-1968 and the file was remitted to the S. D. O. , Hanumangarh for compliance. The plaintiff has stated that in pursuance of the order of the Collector, relevant entries were made in revenue record. Thereafter the father of the plaintiff surrendered land in exchange of the other land that was allotted by the Collector on 20-11-1968. The plaintiff has also stated that after the allotment of the new land, the same was partitioned between the plaintiff and his two brothers as stated in Para 5 of the plaint. However, defendant No. 2, in flagrant violation of law, revoked his previous order dated 20-11-1968 by which the new land was allotted to the plaintiff. The plaintiff agitated the matter before various Authorities and restrained the Collector from delivering possession of the same to defendant No. 3. However, the plaintiff did not succeed in his efforts to get the order of the Collector cancelled. The land was, therefore, delivered to defendant No. 3 who is the petitioner in this petition. The plaintiff has, therefore, sought the relief as stated above. The suit of the plaintiff was resisted by the defendants 1 and 2 on the ground that the plaintiff/his father made a misrepresentation that the land surrendered by him was free from encumbrance. In fact the above land was entangled in the mischief of ceiling limit. The plaintiff, in order to defeat the ceiling provisions, sought to surrender the above land in exchange of the other land which could be allotted by the Collector, Sri Ganganagar. When the true facts came to the knowledge of defendant No. 2, he cancelled the above allotment which was in accordance with law because the plaintiff cannot be allowed to defeat the provisions of law by making a misrepresentation in respect of his land. The maintainability of the suit was also challenged on the ground that no notice under Section 80 C. P. C. was served on defendant No. 3/ petitioner. By the impugned order, the trial court has decided issue No. 4 against the petitioner/defendant No. 3. The learned trial court held that the petitioner is a "public Officer" as defined in Section 2 (17), C. P. C. The petitioner has not taken possession of the land in question in official capacity. Hence issue No. 4 decided against the defendant No. 3/petitioner.
( 3 ) I have heard learned counsel for the petitioner and the learned counsel for the non-petitioners.
( 4 ) LEARNED counsel for the petitioner has submitted that the petitioner is a "public Officer" as defined in Section 2 (17), C. P. C. Once it is held that the petitioner is a "public Officer", a notice under Section 80, C. P. C. was mandatory before the plaintiff could have filed the present suit. The provisions contained in Section 80, C. P. C. are mandatory in nature. Its terms are imperative and admit of no exception or implication. A suit not complying with its provisions, cannot be entertained by any Court, and if
