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2018 Supreme(HP) 785
IN THE HIGH COURT OF HIMACHAL PRADESH
Ajay Mohan Goel, J.
Jagjit Singh – Appellant
Vs.
Gurdev Singh and another – Respondent
Civil Revision No. 241 of 2017
Decided On : 04-04-2018
Ajay Sharma, Adv., Devender K Sharma, Adv., Sunny Moudgil, Adv., Desh Raj Thakur, Adv., Kamal Kant, Adv., Rajat Chauhan, Adv.
The central legal point established in the judgment is that the application for impleadment of the State as a party defendant during the pendency of a suit, after the accrual of the cause of action, must be adjudicated on merit after complying with the statutory provisions of Section 80 of the Code of Civil Procedure.
Headnote:
Section 80 CPC - Impleadment of State as Party Defendant - Section 80 of the Code of Civil Procedure
Fact of the Case:
The petitioner challenged the dismissal of their application for impleadment of the State of Himachal Pradesh through Collector Una as a party respondent by the learned Civil Judge (II), Amb, citing the mandatory notice requirement under Section 80 of the Code of Civil Procedure.
Finding of the Court:
The findings of the learned Trial Court were deemed completely perverse as it held that the State cannot be impleaded as a party during the pendency of a suit due to lack of issuance of notice under Section 80 of the Code of Civil Procedure before the institution of the suit.
Issues: The main issue was the interpretation of Section 80 of the Code of Civil Procedure and its application to the impleadment of the State as a party defendant during the pendency of a suit.
Ratio Decidendi: The court emphasized that the service of a notice under Section 80 is not a mere formality, but serves the purpose of providing an opportunity to the Government to reconsider the legal position and settle the matter to avoid litigation. It clarified that if the cause of action accrues during the pendency of the suit to implead the State as a defendant, an application under Order 1 Rule 10 of the Code of Civil Procedure can be filed and must be adjudicated on merit after complying with the statutory provisions of Section 80.
Final Decision: The impugned order was quashed and set aside, and the learned Trial Court was directed to decide afresh the application for impleadment of the State as a party defendant.
Key Points: - The impugned order was quashed and set aside; trial court directed to decide afresh the application under Order 1 Rule 10 CPC after complying with Section 80 CPC. (!) - If cause of action accrues during pendency, an application under Order 1 Rule 10 CPC to implead the State can be filed and must be adjudicated on merit after Section 80 compliance. (!) (!) (!) - Section 80 CPC requires two months’ notice before instituting suit against the Government or public officer; failure to serve notice generally leads to dismissal, but not when cause of action accrues during pendency. (!) (!) - The purpose of Section 80 notice is to provide Government an opportunity to reconsider and avoid litigation; not a mere formality. (!) - The judgment clarifies that notice under Section 80 is not required if there was no cause of action to implead the State at the time of filing the suit, but may be required when cause accrues later. (!) (!)
What is the proper procedure for impleading the State as a party defendant under Order 1 Rule 10 CPC when a cause of action accrues during the pendency of a suit?
What is the role and mandatory effect of Section 80 CPC notice in the context of impleadment during pendency of a suit?
What are the grounds on which a trial court’s order denying impleadment can be quashed and the application for impleadment remitted for merit-based adjudication?
Ajay Mohan Goel, J.
On the request of Mr. Ajay Sharma, learned counsel for the petitioner, State of Himachal Pradesh through Collector, Una is ordered to be impleaded as party respondent No. 2. Registry is directed to carry out necessary corrections in the memo of parties.
2. Notice. Mr. Desh Raj Thakur, learned Additional Advocate General accepts notice on behalf of the newly added respondent No. 2.
3. By way of this petition, the petitioner has assailed order, dated 03.10.2017, passed by the Court of learned Civil Judge (II), Amb, vide which, an application filed by the present petitioner before the learned Court below under Order 1 Rule 10 of the Code of Civil Procedure for impleadment of the State of Himachal Pradesh through Collector Una, as party respondent, stands dismissed.
4. A perusal of the order dated 03.10.2017 demonstrates that learned Trial Court, inter alia, dismissed the application so filed by the present petitioner on the ground that because as per the provisions of Section 80 of the Code of Civil Procedure, two months prior notice is necessary to be issued to the State before the institution of a suit, therefore, in view of the said mandatory statutory provision, the application for impleadment of the State was not maintainable during the pendency of the suit, because in such a case, admittedly, a notice under Section 80 of the Code of Civil Procedure was to be served upon the State before the institution of the suit. Para 10 of the impugned order for ready reference is quoted here-in-below:
"10. Further more, bare reading of Section 80 CPC suggests that the intent of the legislature is that a prior two months notice is to be given before institution of the suit and not after instituting the suit against Government or public officer. Since the State of H.P. has denied to waive its right of mandatory notice u/s 80 of CPC, hence the suit of the plaintiff against the proposed defendant is bad for want of mandatory notice. I have also considered the case law cited by Ld. Counsel for the plaintiff i.e. titled Devi Singh and Others Vs. The Chairman, Managing Committee, DAV Public School Chitar Gupt Road, New Delhi and Others, (2010) 2 SLJ 830 (H.P.), but the ratio of the aforesaid case is not applicable in the present case as in that case State of H.P. was found to be a proper party whose presence is required only for complete adjudication of that case whereas in this case State of H.P., in my considered view is a necessary party."
5. In my considered view, the findings so returned by the learned Trial Court are completely perverse. If the reason given by the learned Trial Court is accepted, then probably, in no eventuality, whatsoever, during the pendency of a suit, State can be ordered to be impleaded as a party, for lack of issuance of notice under Section 80 of the Code of Civil Procedure before the institution of the suit.
6. Section 80 of the Code of Civil Procedure reads as under:
"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 a 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
