The requirement of notice under Section 80 CPC for amendment of plaint and the distinction between a necessary party and a proper party.

JUDGMENT :

DR. A.K.RATH, J.

1. This petition challenges the order dated 21.1.2015 passed by the learned Civil Judge (Junior Division), Gunupur in C.S. No.2 of 2010. By the said order, learned trial court rejected the application of the plaintiffs for amendment of the plaint and to implead the Collector, Rayagada and the Project Administrator, I.T.D.A., Gunupur as defendants.

2. The petitioners as plaintiffs instituted the suit to set aside the registered gift deed No.1054/1987 executed by the donors and to restore the possession of the suit land in their favour. The sum and substance of the case of the plaintiffs is that the defendant has violated the conditions mentioned in the gift deed. While the matter stood thus, the plaintiffs filed an application for amendment of the plant. In the proposed amendment, the plaintiffs sought to incorporate the plea that the defendant has transferred the suit land in favour of the State of Orissa for making construction of Sill Development Centre on the request of the Collector, Rayagada and the Project Administrator, I.T.D.A, Gunupur during pendency of the suit. The defendant filed an objection stating that the donors have gifted the suit property for public purpose. The plaintiffs are not in possession of the suit land. Further, no notice under Section 80 CPC has been issued to the State of Orissa before filing the application for impleadment. Learned trial court came to hold that the plaintiffs had not filed any document that the defendant has delivered the suit land to the Collector, Rayagada and the Project Administrator, I.T.D.A., Gunupur. No notice under Section 80 CPC has been issued to the State. It was further held that the lis pendens purchaser is bound by the decision of the court. Held so, the learned trial court rejected the application.

3. Really two points arise for consideration of this Court;

I. Whether the State of Orissa can be impleaded as a defendant without compliance of the notice under Section 80 CPC?

II. Whether the Collector, Rayagada and the Project Administrator, I.T.D.A., Gunupur are necessary parties to the suit?

4. This Court in Abhimanyu Nayak and others v. Basanta Mohanty, 123 (2016) CLT 375 held as follows;

“7. On a conspectus of the said section, it is evident that service of notice under Section 80(1) C.P.C. is a sine qua non prior to institution of the suit against the Central Government/Railway/State Government. If the suit is of such nature, urgent or immediate relief sought for against the State Government or any public officer in respect of any act purporting to be done by such officer in his official capacity, suit may be instituted, with the leave of the Court, without serving any notice as required by sub section (1). The provision is imperative. It is not every amendment of plaint, which requires prior notice under Section 80(1) C.P.C. only when new relief is sought for or when the amendment introduces a new cause of action, notice under Section 80(1) is necessary. In the case of amendment which is formal in nature or to elucidate the foundational facts already exist in the plaint, the same does not require any notice under Section 80 CPC.

xxx xxx xxx”

5. In Bishandayal and sons Vs. State of Orissa and others, (2001) 1 Supreme Court Cases 555, the apex court in paragraph-16 of the report held as follows:-

“16. There can be no dispute to the proposition that a notice under Section 80 can be waived. But the question is whether merely because in the amended written statement such a plea is not taken it amounts to waiver. This contention was argued before the appellate court. Even otherwise, we find that in the suit itself Issue No.4 had been raised as to whether or not there was a valid and appropriate notice under Section 80. Such a point having been taken in the original written statement and an issue having been raised, it was not necessary that in the amended written statement such a plea be again taken. On behalf of the respondents, reliance has been pla