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2002 Supreme(P&H) 494
PUNJAB AND HARYANA HIGH COURT
M.M. Kumar, J.
Mahant Ram - Petitioner
Versus
Nankoo Ram and another - Respondents
Civil Revision No. 2316 of 2002.
Decided On : 3 May, 2002
For the Petitioner:Mr. S.M. Tripathi, Advocate.
The main legal point established in the judgment is that while notice under Section 80 of the Code is mandatory in suits against the government or public officers for acts done in their official capacity, the absence of such notice may be waived or estopped by the conduct of the government or public officer, and the urgency of the matter may also be considered.
Headnote:
Notice - Civil Procedure - Code of Civil Procedure, 1908, Section 80
Fact of the Case:
The plaintiff-respondents sought to add a relief of declaration to their existing suit for permanent injunction, claiming co-ownership of a house. The defendant-petitioner argued that the mandatory provisions of Section 80 of the Code of Civil Procedure were not followed.
Finding of the Court:
The court rejected the defendant-petitioner's argument, stating that notice under Section 80 of the Code is mandatory in a suit against the government or a public officer in respect of any act done in their official capacity. However, the court held that the dispute primarily involved the defendant-petitioner and the plaintiff-respondents, without directly involving any act of a public officer in his official capacity. The court also noted that the Estate Officer, who was impleaded as a party, did not raise the argument of lack of notice, and the urgency of the matter was evident from the application filed under Order 39, Rules 1 and 2 of the Code.
Issues: The main issue was whether the mandatory notice provisions of Section 80 of the Code of Civil Procedure were applicable to the suit filed by the plaintiff-respondents.
Ratio Decidendi: The court emphasized that notice under Section 80 of the Code is mandatory in suits against the government or public officers for acts done in their official capacity. However, the court also highlighted that the absence of such notice may be waived or estopped by the conduct of the government or public officer. The court considered the urgency of the matter and the absence of a direct involvement of a public officer's act in reaching its decision.
Final Decision: The court dismissed the revision petition, holding that the suit did not require mandatory notice under Section 80 of the Code of Civil Procedure.
M.M. Kumar, J. - This is a revision petition directed against the order dated 8.3.2002 passed by the Civil Judge (Jr. Division), Chandigarh allowing the application filed by the plaintiff-respondents under Order 6, Rule 17 read with Order 1, Rule 10 of the Code of Civil Procedure, 1908 (for brevity, the Code), The Civil Judge has allowed by way of amendment addition of relief of declaration to be added in the plaint to the effect that the plaintiff- respondents are co-owners in the house in suit as previously they were residing alongwith the defendant-petitioner in a Jhuggi and in lieu of aforementioned Jhuggi, the house in suit was allotted to the plaintiff- respondents and the defendant-petitioner jointly as an alternative site by Chandigarh Administration. In this context, they also impleaded the Estate Officer as defendant-respondent No. 2. The argument that original suit was for permanent injunction and allowing the amendment by incorporating the addition in the suit to make it a suit for declaration was rejected by the Civil Judge by observing that such an amendment would not change the nature of the suit and no new cause of action is sought to be introduced. Another ground given by the Civil Judge is that the suit has been instituted on 12.9.2001 and since it is at the threshold, it would not prejudice any one.
2. I have heard Shri S.M. Tripathi, learned counsel for the defendant- petitioner who has argued that the mandatory provisions of Section 80 of the Code have not been followed which required the plaintiff-respondents to serve a legal notice before filing the suit or impleading the Estate Officer as party under Order 1 Rule 10 of the Code. In support of his submission, the learned counsel has relied upon a judgment of the Supreme Court in the case of Smt. Sooraj and others v. S.D.O. Rehli and others, AIR 1995 SC 872 and a judgment of Calcutta High Court in Smt. Janak Raji Devi v. Chandrabati Devi and another, AIR 2002 Calcutta 11.
3. I have thoughtfully considered the submission made by the learned counsel and do not feel impressed with the same. There is no quarrel with the proposition that in any suit instituted against the government or against a public officer, notice under Section 80 of the Code is mandatory as has been held by the Supreme Court in State of Madras v. C.P. Agencies and another, AIR 1960 SC 1309. A Constitution Bench of the Supreme Court reiterated this view in the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424. In order to decide the controversy raised, it is apposite to refer to Section 80 of the Code which 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 :"
A perusal of Section 80 of the Code would make it obvious that notice is mandatory in a suit filed against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity. Sub-section (2) of Section 80 of the Code carves an exception where issuance of notice mandated by sub-section (1) of Section 80 of the Code could be dispensed with. It contemplates cases of urgent nature which would not brook delay of two months showing the urgency.
[(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 :]
