The main legal point established in the judgment is that if a public officer, upon being served with a notice, chooses not to contest the suit and is eventually proceeded against ex parte, it would be deemed to have waived the requirement of notice under section 80 CPC.

JUDGMENT

Amol Rattan Singh, J. (Oral) - By this petition, the petitioner challenges the orders of the learned trial Court (Civil Judge, Junior Division) Sirsa, dated August 20, 2018, by which the application filed by the petitioner (defendant no.1 in the suit out of which this petition arises), under Order 7, Rule 11 CPC, has been dismissed.

The application was filed taking a plea that no notice having been issued to defendant no.2 in the suit, i.e. to the Sub Registrar, Sirsa, under section 80 of the CPC, as is mandatory before any suit can be instituted against a public officer, the plaint was liable to be rejected on that short ground alone.

2. A reply having been filed to the application, the learned trial Court eventually held vide the impugned order that in the suit itself notice having been served upon defendant no.2, despite which the public officer did not put in any appearance before the Court and was therefore proceeded against ex parte vide an order dated 11.12.2014, it would imply that the said defendant had sufficient knowledge of the suit despite which he did not defend it and consequently, the plaint could not be rejected on that ground.

3. Before this Court, Mr. Jain, learned counsel for the petitioner, has argued that the reasoning given by the trial Court is wholly erroneous, in view of the fact that at the time when the suit was filed by respondent no.1 herein (plaintiff), obviously he could not have had any knowledge that defendant no.2, i.e. the Sub Registrar, Sirsa, would not respond to the notice issued in the suit and would therefore eventually be proceeded against ex parte. Hence, he submits that section 80 of the CPC being a mandatory provision before a public officer can be sued, and the said mandate not having been complied with, with not even an application filed under sub-section (2) thereof before the Civil Court seeking waiver of service of notice (under Section 80) upon the public officer, the plaint actually deserved to be rejected.

In support of his contention, he relies upon a judgment of a co-ordinate Bench of this Court in Ajay Jaiswal and another v. State of Haryana and others (RSA No.4293 of 2006 decided on 15.01.2007), the relevant part of which is reproduced as follows:-

"The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby the plaint was ordered to be returned to the plaintiffs after returning a finding that such suit is maintainable before the Principal Court of original civil jurisdiction as well as for want of service of notice under section 80 of the Code of Civil Procedure.

Learned counsel for the appellants states that in view of the fact that notice under section 80 of the Code of Civil Procedure had not been served, the learned first Appellate Court should have rejected the plaint, which would have enabled the plaintiffs to file a fresh suit after serving a due notice in terms of section 80 of the Code of Civil Procedure.

Learned counsel for respondent No.4 states that it was never conceded before the learned first appellate Court that the plaint be ordered to be returned to the plaintiff.

Since the learned first Appellate Court recorded a finding that notice under section 80 of the Code of Civil Procedure was required to be served and has not been served and that the learned trial Court has no jurisdiction to entertain the suit, I deem it appropriate to accede to the argument of the learned counsel for the appellant. Consequently, the plaint is ordered to be rejected for want of a proper notice and for lack of jurisdiction.

The present appeal stands disposed of in the above terms."

He further submits that even in a judgment of another coordinate Bench, in Mahant Ram v. Nankoo Ram and another, 2003 (1) RCR (Civil) 134, though that petition was dismissed with observations made in the context of section 80 CPC by this Court, that petition was actually one challenging an order passed by the trial Court