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ORISSA HIGH COURT
S.K. Mishra, J.
Debakatna Ray —Petitioner
versus
Secretary Rotary Club, Puri —Respondent
WP No. 15082 of 2013
Decided on 1.10.2013
For the Petitioner:Bhaktahari Mohanty, D.P. Mohanty, R.K. Nayak and T.K. Mohanty, Advocates.
For the Opp. Party:Goutam Mukherjee, P. Mukherji, S.D. Ray, S. Barik, S. Priyadarsini and Amit Biswal, Advocates.
IMPORTANT POINT
Notice under Section 80 CPC for impleading State as party after institution of suit is not appropriate.
Headnote:Civil Procedure Code, 1908—Section 80—Notice under Section 80 CPC for impleading state as party after institution of suit—Validity of—Service of notice under Section 80 of CPC is not in empty formality—The object of such notice is to give concerned Government and public officer, an opportunity to reconsider the legal position and settle the claim if so advised, without landing in any legal battle—The provision being imperative, failure to serve notice complying with the requirement would entail dismissal of suit—Section 80 of the CPC provides that no suit shall be instituted against Government or public officer in respect of an act purporting to be done by such public officer in his official capacity, until expiration of two months next after notice in writing has been delivered to or left at the office of the State Government—Hence, notice given under Section 80 of CPC is to be done prior to institution of the suit—Since in this case, notice had been issued after institution of suit and no case of plain tiff petitioner that the cause of action against State of Orissa arose after institution of suit during pendency of same, it could not be said that compliance of Section 80 of Code during pendency of suit shall be appropriate and sufficient—Writ petition dismissed. (Paras 7 and 8)
Result: Petition dismissed.
S.K. Mishra, J. — The order dated 21.6.2013 passed in Civil Suit No. 71 of 2008 of the Court of Civil Judge (JD) Puri is in question in this writ petition.
2. Facts are not disputed. The petitioner, being the plaintiff filed a suit for declaration and other relief against the opposite party who happens to be the Secretary, Rotary Club, Puri. On 26.8.2008 and on 10.2.2009, two applications were filed under Order VI, Rule 17 of the Code of Civil Procedure, 1908 (‘for short the Code’). In both the applications the petitioner prayed for similar amendment and, therefore, the same were disposed of as per the common order passed by the learned Civil Judge (JD), Puri, on 21.6.2013 rejecting the application to implead State of Orissa as a party to the suit alongwith amendment petition. The plaintiff submitted a copy of the notice under Section 80 of the Code and memo in support of the receipt received by the Collector, Puri it is not disputed that the suit was instituted on 15.4.2008, whereas notice was sent in compliance of Section 80 of the Code on 17.6.2008. Thus, the notice has been sent after institution of the suit.
3. The question that arises for determination in the case is whether in a pending case after complying requirement of Section 80 of the Code. State of Orissa can be added as party or not. The learned Civil Judge (J.D.), Puri came to the conclusion that in such an application the State of Orissa cannot be added as a party after institution of the suit as the requirement of section 80 of the Code is mandatory and it is not an empty formality. Assailing such findings, the learned Counsel for the petitioner relies upon the reported cases of Sk. Dofian Hossain v. Narayan Keshi and others, 1997(1) OLR 98. and Sabhu and others v. Ramsa and another, AIR 1953 H.P. 123.
4. In the case of Sk. Dojian Hossain v. Narayan Keshi and others, (supra), the facts are different. In that case, the amendment was made prior to giving notice to the State of Orissa and later on after impletion of the party a notice was issued that too after remand of the case to the learned District Judge. Undisputedly, in that case this Court held that no notice was at all served when the petition for amendment was filed. While allowing the plaintiff’s prayer at the first instance, this Court further held that the learned District Judge did not apply his mind to this legal aspect of the case. This Court further observed that when the case was remanded plaintiff served notice through advocate attaching a copy of the plaint by registered post on 13.5.1995. So, the ratio decided in that case is not applicable to the case at hand. Further, it appears that the Court was perhaps of the view that if the requirements of Section 80 of the Code were complied prior to filing of amendment petition, the State could have been made party by filing appropriate application. Such is the case in the present suit wherefrom the writ petition arose.
5. In Sabhu and others v. Ramsa and another (supra), the High Court of H.P. has held that at a later stage a notice cannot be served because Section 80 of the Code provides that such a notice should be given before institution of the suit.
6. In the writ petition, the petitioner has averred that he has taken a plea in the plaint that due to urgency of the situation the defendant has started minimum construction over the suit proper. The plaintiff filed the suit for injunction only reserving right to implead State of Orissa by way of amendment after compliance of all requirements, the learned Court below should have allowed the application instead of its rejection. However, a careful examination to the petition filed under Order VI. Rule 17 of the Code, it is seen that the petitioner has no where averred such factual assertion. Thus, it appears that such assertion is afterthought.
7. Service of notice under section 80 of the Code is not an empty formality. The object of such notice is to give concerned Government and public offi
