Himachal Pradesh High Court
Jagjit Singh vs Gurdev Singh And Another on 4 April, 2018
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No.: 241 of 2017
Date of Decision: 04.04.2018
Jagjit Singh ....Petitioner.
.
Vs.
Gurdev Singh and another .....Respondents.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
For the petitioner: Mr. Ajay Sharma, Advocate.
For the respondents: Mr. Devender K. Sharma, Advocate,
vice Mr. Sunny Moudgil Advocate, for
respondent No. 1.
Mr. Desh Raj Thakur, Additional
r Advocate General, with Mr. Kamal
Kant, Deputy Advocate General and
Mr. Rajat Chauhan, Law Officer, for
respondent No. 2.
Ajay Mohan Goel, Judge (Oral):
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), Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 10/04/2018 22:55:49 :::HCHP 2Amb, 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 hereinbelow:
"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 ::: Downloaded on - 10/04/2018 22:55:49 :::HCHP 3 cited by Ld. Counsel for the plaintiff i.e. 2010(2) S.L.J (H.P.) 830 titled Devi Singh and others Vs. The Chairman, Managing Committee, DAV Public School Chitar Gupt Road, New Delhi and others 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;::: Downloaded on - 10/04/2018 22:55:49 :::HCHP 4
(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 left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted , with the leave of the court, without serving any notice as required by sub-section (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted 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 shall be dismissed merely by ::: Downloaded on - 10/04/2018 22:55:49 :::HCHP 5 reason of any error or defect in the notice referred to in sub-section (1), if in such notice--
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to .
identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated."
7. A perusal of the said statutory provision demonstrates that service of a notice under Section 80 of the Code of Civil Procedure is not a mere formality, but there is an aim and object as to why such a notice has to be given and that object is to provide an opportunity to the Government to reconsider the legal position and if so advised, to have the matter settled so as to avoid litigation. There is a noble legislative intent behind this provision, which is that neither public money nor public time should be wasted on avoidable and unnecessary litigation and further that reasonable opportunity is available with the Government or the public officer to examine the claims which are made against them. No doubt, in these circumstances, failure to serve notice complying with the requirements as are mentioned in Section 80 of the Code of Civil Procedure will entail dismissal of suit. Therefore, ordinarily, before any suit is instituted against the Government, it is imperative that a notice under Section 80 of the Code of Civil Procedure is served upon it. However, there can be a set of cases where when the suit was instituted, there was no cause ::: Downloaded on - 10/04/2018 22:55:49 :::HCHP 6 of action to implead the State as a defendant. In such like cases, if subsequently, an application is so filed under Order 1 Rule 10 of the Code of Civil Procedure for impleadment of the State as a party defendant, then the same cannot be dismissed solely on the ground .
that no notice under Section 80 of the Code of Civil Procedure was issued to the State before the institution of the suit. This is for the reason that no notice could have been issued to the State before the institution of the suit, as there was no cause of action for the plaintiff to have had done the same. Therefore, in such like cases where cause of action accrues during the pendency of the suit to implead State as defendant, after complying with the provisions of Section 80 of the Code of Civil Procedure, a party can move an application under Order 1 Rule 10 of the Code of Civil Procedure, which then the Court concerned has to decide on merit.
8. At the cost of repetition, it is reiterated that in such like cases, where this kind of application is filed, what has to be seen is as to when did the cause of action accrue on the basis of which a party has filed an application under Order 1 Rule 10 of the Code of Civil Procedure for impleading State as defendant. In a case where the State is being intended to be impleaded as party defendant on a cause which had accrued before the filing of the suit, then may be in the absence of any notice having been issued under Section 80 of the Code of Civil Procedure to the State before the initiation of the suit, such an application may not be maintainable. However, in those cases where ::: Downloaded on - 10/04/2018 22:55:49 :::HCHP 7 cause of action accrues on account of subsequent events during the pendency of the suit, then obviously an application under Order 1 Rule 10 of the Code of Civil Procedure can be filed by the plaintiff to implead the State as a party defendant after complying with the statutory .
provisions of Section 80 of the Code of Civil Procedure and such application has to be adjudicated on merit.
9. In this view of the matter, as the impugned order dated 03.10.2017, passed by the Court of learned Civil Judge (II), Amb in Civil Suit titled Jagjit Singh Vs. Gurdev Singh is not sustainable in the eyes of law, the same is quashed and set aside. Learned Trial Court is further directed to decide afresh the application so filed by plaintiff under Order 1 Rule 10 of the Code of Civil Procedure.
Petition is allowed in above terms. Miscellaneous application(s), if any, stand disposed of.
(Ajay Mohan Goel) Judge April 04, 2018 (bhupender) ::: Downloaded on - 10/04/2018 22:55:49 :::HCHP