Uttarakhand High Court
Unknown vs Sita Ram S/O Sri Nandu R/O Village ... on 25 January, 2021
Author: Lok Pal Singh
Bench: Lok Pal Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No.73 of 2020
Rao Mashroor Khan S/o Shri Rao Mashkoor Khan
R/o Village Ranipur, Pargana Jwalapur,
Tehsil and District Haridwar
....Revisionist
Vs.
1. Sita Ram S/o Sri Nandu R/o Village Saidpura,
Paragana Manglore, Tehsil Roorkee, District Haridwar
2. Vijay Pal S/o Jagram R/o Village Khedali, Pargana
Jwalapur, Tehsil and District Haridwar at present plot
no.150, khasra no.511/2, Tehri Visthapit Kshetra,
Ranipur, Tehsil and District Haridwar
3. Commandant 40th Battalion, PAC, Tehri
Rehabilitation Colony, Ranpur, Tehsil and District
Haridwar
....Respondents
WITH
Civil Revision No.75 of 2020
Rao Mashroor Khan S/o Shri Rao Mashkoor Khan
R/o Village Ranipur, Pargana Jwalapur,
Tehsil and District Haridwar
....Revisionist
Vs.
1. Sita Ram S/o Sri Nandu R/o Village Saidpura,
Paragana Manglore, Tehsil Roorkee, District Haridwar
2. Vijay Pal S/o Jagram R/o Village Khedali, Pargana
Jwalapur, Tehsil and District Haridwar at present plot
no.150, khasra no.511/2, Tehri Visthapit Kshetra,
Ranipur, Tehsil and District Haridwar
3. Commandant 40th Battalion, PAC, Tehri Rehabilitation
Colony, Ranpur, Tehsil and District Haridwar
....Respondents
2
Present :
Mr. Siddhartha Singh, Advocate for the revisionist
Mr. Adtiya Singh, Advocate for the respondent
JUDGMENT
Hon'ble Lok Pal Singh, J.
Since common question of facts and law are involved in these two revisions, therefore, both the revisions are being decided by a common judgment and order.
2. Civil Revision No.73 of 2020 is directed against the order dated 16.10.2020 passed by Civil Judge (Senior Division) Haridwar in O.S. No.310 of 2019 Sita Ram and another vs. Commandant, whereby the learned trial court has directed identification, demarcation of the property of the plaintiffs with the help of revenue authorities in compliance of interim order dated 08.01.2020, whereas Civil Revision No.75 of 2020 has been filed to set aside the order dated 20.12.2019 whereby the application paper no.26C moved by the revisionist under Order 1 Rule 10 read with Section 151 of The Code of Civil Procedure, 1908 (hereinafter to be referred as CPC) has been dismissed.
3. Factual matrix of the case is that the plaintiffs/respondent nos.1 and 2 instituted a suit being O.S. No.310 of 2019 in the court of Civil Judge (S.D.), Haridwar against the defendant/respondent no.3 for a decree of perpetual prohibitory injunction restraining the defendant from raising the boundary wall and interfering in the occupation, possession of the plaintiffs. In the said suit, the revisionist moved an impleadment 3 application under Order 1 Rule 10 (2) CPC for getting impleaded in the suit, on the ground, that in respect of the same property, a declaratory suit was filed by him under Section 229-B of U.P.Z.A. & L.R. Act which is pending adjudication wherein despite the status quo order dated 04.03.2013 the plots in question have illegally been transferred to plaintiffs on 16.12.2013 and 18.12.2013, over which the revisionist has been and is in possession.
4. Against the said impleadment application, the plaintiffs filed their objections. The trial court, vide order dated 20.12.2019, dismissed the revisionist's application on the ground that the suit for declaration filed by the revisionist has already been dismissed by the trial court and the same has attained finality upto the level of Hon'ble Supreme Court, as such the revisionist is not a necessary party.
5. On 08.01.2020, the trial court, after hearing the learned counsel for the parties, allowed the temporary injunction application moved by the plaintiffs, thereby restraining the defendants from interfering in the ownership and possession of the plaintiffs over the suit property. Thereafter, the plaintiffs moved an application paper no.52C for issuing a direction to the S.D.M. Haridwar to identify and demarcate the land as per the report of the Tehsildar dated 19.06.2019, stating that the defendant is flouting the interim order dated 08.01.2020 passed by the trial court on one or other pretext, wherefor the plaintiff has filed a contempt case being registered as misc. case no.06/2020 before the court, which is pending adjudication. The defendant filed 4 objections to the said application, denying the contents of the application. It was contended that, under the garb of permanent injunction suit, the plaintiff intend to settle his boundary dispute, which does not come within the jurisdiction of the civil court. It was further contended that the application moved by the plaintiff for identification and demarcation cannot be allowed by the civil court, said jurisdiction lies with the revenue court. The trial court, after hearing the learned counsel for the parties, allowed the application paper no.52C directing the S.D.M. Haridwar to identify and demarcate the land in dispute with the assistance of other revenue officials so that the plaintiff may raise boundary wall.
CLR No.75 of 20206. Insofar as impleadment application is concerned, the revisionist though has sought impleadment in the suit alleging that in respect of the same property, a declaratory suit was filed by him under Section 229-B of U.P.Z.A. & L.R., but the fact remains that he has lost the battle upto the Hon'ble Supreme Court, in regard to his alleged rights over the property in dispute. In such circumstances, the revisionist is not a necessary and property party in the suit proceedings. The trial court has not committed any error of law and has rightly dismissed the impleadment application. Civil Revision No.75 of 2020, thus, stands dismissed.
CLR No.73 of 20207. A perusal of the plaint would reveal that the plaintiffs have filed the instant suit against the 5 Commandant, 40th Battalion, P.A.C., Haridwar. Commandant, 40th Battalion, P.A.C., Haridwar is a public servant and a suit against a public servant cannot be instituted without impleading the State as party. In a suit against a public servant, State is a necessary party, but in the instant case, State of Uttarakhand through Collector, Haridwar, has not been impleaded as defendant.
8. Section 79 and 80 of the CPC are relevant in the present context, which are reproduced hereunder:
"79. Suits by or against Government.- In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-
(a) in the case of a suit by or against the Central Government, the Union of India, and
(b) in the case of a suit by or against a State Government, the State."
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, a Secretary to that Government;
(b) in the case of a suit against the Central Government when it relates to a railway, the General--
Manager of the 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 their behalf;
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the District.
6(d) *** and, in the case if a public officer delivered to him or left at his office, stating the case 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 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, retain the plaint for presentation to it after complying with the requirements of Subsection (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 reason pf any error or defect in the notice referred to in Sub-section (1), if in such notice-
(4) 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."
9. From a reading of Section 79 CPC, it is clear that it covers the subject of authorities which are to be named in a suit filed by or against the Central Government or the State Government. It deals with procedure and has to be interpreted accordingly. Section 80, on the other hand, is mandatory in the sense that it puts a bar on the institution of suits against the 7 Government or a public officer in respect of any act purporting to be done by such public officer in his official capacity until expiration of two months next after notice in writing containing the requisite information is delivered. The notice in the case of a suit against any State Government (other than the Government of the State of Jammu and Kashmir) should be delivered to the Secretary to that Government or the Collector of the district. It should contain information regarding cause of action, the names, description and place of residence of the plaintiff and the relief claimed.
10. In the case at hand, lower court record would reveal that neither the State through Collector Haridwar has been impleaded as party, nor any notice has been issued to the State, nor any exemption was sought under Section 80(2) of CPC by the plaintiffs while instituting the suit against the public servant. The trial court has also failed to take note of the said fact and has passed the orders in favour of the plaintiff. Without complying with the provisions of Section 79 and 80 CPC, the suit cannot be proceeded. This being the position, the suit is apparently barred by the provisions of Order 7 Rule 11 (d) CPC owing to non compliance of the provisions under Section 80 CPC.
11. Although, the above plea has not been taken by the defendant in his written statement, which was filed through District Government Counsel, but as in the absence of notice, the suit is not maintainable against the public servant, in my firm opinion, the trial court should frame and decide the issue of maintainability of suit as the preliminary issue before proceeding with the suit.
812. At this juncture, I deem it appropriate to mention that when these revisions came up for hearing on the point of admission before me on 04.11.2020, I made a categorical observation that the trial court has passed the impugned order dated 16.10.2020 in a very hasty manner and the interim relief granted to the plaintiff is in the shape of final relief, which is not permissible in the eyes of law. Thus, explanation was sought from the Judicial Officer concerned in this regard. Thereafter, explanation was furnished by the Judicial Officer concerned, however, the same was not found plausible and satisfactory by me. This Court, again by order dated 24.11.2020, made the following observation:-
"5. Since the suit has been filed against a public servant, it could not have been filed without impleading the State of Uttarakhand through Collector, Haridwar. Thus, it is abundantly clear from the perusal of the plaint that the plaintiffs and their counsel have developed a device to file the suit without impleading the State of Uttarakhand through Collector, Haridwar, a party defendant, so that they may institute the suit without issuing notices under Section 80 of C.P.C. or, in the case of urgency, they should have to institute the suit after seeking exemption under Section 80(2) of C.P.C., but the plaint has been instituted in a designed way. The District Government Counsel (Civil), Haridwar appeared in the matter, but he did not raise this issue. In any case, the plaintiffs and their counsel deliberately instituted the suit in such a way so that they may commit fraud upon the court and the District Government Counsel (Civil) also did not raise objection to the effect that without impleading the State of Uttarakhand through Collector Haridwar, the suit 9 cannot be instituted. Then, evidently it was the bounden duty of the trial court to raise the objection, but the trial court also did not discharge its duty in raising such an objection. Thus, the connivance of the plaintiffs, their counsel, District Government Counsel (Civil) and the court cannot be ruled out. It cannot be expected from the trial judge [Civil Judge (Senior Division)] having length of service of more than 10 years that he doesn't have the knowledge of Sections 79 and 80 of C.P.C.
6. Both the interim orders passed by the court below would depict that these orders have been passed in such a manner to help the plaintiffs to take possession over the suit property without demarcating the property in suit and the same are in the shape of final relief. In fact, by the impugned orders, relief sought by the plaintiff has been granted finally at the interim stage.
7. In an injunction suit where there is a chance of dispossession or demolition or eviction, in such contingency, the trial court at the most can pass the order of status quo directing the parties to maintain status quo qua the nature and possession of the suit property, but the trial court has exceeded its jurisdiction."
13. Insofar as the direction for demarcation is concerned, on an application moved by the plaintiff, such a direction could not have been issued by the trial court for identification and demarcation of the suit property. An order of demarcation is done only after framing the relevant issue in this respect, and not in the manner the trial court has adopted. The trial court, while passing the impugned order, has ignored the statutory 10 provisions. In such facts and circumstances, impugned order dated 16.10.2020 passed by the trial court is not sustainable in the eyes of law.
14. This Court, while exercising suo-moto revisional powers, quashes the order dated 16.10.2020 and issues a direction to the trial court to frame and decide the following issue as preliminary issue:-
"As to whether the suit is maintainable against the defendant, a State authority, without complying with the provisions of Section 80 CPC?"
15. Till the decision is taken on the maintainability of suit, impugned order dated 16.10.2020 shall be kept in abeyance and the parties shall maintain status quo.
16. With the above observation and direction, CLR No.73 of 2020 stands disposed of. As has already been observed in preceding paragraphs, CLR No.75 of 2020 stands dismissed.
17. Lower court record be sent back.
(Lok Pal Singh, J.) 25.01.2021 Rajni