Orissa High Court
Debakanta Ray vs Secretary on 1 October, 2013
ORISSA HIGH COURT, CUTTACK
Writ Petition No. 15082 of 2013
In the matter of application under Articles 226 and 227 of the Constitution of India
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Debakanta Ray ... Petitioner
versus
Secretary, Rotary Club, Puri ... Opposite party
For petitioner - M/s Bhaktahari Mohanty,
D.P.Mohanty, R.K.
Nayak & T.K.Mohanty
For opposite party - M/s Goutam Mukherji,
P. Mukherji, S.D. Ray,
S. Barik, S. Priyadarsini
& Amit Biswal
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PRESENT:
THE HONOURABLE MR. JUSTICE S.K.MISHRA
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Date of Hearing - 24.07.2013 : Date of Judgment - 01 .10.2013
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S.K. Mishra, J. The order dated 21.06.2013 passed in Civil Suit No.71 of 2008 of
the court of Civil Judge (J.D.), 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 26.08.2008 and on 10.02.2009, two applications
were filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short
'the Code'. In both the applications, the petitioner prayed for similar amendment
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and, therefore, the same were disposed of as per the common order passed by the
learned Civil Judge (J.D.), Puri on 21.06.2013 rejecting the application to
implead State of Orissa as a party to the suit along with 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 15.04.2008, whereas notice was sent in compliance of
Section 80 of the Code on 17.06.2008. 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
vs. Narayan Keshi and others, 1997 (I) OLR 98 and Sabhu and others vs.
Ramsa and another, AIR 1953 H.P. 123.
4. In the case of Sk. Dofian Hossain vs. 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
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the petition for amendment is 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 13.05.1995. 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, where from the
writ petition arose.
5. In Sabhu and others vs. 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 property. 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 in stead of its rejection. However, a careful examination
to the petition filed under Order 6 Rule 17 of the Code, it is seen that the
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petitioner has no where averred such factual assertion. Thus, it appears that such
assertion is after thought.
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
officer, an opportunity to reconsider the legal position and settle the claim, if so
advised, without landing in any legal battle. The legislative intention behind such
provision is that public money and time should not be wasted on unnecessary
litigation and the Government or the public officer should be given reasonable
opportunity to examine the claim made against them. The provision being
imperative, failure to serve notice complying with the requirement will entail
dismissal of the suit. It is observed that Section 80 of the Code provides that no
suit shall be instituted against the 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, etc. Thus, notice given under Section 80 of
the Code is to be done prior to the institution of the suit. Since in this case notice
has been issued after institution of the suit and it is not case of the plaintiff-
petitioner that the cause of action against the State of Orissa arose after institution
of the suit during pendency of the same, it cannot be said that the compliance of
Section 80 of the Code during pendency of the suit shall be appropriate and
sufficient. However, in the cases where the cause of action arose later on against
the State, suppose for example, in a case where the subject matter of the suit was
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acquired by the State after the institution of the suit, then in that case a notice
under Section 80 of the Code can be sent after the institution of the suit and
thereafter the State of Orissa can be impleaded as a party. Such is not a case here.
It is not stated by the learned counsel for petitioner that the cause of action to
implead the State of Orissa as a party to the proceeding arose after the institution
of the suit.
8. In that view of the matter, this Court is of the opinion that the order
passed by the learned Civil Judge (J.D.), Puri is just and proper and requires no
interference.
Hence, the writ petition is devoid of merit and the same is dismissed.
Pending misc. case is disposed of as infructuous.
.......................
S.K. Mishra,J.
Orissa High Court: Cuttack
Dated, 1st October, 2013/PCD.
