ORDER
N.A. Kakru, J.
1. The respondent No.3 mans the post of a Cleaner substantively under the control of petitioner. He came to be assigned the charge of a departmental vehicle and because of its alleged misuse, he was placed under suspension vide order No. 63235-36 dated 11-2-1989. This order of suspension was impugned in the Civil Court, but the complaint came to be rejected by order dated 5-7-1997 because of failure to serve a notice under Section 80 Civil Procedure Code (for short CPC).
2. Yet another suit was filed by the petitioner after complying with the mandate of Section 80 CPC. Alongside, an application for interim relief was also filed and an interim relief came to be granted in his favour, which was impugned before the Appellate Court by the defendant (Executive Engineer, Rural Water Supply Srinagar, petitioner herein), but he failed in the appeal and to escape the rigours of the order, he has invoked the jurisdiction of this court through this writ petition challenging the maintainability of the suit on several grounds but during the course of arguments, LC for the petitioner has chosen to give up other grounds and confined his submissions to the applicability of the doctrine of res-judicata on the strength of dismissal of a former suit.
3. In view of the contentions urged, a question calls for adjudication, which is summarised as under :
What course should the court adopt in respect of a suit, which is instituted without
complying with the mandate of Section 80 CPC and if rejection of plaint is the answer, is a fresh suit maintainable on the same cause of action?
4. The language of the Section being mandatory, no suit can be instituted against a public officer in respect of an act purporting to have been done by the said officer in his official capacity until expiration of two months notice in writing before the institution of the suit is served, which makes it abundantly clear that the court has no power to entertain a suit and the party is not competent to institute a suit against the government short of requisite notice. Thus, if a suit is filed without adhering to the mandate of the Section and the suit has been entertained, such omission tantamounts to assumption of the jurisdiction, which otherwise is curtailed by law and if the act is done in the course of official capacity acting as a public officer, Section comes into play casting an obligation on him to follow the mandate of Section 80CPC. No doubt, Sub-section (3) of Section 80 CPC permits institution of a suit with the leave of the court without following the mandate of Section provided an urgent or immediate relief against the government or public officer is to be sought. In the present case, no leave was sought nor granted for institution of the suit without service of notice. It is also relevant to notice that a notice to a public officer is not necessary, where the act done by him is not within the sphere of his duties. This may be the exception to the Section, but I am not required to dwell upon the same in this petition because, no stand is projected like that and admittedly, the suit has been filed without service and the act which has aggrieved the respondent No. 4 has been done by the petitioner in the course of his official capacity. This being the admitted factual position, compliance of mandate of Section becomes imperative for the respondent No. 3 herein, which was not complied with, therefore, the plaint of the respondent was rightly rejected under Order (7) Rule (11) and the court was justified to do so, because, it could not have tried the suit on Its merits and the petitioner pleads rejection of the plaint as res judicata.
5. To invoke the principle of res judicata, one of the conditions, which the petitioner is required to establish is that the matter was
heard and finally decided by the competent court in the former suit. The fact remains that the plaint was rejected under Order (7) Rule (11), because the suit was not maintainable for want of notice and such rejection can’t be termed to be a finding on the merits of the case. Obviously, respondent No. 3 is within his rights to institute a fresh suit in respect of the same cause of action and rejection of plaint can not debar the respondent No. 3 from filing a fresh suit and there can’t be any confusion on this point, because Order (7) Rule (13) expressly provides for it, which is reproduced hereunder :
“Where rejection of plaint does not preclude presentation of fresh plaint. The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.”
6. From the above discussion, the reply to the question is that when a suit is filed without following the mandate of Section 80 CPC, the court is not only justified but is required to reject the plaint, but such rejection cannot work as res judicata, therefore, the suit filed is maintainable and the challenge thrown through this writ petition is not sustainable. It is also appropriate to notice here that LC for the petitioner has argued that the civil court has no jurisdiction to try the suit. In this behalf, I have gone through the pleadings of the parties in depth and I find that besides legal questions, complex questions of fact have also been agitated, which require the parties to produce both documentary and oral evidence and in view of the facts and circumstances of the case, the respondent No. 3 has invoked the most appropriate remedy through the medium of civil suit.
7. In view of the legal position, this writ petition does not succeed and before parting with, I would like to observe that it is generally seen that the administration takes the notice under Section 80 CPC so casually that it hardly lives up to the purpose, which aims at achieving the object to provide an opportunity to the government and its functionaries to consider or reconsider, as the case may be, a particular claim in the light of legal position so that necessary amends are made or claim is settled without burdening the state exchequer with expenses of litigation. No doubt, cases may be where the
state is of the opinion that the claim is unfounded, therefore, there may be no possibility to negotiate the settlement, yet the claimant on whose behalf, notice is issued is at least entitled to a word in writing indicating the reason because of which negotiation or settlement is not possible and what is expected to follow is that the claimant may give up the claim. If the state opts for the proposed course of action, the impression created that issuance of notice under Section 80 CPC is a useless formality and without any consequence, may not only get dispelled but such course may considerably reduce the quantity of frivolous litigation. What prompted me to give vent to my observation is to provide an idea to the state and the authorities at the helm to address themselves to his aspect.
8. For the aforementioned reasons, this writ petition is dismissed along with CMPs. but without any order as to costs.