{"id":26526,"date":"2008-09-29T00:00:00","date_gmt":"2008-09-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-kumar-anr-vs-state-of-rajasthan-ors-on-29-september-2008"},"modified":"2018-09-17T05:07:24","modified_gmt":"2018-09-16T23:37:24","slug":"ram-kumar-anr-vs-state-of-rajasthan-ors-on-29-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-kumar-anr-vs-state-of-rajasthan-ors-on-29-september-2008","title":{"rendered":"Ram Kumar &amp; Anr vs State Of Rajasthan &amp; Ors on 29 September, 2008"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Ram Kumar &amp; Anr vs State Of Rajasthan &amp; Ors on 29 September, 2008<\/div>\n<div class=\"doc_author\">Author: T Chatterjee<\/div>\n<div class=\"doc_bench\">Bench: Tarun Chatterjee, Dalveer Bhandari<\/div>\n<pre>                                                              REPORTAB\n                                                      LE\n\n             IN THE SUPREME COURT OF INDIA\n              CIVIL APPELLATE JURISDICTION\n\n             CIVIL APPEAL NOS. 115-116 OF 2001\n\n\nRam Kumar and Anr.                                       ...\nAppellants\n\n\nVERSUS\n\n\nState of Rajasthan and Ors.                            ...\nRespondents\n\n\n\n                          JUDGMENT\n<\/pre>\n<p>TARUN CHATTERJEE, J.\n<\/p>\n<\/p>\n<p>1.    These appeals by special leave are directed against the<\/p>\n<p>judgment and order dated 26th of March, 1998 passed by a learned<\/p>\n<p>Judge of the High Court of Judicature for Rajasthan at Jodhpur in<\/p>\n<p>S.B. Civil Revision Petition No.480 of 1994 and order dated 23rd of<\/p>\n<p>March, 1999 passed in S.B. Civil Defect Case No.1788 of 1998<\/p>\n<p>which arose out of an application for review of the order dated 26th of<\/p>\n<p><span class=\"hidden_text\">                                                             1<\/span><br \/>\nMarch, 1998. By the order              dated 26th of March, 1998, the<\/p>\n<p>learned Judge had set aside the order passed by the learned Munsif,<\/p>\n<p>Ist Class, Tibbi by which the learned Munsif held that the defendant<\/p>\n<p>No.3\/respondent No.3 (in short `respondent No.3&#8242;) was not needed to<\/p>\n<p>be served with a notice under Section 80 of the Code of Civil<\/p>\n<p>Procedure (in short the `CPC&#8217;), as the respondent No.3, being a<\/p>\n<p>District Education Officer, had not done any act in his official<\/p>\n<p>capacity.\n<\/p>\n<p>2.    The facts leading to the filing of these appeals may be<\/p>\n<p>summarized as follows:\n<\/p>\n<p>      The proceedings for acquisition of the land belonging to one<\/p>\n<p>Shri Daulat Ram, father of the appellants situated at Chak No.12<\/p>\n<p>M.K.S. Tehsil Tibbi, Mu. No.180\/242, Kila No.5-8 (presently Chak<\/p>\n<p>NO.3 D.P.M. 14 to 16 and 24-25) ad-measuring 9 bighas and<\/p>\n<p>Mu.No.180\/242,      Kila   No.4-5     ad-measuring    2   bighas    and<\/p>\n<p>Mu.No.181\/242 Kila No.1-2, ad-measuring 2 bighas, totaling all 13<\/p>\n<p>bighas in ABADI Mauza Daulatpura, were initiated by the Bhakhra<\/p>\n<p>Colonization     Department     and     the    Deputy     Colonization<\/p>\n<p>Commissioner, Bhakhra Hanumangarh, while acquiring this land<\/p>\n<p>along with other lands by orders dated 3.1.1962, ordered his<\/p>\n<p>subordinates to put up proposal expeditiously to transfer in lieu of the<\/p>\n<p><span class=\"hidden_text\">                                                           2<\/span><br \/>\nland to be acquired for ABADI any other land, in favour of the<\/p>\n<p>Khatedar   (Mauroosi-holder).   The    said   Bhakhra   Colonization<\/p>\n<p>Department was wound up and all the powers thereof were vested in<\/p>\n<p>the officers of the Revenue Department. Hence, the father of the<\/p>\n<p>appellants filed an application dated 22.11.1969 before the Tehsildar<\/p>\n<p>(Revenue) Tibbi for transfer in terms of the order passed by the<\/p>\n<p>Deputy Colonization Commissioner in lieu of his acquired land, the<\/p>\n<p>vacant land situated in Chak No.M.K.S. (presently Chak No.D.P.M.),<\/p>\n<p>bearing Mu.No.180\/240, Kila No.9 (1 bigha), 11 to 13 (3 bighas), 18<\/p>\n<p>to 23 (6 bighas) ad-measuring in all 10 bighas and Mu.No.181\/246,<\/p>\n<p>Kila No.3, 8 (2 bighas) ad-measuring in all 12 bighas, whereupon<\/p>\n<p>after conducting an inquiry the Tehsildar (Revenue) Tibbi submitted<\/p>\n<p>his proposal before Deputy Collector, Hanumangarh and Deputy<\/p>\n<p>Collector submitted on 13th of November, 1968, Sriganganagar, the<\/p>\n<p>defendant No. 2 accorded transfer of the said land in lieu of the<\/p>\n<p>acquired land. The District Collector, Sriganganagar, by his order<\/p>\n<p>dated 20th of November, 1968 accorded his approval to this transfer<\/p>\n<p>and the file concerned was returned to the Deputy Collector,<\/p>\n<p>Hanumangarh. In compliance with the order dated 20th of November,<\/p>\n<p>1968 passed by the District Collector, Sriganganagar, the transfer<\/p>\n<p><span class=\"hidden_text\">                                                         3<\/span><br \/>\nentry of the land to be carried out in lieu of the acquired land was<\/p>\n<p>made in the revenue record and the same was approved by the<\/p>\n<p>Tehsildar (Revenue) Tibbi on 3rd of October, 1970 and the names<\/p>\n<p>relating to the lands were mutated in the revenue records and the<\/p>\n<p>possession of the land concerned too was exchanged. Accordingly,<\/p>\n<p>the father of the appellants gave up possession of the acquired land<\/p>\n<p>measuring 13 Bighas as detailed in para 1 of the plaint, in favour of<\/p>\n<p>the State and in lieu thereof, possession of the land, detailed in para 2<\/p>\n<p>of the plaint, was delivered to the father of the appellants who came<\/p>\n<p>into possession thereof in the capacity of Khatedar. The said land,<\/p>\n<p>which was transferred in exchange along with other lands in their<\/p>\n<p>entirety whereby out of the land acquired in exchange, the land<\/p>\n<p>bearing No. 180\/240, Kila No. 9 (1 Bigha), 11 to 13 (3 Bighas), 18 to<\/p>\n<p>23 (6 Bighas) ad-measuring 10 Bighas fell into the share of appellant<\/p>\n<p>No. 1 Ram Kumar and Mu. No. 181\/246, Kila No. 3 and 8 (2 Bighas)<\/p>\n<p>ad-measuring 2 Bighas fell into the share of appellant No. 2 Rajendra<\/p>\n<p>Kumar and the transfer entry of this portion was made against S. No.<\/p>\n<p>33 in the Khata No. 11\/27 dated 13th January, 1971 and was certified<\/p>\n<p>on 20th of February, 1971 and this land was thus mutated on 13th of<\/p>\n<p><span class=\"hidden_text\">                                                            4<\/span><br \/>\nJanaury, 1971 in the names of the appellants in revenue records<\/p>\n<p>Jamabandi.\n<\/p>\n<p>3.    The District Collector (Defendant No. 2) however invoked the<\/p>\n<p>earlier order dated 20th of November, 1968 by passing a fresh order<\/p>\n<p>on 20th of April, 1974. The appellants approached various authorities<\/p>\n<p>praying for an order restraining the defendant No. 2 (hereinafter<\/p>\n<p>referred to as &#8220;Respondent No.2) from delivering possession of the<\/p>\n<p>said land to the respondent No. 3 to District Education Officer, being<\/p>\n<p>Respondent      No. 3.     After being unsuccessful before different<\/p>\n<p>authorities, the appellant served a notice under Section 80 of the CPC<\/p>\n<p>read with Section 52 of the Rajasthan State Land Acquisition Act<\/p>\n<p>No.24 of 1953 on the respondent No.2 in his official capacity on 13th<\/p>\n<p>of December, 1985. Having failed to receive any reply, the appellants<\/p>\n<p>thereafter filed the suit on 25th of   March, 1987 seeking declaration<\/p>\n<p>that the order dated 20th of                April, 1974 passed by the<\/p>\n<p>respondent No.2 was null and void and ineffective and the appellants<\/p>\n<p>shall be delivered back possession of the said land, particulars of<\/p>\n<p>which has been described in paragraph 12 of the plaint, (herein after<\/p>\n<p>referred to as the `suit land&#8217;) from respondent No.3.<\/p>\n<p>4.    A joint written statement was filed on behalf of the State<\/p>\n<p>Government, Rajasthan and respondent No.2 who was arrayed as<\/p>\n<p><span class=\"hidden_text\">                                                          5<\/span><br \/>\ndefendant No. 2 and a separate written statement was filed on behalf<\/p>\n<p>of respondent No.3. It is by way of an additional plea in the said<\/p>\n<p>written statement filed by respondent No.3, a question was raised as<\/p>\n<p>to the maintainability of the suit for non-service of notice under<\/p>\n<p>Section 80 of the CPC on respondent No.3.\n<\/p>\n<p>5.    By an order dated 7th of July, 1992 the trial court framed<\/p>\n<p>several issues for trial in the suit and one of such issues, namely, issue<\/p>\n<p>No.4 was decided by the trial court as a preliminary issue which reads<\/p>\n<p>as follows:\n<\/p>\n<blockquote><p>      Issue No.4 &#8211; &#8220;Whether the suit of the plaintiff deserves<br \/>\n      to be dismissed for not serving of notice under Section<br \/>\n      80 of the CPC on defendant No.3 by the plaintiffs.&#8221;\n<\/p><\/blockquote>\n<p>6.    By an order dated 24th of March, 1994, Issue No.4 was decided<\/p>\n<p>by the learned Munsif, Ist Class Tibbi in favour of the appellants and<\/p>\n<p>against the respondent No.3, inter alia, holding that respondent No.3,<\/p>\n<p>although a public officer being the District Education Officer, was not<\/p>\n<p>required to be served notice under Section 80 of the CPC as he had<\/p>\n<p>not done any act in his official capacity. Feeling aggrieved by this<\/p>\n<p>order, respondent No.3 filed a revision petition before the High Court<\/p>\n<p>and the High Court by the impugned order held that since respondent<\/p>\n<p>No.3 being a District Education Officer must be served with a notice<\/p>\n<p><span class=\"hidden_text\">                                                             6<\/span><br \/>\nunder section 80 of the CPC as he was acting in the official capacity.<\/p>\n<p>Accordingly the High Court had set aside the order of the trial court<\/p>\n<p>and dismissed the suit in its entirety on the ground of non-service of<\/p>\n<p>notice upon the respondent No. 3. It is this order, which is now under<\/p>\n<p>challenge before us in appeal.\n<\/p>\n<p>7.    Before we proceed with the merits of the appeals against the<\/p>\n<p>aforesaid order of the High Court passed in revision, we may keep it<\/p>\n<p>on record that it was brought to our notice that by a final judgment<\/p>\n<p>and decree dated 24th of March, 1994, the suit itself was dismissed on<\/p>\n<p>merit by the trial court and a regular first appeal was filed by the<\/p>\n<p>appellants in the Court of the District Judge, Hanumangarh which<\/p>\n<p>was still pending at the time of decision of the revision case before<\/p>\n<p>the High Court. It is not known now whether the said appeal has yet<\/p>\n<p>been decided by the High Court or that in view of the order passed by<\/p>\n<p>the High Court in the aforesaid revision case which is under<\/p>\n<p>challenge before us, the appeal has also been dismissed not only on<\/p>\n<p>merit but also on the ground that the suit was not maintainable in law<\/p>\n<p>in view of non service of notice upon the respondent No.3. Be that as<\/p>\n<p>it may, it would now be appropriate for us to decide the question as to<\/p>\n<p>whether the non-service of notice upon the respondent No.3 under<\/p>\n<p><span class=\"hidden_text\">                                                          7<\/span><br \/>\nSection 80 of the CPC before filing the suit would be fatal and the<\/p>\n<p>court would have no other alternative but to dismiss the suit for such<\/p>\n<p>non service. In order to decide this question, it would be appropriate<\/p>\n<p>to refer to Section 80 of the CPC which reads as under:<\/p>\n<blockquote><p>      &#8220;Section 80 &#8211; NOTICE &#8211;\n<\/p><\/blockquote>\n<blockquote><p>      (1) Save as otherwise provided in sub-section (2), no<br \/>\n          suits shall be instituted against the Government<br \/>\n          (including the Government of State of Jammu &amp;<br \/>\n          Kashmir) or against a public officer in respect of<br \/>\n          any act purporting to be done by such public officer<br \/>\n          in his official capacity, until the expiration of two<br \/>\n          months next after notice in writing has been<br \/>\n          delivered to, or left at the office of<\/p>\n<\/blockquote>\n<blockquote><p>            (a) in the case of a suit against the Central<br \/>\n                 Government except where it relates to a<br \/>\n                 Railway a secretary to that Government\n<\/p><\/blockquote>\n<blockquote><p>            (b) in case of a suit against the Central<br \/>\n                 Government, where it relates to Railway, the<br \/>\n                 General Manager of that Railway;\n<\/p><\/blockquote>\n<blockquote><p>            (bb) in case of a suit against the Government of<br \/>\n            State of Jammu &amp; Kashmir the Chief Secretary to<br \/>\n            that Government or any other officer authorized<br \/>\n            by that officer on this behalf;\n<\/p><\/blockquote>\n<blockquote><p>            (c) in case of a suit against any other State<br \/>\n            Government, a Secretary to that Government or<br \/>\n            the Collector of the District; and in case of a<br \/>\n            public officer delivered to him or left at his office,<br \/>\n            stating the cause of action, the name, description,<br \/>\n            and place of residence of the plaintiff and the<br \/>\n            relief which he claims, and the plaint shall<br \/>\n            contain a statement that such notice has been so<br \/>\n            delivered or left.<\/p><\/blockquote>\n<p>      (2) No suit instituted against the Government or against<br \/>\n          a public officer in respect of any act purporting to<br \/>\n          be done by such public officer in his official capacity<\/p>\n<p><span class=\"hidden_text\">                                                            8<\/span><br \/>\n          shall be dismissed merely by reason of any error or<br \/>\n          defect in the notice referred to in sub-section (1), if<br \/>\n          in such notice<\/p>\n<p>             (a) the name, description and the residence of the<br \/>\n             plaintiff had been so given as to enable the<br \/>\n             appropriate authority or the public officer to<br \/>\n             identify the person serving the notice and such<br \/>\n             notice had been delivered or left at the office of<br \/>\n             the appropriate authority specified in sub-section<br \/>\n             (1) and\n<\/p>\n<p>             (b) the cause of action and the relief claimed by<br \/>\n             the plaintiff had been substantially indicated.&#8221;<\/p>\n<p>8.    Before we go into the scope and effect of Section 80 of the<\/p>\n<p>CPC, we may look at the allegations and reliefs claimed in the suit.<\/p>\n<p>As noted herein earlier, the trial court decided the issue, namely, issue<\/p>\n<p>No.4 on the ground that the respondent No.3 had not acted in his<\/p>\n<p>official capacity in the present case and, therefore, service of notice<\/p>\n<p>under Section 80 of the CPC on respondent No.3 was not necessary,<\/p>\n<p>whereas the High Court reversed the order of the trial Court and held<\/p>\n<p>that the respondent No.3 had acted in his official capacity and,<\/p>\n<p>therefore, non service of the notice on Respondent No. 3 would invite<\/p>\n<p>the court to dismiss the suit in its entirety. Let us now look into the<\/p>\n<p>allegations made in the plaint as well as the reliefs claimed in the<\/p>\n<p>same. The land of the appellants was acquired by respondent Nos. 1<\/p>\n<p><span class=\"hidden_text\">                                                            9<\/span><br \/>\nand 2 and in lieu thereof, possession, as described in para 2 of the<\/p>\n<p>plaint, was delivered to the appellants by the order of respondent<\/p>\n<p>No.2 in his official capacity, but respondent No.2 revoked the said<\/p>\n<p>order and out of the said lands, as described in para 2 of the plaint,<\/p>\n<p>possession of 7 bighas of land was delivered by respondent Nos.1 and<\/p>\n<p>2 to respondent No.3 in respect whereof the appellants prayed that<\/p>\n<p>possession of the said 7 bighas of land be delivered back to the<\/p>\n<p>appellants by respondent No.3 by way of consequential relief.<\/p>\n<p>9.    From the aforesaid facts alleged in the plaint, it would be<\/p>\n<p>evident that it was the respondent No.2 who had passed two orders<\/p>\n<p>dated 20th of November, 1968 and 20th of April, 1974 in his official<\/p>\n<p>capacity and that the notice under Section 80 of the CPC was duly<\/p>\n<p>served upon him before filing the suit. As noted herein earlier, since<\/p>\n<p>the possession of the suit land was taken over from the appellants by<\/p>\n<p>respondent Nos. 1 and 2 and delivered to respondent No.3, a prayer<\/p>\n<p>was made in the plaint to pass a decree directing the respondent No.3<\/p>\n<p>to deliver the possession to the appellants, which was consequential<\/p>\n<p>in nature. It is, therefore, clear that the respondent No.3 had not done<\/p>\n<p>any act in his official capacity and, therefore, in our view, as rightly<\/p>\n<p>held by the trial court that service of notice under Section 80 of the<\/p>\n<p><span class=\"hidden_text\">                                                           10<\/span><br \/>\nCPC, in the facts and circumstances of the case, was not at all<\/p>\n<p>necessary, as only a decree for possession was prayed for which was<\/p>\n<p>delivered by the respondent Nos. 1 &amp; 2 to Respondent No. 3 on the<\/p>\n<p>basis of recall of the order dated 20th of November, 1968.<\/p>\n<p>10.   Before we proceed further, we may keep it on record that the<\/p>\n<p>respondent No. 3 is a public officer within the meaning of Section 2<\/p>\n<p>(17) and Section 80 of the CPC. Therefore, let us consider whether<\/p>\n<p>the respondent No. 3 had acted, in the facts and circumstances of this<\/p>\n<p>case, in his official capacity or not. In our view, High Court had<\/p>\n<p>committed an error in holding that the respondent No. 3 in the facts as<\/p>\n<p>alleged in the plaint could be said to have acted as a public officer in<\/p>\n<p>his official capacity. It was respondent No. 2 who had passed the<\/p>\n<p>aforesaid two orders dated 20th of November, 1968 and 20th of April,<\/p>\n<p>1974 and in fact, who had passed the order of exchange of lands and<\/p>\n<p>also the order recalling the earlier order of 1968 in his official<\/p>\n<p>capacity. In that view of the matter, in our view, notice served on the<\/p>\n<p>District Collector, Sriganganagar was sufficient and complete notice<\/p>\n<p>to the Government Middle School, Daulatpura which was represented<\/p>\n<p>through the Education Officer (Students Institutions), Hanumangarh.<\/p>\n<p>Therefore, in our view, the High Court had misdirected itself in<\/p>\n<p><span class=\"hidden_text\">                                                             11<\/span><br \/>\ndeciding the issue regarding requirement of separate service of notice<\/p>\n<p>under Section 80 of the CPC. Looking into the allegations made in<\/p>\n<p>the plaint and the reliefs claimed, we do not find any reason to<\/p>\n<p>disagree with the view expressed by the trial Court when it had held<\/p>\n<p>that no act was performed by the respondent No. 3 in his official<\/p>\n<p>capacity. If we look at the plaint in the present case, it would be clear<\/p>\n<p>that in the plaint, no act of respondent No.3 is being challenged. The<\/p>\n<p>appellants do not seek to set aside any order of the respondent No.3<\/p>\n<p>or to declare illegal any of the acts of respondent No.3, it merely<\/p>\n<p>seeks a decree for recovery of possession in the suit to hand over<\/p>\n<p>possession of the suit land to the appellants. The suit which is not in<\/p>\n<p>respect of any act done by the respondent No.3, as a public officer,<\/p>\n<p>and in which no act of respondent No.3 is either challenged or sought<\/p>\n<p>to be set aside is not a suit to which Section 80 of the CPC can very<\/p>\n<p>well apply. Therefore, in the facts and circumstances of the present<\/p>\n<p>case, the respondent No.3 had not acted in his official capacity for<\/p>\n<p>which service of notice under Section 80 of the CPC was necessary.<\/p>\n<p>That apart, it is not in dispute that the respondent No. 2 was<\/p>\n<p>Administrator and overall in-charge including the Government<\/p>\n<p>Middle Schools (Students Institutions) in the District and the notice<\/p>\n<p><span class=\"hidden_text\">                                                            12<\/span><br \/>\nserved on the State Government through District Collector of the<\/p>\n<p>District was sufficient compliance with the requirements of Section<\/p>\n<p>80 of the CPC. In view of the aforesaid fact, it was not necessary to<\/p>\n<p>separately serve a notice to respondent No.3 as we find that no order<\/p>\n<p>was passed by the District Education Officer, which was under<\/p>\n<p>challenge in the suit itself.\n<\/p>\n<p>11.    In view of our discussions made hereinabove, we are therefore<\/p>\n<p>of the view that the High Court had fallen in error in reversing the<\/p>\n<p>order of the trial Court holding that service of notice on respondent<\/p>\n<p>NO. 3 under Section 80 of the CPC was not necessary to be served to<\/p>\n<p>maintain the suit.     In State of Maharashtra and Anr. Vs. Shri<\/p>\n<p>Chander Kant (AIR 1977             SC 148), this Court laid down the<\/p>\n<p>principle as to when service of notice on the State\/defendants under<\/p>\n<p>Section 80 of the CPC was necessary. In the said decision, this Court<\/p>\n<p>observed as follows :-\n<\/p>\n<blockquote><p>              &#8220;The language of Section 80 of the Code of Civil<br \/>\n       Procedure is that a notice is to be given against not only<br \/>\n       the Government but also against the Public Office in<br \/>\n       respect of any act purporting to be done in his official<br \/>\n       capacity. The Registrar is a Public Officer. The order<br \/>\n       is an act purporting to be done in his official capacity.<\/p><\/blockquote>\n<p>              In the present case, the suit is to be set aside the<br \/>\n       order made by a Public Officer in respect of an act done<br \/>\n       in the discharge of his official duties. Therefore, notice<\/p>\n<p><span class=\"hidden_text\">                                                            13<\/span><br \/>\n      under Section 80 of the Code of Civil Procedure was<br \/>\n      required.&#8221;\n<\/p>\n<\/p>\n<p>12.   From the aforesaid, it would be evident that this Court held that<\/p>\n<p>service under Section 80 of the CPC was necessary as in that case, the<\/p>\n<p>suit was filed for setting aside an order passed by a public officer in<\/p>\n<p>respect of an act done in the discharge of his official duties. In that<\/p>\n<p>view of the matter, in that decision, it was held that service of notice<\/p>\n<p>under Section 80 of the CPC was necessary and in the absence of that<\/p>\n<p>service, the suit must be dismissed. This is not the factual position in<\/p>\n<p>this case. We have already held that Respondent No. 3 had not<\/p>\n<p>passed any order as a public officer nor the appellants had asked for<\/p>\n<p>setting aside any order passed by the respondent No. 3 as a public<\/p>\n<p>officer in respect of any act done in the discharge of his official<\/p>\n<p>duties.   As noted herein earlier, the appellants have made the<\/p>\n<p>respondent No. 3 as a party although he was a public officer only on<\/p>\n<p>the ground that possession was delivered to him by the respondent<\/p>\n<p>No. 2 in the exercise of his official capacity. For the purpose of<\/p>\n<p>possession to be delivered back to the appellants, the respondent No.<\/p>\n<p>3 was made a party by which, in our view, he had not at all acted in<\/p>\n<p>discharge of his official capacity. A look at the reliefs claimed in the<\/p>\n<p><span class=\"hidden_text\">                                                           14<\/span><br \/>\nplaint would clearly show that only a consequential relief was<\/p>\n<p>claimed in the suit to the extent that possession of the suit land should<\/p>\n<p>be restored in favour of the appellants by the respondent No. 3.<\/p>\n<p>Therefore, in view of the aforesaid discussion made hereinabove, we<\/p>\n<p>hold that even in the absence of service of notice on the respondent<\/p>\n<p>No.3 under Section 80 of the CPC, the suit was maintainable in law.<\/p>\n<p>13.   Before concluding, we may also keep it on record, as noted<\/p>\n<p>herein earlier, that from the record it appears to us that the suit itself<\/p>\n<p>was dismissed on merits after the issue No. 4 as to the maintainability<\/p>\n<p>of the suit for non-service of notice upon the respondent No. 3 was<\/p>\n<p>decided in favour of the appellants. It is\/was now pending in appeal<\/p>\n<p>before the appellate court. Therefore, by any stretch of imagination, it<\/p>\n<p>cannot be said that at the time the revision was decided, it was open<\/p>\n<p>to the High Court to deal with Issue No.4 passed by the trial court<\/p>\n<p>when the suit itself was dismissed on merits. That is to say, the<\/p>\n<p>revision became infructuous in view of the disposal of the suit on<\/p>\n<p>merits. For this reason also, the impugned order of the High Court is<\/p>\n<p>liable to be set aside. Accordingly, if the appeal is still pending for<\/p>\n<p>decision, we direct the appellate court to decide all the issues in the<\/p>\n<p>suit excepting Issue No.4 which is being decided by us in favour of<\/p>\n<p><span class=\"hidden_text\">                                                             15<\/span><br \/>\nthe appellants by this judgment on merit within a period of six months<\/p>\n<p>from the date of supply of a copy of this judgment.\n<\/p>\n<p>14.   For the reasons aforesaid, the impugned order is set aside and<\/p>\n<p>the order of the trial court holding that the suit was maintainable for<\/p>\n<p>non-service of notice under Section 80 of the CPC on the respondent<\/p>\n<p>No.3 is hereby restored. The appeals are allowed to the extent<\/p>\n<p>indicated above. There will be no order as to costs.<\/p>\n<p>                                         &#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;J.\n<\/p>\n<p>                                                              [ TARUN<br \/>\nCHATTERJEE ]<\/p>\n<p>New Delhi:                               &#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;&#8230;J.\n<\/p>\n<pre>September 29, 2008                                         [ DALVEER\nBHANDARI ]\n\n\n\n\n<span class=\"hidden_text\">                                                             16<\/span>\n<\/pre>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Ram Kumar &amp; Anr vs State Of Rajasthan &amp; Ors on 29 September, 2008 Author: T Chatterjee Bench: Tarun Chatterjee, Dalveer Bhandari REPORTAB LE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 115-116 OF 2001 Ram Kumar and Anr. &#8230; Appellants VERSUS State of Rajasthan and Ors. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-26526","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Ram Kumar &amp; Anr vs State Of Rajasthan &amp; Ors on 29 September, 2008 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-kumar-anr-vs-state-of-rajasthan-ors-on-29-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Kumar &amp; 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