Ajith Kumar vs Suresh Kumar

S. Sankarasubban, J.—This C.R.P. is filed by the Petitioner against the order dated 14.2.1997 of the Prl. Munsiff, Thiruvananthapuram, on the plaint with C.F. No. 4412. The Petitioner is an Advocate practising in Thiruvanthapuram. According to him, he was appearing along with his senior for the Plaintiff in O.S. No. 1222 of 1996 on the file of the Munsiff''s Court, Thiruvananthapuram. On behalf of the Plaintiff in the above suit, the Petitioner had obtained an order of injunction restraining the Defendants in the suit from trespassing into B Schedule pathway. The first Defendant in the above suit was one Gopalan Nair, who was a retired Police Constable. After the order of interim injunction was obtained, the brother of the first Defendant filed a complaint before the Sub Inspector of Police, Peroorkada Police Station against the brother of the first Plaintiff viz. Jayaprakash. Since there was an order of injunction obtained by the Plaintiffs, the Plaintiffs instructed the Petitioner to appear on behalf of the Plaintiff''s brother in the Police Station. It seems that the Petitioner appeared before the Sub Inspector of Police to appraise him about the order of injunction. Petitioner has stated that the behaviour of the Sub Inspector of Police who was impleaded as the first Defendant in the suit was very bad. He made comments against the profession of Advocates and also against the Court, further, according to the Petitioner, the Inspector physically assaulted him and abused and insulted him. He grabbed the Petitioner by neck and violently pushed him against the wall. Petitioner sustained acute pain when he was struck against the wall. Petitioner is seriously aggrieved by the wholly illegal acts of the first Defendant and he has further stated that he is entitled to damages. Totally, he has claimed Rs. 70,000/- as damages. They are split into the following claims:

a. Pain and suffering Rs. 25,000.00

b. For fear induced by threat or use of force Rs. 10,000.00

c. For loss of dignity suffered Rs. 10,000.00

d. For loss of reputation and for damages for the abuse and insults Rs. 25,000.00

Notice u/s 80 of the CPC was given to the first Defendant. Petitioner had also impleaded the State of Kerala as second Defendant though no notice was issued to it u/s 80. No relief was also claimed against the State of Kerala.

The learned Munsiff took the view that since the State is made a party, even though no relief is claimed against the State, notice u/s 80(1) CPC to the second Defendant is necessary. Hence, the plaint was returned for presentation after a copy of Section 80 notice is given to the 2nd Defendant. It is against the above order that the present revision is filed.

Learned Counsel for the Petitioner, Sri Thottathil B. Radhakrishnan, contended that the Petitioner has not claimed any relief against the State. The State is impleaded only by virtue of the provisions contained in Order 27, Rule 5A Code of Civil Procedure. Even if notice had been issued to the State, the State would not have been able to give any relief, since the person against whom relief is claimed is the first Defendant. Hence according to him, the Court below was not right in holding that notice should have been issued to the State u/s 80 Code of Civil Procedure.

On behalf of Respondents 1 and 2 it is submitted that under Order 27, Rule 5A CPC there is a direction that in case where suits have been instituted against officers for acts done in the discharge of their duties, the State has to be impleaded as a necessary party. Hence, according to them, since the State has to be impleaded as a party, notice u/s 80 CPC has to be given to the State. So, the question for consideration is whether, when the State is impleaded as a party as per the provisions of Order 27, Rule 5A Code of Civil Procedure, notice u/s 80 CPC is to be given to the State. In this case, notice was given only to the first Defendant u/s 80 Code of Civil Procedure.

Order 27, Rule 5A CPC states as follows:

5A. Government to be joined as a party in a suit against a public officer. Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.

Thus, after the insertion of Rule 5A, it has become mandatory to impleaded the State as a party in cases where a suit is instituted against a public officer for anything done in his official capacity. Order 27 CPC deals with suit by or against Government or public officers in their official capacity.

In the 1st report of the Law Commission on Liabilities of State in Tort, in clause IV(iii), there was a suggestion as follows:

Appropriate provision should be made while revising the CPC to make it obligatory to implead as party to a suit in which a claim for damages against the State is made, the employee, agent or independent contractor for whose act the State is sought to be made liable. Any claim based on indemnity or contribution by the State may also be settled in such proceeding as all the parties will be before the Court (page 34).

But it is seen that this suggestion was not accepted in the 27th Report of the Law Commission of India, where it is sated as follows: (Page 216)

In an earlier report, the Law Commission of India recommended to the effect that when a suit for damages if filed against the Government in respect of any at of its employee, agent or independent contractor, the employees should be impleaded as a party to the suit. It was also stated that any claim based on indemnity or contribution by the State may well be settled in such proceedings as all the parties will be before the Court. An amendment of the CPC was recommended on these lines. But the 27th report further states: "The recommendation was not carried out in the report of the Commission on the Code, as it was felt that a mandatory provision of the nature suggested was not needed". In the 54th report of the Law Commission what is seen is that the earlier recommendation to implead Government officers is not accepted. On the other hand, the recommendation was to the following effect:

We agree with the view taken in the 27th report, as a mandatory provision of the nature suggested in the 14th Report will unnecessarily cause inconvenience to individual officers. But we would like to make a provision for the converse situation, namely where a suit is filed against the employee for official acts. In such cases, the Government should, we think, be made a party, so that the question of State liability is decided in that very suit. Here, a mandatory provision would not cause hardship to individual officers.

Thus, the intention behind Order 27, Rule 5A appears from the following objects and reasons:

New Rule 5A is being inserted to provide when a suit is filed against a public officer for anything done by him in his official capacity, the Government should also be made a party so that the question of liability of the State is decided in that very suit.

In such a suit, the duties and liabilities of the State often arises. Often the question will arise whether the official acted within his authority or outside his authority. If the unauthorised and wrongful act of the servant is not so connected with the authorised act, but is an independent act, Government may not be liable. Similarly, the Government will not be liable for a dishonest or criminal act of its servant. There may be many acts for which the Sate may or may not be vicariously liable. If the Government is made a party, it will place before the Court the entire materials on the basis of which the Court can give a just decision. Further, it will also forbid future litigation between the officer and the State.

Now, the question for consideration is whether when a State is impleaded as per the direction in Order 27, Rule 5A. should it be preceded by a notice u/s 80 Code of Civil Procedure. In this case, notice has been given to the official and the learned Munsiff has taken the view that without notice to the State, the plaint won''t be valid and he returned the plaint to be presented after curing the defect. Section 80 CPC reads as follows:

No suit shall be instituted against the Government including the Government of the State ... 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.

Clause (1) of Section 80 states that the notice shall state the name, description and the address of the Plaintiff and the cause of action and the relief claimed by the Plaintiff.

The intention behind Section 80 came for consideration before the Supreme Court in The State of Madras Vs. C.P. Agencies and Another, , The Supreme Court held thus:

The object of the section is manifestly to give the Government or the public officer sufficient notice of the case which is proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the Plaintiff should be accepted or resisted. In order to enable the Government or the public officer to arrive at a decision it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise reliefs asked for.

Thus, the object of the section appears to inform the Government the grievances of the Plaintiff and the reliefs which he prays for. Government can scrutinise the same and if it finds that the grievances in the notice and the reliefs claimed for are to be allowed, then it can straightaway grant the reliefs instead of forcing the party for a litigation. It is to avoid a litigation that this notice has been contemplated. But the question is when there is no personal relief asked against the Sate, is it necessary that the State should be given notice before filing the suit. The same question arose for consideration before a Full Bench of the Bombay High Court in Chandrakant Govind Deshmukh Vs. The State of Maharashtra and Another, . There the Full Bench of the Bombay High Court was considering the question whether no relief is asked for personally, notice u/s 80 CPC is necessary. Dealing with this question, Tambe C.J. held as follows:

Thus, the test laid down by Their Lordships is whether any relief is asked personally against the Government or a public officer and this is the test for determination whether notice u/s 80 is required to be given or not. If relief is asked personally against the Government or a public officer notice u/s 80 is necessary. If no relief personally against them was asked no notice is necessary.

A single Judge of the Calcutta High Court in Mrs. Maniluxmi Patel and Another Vs. Hindusthan Co-operative Insurance Society, Ltd. and Another, , held that if no cause of action is alleged and no relief is claimed notice u/s 80 is not necessary. The notice requires Plaintiff to sate the cause of action and the reliefs which he claims. The aforesaid requirements of the notice indicate that it is within the competent of the Government or the public officer to grant the relief. Therefore, the expression "suit against the Government" or against the public officer is in respect of an act in which a relief is claimable against the Government or public officer and it is within the competence of the Government or public officer to grant the reliefs claimed. The interpretation has to be made on the words actually used in the statute.

To arrive at the real meaning it is always necessary to get an exact construction of the aim, scope and object of an Act. The object of the section appears to be to give to the Government or public officer an opportunity tore-consider the legal position and other aspects of the claim made. "If the relief is only against one party, it is not necessary to send a notice u/s 80 Code of Civil Procedure". Of course, a different view is taken in Union of India, Railway Administration, Madras and Others Vs. Eastern Match Co., Tirumangalam, . It took the view that even where the Government was only a proforma Defendant, a notice u/s 80 is necessary. I agree with the decision of the Calcutta High Court and the Bombay High Court rather than the decision rendered by the A.P. High Court. According to me, the intention behind Section 80 notice is to see that sufficient time is given to the Government or its officer to scrutinise the claim and settle it without litigation. But, this is not possible when no relief is claimed against the Government.

In the above view of the matter, I am of the view that the order of the Court below is not correct and it is set aside. The Court below is directed to number the suit and proceed with the same. CRP is allowed.