Kashi Nath Aima vs Bishen Singh and Another

J.L. Kilam, J.—Whether or not a notice u/s 80 of the Civil P.C. should have been served on defendant No. 2, is a matter which should have

been decided before taking any proceedings in this case. u/s 80, Civil P.C.

No suit shall be instituted against a public officer in respect of any act purporting to have been done by such officer in his official capacity unless a

four months' notice in writing has been delivered to him or left in his office.

It has been universally held that Section 80 is mandatory and admits of no exceptions. Therefore a Court is debarred from entertaining a suit

instituted without complying with the requirements of Section 80. A suit not complying with the provisions of Section 80 cannot be entertained by

any court and if instituted must be rejected under Order 7 Rule 11 Civil P.C. In short, a notice under this section in cases against the Government

or a public servant acting or purporting to act as a Government servant is a condition precedent to the institution of the suit. From this it would

follow that if the order of the learned Senior Sub Judge Srinagar is allowed to stand, it would simply mean a great deal of wastage of time and

energy in taking proceedings in the suit, if ultimately the learned Senior Sub-judge finds that notice u/s 80 was necessary and for want of which the

suit deserved dismissal.

I, therefore, accept this Revision application and remit the case to the trial court with the direction that it should decide the question of necessity

or otherwise of the notice u/s 88 before taking any further proceedings in the suit itself. In order to arrive at a definite finding as to whether the act

of the public officer was an act purported to have been done by him in his official capacity, the learned Sub-judge may, if he so chooses, record

some evidence. But in any case this point shall be decided before any other point that arises in the suit is decided.

Costs will abide the result.