Mohd. Abdul Gani vs Shibapada Mookerjee

R. Bhattacharya, J.—This appeal has been directed against the judgment and the decree passed on September 12, 1962, by a learned Subordinate Judge, 24-Parganas, in T.A. 417 of 1961, reversing those of a Court of the Munsif at Bangaon passed in T.S. 142 of 1957. The Appellants before this Court were the Plaintiffs in the original suit.

In short, the case in the plaint is that the Plaintiffs, four in number, have a raiyati sthitiban holding in respect of plot No. 871 measuring 1-95 acres recorded in R.S. khatian No. 327 at an annual rental of Rs. 7-50 paise. Previously, their landlords were the Defendants Nos. 1 to 3; but after the date of vesting, the pro forma Defendant No. 4, the State of West Bengal has become their landlord. It has been claimed further that the Plaintiffs have acquired perfect title also by their possession for more than twelve years. It is alleged that the Defendants Nos. 1 to 3 in Baisakh 1363 B.S. unlawfully entered on the plot No. 871, which is the suit land and have been possessing the same in spite of protest. The suit was, therefore, filed by the Plaintiffs for a declaration of their title to the land in question and for evicting the Defendants therefrom. The State of West Bengal was made a pro forma Defendant.

The Defendants Nos. 1 to 3 filed a joint written statement. Their case is that the suit is not maintainable as no notice u/s 80 of the CPC was served on the pro forma Defendant No. 4. The suit is barred by limitation. It has been alleged that the Plaintiffs had never been tenants under the Defendant in respect of the suit land, neither had they any possession therein at any point of time. The Plaintiffs never paid any rent to the Defendants for the suit land. The Defendants have claimed the said land as their khas property. During the last revisional settlement operation the Plaintiffs managed to get the land recorded in their names fraudulently and without the knowledge of the Defendants, but during the settlement operation for the purpose of estate acquisition, the names of the Defendants have been correctly recorded.

The learned trial Court decreed the suit, but the First Appellate Court set aside the decision of the trial Court and dismissed the suit on the findings that the suit was bad for two reasons. First ground was that two co-sharers of the Plaintiffs in respect of the suit land were not made parties and the second reason was that no notice u/s 80 of the CPC was served on the pro forma Defendant.

The first contention of Mr. B.K. Panda appearing for the Appellants is that the learned Subordinate Judge in the First Appeal should have held that no notice u/s 80 of the CPC was required to be served on the State of West Bengal, the pro forma Defendant No. 4, against which no relief was claimed by the Plaintiffs. His further submission is that, for want of such notice the entire suit would not be bad, at best the plaint as against the State might have been rejected. Mr. Manomohan Mukherji for the Respondents Nos. 1 to 3 has argued that for non-service of notice u/s 80 of the CPC on the State of West Bengal, even though a pro forma Defendant, there is no illegality in dismissing the entire suit and at any event, the plaint for the entire suit should be rejected.

In the present case, admittedly no notice u/s 80 of the CPC was served on the State of West Bengal which has been described as pro forma Defendant No. 4. There is no denying the fact that no relief has been claimed against it. No reason is assigned as to why the State has been made a party to this suit. Now, the question arises whether, in spite of these facts, any notice u/s 80 of the CPC was necessary to be served for impleading the State in this suit. Section 80 of the Code runs as follows:

No suit shall be instituted against the Government including the State of Jammu and Kashmir 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 of--

(a) in the case of a suit against the Central Government, except where it relates to a Railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a Railway, the General Manager of that Railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;

(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;

and, (d) in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the Plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

Section 80 of the CPC has got to be strictly complied with. In the case of Bhagchand and Dagdusea Gujrathi and Ors. v. The Secretary of State for India in Council 32 C.W.N. 61 the Privy Council held in the judgment delivered by Viscount Sumner:

The Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory and it admits of no implications or exceptions...Section 80 imposes a statutory and unqualified obligation upon the Court.

It has been made clear in this judgment that to read any qualification into this section would be an encroachment on the function of legislation. This principle has been echoed by our Supreme Court in the case of The State of Madras Vs. C.P. Agencies and Another, . In Section 80 of the Code there is no provision or even indication that no notice under the section need be served if the State Government be made merely a pro forma Defendant in a suit or if no relief is claimed against it.

In this connection, the decision of the Division Bench of the Patna High Court in the case of The Secretary of State for India in Council v. Amarnath ILR (1936) Pat. 353 may be considered. In that case, the Secretary of State was impleaded as a pro forma Defendant and no notice u/s 80 of the CPC was served on him. The Munsif rejected the plaint for non-compliance with Section 80. In appeal, the District Judge held that no such notice was necessary, as no relief was claimed against the Secretary of State and no cause of action was alleged against him. Against that decision the High Court, following the principle that Section 80 is express, explicit and mandatory admitting no implications and exceptions, held as follows:

To accept the interpretation of the learned District Judge in the present case would entail reading into the section a qualification that in a suit against the Secretary of State notice is not required where no relief is sought against him. It is impossible to insert those words in the section or to read the section as if those words found a place in it. The words of the section are perfectly unambiguous that no suit shall be instituted against the Secretary of State until two months after notice of the suit has been served upon him. There is no qualification of this requirement and no qualification can be read into the section. The decision of the District Judge was reversed and the case was sent back for disposal on merit after expunging the name of the Secretary of State from the action, as the suit was not maintainable against him. On consideration of the language of Section 80 of the Code of Civil Procedure, I should hold that the present suit is not maintainable against the State of West Bengal for want of notice u/s 80, although it is made a pro forma Defendant and no cause of action has been mentioned against it in the plaint.

Now, the question is, ''what should be the fate of the suit for non-compliance with Section 80?'' The relevant provision of law is Order 7, Rule 11(d) of the Code of Civil Procedure. I quote below the relevant portions of the Rule:

The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action:

(b) ... ...

(c) ... ...

(d) where the suit appears from the statement in the plaint to be barred by any law.

In the instant case, in the plaint no cause of action has been disclosed as against the State of West Bengal. No notice u/s 80 of the CPC was served on it and it has not been stated in the plaint that such notice was served at all. Clearly, therefore, this case comes under the purview of Order 7, Rule 11 of the Code.

The next point that arises for consideration is whether the plaint in its entirety should have been rejected or the plaint as against the State of West Bengal was to be rejected. Similar question arose in the case of Mst. Chandani Vs. Rajasthan State and Others, . In that case some decisions of different High Courts were placed to show that there were two views. One view is that the plaint must be rejected as a whole. The other view is that, in proper cases the Court is to strike off the names of the Defendants against whom the suit is not maintainable and to allow the suit to continue against the remaining Defendants provided, of course, the suit is not bad for want of necessary party. I.N. Modi J., on consideration of the cases referred to, accepted the latter view and he held:

Order 7, Rule 11, Code of Civil Procedure, undoubtedly lays down, inter alia, that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. It seems to me, however, that this Rule would be attracted into its full application where the suit as a whole should be so barred and different considerations may reasonably arise where such a suit happens to be barred against some of the Defendants but may still be good against the others.

In the case of Mt. Phool Sundri Vs. Gurbans Singh and Others, a similar view was taken by a Division Bench of Rajasthan High Court. Wanchoo C.J., as his Lordship then was, stated in connexion with Order 7, Rule 11(a) of the Code of Civil Procedure:

We have given our earnest consideration to this matter and we do not see why where a plaint discloses no cause of action against some of the Defendants it cannot be rejected against those Defendants. We can understand that a plaint has to be rejected in toto the sense that a Court cannot reject one part of the plaint against all the Defendants and carry on with the rest of the plaint against them, but we cannot understand why the Court cannot reject the entire plaint against a particular Defendant and carry on with the entire plaint against others. It appears to me that on construction of Order 7, Rule 11 of the Code of Civil Procedure, the view of the Rajasthan High Court, as stated above, is reasonable and I have no hesitation to accept the same with great respect. If this view is taken, unnecessary delay in litigation and abuses of processes of Court will be avoided. It may be mentioned that I asked the learned Advocates of both the sides to find out any decision of our High Court on this point, but unfortunately no such case was cited before me. In the present case, no notice u/s 80, Code of Civil Procedure, was served on the pro forma Defendant No. 4, State of West Bengal and no such averment was made in the plaint. There was no statement in the plaint regarding cause of acting against the State. No relief against it was prayed for. According to the plaint, the Plaintiffs want to establish their tenancy right in the suit land and want a decree for eviction against the Defendants Nos. 1 to 3 who are described as trespassers. In the circumstances, the plaint can be rejected under Order 7, Rule 11, Code of Civil Procedure, as against the pro forma Defendant No. 4, the State of West Bengal and the suit can proceed against the other Defendants. When the plaint is liable to be rejected as against the proforma Defendant, its name should be struck off the cause title of the plaint under Order 1, Rule 10, Code of Civil Procedure.

Mr. Mukherji for the Respondents, at first, tirade a faint submission to say that the suit was liable to be dismissed and in that connexion it was submitted that the case of Bhagchand Dagdusea Supra referred to earlier was dismissed though there was non-compliance of Section 80 of the Code of Civil Procedure. In that case no question arose as to whether the suit would be dismissed or plaint would v be rejected for non-compliance with Section 80 of the Code of Civil Procedure. The provision of Order 7, Rule 11 was not considered. Moreover, there is no denial from the side of the Respondents that the present case is covered by Order 7, Rule 11(d) of the Code and the said provision speaks about the rejection of the plaint. There can be no dismissal of the suit under Order 7, Rule 11. On the other hand, in the case of Hiralal v. Mangtulal 48 C.W.N. 421 of our High Court, referred to by Mr. Mukherji, McNair J. says:

Once the Court has found that notice is necessary and has not been given and that the plaint does not contain an averment to that effect, no valid suit is before the Court on which it can pronounce judgment and its sole duty is to reject the plaint under Order 7, Rule 11(d) of the Code.

Similarly, Gentle J. has held the same view in that very case. In view of the clear provision of law in Order 7, Rule 11, Code of Civil Procedure, the plaint is liable to be rejected. The suit cannot be dismissed on that account.

I shall now come to the other contention of Mr. Panda relating to the question of non-joinder of parties, as held by the learned Subordinate Judge of the First Appellate Court. It has been urged first that the learned Subordinate Judge ought not to have raised the question when the Defendants did not take up the said plea and no issue was struck on the point. Secondly, it has been submitted that even if any co-sharer is left out of the suit, the Plaintiffs'' shares in the suit land could have been ascertained without dismissing the suit. I think, in the present case, the learned Subordinate Judge acted beyond the limits of the plaint and under misconception of law. The points as urged by Mr. Panda, however, do not appear to be of any substance.

In the plaint, the definite case of the Plaintiffs is that they were the tenants under the Defendants Nos. 1 to 3 in respect of the suit land. They have not indicated within the four corners of the plaint that they have inherited the property from their father or that it was their ancestral property. The Defendants completely denied the Plaintiffs'' title and their possession. The Defendants had no occasion to take up the point for non-joinder of parties when the Plaintiffs claimed the land as theirs without reference to their father or fore-fathers. During the examination-in-chief the Plaintiff No. 1 laid the claim of the Plaintiffs alone for the suit with the support of the khatian wherein their names appeared; but, in order to show the frivolity of such claim, the said Plaintiff was cross-examined by the Defendants if the suit was the paternal property of the Plaintiffs and if other co-sharers were alive. To this the Plaintiff No. 1 stated that it was his paternal property and it appears from his evidence that one sister and a sister''s son were alive and that he wanted to include their names in the khatian. This cross-examination was directed from the side of the Defendants only to shake the credibility of the story of the Plaintiffs that the suit land was theirs only and also to challenge the correctness of the khatian or rather to show that the presumption of correctness of title arising out of the Plaintiffs'' khatian was unacceptable. The Defendants did not set out their case that the suit land was the paternal property of the Plaintiffs or that any of their co-sharers was left to be made a party. It is to be noted also that after the Plaintiff No. 1 admitted that a sister of his was alive who was a co-sharer with the Plaintiffs, according to Mahammedan Law, no attempt was made to explain why the sister was not made a party to the suit or whether the Plaintiffs acquired her interest in any manner. In spite of sufficient opportunities, the Plaintiffs did not even amend the plaint to explain the fact or to implead the sister or bhagina as party to this suit. If the Plaintiffs, even if it is assumed, claim the suit land as their paternal property keeping deliberately any co-sharer out of the suit without explaining his or her absence, this case cannot succeed for want of necessary party because in the absence of a co-sharer the decree, if passed, would be ineffective and infructuous and this decree would not be binding on the co-sharer left out and without the presence of such co-sharer no proper decision can be made. There is no knowing if the co-sharer not impleaded in the suit would at all support the Plaintiffs'' claim. The suit would, in that case, be bad for non-joinder of necessary party. The Plaintiffs cannot get any decree for declaration of their share in the property and for eviction of the Defendants.

The Plaintiffs are to prove their own case, as specifically stated in the plaint. In this case, they have claimed sixteen anna share in the tenancy. They do not mention any other co-sharer besides themselves, four in number. The Defendants deny that the Plaintiffs were tenants. They claim the suit land as their khas property. It is nobody''s case in the pleadings that the Plaintiffs have any other co-sharer. In the plaint, the Plaintiffs say that they are the tenants of the suit land and that by adverse possession they have also acquired the right of tenancy in the suit land. Therefore, the question of any other co-sharer of the Plaintiffs being left out does not arise. In the trial Court, the Plaintiffs claimed at the time of hearing sixteen anna interest in the suit land. The learned Munsif found that the Plaintiffs were the only tenants of the land in question. Of course, Mr. Mukherji has contended that the learned Munsif without any evidence held that there must have been relinquishment of the sister''s interest in favour of the Plaintiffs. Mr. Panda, for the Appellants, however, has not been able to find out any evidence in support of the finding. He therefore pleads that, if any co-sharer is left out, the shares of the Plaintiffs may be ascertained. I have already found that the said plea is untenable. In the First Appeal, the learned Subordinate Judge failed to appreciate the cases of the parties as revealed in their pleadings. He took up a third party''s case to hold that, owing to the absence of the Plaintiff No. 1''s sister and a bhagina in the suit, the trial was bad for non-joinder of party. He should have understood the real intention of the Defendants to cross-examine the Plaintiff No. 1 as to whether the suit land was the property of his father and if any co-sharer was left out. The Defendants wanted to impeach the correctness of the R.S. khaiian recorded in the name of the Plaintiffs and to show the hallowness of the Plaintiffs'' claim for the suit land as their own. The learned Subordinate Judge misread the case of the parties and due to misconception of law, held that the suit was bad for non-joinder of necessary party for the absence of the sister of the Plaintiff No. 1 in the suit. In the plaint, it was not the case of the Plaintiffs that they had any co-sharer who had not been impleaded in the suit. Neither should the Plaintiffs be allowed to raise a new case that they have a co-sharer though not impleaded in the suit and that the Plaintiffs'' specific share in the suit land excluding the share of the co-sharer left out be declared. The finding of the learned Subordinate Judge that the suit is bad for non-joinder of party is erroneous and untenable.

It appears that the First Appellate Court dismissed the suit on the grounds that the suit was bad for non-service of notice u/s 80 of the CPC and for non-joinder of party, as already stated. The learned Subordinate Judge did not go into the evidence and circumstances of the case to consider and decide the suit on merits and other points. Mr. Mukherji, the learned Advocate for the Respondents, has submitted that this Court in the Second Appeal may dispose of the appeal on merits, as order for remand to the First Appellate Court may cause further delay. When the First Appellate Court did not at all consider the case on merits with reference to the evidence, I do not like to express any opinion as to the worth of the materials on record. The parties have a right to have the questions of facts decided in the First Appeal and refusal of this valuable right may cause prejudice to either of the parties and failure of justice.

In view of my findings above, this appeal succeeds. The order for dismissal of the suit passed by the First Appellate Court is hereby set aside. As the suit against the pro forma Defendant No. 4, State of West Bengal, is not maintainable, its name is hereby struck off. The suit is sent back to the First Appellate Court for decision according to law on other points and merits. As the matter is long pending, the appeal shall be disposed of as expeditiously as possible. In the circumstances of this case, I pass no order as to costs. Send down the records without delay.