Vakilanwala Co-op. Agri. Service Society vs Mohinder Singh

S.S. Kang, J.

This Revision Petition under Section 115 of the Code of Civil Procedure is directed against the order dated August 24, 1984, of the learned Subordinate Judge 1st Class, Zira, whereby he allowed the application of the respondentplaintiff to withdraw the suit with permission to file a fresh one, which had been filed in the following circumstances :

Mohinder Singh, respondent, filed a suit for declaration that the notices issued by the Assistant Registrar, Cooperataive Societies, Zira and the ex parte award passed by the Arbitrator without informing the plaintiff are a nullity and have been given/made in contravention of the statutory provisions and principles of natural justice.

The suit was resisted by the defendant The Vakilanwalan Cooperative Agricultural Service Society, Vakilanwalan. In its written statement it was pleaded, inter alia, that the State of Punjab was a necessary party and because of the nonimpleading of a necessary party, the suit was liable to be dismissed. At this stage, the plaintiffrespondent filed an application under Order 23 Rule 1, Civil Procedure Code, for withdrawing the suit for filing a fresh suit. It was averred in the application that the State of Punjab was a necessary party to the suit. However, a suit could not be filed against the State of Punjab without serving a notice under Section 80, Civil Procedure Code . The suit, therefore, would have failed because of a technical defect.

The petitionerdefendant opposed this application and urged that non impleading of the State of Punjab and the noncompliance with the provisions of Section 80 Civil Procedure Code, was not a technical defect and the suit could not be allowed to be withdrawn on this score.

The learned trial Judge came to the conclusion that the State of Punjab was necessary party and this plea has rightly been taken by the defendants. A suit, however, could be filed against the State of Punjab only after serving a notice under Section 80, Civil Procedure Code. In case the plaintiff did not withdraw the suit and only made an application for amendment of the plaint for impleading the State of Punjab as a party, the suit was bound to fail on the technical ground that notice under Section 80, Civil Procedure Code, had not been served. The learned trial Judge allowed the application and granted the necessary permission. Aggrieved, the petitioner has filed this Revision Petition.

Shri Ravinder Chopra, the learned counsel for the petitioner has urged that the State of Punjab had not been impleaded as a defendant. So, there was no question of serving any notice. The absence of notice would not render the suit liable to be dismissed. The nonimpleading of a necessary party does not constitute a formal defect as envisaged by Rule 1 of Order 23, Civil Procedure Code. In support of this contention, Shri Chopra has relied upon a decision of this Court in Niranjan Dass and others v. Prem Parkash Bansal, 1978, All India Hindu Law Reporter 80. The contention of Shri Chopra is without any merit. In the suit, the petitionerdefendant had raised an objection that the State of Punjab was a necessary party and the suit should be dismissed because a necessary party had not been arrayed as a defendant. To meet this objection, the plaintiffrespondent filed an application under Order 23 Rule 1, Civil Procedure Code, seeking permission to withdraw the suit and the same was allowed. It is true that if a necessary party is not impleaded in a suit, it does not result in any formal defect. However, the application had been allowed on the ground that since the State of Punjab was a necessary party and the suit against it could not be filed without serving a notice under Section 80, Civil Procedure Code, the suit would fail even if the State of Punjab was made a party because notice under Section 80, Civil Procedure Code, had not been served. So, there was a technical defect in the suit. In a recent case Certificate Officer, Berhampur and another v. Kasturi Chand Malu and another, AIR 1970 Orissa 239, the Orissa High Court held that a notice under Section 80, Civil Procedure Code is necessary condition precedent and the present suit cannot be maintainable. Want of notice is a technical defect. Therefore, the suit was allowed to be withdrawn. Reliance was placed on a decision of the Supreme Court in Sawai Singhai v. Union of India, AIR 1966 S.C. 1068, wherein it was held that the provisions of Section 80, Civil Procedure Code, were express, explicit and mandatory and they admit of no implications or exceptions.

The Revision Petition has no merit and is dismissed. No costs. The parties through their learned counsel are directed to appear before the trial Court on June 13, 1985.