REPORTAB LE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 115-116 OF 2001

Ram Kumar and Anr.           … Appellants

VERSUS

State of Rajasthan and Ors.                            … Respondents

J U D G M E N T

TARUN CHATTERJEE, J.

1. These  appeals  by  special  leave  are  directed  against  the

judgment and order dated 26th of March, 1998 passed by a learned

Judge of the High Court  of Judicature for Rajasthan at  Jodhpur in

S.B. Civil Revision Petition No.480 of 1994 and order dated 23rd of

March,  1999  passed  in  S.B.  Civil  Defect  Case  No.1788  of  1998

which arose out of an application for review of the order dated 26th of

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March, 1998.  By the order          dated 26th of March, 1998, the

learned Judge had set aside the order passed by the learned Munsif,

Ist Class, Tibbi by which the learned Munsif held that the defendant

No.3/respondent No.3 (in short ‘respondent No.3’) was not needed to

be  served  with  a  notice  under  Section  80  of  the  Code  of  Civil

Procedure  (in  short  the  ‘CPC’),  as  the  respondent  No.3,  being  a

District  Education  Officer,  had  not  done  any  act  in  his  official

capacity.

2. The  facts  leading  to  the  filing  of  these  appeals  may  be

summarized as follows:

The proceedings for acquisition of the land belonging to one

Shri  Daulat  Ram,  father  of  the  appellants  situated  at  Chak  No.12

M.K.S. Tehsil Tibbi, Mu. No.180/242, Kila No.5-8 (presently Chak

NO.3  D.P.M.  14  to  16  and  24-25)  ad-measuring  9  bighas  and

Mu.No.180/242,  Kila  No.4-5  ad-measuring  2  bighas  and

Mu.No.181/242 Kila No.1-2, ad-measuring 2 bighas, totaling all 13

bighas in ABADI Mauza Daulatpura, were initiated by the Bhakhra

Colonization  Department  and  the  Deputy  Colonization

Commissioner,  Bhakhra  Hanumangarh,  while  acquiring  this  land

along  with  other  lands  by  orders  dated  3.1.1962,  ordered  his

subordinates to put up proposal expeditiously to transfer in lieu of the

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land  to  be  acquired  for  ABADI  any  other  land,  in  favour  of  the

Khatedar  (Mauroosi-holder).  The  said  Bhakhra  Colonization

Department was wound up and all the powers thereof were vested in

the  officers  of  the  Revenue  Department.  Hence,  the  father  of  the

appellants filed an application dated 22.11.1969 before the Tehsildar

(Revenue)  Tibbi  for  transfer  in  terms  of  the  order  passed  by  the

Deputy Colonization Commissioner in lieu of his acquired land, the

vacant land situated in Chak No.M.K.S. (presently Chak No.D.P.M.),

bearing Mu.No.180/240, Kila No.9 (1 bigha), 11 to 13 (3 bighas), 18

to 23 (6 bighas) ad-measuring in all 10 bighas and Mu.No.181/246,

Kila No.3,  8  (2  bighas)  ad-measuring  in  all  12  bighas,  whereupon

after conducting an inquiry the Tehsildar (Revenue) Tibbi submitted

his  proposal  before  Deputy  Collector,  Hanumangarh  and  Deputy

Collector submitted on 13th of November, 1968, Sriganganagar,  the

defendant  No.  2  accorded  transfer  of  the  said  land  in  lieu  of  the

acquired land.   The District  Collector,  Sriganganagar,  by his  order

dated 20th of November, 1968 accorded his approval to this transfer

and  the  file  concerned  was  returned  to  the  Deputy  Collector,

Hanumangarh.  In compliance with the order dated 20th of November,

1968  passed  by  the  District  Collector,  Sriganganagar,  the  transfer

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entry of the land to be carried out in lieu of the acquired land was

made  in  the  revenue  record  and  the  same  was  approved  by  the

Tehsildar  (Revenue)  Tibbi  on 3rd of  October,  1970 and the  names

relating  to  the  lands  were  mutated  in  the  revenue  records  and  the

possession of the land concerned too was exchanged.  Accordingly,

the father of the appellants gave up possession of the acquired land

measuring 13 Bighas as detailed in para 1 of the plaint, in favour of

the State and in lieu thereof, possession of the land, detailed in para 2

of the plaint, was delivered to the father of the appellants who came

into possession thereof in the capacity of Khatedar.  The said land,

which  was  transferred  in  exchange  along with  other  lands  in  their

entirety  whereby  out  of  the  land  acquired  in  exchange,  the  land

bearing No. 180/240, Kila No. 9 (1 Bigha), 11 to 13 (3 Bighas), 18 to

23 (6 Bighas) ad-measuring 10 Bighas fell into the share of appellant

No. 1 Ram Kumar and Mu. No. 181/246, Kila No. 3 and 8 (2 Bighas)

ad-measuring 2 Bighas fell into the share of appellant No. 2 Rajendra

Kumar and the transfer entry of this portion was made against S. No.

33 in the Khata No. 11/27 dated 13th January, 1971 and was certified

on 20th of February, 1971 and this land was thus mutated on 13th of

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Janaury,  1971  in  the  names  of  the  appellants  in  revenue  records

Jamabandi.   

3. The District Collector (Defendant No. 2) however invoked the

earlier order dated 20th of November, 1968 by passing a fresh order

on 20th of April, 1974.  The appellants approached various authorities

praying  for  an  order  restraining  the  defendant  No.  2  (hereinafter

referred to as “Respondent No.2) from delivering possession of the

said land to the respondent No. 3 to District Education Officer, being

Respondent    No.  3.   After  being  unsuccessful  before  different

authorities, the appellant served a notice under Section 80 of the CPC

read with  Section  52  of  the Rajasthan State  Land  Acquisition  Act

No.24 of 1953 on the respondent No.2 in his official capacity on 13th

of December, 1985. Having failed to receive any reply, the appellants

thereafter filed the suit on 25th of   March, 1987 seeking declaration

that  the order  dated 20th of              April,  1974 passed by the

respondent No.2 was null and void and ineffective and the appellants

shall  be  delivered  back  possession  of  the  said  land,  particulars  of

which has been described in paragraph 12 of the plaint, (herein after

referred to as the ‘suit land’) from respondent No.3.

4. A  joint  written  statement  was  filed  on  behalf  of  the  State

Government,  Rajasthan  and  respondent  No.2  who  was  arrayed  as

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defendant No. 2 and a separate written statement was filed on behalf

of  respondent  No.3.  It  is  by way of  an  additional  plea in  the  said

written statement filed by respondent No.3, a question was raised as

to  the  maintainability  of  the  suit  for  non-service  of  notice  under

Section 80 of the CPC on respondent No.3.

5. By  an  order  dated  7th of  July,  1992  the  trial  court  framed

several issues for trial in the suit and one of such issues, namely, issue

No.4 was decided by the trial court as a preliminary issue which reads

as follows:  

Issue No.4 – “Whether the suit of the plaintiff deserves to be dismissed for not serving of notice under Section 80 of the CPC on defendant No.3 by the plaintiffs.”  

6. By an order dated 24th of March, 1994, Issue No.4 was decided

by the learned Munsif, Ist Class Tibbi in favour of the appellants and

against the respondent  No.3, inter alia, holding that respondent No.3,

although a public officer being the District Education Officer, was not

required to be served notice under Section 80 of the CPC as he had

not done any act  in his official  capacity. Feeling aggrieved by this

order, respondent No.3 filed a revision petition before the High Court

and the High Court by the impugned order held that since respondent

No.3 being a District Education Officer must be served with a notice

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under section 80 of the CPC as he was acting in the official capacity.

Accordingly the High Court had set aside the order of the trial court

and dismissed the suit in its entirety on the ground of non-service of

notice upon the respondent No. 3.  It is this order, which is now under

challenge before us in appeal.   

7. Before we proceed with the merits of the appeals against the

aforesaid order of the High Court passed in revision, we may keep it

on record that it was brought to our notice that by a final judgment

and decree dated 24th of March, 1994, the suit itself was dismissed on

merit  by the trial  court  and a regular  first  appeal  was filed by the

appellants  in  the  Court  of  the  District  Judge,  Hanumangarh  which

was still pending at the time of decision of the revision case before

the High Court. It is not known now whether the said appeal has yet

been decided by the High Court or that in view of the order passed by

the  High  Court  in  the  aforesaid  revision  case  which  is  under

challenge before us, the appeal has also been dismissed not only on

merit but also on the ground that the suit was not maintainable in law

in view of non service of notice upon the respondent No.3. Be that as

it may, it would now be appropriate for us to decide the question as to

whether the  non-service of notice upon the respondent  No.3 under

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Section 80 of the CPC before filing the suit would be fatal and the

court would have no other alternative but to dismiss the suit for such

non service. In order to decide this question, it would be appropriate

to refer to Section 80 of the CPC which reads as under:

“Section 80 – NOTICE –  (1) Save  as  otherwise  provided  in  sub-section  (2),  no

suits  shall  be  instituted  against  the  Government (including  the  Government  of  State  of  Jammu  & 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  case  of  a  suit  against  the  Central Government, where it relates to Railway, the General Manager of that Railway;  

(bb) in case of a suit  against the Government of State of Jammu & Kashmir the Chief Secretary to that  Government or any other officer authorized by that officer on this behalf; (c)  in  case  of  a  suit  against  any  other  State Government,  a  Secretary  to  that  Government  or the  Collector  of  the  District;  and  in  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.  

                              (2) No suit instituted against the Government or against

a public officer in respect of any act purporting to be done by such public officer in his official capacity

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shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice  

(a) the name, description and the residence of the plaintiff  had  been  so  given  as  to  enable  the appropriate  authority  or  the  public  officer  to identify  the  person  serving  the  notice  and  such notice had been delivered or left  at the office of the appropriate authority specified in sub-section (1) and  (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.”  

8. Before we go into the scope and effect  of Section 80 of the

CPC, we may look at the allegations and reliefs claimed in the suit.

As noted herein earlier, the trial court decided the issue, namely, issue

No.4 on the  ground that  the respondent  No.3  had not  acted in  his

official capacity in the present case and, therefore, service of notice

under Section 80 of the CPC on respondent No.3 was not necessary,

whereas the High Court reversed the order of the trial Court and held

that  the  respondent  No.3  had  acted  in  his  official  capacity  and,

therefore, non service of the notice on Respondent No. 3 would invite

the court to dismiss the suit in its entirety. Let us now look into the

allegations  made in the  plaint  as  well  as  the reliefs  claimed in  the

same. The land of the appellants was acquired by respondent Nos. 1

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and 2 and in lieu thereof, possession, as described in para 2 of the

plaint,  was  delivered  to  the  appellants  by the  order  of  respondent

No.2 in his official  capacity, but respondent No.2 revoked the said

order and out of the said lands, as described in para 2 of the plaint,

possession of 7 bighas of land was delivered by respondent Nos.1 and

2 to respondent No.3 in respect  whereof the appellants prayed that

possession  of  the  said  7  bighas  of  land  be  delivered  back  to  the

appellants by respondent No.3 by way of consequential relief.

9. From  the  aforesaid  facts  alleged  in  the  plaint,  it  would  be

evident that it was the respondent No.2 who had passed two orders

dated 20th of November, 1968 and 20th of April, 1974 in his official

capacity and that the notice under Section 80 of the CPC was duly

served upon him before filing the suit.  As noted herein earlier, since

the possession of the suit land was taken over from the appellants by

respondent Nos. 1 and 2 and delivered to respondent No.3, a prayer

was made in the plaint to pass a decree directing the respondent No.3

to deliver the possession to the appellants, which was consequential

in nature.  It is, therefore, clear that the respondent No.3 had not done

any act in his official capacity and, therefore, in our view, as rightly

held by the trial court that service of notice under Section 80 of the

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CPC,  in  the  facts  and  circumstances  of  the  case,  was  not  at  all

necessary, as only a decree for possession was prayed for which was

delivered by the respondent Nos. 1 & 2 to Respondent   No. 3 on the

basis of recall of the order dated 20th of November, 1968.   

10. Before we proceed further, we may keep it on record that the

respondent No. 3 is a public officer within the meaning of Section 2

(17) and Section 80 of the CPC.  Therefore, let us consider whether

the respondent No. 3 had acted, in the facts and circumstances of this

case,  in  his  official  capacity or  not.   In  our  view, High Court  had

committed an error in holding that the respondent No. 3 in the facts as

alleged in the plaint could be said to have acted as a public officer in

his  official  capacity.  It  was respondent  No. 2 who had passed the

aforesaid two orders dated 20th of November, 1968 and 20th of April,

1974 and in fact, who had passed the order of exchange of lands and

also  the  order  recalling  the  earlier  order  of  1968  in  his  official

capacity.  In that view of the matter, in our view, notice served on the

District Collector, Sriganganagar was sufficient and complete notice

to the Government Middle School, Daulatpura which was represented

through the Education Officer (Students Institutions), Hanumangarh.

Therefore,  in  our  view,  the  High  Court  had  misdirected  itself  in

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deciding the issue regarding requirement of separate service of notice

under Section 80 of the CPC.  Looking into the allegations made in

the  plaint  and  the  reliefs  claimed,  we  do  not  find  any  reason  to

disagree with the view expressed by the trial Court when it had held

that  no  act  was  performed by the  respondent  No.  3  in  his  official

capacity. If we look at the plaint in the present case, it would be clear

that in the plaint, no act of respondent No.3 is being challenged. The

appellants do not seek to set aside any order of the respondent No.3

or  to  declare  illegal  any of  the  acts  of  respondent  No.3,  it  merely

seeks a decree for  recovery of  possession  in  the suit  to hand over

possession of the suit land to the appellants. The suit which is not in

respect of any act done by the respondent No.3, as a public officer,

and in which no act of respondent No.3 is either challenged or sought

to be set aside is not a suit to which Section 80 of the CPC can very

well apply. Therefore, in the facts and circumstances of the present

case, the respondent No.3 had not acted in his official  capacity for

which service of notice under Section 80 of the CPC was necessary.

That  apart,  it  is  not  in  dispute  that  the  respondent  No.  2  was

Administrator  and  overall  in-charge  including  the  Government

Middle Schools (Students Institutions) in the District and the notice

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served  on  the  State  Government  through  District  Collector  of  the

District was sufficient compliance with the requirements of Section

80 of the CPC.  In view of the aforesaid fact, it was not necessary to

separately serve a notice to respondent No.3 as we find that no order

was  passed  by  the  District  Education  Officer,  which  was  under

challenge in the suit itself.   

11. In view of our discussions made hereinabove, we are therefore

of the view that the High Court had fallen in error in reversing the

order of the trial Court holding that service of notice on respondent

NO. 3 under Section 80 of the CPC was not necessary to be served to

maintain  the  suit.   In  State  of  Maharashtra  and  Anr.  Vs. Shri

Chander Kant (AIR 1977      SC 148),  this Court  laid down the

principle as to when service of notice on the State/defendants under

Section 80 of the CPC was necessary.  In the said decision, this Court

observed as follows :-

“The language of Section 80 of the Code of Civil Procedure is that a notice is to be given against not only the  Government  but  also  against  the  Public  Office  in respect of any act purporting to be done in his official capacity.  The Registrar is a Public Officer.  The order is an act purporting to be done in his official capacity.   

In the present case, the suit is to be set aside the order made by a Public Officer in respect of an act done in the discharge of his official duties.  Therefore, notice

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under  Section 80  of  the  Code of  Civil  Procedure  was required.”            

12. From the aforesaid, it would be evident that this Court held that

service under Section 80 of the CPC was necessary as in that case, the

suit was filed for setting aside an order passed by a public officer in

respect of an act done in the discharge of his official duties.  In that

view of the matter, in that decision, it was held that service of notice

under Section 80 of the CPC was necessary and in the absence of that

service, the suit must be dismissed.  This is not the factual position in

this  case.   We have  already  held  that  Respondent  No.  3  had  not

passed any order as a public officer nor the appellants had asked for

setting aside any order passed by the respondent No. 3 as a public

officer  in  respect  of  any act  done  in  the  discharge  of  his  official

duties.   As  noted  herein  earlier,  the  appellants  have  made  the

respondent No. 3 as a party although he was a public officer only on

the ground that possession was delivered to him by the respondent

No.  2  in  the  exercise  of  his  official  capacity.   For  the  purpose  of

possession to be delivered back to the appellants, the respondent No.

3 was made a party by which, in our view, he had not at all acted in

discharge of his official capacity.  A look at the reliefs claimed in the

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plaint  would  clearly  show  that  only  a  consequential  relief  was

claimed in the suit to the extent that possession of the suit land should

be  restored  in  favour  of  the  appellants  by  the  respondent  No.  3.

Therefore, in view of the aforesaid discussion made hereinabove, we

hold that even in the absence of service of notice on the respondent

No.3 under Section 80 of the CPC, the suit was maintainable in law.

13. Before concluding,  we may also keep it  on  record,  as  noted

herein earlier, that from the record it appears to us that the suit itself

was dismissed on merits after the issue No. 4 as to the maintainability

of the suit for non-service of notice upon the respondent No. 3 was

decided in favour of the appellants.  It is/was now pending in appeal

before the appellate court. Therefore, by any stretch of imagination, it

cannot be said that at the time the revision was decided, it was open

to the High Court to deal with Issue No.4 passed by the trial  court

when  the  suit  itself  was  dismissed  on  merits.  That  is  to  say,  the

revision  became infructuous  in view of the disposal  of the suit  on

merits. For this reason also, the impugned order of the High Court is

liable to be set aside. Accordingly, if the appeal is still  pending for

decision, we direct the appellate court to decide all the issues in the

suit excepting Issue No.4 which is being decided by us in favour of

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the appellants by this judgment on merit within a period of six months

from the date of supply of a copy of this judgment.

14. For the reasons aforesaid, the impugned order is set aside and

the order of the trial court holding that the suit was maintainable for

non-service of notice under Section 80 of the CPC on the respondent

No.3  is  hereby  restored.  The  appeals  are  allowed  to  the  extent

indicated above. There will be no order as to costs.

 ……………………………J.        [  TARUN

CHATTERJEE ]

New Delhi:               ……………………………J. September 29, 2008                            [ DALVEER BHANDARI ]

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