Sumesh Babu v Sivaprasad and Others

_**OP(C).1109/21**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 28[TH] DAY OF MARCH 2022 / 7TH CHAITHRA, 1944** **OP(C) NO. 1109 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OS 332/2020 OF PRINCIPAL MUNSIFF COURT, PALAKKAD** ## **PETITIONER/S:** SUMESH BABU AGED 43 YEARS S/O.BAVADAS, CHATHAMKULAM (H), KONGAD P.O., PALAKKAD. BY ADV L.RAJESH NARAYAN ## **RESPONDENT/S:** 1 SIVAPRASAD AGED 49 YEARS S/O.R.V.SWAMINATHAN, RAAMATHKALAM, VAVULYAPURAM P.O., THONIPPADAM, ALATHUR, PALAKKAD - 678 543. 2 HARIDAS K. AGED 63 YEARS S/O.KUNCHU, CHENKOLKALAM, KARAIKKAD, KARINKARAPPULLY P.O., PALAKKAD - 678 551 (CHAIRMAN, KARINKARAPULLY THUPPALANKAD 6 METRE VAZHI SAMRAKSHANA, SAMITHY). 3 SAROJINI AGED 80 YEARS W/O.R.SWAMINATHAN, RAAMATHKALAM, VAVULYAPURAM P.O., ALATHUR, PALAKKAD - 678 543 (CONVENOR, KARINKARAPULLY THUPPALANKAD 6 METRE VAZHI SAMRAKSHANA, SAMITHY). 4 SURESH BABU PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE, KALLINKAL ROAD, KODUMBU, PALAKKAD - 678 551. BY ADV GOVERNMENT PLEADER SRI.S.UNNIKRISHNAN _**OP(C).1109/21**_ 2 ## **OTHER PRESENT:** GP S.UNNIKRISHNAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.11.2021, THE COURT ON 28.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**OP(C).1109/21**_ 3 ## **V.G.ARUN, J. ----------------------------------------------O.P(C).No. 1109 of 2021 ----------------------------------------------Dated this the 28[th] day of March, 2022** ## **JUDGMENT** The petitioner is the plaintiff in O.S.No.332 of 2020 on the files of the Principal Munsiff's Court, Palakkad. The prayer in the suit is for a permanent prohibitory injunction restraining the defendant/1[st] respondent and his men from interfering with the repair of plaint B schedule way, which, according to the petitioner, is the only access to his A schedule property. Along with the suit, the petitioner filed an application for injunction, which the trial court granted by Exhibit P3 order. Thereafter, the 1[st] respondent filed written statement, _inter alia_ contending that the suit is bad for non-joinder of necessary parties, since buildings belonging to the Government Polytechnic, Palakkad are situated on either side of A schedule way and the way is also being used by other nearby residents. Thereupon, the petitioner filed I.A.No.2278 of 2020 on 24.9.2020, seeking to implead the Principal, Government Polytechnic College, Palakkad by name as the supplemental 4[th] defendant. This was followed up with I.A.No.2739 of 2020 for initiating action against the proposed supplemental 4[th] _**OP(C).1109/21**_ 4 defendant for violating Exhibit P3 order of injunction. Later, I.A.No.2968 of 2020 was filed, seeking to implead the District Collector, Palakkad as the supplemental 5[th] defendant. Thereafter, the petitioner filed I.A.No.2946 of 2020 seeking to dispense with Section 80 notice to supplemental defendants 4 and 5. By Exhibits P17 and P18 orders, the court below dismissed I.A.Nos.2946 of 2020 and 2968 of 2020. Aggrieved, this original petition is filed. 2. Learned Counsel for the petitioner strenuously contended that going by the contentions in the written statement of the 1[st] respondent, it is imperative for the petitioner to implead the Principal, Government Polytechnic, Palakkad and the District Collector, Palakkad as supplemental defendants. As the Principal, Government Polytechnic, Palakkad had obstructed the petitioner's movement through B schedule way, despite having knowledge about Exhibit P3 injunction order it is necessary to dispense with the notice under Section 80 CPC, so as to obtain further reliefs without delay. The Court below dismissed I.A.Nos.2946 and 2968 of 2020 without considering the objective of Section 80 and the prejudice that would be caused to the petitioner if necessary parties are not impleaded. 3. The learned Government Pleader appearing for the 4[th] respondent (proposed additional 4[th] defendant) contended that the suit is frivolous and filed with the dubious intention of creating a way _**OP(C).1109/21**_ 5 through Government property. The petitioner and 1[st] respondent had filed the suit collusively and obtained an interim injunction order. The injunction order did not have the desired effect, since the property belongs to the Government. Hence, the petitioner sought to implead the 4[th] respondent and the District Collector, Palakkad as defendants in their personal capacity. In Exhibit P17 order, the learned Munsiff has rightly held that the prayer in the suit is only to injunct the 1[st] respondent, whereas the Advocate Commissioner has reported that plaint B schedule property is an internal way, within the Government Polytechnic. 4. Apart from the factual findings in the impugned orders, which I find to be well founded, I am of the considered opinion that Section 80 CPC applies at the stage of institution of the suit and not later. In this regard it is apposite to have a look at Section 80, extracted hereunder for easy reference; _**80. Notice** .- (1) Save as otherwise provided in sub-section (2), no suit shall be 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, 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;_ _**OP(C).1109/21**_ 6 - _(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, 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._ _(2) A suit to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:_ _Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1)._ _(3) 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 shall be dismissed merely by reason of any error or defect in the notice referred to in subsection (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_ _**OP(C).1109/21**_ 7 _(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.”_ As per Section 80(1), a suit against the Government or a public officer in respect of any act purporting to be done by such public officer in his official capacity, can be filed only after the expiration of two months of delivery of notice containing the cause of action, details of the plaintiffs and the relief claimed. An exception is carved out in Section 80(2), providing for the institution of a suit with the leave of the court, without serving notice under Section 80(1). This exemption is subject to the condition that no relief, interim or otherwise, shall be granted by the court, except after giving a reasonable opportunity of showing cause in respect of the relief prayed for in the suit, to the Government or public officer, as the case may be. It is therefore evident that Section 80 would apply only at the institution f a suit and not with respect to an application for impleadment filed in a pending suit, that too after securing an interim relief. 5. Yet another patent defect is the attempt to implead the 4[th] respondent in his personal capacity, imputing deliberate violation of the injunction order, whereas under Section 80, a suit against a public officer can be instituted only in respect of any act purporting to be done by such officer in his official capacity. _**OP(C).1109/21**_ 8 6. As far as Exhibit P18 order is concerned, a perusal of I.A.No.2968 of 2020 shows that absolutely no reason is stated in the affidavit, except that the Government represented by the District Collector, Palakkad is a necessary party. The petition is seen filed under Order VI Rule 10, which has nothing to do with the impleadment of third parties. Even accepting that the provision was mistakenly quoted, the application for impleadment does not satisfy the requirements of Order 1 Rule 10 also. It is not stated as to why the District Collector is a necessary or proper party to the suit. It is settled law that, 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed by the court. On the other hand, a 'proper party' is a person who, though not a necessary party, whose presence would enable the court to completely and effectively adjudicate upon all matters in dispute. It is pertinent to note that the relief sought in the suit, as originally framed, is only against the 1[st] respondent. The petitioner is seeking impleadment of the District Collector based on certain subsequent developments. Being so, the court below has rightly relied on the decision in _**Bishandayal and Sons v. State of Irissa and Others**_ [(2001) 1 SCC 555], to hold that the remedy of the petitioner is to file a fresh suit, rather than keeping on impleading Government officials as supplemental defendants. _**OP(C).1109/21**_ 9 For the above mentioned reasons, the challenge against the impugned orders is liable to be rejected. In the result, the original petition is dismissed. **V.G.ARUN, JUDGE** _vgs_ _**OP(C).1109/21**_ 10 ## **APPENDIX OF OP(C) 1109/2021** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE PLAINT IN OS NO.332/2020 ON THE FILES OF THE HON'BLE COURT (PRINCIPAL), PALAKKAD, DATED 3/8/2020. - Exhibit P2 TRUE COPY OF I.A.NO.1820 IN O.S.NO.332/2020 ON THE FILES OF THE HON'BLE MUNSIFF COURT (PRINCIPAL), PALAKKAD, DATED 5/8/2020. - Exhibit P4 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.332/2020 ON THE FILES OF THE HON'BLE MUNSIFF COURT (PRINCIPAL), PALAKKAD. - Exhibit P5 TRUE COPY OF I.A.NO.2278/2020 DATED 24/9/2020 IN O.S.NO.332/2020 ON THE FILES OF THE HON'BLE MUNSIFF COURT (PRINCIPAL), PALAKKAD. - Exhibit P6 TRUE COPY OF I.A.NO.2739/2020 IN O.S.NO.332/2020 ON THE FILES OF THE HON'BLE MUNSIFF COURT (PRINCIPAL), PALAKKAD DATED 13/11/2020. - Exhibit P7 TRUE COPY OF THE COUNTER STATEMENT DATED 23/2/2021 IN IA 2739/2020 IN O.S.NO.332/2020 ON THE FILES OF THE HON'BLE MUNSIFF COURT (PRINCIPAL), PALAKKAD. - Exhibit P8 TRUE COPY OF I.A.NO.2968/2020 DATED 14/12/2020 IN O.S.NO.332/2020 ON THE FILES OF THE HON'BLE MUNSIFF COURT (PRINCIPAL), PALAKKAD. - Exhibit P9 TRUE COPY OF THE OBJECTION TO EXT.P8 IN O.S.NO.332/2020 ON THE FILES OF THE HON'BLE MUNSIFF COURT (PRINCIPAL), PALAKKAD. - Exhibit P10 TRUE COPY OF I.A.NO.2946/2020 DATED 14/12/2020 IN O.S.NO.332/2020 ON THE FILES OF THE HON'BLE MUNSIFF COURT (PRINCIPAL), PALAKKAD. _**OP(C).1109/21**_ 11 |Exhibit P11|TRUE COPY OF THE COUNTER STATEMENT FILED BY| |---|---| ||RESPONDENTS 4 AND 5 TO EXT.P10 IN| ||O.S.NO.332/2020 ON THE FILES OF THE HON'BLE| ||MUNSIFF COURT (PRINCIPAL), PALAKKAD.| |Exhibit P12|TRUE COPY OF THE COMMISSION REPORT DATED| ||22/2/2021 IN O.S.NO.332/2020 ON THE FILES| ||OF THE HON'BLE MUNSIFF (PRINCIPAL)| ||PALAKKAD.| |Exhibit P13|TRUE COPY OF THE EARLIER COMMISSION REPORT| ||DATED 7/8/2020 IN O.S.NO.332/2020 ON THE| ||FILES OF THE HON'BLE MUNSIFF COURT| ||(PRINCIPAL), PALAKKAD.| |Exhibit P14|TRUE COPY OF THE ORDER DATED 6/3/2021 IN| ||I.A.NO.2739/2020 IN O.S.NO.332/2020 ON THE| ||FILES OF THE HON'BLE MUNSIFF COURT| ||(PRINCIPAL), PALAKKAD.| |Exhibit P15|TRUE COPY OF THE COMMISSION REPORT DATED| ||21/12/2020 IN O.S.NO.550/2020 ON THE FILES| ||OF THE HON'BLE MUNSIFF COURT (PRINCIPAL),| ||PALAKKAD.| |Exhibit P16|TRUE COPY OF THE FIR NO.286/2021 DATED| ||20/3/2021.| |Exhibit P17|TRUE COPY OF THE ORDER DATED 29/3/2021 IN| ||IA NO.2946/2020 IN O.S.NO.332/2020 ON THE| ||FILES OF THE HON'BLE MUNSIFF COURT| ||(PRINCIPAL), PALAKKAD.| |Exhibit P18|TRUE COPY OF THE ORDER DATED 29/3/2021 IN| ||I.A.NO.2968/2020 IN O.S.NO.332/2020 ON THE| ||FILES OF THE HON'BLE MUNSIFF COURT| ||(PRINCIPAL), PALAKKAD.| |Exhibit P19|TRUE COPY OF THE PLAINT DATED 15/12/2020 IN| ||OS NO.550/2020 ON THE FILES OF THE HON'BLE| ||MUNSIFF COURT (PRINCIPAL), PALAKKAD.| |RESPONDENT EXHIBITS|| |Exhibit R3|TRUE COPY OF THE ORDER DATED 5/8/2020 IN| _**OP(C).1109/21**_ 12 I.A.NO.1820/2020 IN O.S.NO.332/2020 ON THE FILES OF THE HON'BLE MUNSIFF COURT (PRINCIPAL), PALAKKAD.