Thomas Cherian v. Kurien Mathew, State of Kerala, Superintendent of Re-Survey and Deputy Director of Survey

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940 OP(C).No. 4400 of 2013 (O) AGAINST THE ORDER IN I.A.No.2011, 2012 & 2013/2013 IN OS 334/2012 of MUNSIFF COURT, MAVELIKKARA, DATED 04.10.2013 PETITIONER/PLAINTIFF:- ------------------------------------ THOMAS CHERIAN, S/O.THOMAS CHERIAN, AGED 67 YEARS, RESIDING AT KARUVELIL, PUTHENPURACKAL, PUTHIYAKAVU, MAVELIKARA. BY ADV.SRI.A.SHAFEEK (KAYAMKULAM) RESPONDENTS/COUNTER PETITIONERS/JUDGMENT DEBTORS:-: ------------------------------------------------------------------------------------------ 1. KURIEN MATHEW, KOMBASSERIL THEKKETHIL, NADACKAVU, MAVELIKARA, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, - REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA. 3. SUPERINTENDENT OF RE-SURVEY, ALAPPUZHA. 4. DEPUTY DIRECTOR OF SURVEY, ALAPPUZHA. R1 BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) R1 BY ADV. SRI.A.R.DILEEP R1 BY ADV. SRI.MANU SEBASTIAN R1 BY ADV. SRI.K.J.SHARATH KUMAR R2-R4 BY GOVERNMENT PLEADER SRI. K.M.HASHIR THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 4400 of 2013 (O) 2 ## **APPENDIX** PETITIONER'S EXHIBITS : - -------------------------------------- - EXHIBIT P1 : TRUE COPY OF THE PLAINT IN OS 334/2012 ON THE FILE OF THE MUNSIFF'S COURT, MAVELIKKARA. - EXHIBIT P2 : TRUE COPY OF THE IA 2011/2013 IN OS 334/2012 ON THE FILE OF THE MUNSIFF'S COURT, MAVELIKKARA. - EXHIBIT P3 : TRUE COPY OF THE IA 2012/2013 IN OS 334/2012 ON THE FILE OF THE MUNSIFF'S COURT, MAVELIKKARA. - EXHIBIT P4 : TRUE COPY OF THE IA 2013/2013 IN OS 334/2012 ON THE FILE OF THE MUNSIFF'S COURT, MAVELIKKARA. - EXHIBIT P5 : TRUE COPY OF THE ORDER IN IA 2011/2013 IN OS 334/2012 ON THE FILE OF THE MUNSIFF'S COURT, MAVELIKKARA. - EXHIBIT P6 : TRUE COPY OF THE ORDER IN IA 2012/2013 IN OS 334/2012 ON THE FILE OF THE MUNSIFF'S COURT, MAVELIKKARA. - EXHIBIT P7 : TRUE COPY OF THE ORDER IN IA 2013/2013 IN OS 334/2012 ON THE FILE OF THE MUNSIFF'S COURT, MAVELIKKARA. ## RESPONDENTS' EXHIBIT : NIL. // TRUE COPY // P.A. TO JUDGE DMR/- **C.R.** ## **P. SOMARAJAN, J.** --------------------------------------- ## **O.P.(C) No. 4400 of 2013** ---------------------------------------- Dated this the 14[th] day of June, 2018 ## J U D G M E N T Challenging the orders in I.A.Nos.2011, 2012 and 2013/2013 in O.S.No.334/2012, dated 04.10.2013, of the Munsiff's Court, Mavelikkara, the petitioner/plaintiff came up with this petition under Article 227 of the Constitution of India. 2. All these three applications were dismissed under the premise that there is non compliance of the mandate under Section 80 of Code of Civil Procedure and the suit was dismissed in entirety as against all the defendants. Admittedly, first defendant being a private person will not come under the purview of either Section 80 or Section 79 of Code of Civil Procedure. The requirement under Section 80 C.P.C. being precautionary in nature, a pedantic approach should be avoided. It is neither intended to defeat nor to delay any valuable right. The section is not intended to defeat or adjourn the grant of any relief or in agitating any dispute permissible under Section 9 C.P.C. against any private person. The embargo under Section 80 C.P.C would be available only to the Central Government, the State Government or to a O.P.(C) No. 4400 of 2013 2 Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity. It has no application in the matter of a suit instituted against a private person. If a suit is found to be bad under Section 80 C.P.C., it would operate only against such Public Officer, the State Government or the Central Government, as the case may be. It is neither permissible nor advisable to dismiss the whole suit which was filed both against private persons and the persons who would come under the purview of Section 80 C.P.C. (Central Government, State Government or a Public Officer in his official capacity). The suit instituted as against private persons cannot be dismissed under Section 80 C.P.C. even if the cause of action against such persons and the person who would come under the purview of Section 80 C.P.C. is one and the same. In such situations, the court is expected to proceed with the suit in so far as it is against the private persons, subject to the question of maintainability of the suit on any other grounds available. O.P.(C) No. 4400 of 2013 3 3. The object of Section 80 C.P.C. was discussed and settled by the Apex Court in **Raghunath Das v. Union of India [1969 KHC 736, AIR 1969 SC 674]** as under : _“8. The object of the notice contemplated by that section is to give to the concerned Governments and Public Officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice.”_ 4. In the instant case, the suit was instituted both against the State Government and private persons. The Lower Court dismissed the whole suit under the premise that there is non compliance of the requirement under Section 80 C.P.C. as against some of the defendants. The dismissal of the suit in entirety as against all the defendants inclusive of first defendant who would not come under the purview of Section 80 C.P.C. due to non compliance of the mandate under that O.P.(C) No. 4400 of 2013 4 Section is impermissible. The Lower Court ought to have proceeded with the suit as against the first defendant who would not come under the purview of mandate under Section 80 C.P.C. irrespective of whether the suit was based on the same cause of action or different cause of action. 5. The learned counsel for the petitioner _inter alia_ submitted that in the earlier suit leave under Section 80(2) C.P.C. was obtained, but subsequently it was withdrawn with the leave of court due to change in the legal position by way of amendment to the Kerala Survey and Boundaries Act, 1961, and a fresh suit was instituted. It was contended that it is really in continuation of and based on the same cause of action by which the earlier suit was filed with leave under Section 80(2) C.P.C. Section 80 C.P.C. being a precautionary measure so as to curtail unwarranted litigation against the State Government/Central Government or a Public Officer and when there is compliance of requirement in an earlier suit based on the same cause of action, there is no mandate of repeating the very same requirement in a second suit based O.P.(C) No. 4400 of 2013 5 on the same cause of action raising the very same reliefs, when it was permitted by way of leave to withdraw the earlier one and to institute a fresh one. It is too hyper-technical and not conducive to justice to demand for repetition of the requirement under Section 80 C.P.C. once it was complied with based on the same cause of action claiming the same reliefs and no fresh notice under Section 80 C.P.C. need be issued in a second suit for the very same relief based on the same cause of action. The very same principle is squarely applicable to a second suit based on the same cause of action seeking the same relief when leave was granted in the earlier suit under Section 80(2) C.P.C. There is no mandate for repeating the very same requirement under Section 80(2) C.P.C. in a second suit filed with leave to institute a fresh one after the withdrawal of the earlier one. The exercise of jurisdiction vested with the Lower Court hence suffers a material defect, liable to be rectified by this Court by exercising the jurisdiction under Article 227 of the Constitution of India. Hence, the orders passed by the Lower O.P.(C) No. 4400 of 2013 6 Court in the above mentioned applications and consequent dismissal of the suit are hereby set aside. The suit and the applications are restored to file for fresh disposal in accordance with law. The parties shall appear before the Lower Court on 26.07.2018. No order as to costs. Sd/- ## **P. SOMARAJAN, JUDGE** DMR/-