Mahendra Nath Das vs The State of Assam and Others

Manisana, J.—This appeal arises from a decree and judgment dated 9.8.85 the Assistant District Judge, Barpeta passed in Title Appeal No. 9 of 1985 dismissing the appeal from a decree and judgment dated 18.1.85 passed by the Munsiff No. 1, Barpeta in Title Suit No. 90 of 1979 dismissing the suit.

The Plaintiff-Appellant instituted Title Suit No. 90 of 1979 in the Court of the Munsiff Barpeta claiming a sum of Rs. 4,926,19 as arrears of his emoluments against the State of Assam, Deputy Commissioner Kamrup and Sub-Divisional Officer, Sarpeta. The Defendant-Respondents contested the suit.

The Trial Court dismissed the suit on the ground that required notice u/s 80, CPC was not given to any of the Defendants, although other issues were decided against the Defendants. The lower Appellate Court has held that no notice required u/s 80, was given to the Deputy Commissioner and Sub-Divisional Officer. The notice to Government the State of Assam was addressed to the Chief Secretary to that Government and therefore, no valid notice u/s 80 was given to the Government. The lower Appellate Court has not dealt with other issues by holding that the Defendant-Respondents have not challenged the decisions arrived at by the Trial Court.

Mr. P.N. Goswami, the learned Counsel for the Appellant, has not disputed that the required notice u/s 80 has not delivered to or left at the office of the Deputy Commissioner and Sub-Divisional Officer, but he has submitted that the Deputy Commissioner and Sub-Divisional Officer are not the necessary parties and as such, their names may be expunged. Mr. Goswami has further submitted that the notice addressed of the Chief Secretary and which was delivered to the Chief Secretary, was a valid notice u/s 80, Code of Civil Procedure.

The question which arises for consideration is whether service of notice on the Chief Secretary to the Government of Assam was or is in compliance with Section 80, Code of Civil Procedure.

u/s 80, Code of Civil Procedure, in the case of suit against a State Government except that of the State of Jammu and Kashmir, a notice in writing has to be delivered to or left at the office of a Secretary to that Government or the Collector of the District. In the case of the State of Jammu and Kashmir, the notice has to be delivered to or left at the office of the Chief Secretary to that Government or any other officer authorised in that behalf.

The next question which therefore arises for consideration is whether the word "Secretary" includes the "Chief Secretary" to the Government of Assam. Rule 2(i) of the Assam Rules of Executive Business, 1969 provides:

"Secretary" means a Secretary to the Government of Assam and includes Chief Secretary, Additional Chief Secretary, Special Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, and Under Secretary.

The above quoted rule shows that Secretary includes the Chief Secretary. Therefore, the notice addressed and delivered to the Chief Secretary to the Government of Assam was or is a valid notice u/s 80. The Courts below have not considered this aspect of the matter. Therefore, the findings of the Courts below that no notice was served on the Government cannot be sustained.

The next question which arises for consideration is whether the suit is maintainable. There is no dispute that the required notice u/s 80, CPC was not delivered to or left at the office of the Deputy Commissioner and Sub-Divisional Officer. A close reading of the plaint shows that Plaintiff has not claimed any relief against the Deputy Commissioner and/or Sub-Divisional Officer and they have been made Defendants in the nature of proforma Defendant, and that the Plaintiff has asked relief against the Government only. But, u/s 80, no suit shall be instituted against a public officer in respect of any act purporting to be done by such officer in his official capacity unless the required notice u/s 80 has been delivered to biro or left at his office. Therefore, even if a public officer is a proforma Defendant, viz relief has been claimed against him, the required notice u/s 80 is necessary. However, if no such notice was given, the name of the officer can be expunged under Order 1, Rule (sic)(2), Code of Civil Procedure, if he is improperly joined, that is, if he is not necessary party. That being the position, the names of the Deputy Commissioner and Sub-Divisional Officer can be struck out if they are not necessary parties or they are joined improperly. As already stated, no relief has been claimed against these two officers. The names of the Deputy Commissioner and Sub-Divisional Officer have been mentioned in the body of the plaint only for the purpose of showing offices where the Plaintiff was working. Under these Circumstances, I am of the opinion that the Deputy Commissioner and Sub-Divisional Officer are not necessary parties and they have been impleaded as proforma Defendants. Therefore, their names can be struck out.

For the foregoing reasons, the names of the Deputy Commissioner and Sub Divisional Officer are struck out and suit maintainable as against the State Government of Assam. The Trial Court has held that the Plaintiff was entitled to the claim for Rs. 4,926.19. The finding arrived at by the Trial Court was not challenged before the lower Appellate Court as is seen in the judgment of the lower Appellate Court. Therefore, it would serve no useful purpose to send back the case to lower Appellate Court for disposal afresh.

In the result, the decrees passed by the Courts below and their judgments are set aside and the suit for claim for Rs. 4,926.19 is decreed against the State Government of Assam. The Plaintiff has not laid foundation for allowing interest and, therefore, his claim for interest cannot be allowed. With the above observation, the appeal is partly allowed with no order as to costs.