R.P. Sharma vs Ashok Kumar and Others

Ram Mohan Reddy, J.—The only submission of learned Counsel for petitioner is that not arraigning the Central Government as a party defendant in O.S. No. 2819/2002 when instituted on 20.04.2002, was a mistake made in good faith and therefore, in the light of the decision of the Apex Court in R.R. Naidu vs. State of M.P. and others (2000)10 SCC 141, the VIII Additional City Civil and Sessions Judge (CCCH-15), Bengaluru, was not justified in rejecting I.A. No. 2 under Order I Rule 10(2) of the Code of Civil Procedure, 1908.

Petitioner instituted O.S. No. 2819/2002 for compensation of Rs. 1,00,000/- on the premise that the first defendant Ashok Kumar, Inspector of Police; 2nd defendant Dr. Dilip Kumar, Superintendent of Police and 3rd Defendant Ashok Harnahali, learned Counsel for Central Government, had, in the counter/statement of objections to Crl. Petition No. 2970/2001 filed by one Dr. N. Nagambika Devi on 04.09.2001, wife of the petitioner, made defamatory statements with a dishonest intention of tarnishing the image of the plaintiff, more appropriately while reading in the open Court at the time of arguments, the contents of the counter statement, in the presence of members of the Bar and couple of litigant public, few friends and relatives of plaintiff and his wife who were also present in the Court.

The Trial Court having dismissed I.A. No. 1 filed under Order VII Rule 11 CPC to reject the plaint, the 3rd defendant filed Civil Revision Petition No. 179/2006 whence a learned Single Judge by order dated 19th August 2008, Annexure-D set-aside the order regard being had to Section 49 of the Advocates'' Act, 1961 and Order XXVII Rule 5A of CPC and remitted the proceeding for consideration afresh.

In the meanwhile, petitioner having noticed Order XXVII Rule 5A of CPC filed I.A. No. 2 under Order I Rule 10(2) of CPC to implead Central Government as party defendant No. 4. In the affidavit accompanying the application, petitioner stated that in the suit for damages, by "inadvertence" the Central Government was not made a party though the defendants 1 and 2 are officers of the Central Government and therefore, the proposed defendant was a proper and necessary party regard being had to Order XXVII Rule 5A of CPC requiring the Central Government to be joined in as party defendant in a suit for damages against public officers. That application was opposed by filing statement of objections of the 1st and 3rd defendant inter-alia denying the assertion of "inadvertence" and pointing out to Order XXVII Rule 5A of CPC making it mandatory to arraign the Central Government as defendant in a suit for damages against public officers. In addition it was stated that the application was belated and hence not maintainable either in law or on facts. According to the defendants the defect being incurable the application was not maintainable.

The Trial Court having regard to the pleadings of the parties framed a point for consideration, noticed Order XXVII Rule 5A of CPC whereunder a suit if instituted against a public officer for damages, in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as party to the suit, which the plaintiff had not done on the date of its institution though the defendants were the Inspector of Police and Superintendent of Police functioning under the Central Government. The Trial Court further observed except for the use of the word "inadvertence" there was no material whatsoever to substantiate the claim of "mistake having been made in good faith". Yet again the trial court observed that Article 75 of the schedule to the Limitation Act, 1963 provides for a period of limitation of one year for compensation for libel, when the libel was published.

The arguments in Crl.P. No. 2970/2001 in which pleadings were read out was allegedly on 18.03.2002 and the statement of objections is filed on the same dated, hence the institution of the suit for damages on 20.04.2002, was well within limitation.

It is no doubt true that under Order XXVII Rule 5A of CPC the requirement of impleading the Central Government was essential on the date of institution of the suit though damages per se cannot be sought against the Central Government while damages in fact is sought against officers of the Central Government. Therefore, Article 75 of schedule to the Limitation Act ex-facie may not apply as for as impleadment of the Central Government.

The basis for rejection of I.A. No. 2 by the Trial Court is that the petitioner had not made out a case of "bonafide mistake in good faith". As noticed supra, in the affidavit accompanying the application the only word used is "inadvertence" and there is not even a plausible acceptable reason relating to a bonafide mistake in good faith. In the absence of even an averment in that regard, mere use of the word "inadvertence" is neither sufficient nor satisfactory to conclude that the petitioner, a Senior IPS officer serving in the upper echelons of the Central Government could have made a "mistake in good faith" in not arraigning as party defendant in the suit for damages the Central Government under whom defendants 1 and 2 served as police officers. It is only when CRP 179/2006 was disposed off on 19.8.2008 that petitioner claims to have come to know of the said non-impleadment and provision of law. In my considered opinion, no exception can be taken to the reasons and conclusion arrived at by the Court below in rejecting I.A. by the order impugned.

In R.R. Naidu''s case, the factual matrix was that the appellant a clerk in the office of the District Judge, Bilaspur when removed from service on 10.06.1961, the departmental appeal was dismissed on 16.12.1968 by the Registrar of the High Court of Madhya Pradesh at Jabalpur. Notice of suit to the State of Madhya Pradesh under Section 80 of CPC was issued on 29.05.1971, while suit instituted on 13.09.1971 impleading State of Madhya Pradesh as sole defendant without impleading the District Judge and Registrar of Madhya Pradesh High Court as party defendants. Thereafterwards, the said two parties when sought to be impleaded the objection over ground of limitation was advanced. The Apex Court observed that in the light of sub-Section (1) of Section 21 of the Limitation Act, delay can be condoned provided plaintiff had bonafides in not impleading the District Judge and Registrar and it was by mistake had impleaded the State of Madhya Pradesh when the suit was filed in the year 1971.

It is no doubt true that sub-section (1) of Section 21 of the Limitation Act, 1963 states that, where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was made a party, provided that the court is satisfied that the omission to include a new plaintiff or defendant was due to a "mistake in good faith" it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.

In the circumstances, more appropriately that the petitioner is an Officer of the Central Government holding a very high post of Additional Director General of Police cannot be heard to say that he was not aware that he served Central Government and that defendants 2 and 3 Officers under him too served the Central Government, and by inadvertence had not arraigned the Central Government as necessary and proper party to the suit. In that view of the matter, decision in R.R. Naidu''s case involving a clerk at the lowest level of service in the High Court of Madhya Pradesh, at Jabalpur, in contra distinction has no application to the facts and circumstances of the case. Petition devoid of merit, rejected.