1. This second appeal is by defendant 1 in an action for damages for malicious prosecution. The appellant is a private individual, but there was also a defendant 2 impleaded who was the village Munsif and as such a “public officer” within the meaning of Section 80 of the CPC. It was not alleged that any notice under s. 80 had been served upon defendant 2, nor did the plaint contain the required averment. The case stated in the plaint was that defendant 1 was a mere tool in the hands of defendant 2, the village Munsif, who was an enemy of the plaintiff, and that both the defendants actuated by malice concocted a false story and submitted a false report to the police and the Magistrate of the commission of a criminal offence by the plaintiff for which he was put on trial and acquitted.
2. The findings, however, which have been arrived at by both the Courts of fact are that the proceedings against the plaintiff were instituted maliciously and without any reasonable and probable cause by defendant 1 alone who made a false report to defendant 2, and the latter did not act beyond what he was authorised to do under the law.
3. On these findings the Munsif dismissed the suit in its entirety on the ground that the failure of notice under S. 80 on defendant 2 necessarily involved the dismissal of the whole suit.
4. The learned District Judge on appeal observed:
“It is true that if the causes of action against both the defendants are inseparable, the claim against defendant 1 would not be maintainable when notice was not served on defendant 2 under S. 80,”
5. but it had been found that the real cause of action was against defendant 1 and there was no cause of action against defendant 2, and, therefore, he thought that, while the suit was bad as against defendant 2, it was not bad against the first. Accordingly lie gave a decree against the appellant for Rs. 1000, half for the expenses incurred in the criminal case and half for bodily and mental suffering and loss of reputation.
6. The question which has been raised, in second appeal is whether the Munsif's view or the District Judge's view was correct. I may say at once that in my opinion, the District Judge took the correct view. I think the test in cases of this kind is whether the suit would be maintainable as against the private individual, without impleading the official, and in such case I see no reason why the official should not be struck out and the suit be allowed to proceed against the private individual in the case of whom no notice under s. 80 was at all necessary. For the appellant reliance is placed, in particular, on two decisions of Howland, J. sitting singly. The first is Baldeo Prasad v. Sukhi Singh (A.I.R 1938 Pat. 127)1 and the second is Noor Mohammad v. Abdul Fateh (A.I.R 1941 Pat. 461)2. The view of Rowland, J. is shortly stated in the latter case as follows:
“The question then arises whether the bar of S. 80 applies to the suit as a whole or only to the claim for relief against these two defendants (the officials). The operative portion of S. 80 is ‘no suit shall be instituted against etc.’ and the consequence of instituting a suit in face of a statutory prohibition is that under O. 7, R. 11 of the CPC, the plaint should be rejected. It has been held in the Allahabad High Court in Raghubans Puri v. Jyotis Swarwpa (29 ALL. 325)8 that a Court cannot reject a plaint in part. It has also been held in the Calcutta High Court in Jagadish Chandra v. Debendra Prasad (58 Cal. 850)4 that the proper course in a case like the present is to reject the plaint. The Privy Council decision in Bhagchand Dagadusa v. Secretary of State (54 I.A 338)5 makes it quite clear that the requirements of S. 80 cannot be evaded or explained away and that a suit instituted in contravention of S. 80 is unsustainable in limine,”
7. No doubt, in Raghubans Puri v. Jyotis Swarupa (29 ALL. 325)3 it was held that a plaint cannot be rejected in part, but that was where the suit was against a single defendant, and the decision is not necessarily applicable where there are two defendants and the cause of action is separable. In the other case relied upon, Jagadish Chandra v. Debendra Prasad (58 Cal. 850) it appears that the public officer was the principal defendant, and the question of whether a suit could in the circumstances proceed against non-officials does not seem to have been considered.
8. In the Privy Council case it was merely laid down that the provisions of S. 80 must be strictly observed, and that the Bombay view to the contrary was wrong. As I read the judgment, their Lordships were careful to leave the particular question, which we are now considering, open. According to the statement of fact the suit was against the Secretary of State, the Collector and the District Magistrate, all public officers. But, however that may be, as appears from the second last paragraph of the judgment, an attempt was made to distinguish between the effect of S. 80 in the case of the Secretary of State and in the case of the Collector, and to argue that even if it defeated the action as against the former it would fail to protect the latter. Their Lordships rejected this contention but on the ground that the suit had been throughout a joint proceeding for the purpose of getting a joint declaration that the Government Notification in question was bad as the foundation of everything subsequently done, and, in the circumstances without the presence of the Secretary of State before the Court, the notification could not be assailed, and, if it stood as valid, the Collector's action could not be successfully impugned. Thus, they rejected the contention on the express ground that the Secretary of State was a necessary party to the action to make it maintainable, and no other ground was mentioned. Moreover, in the next paragraph their Lordships said, “Whatever may be the case between other parties, as against the respondents, they (the plaintiffs) must fail.”
9. Reliance has also been placed on a single Judge Madras case, Venkata Rangiah v. Secretary of State (A.I.R 1931 Mad. 175).6 Whether the view taken in that case be correct or not, it has, in my opinion, no bearing upon the question before us. It was a case where two persons jointly sued the official, and the notice was served by one, and not served by the other. In such circumstances it was held that the plaint should be rejected as a whole.
10. There are two Patna cases, one of them a Division Bench case, where the course adopted seems to me inconsistent with the view taken by Rowland, J. The first is Secretary of State v. Amarnath (A.I.R 1936 Pat. 339).7 That was a case where the suit had been brought against the Secretary of State and others, and the Secretary of State in appeal took the point that the notice under S. 80 had not been served. The order of the Bench was to expunge the Secretary of State from the action, and otherwise to endorse the order of the District Judge remanding the case to be disposed of against the remaining defendants on the merits.
11. The other case is Registrar, Co-operative Societies v. Ramkishum Mandar (A.I.R 1939 Pat. 32) where James, J. sitting singly, on the appeal of the Registrar dismissed the suit as against him, but observed that the decree as against the other defendants was not affected by the order.
12. In the present case I do not think it can be contended, as Mr. Chatterji for the respondent has sought to do, that no notice under S. 80 was necessary, whether he was acting in good faith or not, what the village Munsif did purported to be done in execution of his duty as such and it has been so found. But I can see no reason why the suit should not proceed in the absence of notice against the appellant, in whose case no notice was necessary. A suit against him alone, without impleading defendant 2, would have been fully maintainable, and no difficulties could arise by striking defendant 2 from the action. If we regard defendant 2 as having been struck off, there would be no defect in the plaint necessitating its rejection under O. 7, R. 11(d) of the CPC.
13. It has further been argued for the appellant that the plaint shows the acts of the defendants so intermingled as to make on those allegations a decree against one alone impossible, the allegations being joint against each. I do not agree with this, view on the plaint as it stands, but, in any event, upon the findings, as I have already indicated, there is no reason why there should not be a decree against the appellant alone in whose case alone there was found to be any real cause of action. In my view the appeel fails, and it is accordingly dismissed with costs.
D.H
14. Appeal dismissed.