Baldeo Prasad v. Sukhi Singh

1. In the action out of which this appeal arises the plaintiff was the purchaser from defendants 2 and 3 of a part of a holding khata No. 56 and a mortgagee of the remainder of that same holding and was a purchaser of the entire area of a second holding khata No. 57. These two holdings are in the Government Khas Mahal of which defendant 1, the Secretary of State for India in Council, is the landlord. Subsequent to the acquisition by the plaintiff of the interest which I have stated in the land, the Secretary of State instituted proceedings under the Public Demands Recovery Act for recovery of rent of the holding against the original tenants who are defendants 2 and 3 in the suit. The proceedings were carried up to the sale of holdings which were purchased by defendants 4 to 7 of the suit. Thereafter the plaintiff attempted to get the sale set aside under Section 29 of the Public Demands Recovery Act, on the ground of irregularities and fraud. That application failed. Then the plaintiff brought his title suit claiming to recover the property on getting a declaration that all the certificate proceedings were fraudulent and that his title to the property was not effected by them. The Munsif dismissed the suit holding that there was no fraud or irregularity in the execution proceedings, that the suit was barred by Sections 45 and 46 of the Public Demands Recovery Act (Bihar and Orissa Act 14 of 1914), and that the suit was also barred by Section 80 of the CPC.

2. On appeal from this decision the Subor dinate Judge held in agreement with the Munsif that there was no irregularity or fraud proved to have been committed in the execution proceedings. The Subordinata Judge further agreed with the Munsif that the sale could not be set aside and that the suit so far as in it the plaintiff claimed relief by setting aside the sale was barred by Ss. 45 and 46 but that the nature of the proceedings was such as to pass not the holdings in the manner in which sale in execution of a rent decree passes the holding but passed only the right, title and interest of the judgment-debtor in the property in the manner in which a money execution operates. The Subordinate Judge thought as regards S. 80 that the suit was not maintainable against the Secretary of State but was maintainable against the other defendants.

3. In second appeal it is contended that S. 80 where it is applicable bars the entire suit which must fail as a whole and can not, on the ground of non-maintainability, be rejected against some and allowed to proceed against others of the defendants. It has also been argued that the Subordinate Judge is wrong in holding that the effect of the sale was only that of sale in execution of a money decree. It is dear having regard to the wording of S. 80 that the plaint was defective. The section concludes with the requirement that “the plaint shall contain a statement that such notice has been so delivered or left”. There was at one time a difference of Judicial opinion whether S. 80 applied to all suits in which the Secretary of State was a defendant or whether its provisions could be in some cases relaxed, but that question has been set at rest by the decision of the Privy Council in 51 Bom 7251 where their Lordships refused to read into the statutory provision words of qualification and limitation which are not to be found in the section. In that case the entire suit had been dismissed and the appeal to His Majesty in Council was dismissed also. No opinion is there expressed as to whether the correct procedure in such a case is to dismiss the suit itself or to reject the plaint; but the Code, I think, intends a plaint which is defective in this manner to be rejected under O. 7, R. 11(d). Rejection of the plaint in these circumstances was approved by the Allahabad High Court in 25 All 1872 and the Privy Council decision as well as this pronouncement were accepted and followed in 58 Cal 8503 where, after pointing out that in 25 All 187, it was held that the proper course was to reject the plaint and that there were on the other hand cases in which the suit was dismissed, Mukerji and Mitter JJ. said:

Seeing that S. 80 itself provides that the plaint shall contain a statement as to the notice, we think it was the duty of the Court to look into the plaint, and when on the face of it there was no averment as to service of the notice, the Court should have held that the suit was one which could not be instituted, and should have rejected the plaint, instead of going on with the suit.

4. As regards the contention that the suit, though it must fail against the Secretary of State could proceed against other defendants, I would refer to 54 Mad 4164 in which the Privy Council decision, 51 Bom 725, was followed and applied and it was observed that there was a real difficulty in permitting the suits to proceed so far as the defendants other than defendant 1 were concerned, and it was said:

The plain meaning of that rule seems to be that, if any of the defects mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. It does not imply any reservation in the matter of the rejection of the plaint.

5. Non-compliance with the requisites of Section 80 of the CPC, was taken to be a ground covered by Cl. (d) of R. 11 of O. 7. In my opinion the suit as framed and presented could not proceed at all and the proper course was to reject the plaint. It is said in reply that a defeat, such as absence of notice or non-compliance with Section 80 of the CPC, can be waived by the Secretary of State and that unless the Secretary of State presses an objection on his ground another defendant would not he heard to raise it.

6. In support of this, reference is made to 40 Cal 503.5 In that case no issue had been raised in the Court of first instance. I am not sure however whether this case can be treated as still an authority after what has been said by the Privy Council in 51 Bom 725. In this Court, 17 PLT 1526 was a case in which the respondent impleaded the Secretary of State as a pro forma defendant but claimed no relief against him, the reliefs desired being as claimed against other defendants. This, it was held, had not the acnaequence of making a notice under S. 80 unnecessary. The Munsif rejected the plaint but the District Judge thought that no relief being claimed against the Secretary of State notice under S. 80 was not necessary. Agarwala, J. was unable to accept this interpretation of the section which he said was clear and peremptory and he followed and applied 51 Bom 725 saying:

The words of the section are perfectly unambiguous, that no suit shall be instituted against the Secretary of State until two months after notice of the suit has been served upon him. There is no qualification of this requirement and no qualification can be read into the section.

7. The District Judge in that case had ordered a remand for disposal of the suit on the merits. The High Court varied this by directing that the name of the Secretary of State should be expunged from the action. I considered during the hearing of this appeal whether I should as nearly as possible follow the same course, that is to say, give the plaintiff-respondent an opportunity of amending his pleading by praying that the Secretary of State might be discharged from the record and the suit permitted to proceed against the other defendants. But it appears that the nature of the pleadings in the suit was such that such a course would not be possible without material change in the nature of the suit, the cause of action and; the reliefs sought, for the plaintiff came into Court with allegations of fraud, irregularity, suppression of notices and the prayer that the entire sale should be avoided. What he has been found, in the opinion of the lower Appellate Court, to be entitled to is a declaration of his title as being unaffected by the sale. No doubt this was a relief which could have been given to him in a properly constituted suit in which the Secretary of State had not been impleaded at all. Such a litigation was dealt with in AIR 1933 Pat 67 where the objection was taken on behalf of the defendant that the Secretary of State who had not been impleaded was a necessary party, and it was held that the plaintiff not being the certificate debtor or a person claiming through him the suit was correctly framed and the Secretary of State was not a necessary party. If the plaintiff had framed his pleadings in the present litigation on the lines of those in AIR 1933 Pat 6, he could have got relief in this suit: but having regard to the facts and to the state of the pleadings before me, I think that it is a proper result that he should get no relief till he comes into Court with a properly framed and maintainable plaint claiming reliefs which it is in the power of the Court to grant. I would therefore set aside the order of the lower Appellate Court and direct that the plaint be rejected as barred by Section 80 of the CPC. The Secretary of State will get his costs throughout. The plaintiff and contesting defendants 4 to 7 will bear their own costs of the first Court but the plaintiff will pay the costs of those defendants in the first and second appeal.

R.M/R.K

8. Order set aside.