STATE OF KERALA Vs. SANKARAN

JUDGEMENT

(1.) I think the suit falls clearly within O.7 R.11(d) of the Civil Procedure Code and that, in declining to reject the plaint under that provision and deciding to proceed with the trial, requiring the defendants to file written statements, the court below exercised a jurisdiction not vested in it by law in the sense in which that term is used in S.115(a) of the Code.

(2.) The suit, as disclosed from a reading of the plaint, is against the State of Kerala and the Revenue Divisional Officer, Kottayam in respect of the sale of a land with the buildings thereon under the provisions of the Revenue Recovery Act and in respect of an order of the Revenue Divisional Officer to his subordinates to effect delivery in pursuance of that sale. The plaint contains no recital as required by S.80 of the Code that the notice required by that section had been effected, and, the plaintiff has no case that such notice was, in fact, issued. True the relief claimed is only an injunction to restrain the defendants from dispossessing the plaintiff. But, as pointed out by the Privy Council in Bhagchand v. Secretary of State (AIR 1927 Privy Council page 176 at pages 184 and 185), the words "in respect of" used in S.80 are wider than the word "for", and there can be little doubt that, notwithstanding that the relief claimed is to restrain a future act, the suit is in respect of past acts such as the holding of the sale and the order directing the dispossession of the plaintiff. In fact the plaint states that the Revenue Divisional Officer had originally ordered that delivery should be effected on 21-4-1960, that his subordinates had attempted to take delivery on that day, that plaintiff had filed a claim petition before the Revenue Divisional Officer and that the latter had, ignoring this petition, directed delivery on 7-5-60. it is therefore abundantly clear that the suit is in respect of these past completed acts and is by no means confined to the acts threatened in the future although the relief claimed may be confined to such acts. And again, as observed by their Lordships in the case already referred to, if these past acts cannot be assailed, there would be nothing to restrain for the future. I think it unnecessary for the present purpose to go into the question whether S.80 of the Code, in so far as it relates to a suit against a public officer, can apply to a suit which is wholly in respect of future acts, but I confess to the same difficulty which Satyanarayana Rao J. expressed in State v. Venkata Durga (AIR 1957 Andhra Pradesh 675) of conceiving of such a suit. With great respect I think that the case just referred to and the case reported in Subedar Shingara v. Callaghan (AIR 1946 Lahore 247 Special Bench) were correctly decided and seem to be but a logical application of the principles laid down in Bhagchand v. Secretary of State (AIR 1927 P. C. 176). And with equally great respect I am unable to follow the line of cases represented by Arunachalam Chetty v. Official Receiver, Ramnad ( AIR 1927 Mad. 166 ).

(3.) The only other element required to attract S.80 of the Code and to make the present suit barred by that law from the statement in the plaint is the element that the Revenue Divisional Officer, who is undoubtedly a public officer, was purporting to act in his official capacity. As to that, the statement in the plaint that the Revenue Divisional Officer was acting in pursuance of a sale held under the Revenue Recovery Act and that the plaintiff approached him to cancel his order directing his official subordinates to take possession of the property in pursuance of the sale, can leave no room for doubt.