SWARNA AMMAL Vs. SETHUMADHAVAN

JUDGEMENT

(1.) Revision petitioners are the plaintiffs in O. S.6/80 for recovery of a sum of Rs. 15,000/- from the 1st respondent personally and out of his properties by way of damages. The allegation is that the first respondent maliciously and mischievously instituted proceedings before the Land Board without reasonable and probable cause or excuse and knowing fully well that the facts reported by the 1st respondent are utterly false to his own knowledge. First respondent filed I.A. 705/81 to reject the plaint as it was filed before the expiry of two months from the date of delivery of the notice under S.80 C.P.C. The learned Sub Judge, Palghat held that the suit is not maintainable finding that it was instituted before the expiry of two months from the date of delivery of the notice.

(2.) Learned counsel for the revision petitioners contended that the learned Sub Judge ought not to have dismissed the suit as the petitioners averred in the plaint about the acts of the 1st respondent in his individual capacity as well as in his official capacity. Counsel submitted that as the issues have been raised with regard to the acts of omission and commission of the first respondent both in his individual as well as official capacities the court below ought not to have dismissed the suit on the ground that the suit has been instituted before the expiry of two months from the date of delivery of the notice.

(3.) The allegations in the plaint reveals that the first respondent misused his position as a public servant and set the law in motion against the revision petitioners. In para 13 of the plaint it is specifically stated that notice has been issued under S.80 C.P.C. to the respondent, a public servant. In view of the detailed averments in the plaint it is not possible to hold that the suit claim is with regard to the individual acts of the first respondent. 1st respondent was admittedly the Deputy Tahsildar during the relevant time. He was the authorised officer who was empowered to obtain information from persons under the provisions of the Kerala Land Reforms Act. Therefore it cannot be disputed that the first respondent is an officer in the service of the Government having the power to perform public duty. It goes without saying that the notice under S.80 C.P.C. is really necessary before instituting the suit.