SAWKAT ALI Vs. THE SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree of the learned Subordinate Judge, Jorhat, affirming those earlier of the learned Munsiff dismissing the Plaintiff's suit.

(2.) THE Plaintiff's case in brief is that he is an Indian citizen. He states that he was born at Akbarpatty, Dibrugarh and lost his parents in his infancy. He was brought up by Yakub Hussain of Dibrugarh and at the age of ten, he migrated to Jorhat town. At first, he served under one Muktinath Bharali for seven years and then he opened his own shop of old motor tyres in 1958 and he was carrying on that business. On 28 -01 -1965 he was arrested by a police officer of the Jorhat Police Station and after detaining him at the Thana for a night was deported to East Pakistan on the following day on the allegation that he was a foreigner. He returned from Pakistan to Jorhat on 13 -05 -1965 and he was rearrested the following day and produced before the Additional District Magistrate who however enlarged him on bail till 28 -5 -1965. The Plaintiff apprehends that he will again be deported on or after 28 -05 -1965 and in that predicament was compelled to institute this suit on 28 -05 -1965 for declaration that he is an Indian citizen and for permanent injunction, without serving a notice under Section 80 of the Code of Civil Procedure on the Defendant, who in this case is the Superintendent of Police and Registration Officer. He states in paragraph 9 of his plaint as follows:

(3.) MR . Baharul Islam the learned Counsel for the Plaintiff Appellant, submits that both the Courts erred in law in this case in dismissing the suit on the ground of absence of notice under Section 80, Code of Civil Procedure According to the learned Counsel, the Defendant has waived the right to a notice under Section 80, Code of Civil Procedure in this case. Section 80 provides that no suit shall be instituted against the Government or a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered to the public officer or left at his office, stating the cause of action, the name, description and place of residence of the Plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. Under the provisions of Order VII, Rule 11(d). Code of Civil Procedure relied upon by the trial court, the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. We have, therefore, to consider whether, in this case on the averments in the plaint the suit is liable to be dismissed in the absence of a notice under Section 80, Code of Civil Procedure.