BIRHASH GIRI BASUMATARY Vs. CHANDAN CHAKRABORTY

JUDGEMENT

(1.) Heard Mr. S.S. Sharma, learned Senior Counsel for the petitioner assisted by Mrs. L. Sharma and Sri B.J. Mukherjee as well as Mr. D. Mozumdar, Senior Counsel for the respondent assisted by Mr. P. Borah and Ms. J. Kakoti.

(2.) The respondent herein is the plaintiff in M.S. No. 2/2009, pending in the Court of learned Civil Judge, Bongaigaon. The petitioner herein, who was the defendant in the suit had contested the suit. On 10.01.2004, i.e. after 5 long years, the respondent filed an application under the provisions of Or. IR.10(2) and Or.VI R.17 read with sec.151 CPC for impleading the State of Assam, represented by Superintendent of Police, Chirang District as Proforma Defendant in the suit. It was stated in the said application that the money suit arose from the acquittal of the respondent in GR Case No. 90/2005, wherein the petitioner herein was the informant. The investigation of the case was conducted by the Bijni Police, which falls under the Superintendent of Police, Chirang. But the said authority was not made a defendant due to bona fide mistake. It was apprehended that the suit would fail on technical grounds for non- joinder of the said necessary party. It was specifically stated therein that the respondent is not seeking any relief against the State of Assam. The said application was registered as Misc.(J) Case No. 1/2014. The learned Civil Judge, Bongaigaon by order dated 20.11.2014, allowed the said application. The said order is impugned in this revision filed under Article 227 of India.

(3.) The learned Senior counsel for the petitioner submits that (i) the application was filed belatedly after 5 years from the institution of the suit, (ii) as no notice under section 80 CPC was issued to the State, which was mandatory, the State cannot be impleaded as Proforma Defendant in the suit because as per sub-section (1) of section 80 CPC, no suit can be instituted against the Government until expiration of two months from the date of delivery of the notice in writing (iii) as per the provisions of sub-section (1)(b) of section 80 CPC, the Secretary of the Govt. is the prescribed authority, but in the present case in hand, the learned Civil Judge allowed impleading despite the fact that the Superintendent of Police has no authority to represent the State Govt., (iv) From the nature of reliefs claimed in the plaint by the respondent it is apparent that such reliefs are in respect of personal actions of the petitioner and therefore, the State of Assam cannot be held even to be vicariously liable in respect of the claims made by the respondent for which the State of Assam is not a necessary and/or proper party in the suit.