MAHANT RAM Vs. NANKOO RAM`

JUDGEMENT

(1.) THIS is a revision petition directed against the order dated 8.3.2002 passed by the Civil Judge (Jr. Division), Chandigarh allowing the application filed by the plaintiff-respondents under Order VI, Rule 17 read with Order 1, Rule 10 of the Code of Civil Procedure, 1908 (for brevity, the Code), The Civil Judge has allowed by way of amendment addition of relief of declaration to be added in the plaint to the effect that the plaintiff- respondents are co-owners in the house in suit as previously they were residing alongwith the defendant-petitioner in a Jhuggi and in lieu of aforementioned Jhuggi, the house in suit was allotted to the plaintiff- respondents and the defendant-petitioner jointly as an alternative site by Chandigarh Administration. In this context, they also impleaded the Estate Officer as defendant-respondent No. 2. The argument that original suit was for permanent injunction and allowing the amendment by incorporating the addition in the suit to make it a suit for declaration was rejected by the Civil Judge by observing that such an amendment would not change the nature of the suit and no new cause of action is sought to be introduced. Another ground given by the Civil Judge is that the suit has been instituted on 12.9.2001 and since it is at the threshold, it would not prejudice any one.

(2.) I have heard Shri S.M. Tripathi, learned counsel for the defendant- petitioner who has argued that the mandatory provisions of Section 80 of the Code have not been followed which required the plaintiff-respondents to serve a legal notice before filing the suit or impleading the Estate Officer as party under Order 1 Rule 10 of the Code. In support of his submission, the learned counsel has relied upon a judgment of the Supreme Court in the case of Smt. Sooraj and others v. S.D.O. Rehli and others, 1995(3) RRR 125 (SC) : AIR 1995 SC 872 and a judgment of Calcutta High Court in Smt. Janak Raji Devi v. Chandrabati Devi and another, AIR 2002 Calcutta 11.

(3.) A perusal of Section 80 of the Code would make it obvious that notice is mandatory in a suit filed against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity. Sub-section (2) of Section 80 of the Code carves an exception where issuance of notice mandated by sub-section (1) of Section 80 of the Code could be dispensed with. It contemplates cases of urgent nature which would brook delay of two months showing the urgency.