YOGESH KUMAR KAPOOR AND OTHERS Vs. DALIP SINGH

JUDGEMENT

(1.) This revision is against the order dated 25.07.2013 dismissing the application of the defendants under Order 1 Rule 9 of the CPC on the ground that the State of Punjab has not been arrayed as a party, though required under Order 27 Rule 5-A of the CPC. In short, the plaintiff filed a suit for damages alleging that he had joined the service of the Punjab Government as a Clerk on 07.11.1974 and has posted in the office of the Civil Surgeon. He retired from the service on 31.01.2008. The retiral benefits of the plaintiff were not paid on the ground that there was an inquiry pending against him which was found to be false, therefore, the suit is filed seeking damages for delaying the payment of the retiral benefits. The suit was contested and an application under Order 1 Rule 9 of the CPC was filed by the defendants on the ground that the suit is liable to be dismissed because of non joining of the necessary parties. It is alleged that in a suit for damages against a public servant, the State is required to be impleaded as a party under Order 27 Rule 5-A of the CPC but the application has been dismissed by the learned trial Court, vide its order dated 25.07.2013, on the ground that the defendants have acted in their personal capacity and not in their official capacity.

(2.) Counsel for the petitioner has argued that nothing has been mentioned in the plaint by the respondent/plaintiff that the defendants had acted in their personal capacity while giving wrong information about pendency of an inquiry against him. Rather the action of the defendants was in official capacity. It is submitted that as per Order 27 Rule 5-A of the CPC, the plaintiff was required to implead the State of Punjab as well a party to the suit.

(3.) Learned counsel or the respondent/plaintiff has failed to point out from the available record that the defendants had taken action against or made a false statement in their personal capacity and not in their official capacity. Once it is found that the action taken by the respondent was in their official capacity, the State of Punjab is required to be impleaded as a party.