HARDAYAL SINGH Vs. ASHWAPATH SINGH

JUDGEMENT

(1.) By this petition, the petitioner challenges the orders of the learned trial Court (Civil Judge, Junior Division) Sirsa, dated August 20, 2018, by which the application filed by the petitioner (defendant no.1 in the suit out of which this petition arises), under Order 7 Rule 11 CPC, has been dismissed. The application was filed taking a plea that no notice having been issued to defendant no.2 in the suit, i.e. to the Sub Registrar, Sirsa, under Sec. 80 of the CPC, as is mandatory before any suit can be instituted against a public officer, the plaint was liable to be rejected on that short ground alone.

(2.) A reply having been filed to the application, the learned trial Court eventually held vide the impugned order that in the suit itself notice having been served upon defendant no.2, despite which the public officer did not put in any appearance before the Court and was therefore proceeded against ex parte vide an order dtd. 11/12/2014, it would imply that the said defendant had sufficient knowledge of the suit despite which he did not defend it and consequently, the plaint could not be rejected on that ground.

(3.) Before this Court, Mr. Jain, learned counsel for the petitioner, has argued that the reasoning given by the trial Court is wholly erroneous, in view of the fact that at the time when the suit was filed by respondent no.1 herein (plaintiff), obviously he could not have had any knowledge that defendant no.2, i.e. the Sub Registrar, Sirsa, would not respond to the notice issued in the suit and would therefore eventually be proceeded against ex parte. Hence, he submits that Sec. 80 of the CPC being a mandatory provision before a public officer can be sued, and the said mandate not having been complied with, with not even an application filed under sub-sec. (2) thereof before the Civil Court seeking waiver of service of notice (under Sec. 80) upon the public officer, the plaint actually deserved to be rejected.