RAM ASHRAY YADAV Vs. DUDH NATH PRASAD

JUDGEMENT

(1.) Defendant No. 1, Dr. Ram Ashraya Yadav, in the criminal suit is the petitioner in this civil revision application, which arises out of an order, dated 8-5-96 passed in Title Suit No. 432 of 1995, by Sri Hem Shankar Singh, 1st Subordinate Judge, Patna, whereby he was rejected the petition filed by the defendants under Order VII, Rule 11 of the Code of Civil Procedure (hereinin-after called 'the Code') for deciding the preliminary issue regarding maintainability of the suit.

(2.) The plaintiff, who is the Accountant-General of Bihar, Audit (1), filed Title Suit No. 432 of 1995 for a compensation of Rs. 50 lakhs besides interest, pendente lite and future, as determined by the Court, from the defendants including the petitioner, jointly or severally, for the defamatory statements made by them, which was published in the daily newspapers. During the pendency of he suit, a petition purported to be under Order VII, rule 11 of the Code was filed jointly on behalf of defendants Nos. 1 and 2 praying therein to decide the preliminary issue regarding the maintainability of the suit against defendants Nos. 1 and 2. The aforesaid petition was field, firstly, on the ground that the suit filed by the plaintiff be dismissed, as no cause of action has been disclosed in the plaint, and, secondly, the petitioner being a public servant, a notice under Section 80 of the Code ought to have been issued and/or served upon the petitioner, which was not done in this case. A rejoinder to the said petition was not also filed by the plaintiff-opposite party No. 1.

(3.) The Court, on a consideration of the averments made in the pleadings came to the conclusion that the cause of action had been fully disclosed on different dates mentioned in the impugned order itself. As regards non-service of notice under Section 80 of the Code on the defendants, it was submitted that it is not open for the defendants to abuse, defame and use unparliamentary language to damage the reputation and prestige of the plaintiff opposite party No. 1, who is Class I Officer in the Audit and Accounts Service and, as such, service of notice under Section 80 of the Code is not required, as the act has not been done by the defendant No. 1 in discharge of his official duties. It was further stated that the defendants have not disclosed as yet in their written statement that the defamatory imputations made by them through daily newspapers are in the discharge of their official duties. Accordingly the Court has accepted the contentions of the plaintiff and rejected the petition filed by the defendants, as stated above.