ALI IMAM Vs. ASIFUNISA

JUDGEMENT

(1.) HEARD .

(2.) 'This civil revision application has been filed by the petitioner against the order dated 24.3.1998 passed by the learned Sub -Judge -IV, at Jamshedpur in Title Suit No. 12 of 1987 directing the petitioner to implead the State of Bihar as a defendant.

(3.) AT the out set, it was submitted on behalf Of the plaintiff petitioner that if at all, the suit was bad for non -joinder of a necessary party, - it should have been decided as a preliminary issue, inasmuch as it affects the maintainability of the suit. No doubt, such matters are usually decided by the court as a preliminary issue. In this view of the matter, there seems to be some substance in the submission urged on behalf of the petitioner. But, at the same time, it is also true that if any point, which ought to have been decided as a preliminary issue, could not be dealt with it having not been pressed, it does not mean that the issue has to be ignored. Therefore, the court below also took this point into consideration and, accordingly, the issue appears to have been highlighted in course of the argument before the court below which came to the conclusion that if the interest of the State is involved and/or is likely to be affected, it is necessary that the State should also be heard. The grievance of the petitioner does not appear to be correct, because the court below could have dismissed the suit on the ground of non -joinder of the party and the order passed by the trial court cannot be challenged on this count. However; the learned counsel for the .petitioner has expressed his doubt as to whether a notice under section 80 of the Code of Civil Procedure, - if the State is sought to be impleaded, -would be necessary, inasmuch as in that case, it would create some complications for the petitioner. In this regard, it can be said that if a party has got any grievance against the State or its authorities, it should give information by way of notice under section 80 CPC before filing of the suit, so that the State or the agency concerned may consider it to ventilate the grievance of the party concerned. In that event,, the filing of the suit will not be necessary and the litigation will be avoided. But in the instant case, the order passed by the learned court below is based on the submissions made and the materials available on the record that the State should be given an opportunity of being heard although relief is sought against the State. There does not appear any reason why the impleading of the State as a party will be obstructed or hindered by the provision of section 80 of the Code of Civil Procedure. In my view, such notice in the circumstances will not be necessary.