Civil Suit No. 132 of 2004 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.320 of 2014 In the matter of an appeal under section 100 of the Code of Civil Procedure assailing the judgment and decree dated 21.01.2014 and 29.01.2014 respectively passed by the learned Additional District Judge, Rairangpur in R.F.A. No.19 of 2012 confirming the judgment and decree passed by the learned Civil Judge, Senior Division, Rairangpur in Civil Suit No. 132 of 2004. ---- Kumari Vijay Laxmi Mohanty -versus- State Engineer, Doordarshan Maintenance Centre, Balasore & Others …. …. Appellant Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
11. Keeping in view the position of law as have been discussed in the aforesaid decisions and applying the same to the facts and circumstances of the case at hand; this Court records the answer on the substantial question of law in favour of the Appellant (Plaintiff). It is thus held that non-compliance of the provision contained in section 80 of the Code is not total to this suit filed by the Plaintiff for realization of arrear rent from Doordarshan Maintenance Centre inducted as a tenant. The finding of the First Appellate Court which has been impugned in this Appeal that the Plaintiff is liable to be non-suited for non-compliance of the provision of section 80 of the Code is hereby set aside. In that view of the matter, the suit filed by the Plaintiff stands decreed in terms of the finding recorded by the First Appellate Court in answering the issue Nos. 4 to 6 as to her entitlement to the arrear rent as claimed from the Defendants. Page 7 of 8 // 8 // 12.
Arguments
Mr. R.K. Mohanty, Sr.Advocate For Respondents - M/s. S. Barik, D.K. Mohanty P.C. Behera, Advocate for R.1 Mr. M. Ku. Badu Advocate for R.3 CORAM: MR. JUSTICE D.DASH Date of Hearing : 10.02.2022 : Date of Judgment: 14.02.2022 The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure (for short, ‘the Code’) has assailed the judgment and decree passed by the learned Additional District Judge, Rairangpur in R.F.A. No.19 of 2012. By the same, the Appeal filed by the present Appellant under section 96 of the Code has dismissed. Page 1 of 8 // 2 // The present Appellant being the Plaintiff having lost before the Trial Court and thus being non-suited had filed the First Appeal under section 96 of the Code. The same having been dismissed; she is now on Appeal 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. The Plaintiff’s case, in short, is that she is the owner of the land and house in question. The Defendants had established one LPT Centre over the suit land having taken the land and house on lease from the original recorded tenant Shiba Narayan Dash. The Plaintiff having purchased the said land, the Defendants have attorned her as to be the lessor. It is stated that the parties had agreed that the Defendants would pay the monthly rent as would be assessed by the Public Works Department (PWD). The Defendants are said to have adopted dilatory tactics to settle the fair rent. However, in the month of March, 2003 fair rent certificate was obtained from the PWD (R&B), Rairangpur. So based upon that and in consonance with the extent of purchase, the Plaintiff claimed that with effect from 25.8.2000, she is entitled to get a sum of Rs.3066/- per month towards the monthly rent. The Defendants however did not pay the same. So she filed the suit for eviction of the Defendants and realization of the rent along with interest pendentilite and future. 4. The Defendant No.1 coming to contest the suit having raised technical objection as to non-joinder of necessary parties and non- compliance of the provision of section 80 of the Code have however admitted that they have been inducted as a tenant over the suit land and Page 2 of 8 // 3 // building by one Lingaraj Dash from 13.2.1994 on a monthly rent of Rs.3500/-/ It is also stated that the rent was not paid to the Plaintiff because of the dispute as to ownership and monthly rent of Rs.3,500/- paid to Shiba Narayan Dash from 14.2.1994 to 24.8.2000 and rent for the period from 24.8.2000 to 28.2.2002 was paid to Manoranjan Mohanty, Dr. P.S. Manikeswari. It is stated that the Defendants had agreed to enhnace the house rent after obtaining necessary fair rent certificate from the Govt. Authority. The matter had been referred to the Executive Engineer, Civil Construction Wing, All India Radio Prasar Bharati Board Broadcasting Corporation of India for submission of the fair rent certificate who fixed the rent @ Rs.5000/- per month for the entire premises. The Plaintiff without submitting the bill has filed the suit. 5. On the above rival pleadings, the Trial Court framed as many as nine (9) issues. Answering issue no. 5 as to the fair rent certificate issued by the Executive Engineer, R&B, Rairangpur, the Trial Court has said that the Plaintiff has failed to prove the fair rent certificate submitted by the Assistant Engineer, PWD, Rairangpur. The main ground taken here is that for non-examination of the Assistant Engineer, the fair rent certificate submitted by him is not acceptable. The next ground taken is that it having not been shown in evidence that the Plaintiff and the Defendants had sent the request to the Assistant Engineer, PWD for assessment of the fair rent as an arbitrator or a referee, there was no occasion or reason to give that fair rent certificate. Next coming to the other issues touching the quantum of rent as claimed by the Plaintiff, since the suit is based on fair rent certificate of the Assistant Engineer, PWD, Rairangpur which has been held to have not proved as per the finding given on the earlier issue, those issues Page 3 of 8 // 4 // have been answered against the Plaintiff. Non service of notice under section 80 of the Code upon the Defendants has also been taken as the ground to dismiss the suit. The suit has also been held as bad for non- joinder of the parties i.e. two other purchasers. The Plaintiff having suffered from the judgment and decree passed by the Trial Court in dismissing her suit having carried the First Appeal has also been unsuccessful. The First Appellate Court however has found the answers to issue Nos. 4,5 and 6 in favour of the Plaintiff. It has said that the Plaintiff is entitled to be arrear rent as claimed. Having said so, the First Appellate Court however proceeding to address the other issues i.e. issue Nos. 3 and 7, has non-suited the Plaintiff for adhearance to the provisions contained in section 80 of the Code by serving prior notice to the Defendants in filing the suit. 6. The Appeal has been admitted on the following substantial question of law:- “Whether the Fist Appellate Court is right in dismissing the suit filed by the Appellant (Plaintiff) on the ground of non-adherence to the provision of section 80 of the Code of Civil Procedure?” 7. Mr. R.K. Mohanty, learned Senior Counsel appearing for the Appellant submitted that the view taken by the learned First Appellate Court in non-suiting the Plaintiff as no prior notice under section 80 of the Code had been served upon the Defendants is wholly erroneous. According to him, the Plaintiff having filed the suit against the Defendants with their status, as admitted, for eviction and realization of arrear rent, the Plaintiff was not under legal obligation to comply with the provision of section 80 of the Code. In support of the same, he has relied upon the decisions in case of Executive Engineer (Electrical Supply), Bhanjanagar Electrical Division Page 4 of 8 // 5 // & another vrs. Osha Pradhan & another; (2007) Supplementary (Vol-2) OLR 892 and Kamta Prasad Singh & another vrs. Regional Manager FCI & others; AIR 1974 Patna, Page-376. It may be stated here that the Defendants have not filed any cross- Objection or cross-Appeal in impeaching the finding of the First Appellate Court as to the entitlement of the Plaintiff to the arrear rent as claimed, nor it is argued by them in course of hearing of this Appeal. 8. Learned counsel for the Respondents contended in favour of the ultimate decision of the First Appellate Court in dismissing the suit. 9. It is submitted at the Bar that the Defendants have already vacated the suit premises. 10. In the premises as above, the short point here is to answer with regard to compliance of section 80 of the Code by the Plaintiff as the condition precedent for filing of the suit which has been substantial question of law formulated. At this stage, it would be profitable to straightway take note of the decision cited by the learned Senior Counsel for the Appellant in case of Executive Engineer (Electrical Supply), Bhanjanagar Electrical Division & another (Supra). It has been held as under:- “7. The defendants raised a plea that the suit was not maintainable as proper notice under Section 80, C.P.C. was not served on the defendants before filing of the suit. Learned Trial Judge held that the officers of the SESCO are not public officers within the meaning of Section 2(17), C.P.C.. This observation is now challenged as incorrect. Section 2(17)of the C.P.C. indicates thepersons and authorities, who come within the meaning of “public officers”. Section 80(1) of the C.P.C. say s that notice on the State or public officers is to be served before filing of the suit seeking any relief against such State or Public officer. A close reading of section 2(17), Page 5 of 8 // 6 // C.P.C. along with the interpretation made by the Kerala High Court in the case of V. Padmanabhan Nair v. Kerala State Electricity Board; AIR 1989 Kerala 86, would show that Engineers of Electricity Board are not public officers within the meaning of Section 2(17), C.P.C. That being so, service of notice on the present appellants was not sine qua non before filing of the suit.” In the other case of Kamta Prasad Singh & another (Supra), it has been held as under:- “4. Section 80 of the Code of Civil Procedure requires service of notice on the Government before instituting a suit against the Government or against a Public officer in respect of any act purported to be done by such public officer in his official capacity. We have, therefore, to see whether the Food Corporation of the expression “Government”, we have also to see, whether the expression “Public officer” as used in the Section would cover officers of the Corporation. is covered by India 5. Section 3 of the Act is as follows:- “With effect from such date as the Central Government, may by notification in the official Gazettee, specify in this behalf, the Central Government shall establish for the purpose of this Act a Corporation known as the Food Corporation of India. (2) The Corporation shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of that name, sue and be sued.” It would thus appear that the Corporation is a body corporate and can sue and can be sued in its own name. The fact that the capital of the Corporation may be provided by the Central Government or that the working of the Corporation can be supervised or directions may be issued by the Government does not, in my view, constitute it a “Government” within the meaning of Section 80 of the code. Although the expression “Government” has not been defined in the Code, it cannot in my view, include a “Corporation” constituted under an Act of the Parliament. The expression “public officer” has been Page 6 of 8 // 7 // defined in sub-section (1&) of Section 2 of the Code. The only sub-clause, which might have some relevancy is sub-clause (h), which is as follows:- “(h) Every Officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty”. Here the officers of the Corporation are not in the service or pay of the Government. They are in the service and pay of the Corporation and are paid out of the funds of the Corporation. In this view of the matter, I do not think that the officers of the Corporation are “public officers’ within the meaning of Section 80 of the Code of Civil Procedure. The view of the courts below, therefore, that the plaint could be rejected under the provisions of Order VII Rule 11 of the Code does not appear to be sustainable in law.”
Decision
In the result, the Appeal stands allowed. There shall, however, be no order as to cost. Judge. (D. Dash), Basu Page 8 of 8