Filling of suit
jayesh
(Querist) 01 January 2015
This query is : Resolved
Mr. A & B are government officer and C is a clerk subordinate to A & B. A, B & C in collusion & connivance with each other have effected the transfer of title of property illegally & thereafter A, B, C are transferred to other office & D & E are appointed in place of A & B. F is a another officer from the same office (G) currently working along with D & E. Mr. D, E & F are responsible for maintaining the record of illegal transfer of title.
In this suit Plaintiff has made A, B, C, D, E, F, Government Office (G) as party to the suit & has already sent notice u/s 80.
The allegation against the A, B, C are that while effecting transfer A, B, C were aware that transfer is illegal & they deliberately effected the illegal transfer in collusion with other defendant & without following any law. & D, E, F, in order to protect A, B, C & illegal transfer, have deliberately misplaced all the documents in respect of this illegal transfer.
The prayers are for orders be given to the A, B, C, D, E, F, G to produce all the documents on the basis of which they effected the transfer & penalty to A, B, C, D, E,F & compensation from A, B, C to plaintiff.
After filling of the suit, registrar has taken objection regarding A, B, C, D, E, F as to whether plaintiff want to sue them in their Personal capacity or Official capacity ?
Plaintiff wants to sue A, B, C in their Personal capacity because they have been transferred to other office & sue D, E, F in official capacity because they are currently in the office.
1. Are all parties rightly made as party to the suit ?
2. Is there need to change capacity ?
3. Is this Mis - Joinder of Parties ?
Please guide. What will be right course of action in the best interest of suit ?
Please ask more information if needed.
Thank you.
T. Kalaiselvan, Advocate
(Expert) 02 January 2015
Are you an advocate?, if so, you must decide about impleading all of them as necessary parties to the suit based on the replies claimed against them and in the capacity. If you are not an advocate, better take the advise and clarification from your own advocate based on the circumstances of the suit to be filed.
Rajendra K Goyal
(Expert) 02 January 2015
Consult local lawyer and show him full case file.
jayesh
(Querist) 02 January 2015
Thank you T. Kalaiselven sir & Rajendra sir,
I am not an advocate & has filed this suit in person. everything is o.k. We have implead all of them as necessary party & registrar has no objection in making them as party but registrar have asked that description of the parties is not sufficcient & asked us to clarify that whether we are making all of them as party in official capacity & if no then to whom we are making party in official & personal capacity.
law says that :
Section 80 provides that where a suit is to be instituted against the Government or any public official for any act purported to be done in his official capacity, the person filing the suit must give a notice of at least 2 months before filing the suit. The difference in case of a public official is that the suit must be instituted only for acts purported to be done by him in his official capacity. There is no stipulation in the section as regards suits instituted against the government. Any act purporting to be done in his official capacity includes illegal omissions as well. It covers future as well as past acts of such official. It means a series of acts and is applicable even in cases of misfeasance or non-feasance. The act must be such as is done or would have been done in the normal course of his official duties.
Now the confusion is in the following:
If we say that we are making all of them party in official capacity then question which registrar asking is that in place of A, B & D & E are officer & D & E can give explanation about the act done by A & B. A has been transferred to another office & then how can we implead him as party if he is currently not working in the same government office which effected the transfer of property. B has retired from service.
If we say that we are making A, B, C party in personal capacity then provision of section 80 make confusion because section 80 says that suit can be file in official capacity for past act.
Therefore, It is the confusion that how to make A, B, C as party to the suit,whether in official capacity or personal capacity ?
Therefore please guide ? sorry for the length of the query. Thanking you.
Guest
(Expert) 02 January 2015
Not A, B, C, D, E or F can be the parties in person in any Government organisation. The parties to suit are made by designation, as the officers/officials work on behalf of the government. So far as notice under sec.80 is concerned, that has to be addressed to the Secretary as Head of the concerned department. Officers holding the post, may be the substitutes of transferred or retired ones, become answerable to the acts done on behalf of the Government, may be by their predecessors. It is their internal arrangement, if they call the retired or transferred officer/official to respond to the offence, if any, and to brief the Government advocate to defend the suit. So, there should be no confusion about sec. 80.
jayesh
(Querist) 02 January 2015
Thank You. P S Dhingra Sir & You are right that it is the duty of Government & D, E, F to produce all the documents & state to the court that how A & B have effected the transfer irrespective of the fact that whether they are in service or not.
But in this suit, it is not believed by the Plaintiff that while effecting the transfer A & B has acted in due diligence & they have done this act legall. Plaintiff is claiming compensation from A, B, C for their misfeasance.
As far as question of D, E, F is concern, that they will inform to the court about this illegal transfer, then fact of this case is that none of the document in respect of this transfer is with government office & D, E, F has come to this office after the transfer & from when documents are not available is not clear & therefore D, E, F will say that documents are not available prior to their appointment & as a result attendance of A, B, C who effected this transfer is necessary.
Therefore, We wish to make A, B, C as party to the suit in any way either in official capacity or Personal Capacity.
From the above discussion it does seem that court will not allowed it in personal capacity & therefore we are thinking of making them party to then in Official capacity along with D, E, F.
1.Am I right in making A, B, C as party in official capacity, along with D, E, F ?
2.Will Court allow this to us ?
3.Is there anything which restrict us to make A, B, C as party to the suit in any way ?
Please guide. It will be helpful for me if you give reply number wise.
Thanking You.
Guest
(Expert) 02 January 2015
In addition to the Secretary of the department, you can make those persons also as parties to the case. But, as a petitioner, only you will be liable to prove if some illegality has been committed officially by the officials in service, transferred or retired, as the case may be.
jayesh
(Querist) 02 January 2015
Thank you very much P S Dhingra sir, T. Kalaiselven Sir,Rajendra K goyal Sir for your valuable advices. Because otherwise I would have added them as party in personal capacity. I did not have any idea about officially or personal capacity before filling suit. Thank you very much again to all.
