Notice under section 80 cpc
sandeep rane
(Querist) 24 May 2014
This query is : Resolved
If the Government employee has retired from service then in that case is it necessary to give notice under section 80 CPC before filling Civil Suit for Possession?
Thank you.
Guest
(Expert) 24 May 2014
Discuss your real problem.
Rajendra K Goyal
(Expert) 24 May 2014
Repeated query:
http://www.lawyersclubindia.com/experts/Notice-under-section-80-cpc-474106.asp#.U4ClrShKqRR
sandeep rane
(Querist) 24 May 2014
Thank you.
Suit is against illegal transfer of property.
When the property was transferred illegaly Mr. A was involve in it & was government employee & Mr. A has done act in official capacity but at the time of filling suit against same illegal act Mr. A has retired from Government Service. He do not hold the post Mr. B is holding the post on whic Mr. A has done illegal Act.
We are making Mr.A as well as Mr. B as party to the Suit . Since Mr B hold Government post notice under 80 cpc has been send to him but we are confuse about Mr.A whether or not to serve notice under 80 Cpc to Mr.A because Mr. A is also party to the Suit.
Please help. This is not a academic query.
Thank you.
Anand Bali Adv.
(Expert) 25 May 2014
This case is against the Government and not under the personal capacity of the person, In this case there is no requirement of sending notice under Sec 80 of CPC 1908.
Shivesh Sinha
(Expert) 25 May 2014
Dear Mr. Sandeep Rane,
Having perused your query, while quoting the provisions laid u/s 80CPC for your ready reference; I would like to inform you that if the respective Civil Suit for Possession is to be instituted then only a Notice u/s 80 CPC is required.
80. Notice.- (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of—
(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway;
(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district;
and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted , with the leave of the court, without serving any notice as required by sub-section (1); but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice—
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.
STATE AMENDMENT
MADHIYA PRADESH.- In Section 80 of the principal Act,
(i) in sub-section (1) for the words, brackets and figures “sub-section (2)”, the words, brackets and figures “sub-section (2) or sub-section (4)” shall he substituted;
(ii) after sub-section (3), the following sub-section shall be inserted, namely:
(4) Where in a Suit or proceeding referred to in Rule 3-B of Order l, the State is joined as a defendant or non-applicant or where the court orders joinder of the State as defendant or non-applicant in exercise of powers under sub-Rule (2) of Rule 10 of Order I such Suit on proceeding shall not be dismissed by reason of omission of the plaintiff or applicant to issue notice under sub-section (1).” M.P. Act, No. 29 of 1984, S. 3.
Hope, above clarifies & removes your doubt, extended through your instant message.
Thanks,
SHIVESH SINHA,
Advocate Cum Legal adviser to www.powertoconsumer.in
Shivesh Sinha
(Expert) 25 May 2014
Dear Rane,
It is supplemented that, if the suit is to filed as against a retired (Superannuated)Govt. Employee, application of said Sec.80 CPC won't apply.
SHIVESH SINHA,
Advocate Cum Legal Adviser to www.powertocosumer.in
Shivesh Sinha
(Expert) 25 May 2014
Dear Mr. Rane,
You have rightly served required notice upon Mr."B" but in your case, as such the subject matter is related to an act of Mr. "A" purporting to be done by him in his official capacity, Notice u/s 80 CPC upon him is also mandatory.
Thanks,
SHIVESH SINHA,
Advocate
sandeep rane
(Querist) 25 May 2014
Thank you Sinha Sir & Bali Sir,
What is the option available to me if I am not able to find residential address of Mr.A.
How to serve notice to him ?
Thank you.
Surrender K Singal
(Expert) 25 May 2014
Whichever last known address you have, may be used
Guest
(Expert) 25 May 2014
Mr. Rane,
To be frank, the case is likely to fail if you serve notice only the officer concerned, as it is not the question who, A or B, committed the act, the act was committed on behalf of the Government. Notice becomes due to be served only to the Secretary/Head of the Department for and on behalf of the Government, not the individual officer. It is up to the department to hold responsible the concerned officer or not. If you feel that some illegal act has been committed and you intend to make only the officer as party to the case, the action may not get reversed, if the Government through the Secretary/Head of the Department is not made the party.
T. Kalaiselvan, Advocate
(Expert) 26 May 2014
Rightly observed and properly opined by expert Mr.Dhingra on the subject issue. I agree with his views and endorse the same as my opinion to. The A has committed the act in his official capacity, hence a case against the state will be the option. So let the department answer the issue, why do you complicate the things. Let the department hold the concerned official as personally liable to the issue by washing its hands, then you can think about next course of legal action.
Sudhir Kumar, Advocate
(Expert) 27 May 2014
you appear to have confused with suit on Govt and suit on Govt servant.
Sudhir Kumar, Advocate
(Expert) 27 May 2014
repeated
http://www.lawyersclubindia.com/experts/Recovery-of-loans-by-banks-474066.asp#.U4Q3C3b5ugA
