Smti.Lissy Sudesh and Anr. Vs Smti.Mamta Dubey

This revisional application is directed against an order dated July 08, 2025, passed by the learned Joint Civil Judge, Senior Division, South Andaman, Port Blair in Other Suit No.11 of 2016.

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It appears that the suit was instituted by the present Opposite Party (OP) for permanent injunction in respect of certain lands. The schedule of the plaint mentioned government land but the government was not made a defendant in the suit.

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Learned advocate for the petitioner tells me that in the year 2017, the OP/plaintiff made an application for impleading the government as party and for dispensation of notice required under section 80 of the Code of Civil Procedure. However, that application was not pressed by the plaintiff.

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In the year 2024, the plaintiff/OP again filed an application under Order 1 Rule 10 and also an application under section 80(2) of the Code of Civil Procedure. This was for adding the government as party defendant and dispensation of

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notice under section 80 (1) of the Code of Civil Procedure which is a pre-requisite for filing a suit against the government..

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The learned Trial Court heard the parties. The present petitioner opposed the said two applications.

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Learned Judge, after considering the submissions of the respective parties, was of the opinion that for just and complete adjudication of the matter, the presence of the government is necessary and the Court may not be able to effectively and completely adjudicate upon the issues involved in the said suit in the absence of the government. Accordingly, the learned Court ordered as follows:-

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“That the application filed by the plaintiff under Order 1 Rule 10 (2) of CPC for the addition of the Government Authorities as a party to the present suit is allowed. The (i) Lt. Governor, A&N Island, (ii) The Secretary (Revenue), A & N Administration, (iii) The Deputy Commissioner, South Andaman District, (iv) The Assistant Commissioner, South Andaman District and (v) The Tehsildar, Port Blair are hereby impleaded as a Defendants in this suit.

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The application filed by the plaintiff under Section 80(2) of CPC is dismissed. The Plaintiff is directed to comply with the provisions of Section 80 of the CPC by serving the requisite statutory notice upon the newly added defendant, and shall file proof of such service on record within four weeks from the date of this order. The suit shall remain stayed until such compliance is demonstrated.

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The Defendant already on record is at liberty to file an amended Written statement.”

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Being aggrieved, the defendants in the suit have come up

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by way of this application.

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Learned advocate for the petitioners/defendants vociferously argued that having withdrawn a similar application in 2017, the present application for impleading the government as defendant would not lie. The application has been made after

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eight years of institution of the suit. If the order of the learned Trial Court is allowed to stand, the same shall have adverse ramifications for the defendants. In any event, the Lieutenant Governor, Secretary (Revenue), Deputy Commissioner, South Andaman District and other government officials could not have been added before expiry of sixty days from service of notice of the suit on them as required under section 80(1) of the Code of Civil Procedure. Notice is a mandatory pre-condition for instituting a suit against the government or the government officials.

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Learned counsel for the OP says that it does not lie in the mouth of the petitioner to say that the application for impleadment of the government officers has been filed belatedly. The defendant took five years to file written statement. This Court, on a revisional application, finally permitted the defendant to file written statement upon payment of cost of Rs.20,000/-. Learned Trial Judge, in his understanding, has formed an opinion that the presence of the government officers before him would be necessary to enable him to completely and effectively decide the issues involved in the suit. No interference with the order under revision is called for.

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I have considered the rival contentions of the parties.

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While exercising jurisdiction under Article 227 of the Constitution of India, this Court does not act as an appellate court. The power under Article 227 is to be exercised to interfere with patently illegal orders, orders without jurisdiction

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or other orders, which if not interfered with will cause grave prejudice to one of the parties.

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I do not find any patent illegality or procedural impropriety in the order under revision. The learned Judge, in his wisdom, is of the opinion that the presence of the government officials before him would be necessary for complete and effective adjudication of the issues involved in the suit. I see nothing perverse in such conclusion of the learned Judge.

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However, I am of the view that the learned Judge ought not to have added the government officials as defendants without first ensuring that the notice period required under section 80(1) of the CPC has expired. But, the same appears to be of academic importance now, since, I find that the notice was issued to the proposed defendants on August 19, 2025. Much more than 60 days have elapsed since then.

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Hence, I only clarify that the suit will be deemed to have been instituted against the added defendants with effect from the date following the date on which the 60 days notice period expired.

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With the aforesaid clarification, CO/9/2026 is disposed

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of.

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Parties to act on the server copy of this order downloaded from the official website of this Court.

Smti.Lissy Sudesh and Anr. v. Smti.Mamta Dubey

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Smti.Lissy Sudesh and Anr. v. Smti.Mamta Dubey

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