Ram Kumar and Anr. versus State of Rajasthan and Ors.

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[2008] 13 S.C.R. 1097

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RAM KUMAR AND ANR.

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v.

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· ·STATE OF RAJASTHAN AND ORS .. · (Civil Appeal Nos.1..15~116 of 2001)"

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SEPTEMBER 29; 2.008

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[TARUN CHATTERJEE AND DALVEER BHANDARI, JJ.)

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Code of Civil Procedure, 1908-' s, 80:... Notice undet'Land of appellants' acquired and in lieu thereof certain laf!d • c given to them :... Recalling or said order by District Collector ·and land given to Education Officer - Challenge to - Suit for recovery of possession of said land from Education Officerby appellants·:.... Also issuance of notice u/s. BO to District Collector before (iling su(t -Notice uls. 80 to Education Officer'- ":0 Requirement of - Held: Not necessary - Education .Officer even though a public officer had not done any act in his offi- · cial capacity - Appellants challenged the order of District Collector and the relief sought in the suit was consequential in .nature - They did not challenge· any act of'Education Officer - c>rder passed by District Collector was in. his official E capacity and service of notice to him was sufficient· compliance of s. 80 - Hence, order of trial court that service ·of notice. u/s 80 to Education Officer not n.ecessary, is upheld and that of High Court holding otherwise, is set aside. ' · :.

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Respondent no. 1 and 2 initiated proceedings for acquisition of certain lands of appellant's father. Thereafter, respondent no. 2-District ·Collector b,y ord_er dated 20.11.1968 transferred .certain land to-the appellants in li,eu of the land acquired. The appellants were delivered possession of the -land. However, respondent i:io. 2 rev9ked the order and passed a fresh order date~ 20.04.1974 that out of the lands delivered to the appellant, respondent no. 3-Education 'Officer be given possession of 7 bigas

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[2008) 13 S.C.R.

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A of land. Appellants approached various Authorities but were unsuccessful. Appellants served a notice u/s. 80 CPC on the State Government through respondent No.2 but did not receive any reply. Appellants then filed the suit for declaration that the order dated 20.11.1968 be declared B null and void and respondent no. 3 be directed to give the posses.sion of the said land to appellants. Issue was raised before the trial court that whether the suit is to be dismissed for non-service of notiC:e u/s. 80 CPC on respondent No.3 by the appellants. Trial court decided the c issue in favour of'the appellants. It held that respondent No.3, though a public officer-Education Officer-had not done any act in his official capacity, thus, notice u/s. 80 was not required. However, High Court held otherwise and dismissed the suit in entirety. Hence the present apD peal.

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Partly allowing the appeal, the Court

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HELD: 1.1 The respondent No.2 passed orders dated 20.11.1968 and 20.04.1974 in his official capacity and notice u/s. 80 CPC was duly served upon him before filing E . the suit. Since the possession of the suit land was taken over from the appellants by respondent Nos.1 and 2 and delivered to respondent No.3, a prayer was made in the plaint to pass a decree directing the respondent No.3 to deliver the possession to the appellants, which was conF sequential in nature. Therefore, it is clear that the respondent No.3 had not done any act in his official c~pacity and, therefore, the trial court rightly held that service of notice u/s. 80 CPC, in the facts and circumstances of the case, was not at all necessary, as only a decree for posG session was prayed for which was delivered by the respondent Nos. 1 & 2 to Respondent No. 3 on the basis of recall of the order dated 20.11.1968. [Para 9] [1107,A-DJ

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1.2 High Court committed an error in holding that the H respondent No. 3 in the facts as alleged in the plaint could

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RAM KUMAR & ANR. v. STATE OF RAJASTHAN 1099 & ORS.

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be said to have acted as a public officer in his official caA · pacity. There is no reason to disagree. with the view expressed by the trial court. The appellants do not'seek to set aside any order of the respondent No.3 or to declare . illegal any of the acts of respondent No.3. It merely sought decree for recovery of possession of the suit land to the s appellants. The suit which is not in respect of any act done by the respondent No.3, as a public officer, and in which no act of respondentNo.3 is either challenged or sought to be set aside is not a suit to whi<;h s. 80 can very w~I. apply. Therefore, in the facts and circumstances of the c. instant case, the respondent No.3 had not acted in his official capacity for which service of notice u/s. 80 CPC was necessary. It was respondent No. 2 who· had passed the two orders dated 20.11.1968 and 20.04.1974 and in fact, who had passed the order of exchange of lands·and 0 also the order recalling the earlier order in his official capacity. Respondent No. 2 was Administrator and overall in-charge in the District and the notice served on 'the State Government through District Collector of the District was sufficient compliance with the requirements of s. 80 CPC. Therefore, the High Court misdirected itself in deciding E the issue regarding requirement of separate service of notice u/s. 80' ~PC. [Paras 10) [1107,E; 1108,A-E]

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1.3 The appellants have made the respondent No. 3 as a party although he was a public officer only on the ground that possession was delivered to him by the respondent No. 2 in the exercise of his official capacity. For the purpose of possession' to be delivered back to tile · appellants, the respondent No. 3 was made a party by' which he had not at all acted in discharge of his official capacity. A look at the reliefs claimed in the plaint would· clearly show that only a consequential relief was claimed in the suit to the extent that possession of the suit land should be restored in favour of the appellants by the respondent No. 3. Therefore, even in the absence of ser-

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[2008] 13 S.C.R.

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A vice of notice on respondent No.3 u/s. 80 CPC, the suit was maintainable in law. [Para 12] [1109,E·H]

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1.4 The High Court erred in reversing the order of the trial Court holding that service of notice on respondent No. 3 u/s. 80 CPC was not necessary to be served to 8 maintain the suit. Thus, the order of the trial court is restored. [Paras 11 and 14] [1108,G; 1110,E]

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State of Maharashtra and Anr. vs. Shri Chander Kant AIR 1977 SC 148 - distinguished.

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c 2. From the record it appears that the suit itself was dismissed on merits after the issue as to the maintainability of the suit for non-service of notice upon the respondent No. 3 was decided in favour of the appellants. It is/was now pending in appeal before the appellate court. D Therefore, by any stretch of imagination, it cannot be said that at the time the revision was decided, it was open to the High Court to deal with the issue passed by the trial court when the suit itself'was dismissed on merits. That is to say, the revision became infructuous in view of the E^{dispo$alof thesuit on merits. For this reason also, the} h:npugned order of the High Court is liable to be set aside. Accordingly, if the appeal is still pending for decision, the appellate court is directed to decide all the issues in the suit e:iccept the issue which is being decided in favour of F^{the appellants by this judgmentonmerit within the pe-} riod stated. [Para 13] [1110,A-D]

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Case Law Reference

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AIR 1977 SC 148 distinguished. Paras 11, 12 - G CIVILAPPELLATE JURISDICTION: Civil Appeal Nos. 115116of2001

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From the final Judgment and Order dated 26.3.1998.and 23.3.1999 of the High Court of Judicature for Rajasthan at JodhH^{pur in S.S.Civil Revision PetitionNo.480of 1994andS.8.}

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Civil Defect Case No. 1788 of 1998 respectively. · · " ··. ·A.·· Shiv Pujan Singh and Niranjana Singh for tti.e ; Appellant~'.:: f'f • '.

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·· · Aruneshwar Gupta, Nave·en Kumar Singh' and Shashwat · · Gtipta for the Respondents. ' " · · · · · ' - 'I : • • ·"" p~~ ' .... ~~- - B t·~ . . ·.,The . •' Judgment of . ' tne ' Court was deliveretj ,, - by .. TARUN CHATTERJEE, J. 1. These appea:1~ by special leave are directed against the judgment and order dated 26th of March, 1998 passed'by a·learned Judge of the High Court'of Judicature for Rajasthan·at Jodhpur in S.B. Civil Revision Peti'- c tion No.480of1994 and order dated 23rc1 of March; 1999 passed· · in S.B. Civil Defect Case No.1788 of 1998 which arbse out of an ap'plication for'review of the order dated'261h of March,' 1998: By the order dated 26¹ h of March, 1998, the learned Judge'had ' st side te order pa.ssed by he learned Munsif, 1st Class;·:"D .', T1bb1 by which the learned Muns1f held that the defendant No.3/ · respondeht No.3 (in short 'respondent No.3') was not needd fo be served with a notice under Section'80 of the Code of Civif Procedure {in short the 'CPC'), as the respondent No.3, being · · a Distict Education ?fficr, had not done any act in hfs officia_,:iE .. capacity. ;· · · · · · ' · ' ;!'t' --· . Thefact,s leading ;... ... . ~ , ~ o . te · filing of ttiese •.·. . a·ppels,mtbe : . -:'1~.r·; ;r summari~ed as follo."Ys: : · ... i ; · ,.;.;

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· · The proceedings foracquisitiorf of the land belonging lo·· ·. one Shri Dau lat Ram; father of the appellants situated at Chak · F. No.12 M.KS. Tehsil Tibbi, Mu. No.180/242, Kila No.58(pres" , •. ently .Chak N0.3 D.P.M.14 to 16 and 24-25) ad-measuring 9 ·'. bighas and Mu.No.180/242, Kila No.4-5 ad-measuring 2 bighas' ·· and Mu.No.181/242 Kila No.1-2, ad-measuring 2bighas, total~ 1 r ing all 13 bighas in ABADI Mauza Daulatpura, were initiated by ."G the Bhakhra Colonizatioh Department and the Deputy Colo hi-. zation Commissioner, Bhakhra Hanumangarh, while acquiring this land along with other lands by orders dated 3.1.1962; .or~·'. • dered his subordinates to put up proposal expeditiously tcitrans- :·:·: .. fer in.lieu of the. land to be acquired for ABADI any otherand, inf·. M !.

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SUPREME COURT REPORTS [2008] 13 S.C.R.

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1102

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A favour of the Kha.tedar\Mauroosi-holder). The said Bhakhra Colonization Department was wound up and all the powers thereof were vested in the officers of the Revenue Department. Hence, the father of the appellants filed an application dated 22.11.1969 before the Tehsildar (Revenue) Tibbi for transfer in B^{termsof the .orderpassedbytheDeputyColonizationCom-} missioner in lieu of his acquired land, the vacant land situated in Chak No.M.K.S. (presently Chak No.D.P.M.), bearing Mu.No.180/240, Kila No.9 (1bigha),11to13 (3 bighas), 18 to 23 (6 bighas) ad-measuring in all 10 bighas and Mu.No.181/ c^{246,KilaNo.3,8 (2bighas)ad-measuringinall12bighas,} whereupon after conducting an inquiry the TehSildar (Revenue) Tibbi submitted his proposal before Deputy Collector, Hanumangarh and Deputy Collector submitted on 13th of November, 1968, Sriganganagar, the defendant No. 2 accorded D^{transfer of the said land in lieu of the acquired land. The District} Collector, Sriganganagar, by his order dated 20¹ h of November, 1968 accorded his approval to this transfer and the file concerned was returned to the Deputy Collector, Hanumangarh. In compliance with the order dated 20¹ h of November, 1968 passed by the District Collector, Sriganganagar, the transfer entry of E the land to be carried out in lieu of the acquired 'land was made in the revenue record and the same was approved by the Tehsildar (Revenue) Tibbi on 3rd of Octoper, 1970 and the names relating to the lands were mutated in the revenue records and the possession of the land concerned too was exchanged. AcF cordingly, the father of the appellants gave up possession of the acquired land measuring 13 Bighas as detailed in para·1 of the plaint, in favour of the State and in lieu thereof, possession of the land, detailed in para 2 of the plaint, was delivered to the father of the appellants who came into possession thereof in G the capacity of Khatedar. The said land, which was transferred

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in exchange along with other lands in their entirety whereby out of the land acquired in exchange, the land bearing No. 180/ 240, Kila No. 9 (1Bigha),11to13 (3 Bighas), 18 to 23 (6 Bighas) ad-measuring 10 Bighas fell into the share of appellant No. 1 H^{RamKumar andMu.No.181/246, KilaNo.3 and 8 (2 Bighas)}

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RAM KUMAR & ANR. v. STATE OF RAJASTHAN 1103 & ORS. [TARUN CHATTERJEE, J.)

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ad-measuring 2 Bighas fell into the share of appellant No. Rajendra Kumar and the transfer entry of this portion was made against$. No. 33 in the Khata No. 11/27 dated 13¹ h January, 1971 and was certified on 20¹ h of February, 1971 and this land was thus mutated on 13th of Janaury, 1971 in the names of the appellants in revenue records Jamabandi.

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3~ The District Collector (Defendant No. 2) however revoked the earlier order dated 2Qth of November, 1968 by passing a fresh order on 20¹ h of April, 1974. The appellants approached various authorities praying for an order restraining the defendant No. 2 (hereinafter referred to as "Respondent No.2) from delivering possession of the said land· to District Education Officer, being Respondent No. 3. After being unsuccessful before different authorities, the appellant served a notice under Section 80 of the CPC read with Section 52 of the Rajasthan State Land Acquisition Act No.24 of 1953 on the respondent No.2 in his official capacity on 13th of December, 1985. Having failed to receive any reply, the appellants thereafter filed the suit on 25th of March, 1987 seekfng declaration that the order dated 2Qth of April, 1974 passed by the respondent No.2 was null and void and ineffective and the appellants shall be delivered back possession of the said land, particulars of which has been described in paragraph 12 of the plaint, (herein after referred to as the 'suit land') from respondent No.3.

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4.Ajoint written statement was filed on behalf of the State · Government, Rajasthan and respondent No.2 who was arrayed as defendant No. 2 and a separate written ~tatement was filed on behalf of respondent No.3. It is by way of an additional plea in the said written statement filed by respondent No.3, a question was raised as to the maintainability of the suit for non"service ofnotice under Section 80 of the CPC on respondent No.3.

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By an order dated 7th of July, 1992 the trial court framed several issues for trial in the suit and one of such issues, namely, issue No.4 was decided by the trial court as a preliminary issue which reads as follows:

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1104 SUPREME COURT REPORTS

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Issue No.4 - "Whether the suit of the plaintiff deserves to be dismissed for not serving of notice under Section 80 of the CPC on defendant No.3 by the plaintiffs."

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By an order dated 24th of March, 1994, Issue No.4 was decided by the learned Munsif, 1st Class Tibbi in favour ofthe B appellants and against the respondent No.3, inter alia, holding that respondent No.3, although a public officer being the District Education Officer, was not required to be served notice under Section 80 of the CPC as he had not done any act in his official capacity. Feeling aggrieved by this order, respondent C No.3 filed a revision petition before the High Court and the High Court by the impugned order held that since respondent No.3 being a District Education Officer must be served with a notice under section 8'0 of the CPC as he was acting in the official capacity. Accordingly the High Court had set aside the order of D the'trial court and dismissed the suit in its entirety on the groun'd of non-service of notice upon the respondent No. 3. It is this order, which is now under challenge before us in appeal.

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Before we proceed with the merits of the appeals against the afore$aid order of the High Court passed in reviE sion, we may keep it on record that it was brought to our notice that by a final judgment and decree dated 24th of March, 1994, the suit itself was dismissed on merit by the trial court and a regular first appeal was filed by the appellants in the Court of the District Judge, Hanumangarh which was still pending at the F 'time of decision of the revision case before the High Court. It is not known now whether the said appeal has yet been decided by the High Court or that in view of the order passed by the High· Court in the aforesaid revision case which is under challenge before us, the appeal has also been dismissed not only on merit G but also on the g"tound that the suit was not maintainable in law in view of non service of notice upon the respondent No.3. Be that as it may, it would now be appropriate for us to decide the question as to wheth.er the non-service of notice upon the re- . spondent No.3 under Section 80 of the CPC before filing the H suit would be fatal and the court would have no other alternative

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, . RAM KUMAR & ANR. v. STATE OF RAJASTHAN 1105 . & ORS. [TARUN CHATTERJEE, J.]

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· but to dismiss the suit for such non sen/ice. In order to decide A this question, it WC?uld be appropriate to refer to Section 80 of the CPC which reads as ..mder:

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"Section 80 - NOTICE -

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. (1; Save as otherwise provided in sub-section .(2), no B · suits· shall be instituted against th~ ·Gqvernment (including the Gov~rnm(?nt of ·state'·. of Jam mu & 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 c months next after notice in writing has ·been delivered to, of'left .at. the office of . ·

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(a) in the case: of a suit against the Central Government except' where it .relates to Ci;,_

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-· . Railway ·a.secretary to that (3overnment . . ~ · D .-

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;.(bJ . in· case of a suit against. th:e · 'central . Government, where it relates to Railway, the - General Manager of that Railway; .

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(bb) in- case of a suit against the · Government' of. . E _State of Jammu & Kashmir the Chief Secretary to that Government or any other officer

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authorized by that officer on this_ behal~

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(c) in ca,se of a .suit agains,t ·any other Stae _ F 1 Government, a Secretary tQ that Goverl}ment or the Collector qf the District; and in case or office, stating the cause a public' officer delivered. . , . of to action, the name, him or'. left at his -· descriptfon, and place of ~ resideQce of -the plaintiff and the relief which he claims, and the . . . ,, ' . . . . . . . ' G plain 'snail contain a statement that such . ~ . . . . ' ,)' . , '} notice has been so delivered . or left. , . · . . • , µ ~· : . . "..:

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(2) - No suit institted against the.Go-vernment oriigalhsf i

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. a pu_blic officer. in respect of any a9t .purporting to ;. : ; L .. :· .. ,. . . ~ . . . ' . . . } \ I . . ~. • . : . ' : H f .

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[2008] 13 S.C.R.

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1106 SUPREME COURT REPORTS

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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

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(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

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(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated."

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Before we go into the scope and effect of Section 80 of the CPC, we may look at the allegations and reliefs claimed in D the suit. As noted herein earlier, the trial court decided the issue, namely, issue No.4 on the ground that the respondent No.3 had not acted in his official capacity in the present case and, therefore, service of notice under Section 80 of the CPC on respondent No.3 was not necessary, whereas the High Court E reversed the order of the trial Court and held that the respondent No.3 had acted in his official capacity and, therefore, non service of the notice on Respondent No. 3 would invite the court to dismiss the suit in its entirety. Let us now look into the allegations made in the plaint as well as the reliefs claimed in the F same. The land of the appellants was acquired by respondent Nos. 1 an<] 2 and in lieu thereof, possession, as described in para 2 of the plaint, was delivered to the appellants by the order of respondent No.2 in his official capacity, but respondent No.2 revoked the said order and out of the said lands, as described G in para 2 of the plaint, possession of 7 bighas of land was delivered by respondent Nos.1 and 2 to respondent No.3 in respect whereof the appellants prayed that possession of the said 7 bighas of land be delivered back to the appellants by respondent No.3 by way of consequential relief.

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From the aforesaid facts alleged in the plaint, it would

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RAM KUMAR & ANR. v. STATE OF RAJASTHAN 1107 & ORS. [TARUN CHATTERJEE, J.]

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be evident that it was the respondent No.2 who had passed A two orders dated 20¹ h.of November, 1968 and 20¹ h of April, 1974 in his official capacity and that the notice under Section 80 of the CPC was duly served upon him before filing the suit. As noted herein earlier, since the possession of the suit land was taken over from the appellants by respondent Nos. 1 and 2 and B delivered to respondent No.3, a prayer was made in the plaint to pass a decree directing the respondent No.3 to deliver the possession to the appellants, which was consequential in nature. It is, therefore, clearthat the respon.dent No.3 had not done any act in his official capacity and, therefore, in our view, as c rightly held by the trial court that service.of notice under Section 80 of the CPC, in the facts and circumstances of the case, was not at all necessary, as only a decree for possessionwas prayed for which was delivered by the respondent Nos. 1 & 2 to Respondent No. 3 on the basis of recall of the order dated 20th of D November, 1968.

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Before we proceed further, we may keep it on record . that the respondent No. 3 is a public officer within the meaning of Section 2(17) and Section 80 of the CPC. Therefore, let us consider whether the respondent No. 3 had acted, in the facts E and circumstances of this case, in his official capacity or· not. In our view, High Court had committed an error in holding that the respondent No. 3 in the facts as alleged in the plaint could be said to have acted as a public officer in his official capacity. It was respondent No. 2 who had passed the aforesaid two orF de rs dated 20¹ h of November, 1968 and 20¹ h of April, 197 4 and · Jn fact, who had passed thia order of exchange of lands and also the order recalling the earlier orde.r of 1968 in his official capacity. In that view of the matter, in our view, notice served on the District Collector, Sriganganagar was sufficient and comG plete notice to the Government Middle School, Daulatpura which was represented through the Education Officer (Students Institutions), Hanumangarh. Therefore, in our view, the High-Gm.frt

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• had misdirected itself in deciding the issue regarding requirement of separate service of notice under. $ection 80 of the CPC.

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[2008] 13 S.C.R.

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A Looking into the allegations made in the plaint and the reliefs claimed, we do not find any reason to disagree with the view expressed by the trial Court when it had held that no act was performed by the respondent No. 3 in his official capacity. If we look at the plaint in the present case, it would be clear that in the B plaint, no act of respondent No.3 is being challenged. The ap,_ pellants do not seek to set aside any order of the respondent No.3 or to declare illegal any of the acts of respondent No.3, it merely seeks a decree for recovery of possession in the suit to hand over possession of the suit land to the appellants. The suit c which is not in respect of any act done by the respondent No.3, as a public officer, and in which no act of respondent No.3 is either challenged or sought to be set aside is not a suit to which Section 80 of the CPC can very well apply. Therefore, in the facts and circumstance~ of the present case, the respondent D No.3 had not acted in his official capacity for which service of. notice under Section 80 of the CPC was necessary. That apart, ,. it is not in dispute that the respondent No. 2 was Administrator and overall in-charge including the Government Middle Schools (Students Institutions) in the District and the notice served on the State Government through District Collector of the District E was sufficient compliance with the requirements of Section 80 of the CPC. In view of the aforesaid fact, it was not necessary to sep_arately serve a notice to respondent No.3 as we find that no order was passed by the District Education Officer, which was under challenge in the suit itself.

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In view of our discussions made hereinabove, we are ~ therefore of the view that the High Court had fallen in error in reversing the order of the trial Court holding that service of notice on respondent NO. 3 under Section 80 of the CPC was not necessary to be served to maintain the suit. In State of G Maharashtra and Anr Vs. Shri Chander Kant (AIR 1977 SC 148), this Court laid down the principle as to when service of notice on the State/defendants under Section 80 of the CPC was necessary. In the said decision, this Court observed as • • follows:·

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RAM KUMAR & ANR. .v, ·STATE OF RAJASTHAN 1109 & ORS. [TARUN CHATTERJEE, J.]

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. "The language of Section $0 of the Code of Civil A . Procedure is that a notice is td be given against not only the Gqvwnment but also ag_B_ir;st the. Public. Office in

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' .._· r.epect of ·.any act purporting 'to be done Jn- his official -"capacity:· The Registrar is a Public Officer. Th,. order is an act purporting to be· done)n his officiaJ ,capacity., . B

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· .. , . !nth~ present case, the suit is (o be set aside the ordJr · .. '• ', . made QY, filPublic Officer in respept of an act done :in the l . ·- dlscr.ar~~·''qt,:Qi~ offcial dute~. ,Therefore, notice~ unde,; - Section 80 of the Code of C1v1/ Procedure was reqwred:" . . ~. •' ... ·, '. . ~ . . - ·. . ., l ·

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· 12. From the aforesaid, itwould bi;i evident thatthis Cou(t held that service under Section 80 of the CPC was necessary as Jn.that case, the suit was. filed for setting-aside an order passed by .a public officer .in respect of an. ai:;t done in the discharge of his official duties. In that view of the matter, in th at decision, it was held that service of notice under Section 80 of the CPC was necessary and in th~ absence of that.service, the suit must be dismis~ed. This is· not 'the factual position in this case. We have afready held that Respondent No. 3 had not passed any order as a public officer nor the appellants had' asked for setting aside ahy order passect by the respondent;No. 3 as a public officer in resped of any act done in the discharge of his official duties. As noted herein earlier, the appellants have made the respondent No. 3 as a party alth9ugh he was a public officer only on the ground that possession was delivered to him by the respondent No. 2 in the exercise of his official capacity. For the purpose of possession to be delivered back to the appellants, the respondent No. 3 was made a party by which; in our view, he had not at all acted in discharge of his official capacity. A look at the reliefs claimed in the plaint would clearly show that only a consequential relief was claimed in the suit to the extent that possession of the suit land $hould be restored in favour of the appellants by the respondent No. 3. Therefore, in view of the aforesaid discussion made hereinabove, we hold that even in the absence of service qf notice on the respondent No.3 under Section. 80 of the CPC, the suit was maintainable in law.

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A 13. Before concluding, we may also keep it on record, as noted herein earlier, that from the record it appears to us that the suit itself was dismissed on merits after the issue No. 4 as to the maintainability of the suit for non-service of notice upon the respondent No. 3 was decided in favour of the appellants. It B is/was now pending in appeal before the appellate court. Therefore, by any stretch of imagination, it cannot be said that at the time the revision. was decided, it was open to the High Court to deal with Issue No.4 passed by the trial court when the suit itself was dismissed on merits. That is to say, the revision became c infructuous in view of the disposal of the suit on merits. For this reason also, the impugned order of the High Court is liable to be set aside. Accordingly, if the appeal is still pending for decision, we direc:t the appellate court to decide all the issues in the suit excepting Issue No.4 which is being decided by us in favour 0^{of the appellants by this judgment on merit within a period of six} months from the date of supply of a copy of this judgment.

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For the reasons aforesaid, the impugned order is set aside and the order of the trial court holding that the suit was maintainable for non-service of notice under Section 80 of the E CPC on the respondent No.3 is hereby restored. The appeals are allowed to the extent indicated above. There will be no order as to coi;ts.

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N.J.

¶132

Appeal partly allowed.

Ram Kumar and Anr. v. State of Rajasthan and Ors.

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Ram Kumar and Anr. v. State of Rajasthan and Ors.

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