Ashok S/O. Shamrao Deshmukh vs Sou. Saraswatibai W/O. Namdeorao ...
2017 Latest Caselaw 4152 Bom

                                                                                                           cra-j 42-16.odt
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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR

               CIVIL REVISION APPLICATION NO. 42 OF 2016

           Ashok s/o Shamrao Deshmukh
           Aged about 55 years, Occ.: Police Patil
           R/o Soundali (Hirapur), 
           Tahsil-Daryapur, District-Amravati.  ....... APPELLANT.
                                                                                      (Ori.Defendant no.7)
                       ...V E R S U S...

 1]        Sou. Saraswatibai w/o Namdeorao Khade
           Aged about 78 years, Occ.: Cultivator
           R/o Tongalabad, Tah. Daryapur
           District- Amravati.
 2]        State of Maharashtra
           Through Collector,
           Amravati.
 3]        Sub Divisional Officer,  Daryapur, 
           District-Amravati.
 4]        Tahsildar, Daryapur
           District-Amravati.
            
 5]        Mandal Adhikari, Saza No.39
           C/o Tahsildar, Daryapur, 
           District-Chandrapur.
 6]        Talathi Mouza Samda, Saza No.39
           C/o Tahsildar Daryapur
           District-Amravati.
 7]       Vishwanath Gomaji Jamnik
          Aged 58 years, Occ.: Cultivator,
          R/o Tonglabad, Tah. Daryapur
          District-Amrvati.                           .......RESPONDENTS.
                                                         (Plff. & Def.No.1to6)
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          Shri. J. J. Chandurkar, Advocate for Appellant.
          Shri. M. T. Wankhade, Advocate for Respondent no.1.
          Shri. A. R. Chutke, A.G.P. for Respondent nos.2 to 6.  
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                                                                                                              cra-j 42-16.odt
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             CORAM:  DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

DATE : 6 th JULY, 2017.

ORAL JUDGMENT

This revision is preferred by the original defendant

no.1 challenging the order dated 1.2.2016 passed by the Court of

Civil Judge, Senior Division, Daryapur, thereby rejecting the

applicant's application filed under Order-VII Rule-11 of the Code

of Civil Procedure, for rejection of the plaint on the ground that

requisite notice under Section 80 of the Code of Civil Procedure

was not issued and hence, the suit without such notice cannot be

tenable, as respondent nos. 2 to 6 are the authorities working with

State Government and are public servants who had acted in

discharge of their public duties. The second ground raised was

pertaining to the suit being barred in view of the provisions under

Section 158 of the Land Revenue Code and the third ground was

that the suit was barred by limitation.

2] Learned counsel for applicant however, fairly

concedes that in this revision he would like to press only the

ground of want of notice under Section 80 of the Code of Civil

Procedure before filing of the suit. As regards the other grounds,

he request them to be kept open, to be decided by the trial Court.

cra-j 42-16.odt

3] The averments in the plaint in paragraph-18 clearly

go to show that respondent no.1-plaintiff has issued notice on

22.2.2013. A copy of that notice is also produced in this revision

at page-24 & 25. Now whether such notice is complying with the

requirement under Section 80 of the Code of Civil Procedure of

disclosing the cause of action, as rightly held by the trial Court,

cannot be considered at this stage.

4] It is also pertinent to note that respondent nos. 2 to 6

who are the Government authorities or the public servants,

should be the aggrieved parties by such notice, which is alleged to

be defective by the present applicant. However, they are not

raising any grievance. So far as applicant is concerned, he is

neither a public servant nor acting in discharge of his duties as

public servant, therefore, he cannot raise any grievance for want

of notice or for the defective notice under Section 80 of the Code

of Civil Procedure.

5] Moreover, ultimately, only at the time of trial, it can

be decided whether the notice issued by respondent no.1 herein

cra-j 42-16.odt

can be considered as notice under Section 80 of the Code of Civil

Procedure. Hence, as on the bare reading of the plaint and the

documents disclosed therewith, the suit does not appear to be

barred by law, the trial Court has rightly dismissed the applicant's

application for rejection of the plaint on this ground. The revision

therefore, holds no merits and hence stands dismissed.

6] As regards other two grounds raised in the Revision,

on the request of learned counsel for applicant, they are kept open

to be decided by the Trial Court, at its appropriate stage in

accordance with law.

JUDGE

RGIngole