Textiles Committee Through Its ... vs Mrs. Anita Suri
2009 Latest Caselaw 1983 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          FAO (OS) No. 185/2009


%                                        Date of decision : 12.05.2009


TEXTILES COMMITTEE THROUGH ITS DIRECTOR & ANR.
     ...    ...   ...    ...    ...    ...     ...     ...     ...APPELLANT
                   Through : Mr. S.V. Solanki with
                             Mr. Chirag M. Shroff,
                             Advocates.

                                 -VERSUS-

MRS. ANITA SURI               ...    ...    ...     ...     ...    RESPONDENT
                              Through : Mr. Anil Kher, Sr. Adv. with
                                        Mr. D.R. Bhatia, Advocate.

CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?           Yes

2.        To be referred to Reporter or not?            Yes

3.        Whether the judgment should be                Yes
          reported in the Digest?


SANJAY KISHAN KAUL, J. (ORAL)

1. The respondent filed a suit for possession, recovery of

damages and permanent injunction in respect of the

property comprising of ground, mezzanine, first, second

and third floors situated at 41, Community Centre,

Naraina Phase - I, New Delhi ( hereinafter referred to as,

„the said property‟ ) against the appellants.

2. The case of the respondent is that she is the exclusive

owner of the said property, which was given on lease to

appellant No. 1 in the year 1985 and thereafter the

lease was renewed from time to time. The last

extension was granted upto 30.04.2008 at the rent of

Rs.1,12,000/- per month as per the Lease Agreement

dated 01.12.2005. This Agreement, thus, stood expired

by efflux of time on 30.04.2008 whereafter there has

been no renewal of the lease. Appellant No. 1 was

required to hand over vacant and peaceful possession

of the said property on the expiry of the lease, but

appellant No. 1 failed to do so. Damages have also

been claimed. A legal notice dated 21.05.2008 was also

served under Section 106 of the Transfer of Property

Act, 1882 ( for shot, „the T.P. Act‟ ). The respondent

claimed that it had come to its notice that appellant No.

1 is under the control and management of appellant No.

2 / Government of India and an endeavour was being

made to part with possession to some other Department

of appellant No. 2.

3. The appellants filed the written statement and on

merits, all that was claimed was that the respondent

was demanding unreasonable increase in rent, which

was not conceded to by appellant No. 1. A preliminary

objection had also been raised that no notice under

Section 80 of the Code of Civil Procedure, 1908 ( for

short, „the said Code‟ ) was given, though appellant No.

2 is the Secretary, Ministry of Textiles. In the same

breath, it has also been stated that the suit is liable to

be dismissed for mis-joinder of parties as „appellant No.

2 has nothing to do with the plaintiff in the present

lease matter‟. The prayer was for deletion of appellant

No. 2 from the array of the defendants.

4. The respondent filed an application under Order XII Rule

6 of the said Code, which has been allowed by the

impugned order dated 23.04.2009. Learned Single

Judge has noted that in such a matter of a tenanted

premises for which lease has expired, the three

ingredients have been satisfied in the present case viz.

(i) existence of relationship of lessor and lessee;

(ii) rent being more than Rs.3,500/- per month and, thus,

being outside the protection of the Delhi Rent Control

Act, 1958; and

(iii)the determination of such relationship in any of the

contingencies as envisaged under Section 111 of the

T.P. Act.

In fact, the notice under Section 106 of the T.P. Act was

superfluous, as the lease had already expired by efflux

of time.

5. In so far as the objection of non-service of notice under

Section 80 of the said Code is concerned, learned Single

Judge has taken note of the fact that the stand of the

appellants is that appellant No. 2 is not a necessary

party and the tenant was only appellant No. 1, which is

the Textiles Committee constituted under the Textiles

Committee Act, 1963 ( for short, „the said Act‟ ).

Section 80 of the said Code does not come to the aid of

appellant No. 1. The objective of Section 80 of the said

Code is noted, which is to avoid unnecessary litigation if

the claim of the plaintiff is lawful. It was held that no

separate notice under Section 80 of the said Code was

required when the lease had come to an end by efflux of

time and more so when a notice under Section 106 of

the T.P. Act was issued determining the lease w.e.f.

30.06.2008. It is this order, which is assailed in the

present appeal.

6. Learned counsel for the appellants initially did seek to

contend that there were various letters exchanged

between the parties, which showed that appellant No. 1

was willing to give an appropriate market value, but the

demand of the respondent was very high. However, this

plea has no sustenance in law when the parties are

governed by the T.P. Act and once the lease has expired

by efflux of time and the lessor is not willing to extend

the lease on terms and conditions sought for by the

lessee, the premises must be vacated. We have no

hesitation in coming to the conclusion that there is no

infirmity in the impugned order in this behalf for all the

three ingredients necessary for a decree under Order XII

Rule 6 of the said Code have been satisfied in the

present case, as the period of the lease having come to

an end is not disputed nor the relationship of lessor and

lessee or the rate of rent.

7. Learned counsel for the appellants, in fact, laid great

stress on the fact that the conclusion of the learned

Single Judge on the requirement of notice under Section

80 of the said Code is misplaced and the absence of

notice is a complete embargo to the institution of the

suit itself.

8. Learned counsel referred to the provisions of Section 80

of the said Code, which reads as under :-

"80. Notice.

(1) Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir) or against a public officer in respect of any act purporting to be done by such 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 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 this 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 & 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."

9. The submission of learned counsel for the appellants is

a dual one. Learned counsel submits that the very

institution of the suit by the respondent could not have

taken place in the absence of the notice under Section

80 of the said Code and, in any case, against a public

officer. Learned counsel sought to emphasize that the

respondent herself had arrayed the Secretary of the

Ministry of Textiles as respondent No. 2, who is a „public

officer‟ and the Textiles Committee also was a „statutory

committee‟ to which the benefit of Section 80 of the

said Code should be extended.

10. On perusal of the provisions of the said Act, we find that

the Textiles Committee is a body corporate having

perpetual succession and common seal with the power

to acquire, hold and dispose of property and to contract

and to sue or be sued in its own name in terms of the

provisions of Section 3 of the said Act. The funds

available with the Committee not only consists of

Government amounts, but also monies, which may be

received by the Committee on account of fee and other

charges levied under the said Act or all monies received

by way of grant, gift, donation, contribution, transfer or

otherwise.

11. Learned counsel for the appellants to support his

contentions relied upon a very old judgment in Cecil

Gray, The Secretary and a Member of the Western India

Turf Club v. The Cantonment Committee of Poona, ILR

XXXIV Bombay Series 583, which was delivered on

28.06.1910. It was noted in the said judgment that the

Cantonment Committee under the Indian Cantonments

Act, 1889 is a quasi body corporate and was a public

officer as defined in Section 2(17) of the said Code. The

plaint and the pleadings were held to show that the

cause of action complained of was one founded in tort.

This conclusion was necessary as it was simultaneously

concluded that Section 80 of the said Code applies only

to actions in tort and has no application to actions in

contract.

12. Learned counsel for the appellants referred to the

judgment of the Division Bench of Patna High Court in

Secy. of State v. Amarnath & Ors., AIR 1936 Patna 339.

The Secretary of State was impleaded as a proforma

defendant, but no notice under Section 80 of the said

Code was served on him. It was held that notice under

Section 80 of the said Code was a condition precedent

to the institution of the suit. Some observations have

also been made while relying on the judgment of the

Privy Council to the effect that no distinction can be

made for the requirement of compliance of Section 80

of the said Code dependent on the nature of the suit.

13. Learned counsel referred to the judgment of the

Supreme Court in Bihari Chowdhary & Anr. v. State of

Bihar & Ors., AIR 1984 SC 1043 to advance the

proposition that no suit can be validly instituted until

the expiry of the period of two months next after the

notice in writing has been delivered to the authorities in

view of the provisions of Section 80 of the said Code.

14. In Ebrahimbhai v. State of Maharashtra & Ors., AIR 1975

Bombay 13, it was observed that since the main relief

prayed for in the suit was against the State, the

provisions of Section 80 of the said Code would be

attracted. In Himachal Steel Rerollers and Fabricators v.

The Union of India & Ors., AIR 1988 Allahabad 191, it

was observed that even in excepted class of cases, the

suit had to be filed only with the leave of the court.

15. Learned counsel also relied upon the judgment of the

Supreme Court in Coal Mines Provident Fund

Commissioner v. Ramesh Chander Jha, AIR 1990 SC 648

where the Coal Mines Provident Fund Commissioner was

held to be a „public officer‟ within the meaning of

Section 2(17) of the said Code. A distinction was made

in respect of some of the judgments where the

concerned officer did not hold his office in a public

corporation by virtue of being a government employee

and, thus, was held not to be a public officer.

16. In Union of India v. B.D. Jhunjhunwala, AIR 1988 Orissa

267, a notice sent under Section 78-B of the Railways

Act was not held to be notice under Section 80 of the

said Code.

17. Learned senior counsel for the respondent referred to

the judgment of the Supreme Court in Firm Sardari Lal

Vishwa Nath & Ors. v. Pritam Singh, AIR 1978 SC 1518

to contend that the present case was one where no

notice under Section 80 of the said Code was necessary

or under Section 106 of the T.P. Act as there was expiry

of lease by efflux of time. The observations in respect

of a notice under Section 106 of the T.P. Act to the same

effect have been made in Smt. Shanti Devi v. Amal

Kumar Banerjee, AIR 1981 SC 1550.

18. We find, in the present case, a technical plea of Section

80 of the said Code being advanced though the

appellants have no defence on merits. No doubt, the

object of Section 80 of the said Code is to give an

advance notice to the Government to avoid

unnecessary litigation, but then the statutory provision

is a bar by itself unless leave has been granted. It is

also true that the present case is one only for

possession of a property given on lease for which the

period of lease had expired and for damages.

19. The material aspect on account of the factual matrix, in

the present case, is that the lease is only with the

Textiles Committee, a statutory body under the said

Act. In fact, Union of India has neither been impleaded

as the first defendant or the second defendant. The

second defendant is the Secretary, Ministry of Textiles.

The averments relating to execution of the lease and for

possession are only against the first appellant, i.e., the

Textiles Committee. The allegation against the second

appellant being the Secretary of the Ministry of Textiles

is that it has a role to play and the respondent

apprehends that some other Government Department

may be inducted into the premises. There is, however,

no such relief claimed in the prayer clause of the plaint.

It is, in fact, the own case of the appellants that the

Secretary, Ministry of Textiles has nothing to do with the

controversy and has been wrongly impleaded. The

prayer, in fact, is for deletion of appellant No. 2 from the

array of parties. In our considered view, it is, thus, not

open for the appellants to now plead that the

impleadment of Secretary, Government of India as a

second defendant should be treated as a bar to

institution of the suit in view of non-compliance of the

provisions of Section 80 of the said Code.

20. We are fortified in our view in view of the judgment of

Full Bench of the Bombay High Court in Chandrakant

Govind Deshmukh v. The State of Maharashtra through

Collector, Amravati & Anr., AIR 1970 Bombay 301

wherein the judgment of the Calcutta High Court in Mrs.

Maniluxmi Patel & Anr. v. Hindustan Co-operative

Insurance Society Ltd. & Anr., AIR 1962 Calcutta 625

has been considered, the expression "suit against the

Government or against a public officer in respect of any

act" used in Section 80 of the said Code has been

interpreted to refer to a suit of such a nature in which

relief is claimable against the Government or a public

officer and it is within the competence of the

Government or public officer, as the case may be, to

grant the relief. In the present case, it is not even as if

the Secretary, Ministry of Textiles (a „public officer‟

within the meaning of Section 2(17) of the said Code

and against whom no suit can be instituted in view of

the provisions of sub-section (3) of Section 80 of the

said Code) is a proforma party as in the case of Secy. of

State v. Amar Nath‟s case (supra). The stand of the

appellants is that he should not even be impleaded as a

party.

21. Another important aspect, in the present case, is that

the relief would suffice against appellant No. 1. No

relief is to be granted against appellant No. 2. Thus,

even if the suit is dismissed qua appellant No. 2, the

same bar would not arise against appellant No. 1. In

P.B. Shah & Co. & Ors. v. Chief Executive Officer & Ors.,

AIR 1962 Calcutta 283, the order rejecting the plaint

was found to be erroneous on the ground that if the suit

was dismissed qua the Corporation of Calcutta, the

plaint could not have been rejected as a whole. It has

been observed that the suit may become defective for

non-joinder of necessary parties and if so, the suit would

be dismissed against the said defendants, but it could

not be dismissed qua the other defendants on the bar of

Section 80 of the said Code. As noticed above, if the

present suit is dismissed qua appellant No. 2, it can still

be decreed against appellant No. 1, which is, in fact, the

only decree required to be passed. A similar view has

been taken in Boyini Kanganna v. Pedini Ramlingam

Subudhi, AIR 1948 Patna 117 and Kilaparti

Appalanarasamma v. Commissioner, Municipal Council

& Anr., AIR 1945 Madras 224. A conclusion was reached

that the suit should be permitted to proceed in the

absence of the notice against such of the parties to

whom there is no requirement of serving a notice under

Section 80 of the said Code. We find ourselves in

agreement with this view more so in the facts of the

present case.

22. The view we have formed would, thus, imply that in the

absence of a notice under Section 80 of the said Code, a

decree could certainly be passed against appellant No.

1. However, the second limb of the submission of

learned counsel for the appellants is to be dealt with,

that even against appellant No. 1, the absence of notice

under Section 80 of the said Code would be fatal. We

have already noticed that appellant No. 1 is a body

corporate having a perpetual succession and a common

seal as constituted under Section 3 of the said Act. It is

capable of suing and being sued.

23. In U.P. State Handloom Corporation Limited & Ors. v.

Prem Sagar Jaiswal, 2008 (4) AWC 3523, it has been

held that co-operative societies and public sector

undertakings are conceptually different. The State

Handloom Corporation may be a public sector

undertaking, but not the State Government Department.

It may be „State‟ for the purpose of Article 12 of the

Constitution of India, but would not answer the

description of the Government as understood in law and

in the context of Section 80 of the said Code. A similar

view has been expressed in V. Padmanabhan Nair v.

Kerala State Electricity Board, AIR 1989 Kerala 86 and

Kamta Prasad Singh & Anr. v. The Regional Manager,

Food Corporation of India & Ors., AIR 1974 Patna 376.

24. In the latter judgment, it was observed that the Officers

of the Food Corporation of India are not in the service or

pay of the Government, but of the Corporation and are

paid out of the funds of the Corporation and would,

thus, not be public officer.

25. The judgments referred to by learned counsel for the

appellants to advance the proposition that prior notice

under Section 80 of the said Code is mandatory are on

the general principle of law. However, the question is

whether Section 80 of the said Code would apply to

appellant No. 1 to which our answer is in the negative.

We may also note that in Ebrahimbhai‟s case (supra), it

was specifically observed that since the main relief

prayed for in the suit by the plaintiff against the State

Department, the bar of Section 80 of the said Code

would apply. In the present case, the relief can be

claimed really only against appellant No. 1. The present

case is also not one like Coal Mines Provident Fund

Commissioner v. Ram Chander Jha‟s case (supra) where

the Commissioner was appointed by virtue of his office

with his expenses being completely met from the

Government funds. Similar is the position in Cecil

Gray‟s case (supra). We are, thus, of the considered

view that the bar of Section 80 of the said Code would

not apply to appellant No. 1 against whom the relief is

really claimed and the suit at best could have been

dismissed only qua appellant No. 2 against whom, in

any case, no relief is necessary, the lessee being only

appellant No. 1 under the lessor / respondent.

26. In the end, we must express our anguish at this fruitless

litigation being contested by the appellants. The law

under the T.P. Act is well established. Appellant No. 1

fully knows that if the lease has expired and is not

renewed, possession has to be handed over. The

parties have not been able to renew the lease on

account of lack of agreement over the rent. Appellant

No. 1 has no defence on merits, but has dragged on this

litigation. We would have expected appellant No. 1,

which is constituted under an Act of the Parliament, to

have conducted itself in a more responsible manner. In

fact, the hearing of the appeal itself has gone on for

more than 45 minutes.

27. We find no merit in the appeal and dismiss the same

with costs of Rs.25,000/- payable to the respondent.

SANJAY KISHAN KAUL, J.

May 12, 2009                         SUDERSHAN KUMAR MISRA, J.
madan