Madras High Court
The Assistant Commissioner vs R. Jeeva on 12 November, 2025
A.S. No. 294 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 25.10.2025
PRONOUNCED ON : 12.11.2025
CORAM
THE HONOURABLE DR.JUSTICE A.D.MARIA CLETE
A.S. No. 294 of 2021
The Assistant Commissioner
Commercial Tax Office,
4, Ananda Nagar, 1st Street,
By-pass Road, Ambur. ... Appellant
Vs.
R. Jeeva ...Respondent
PRAYER : Appeal Suit filed under Section 96 r/w order XLI Rule 1 of Act V
of 1908 to set aside the judgment and decree dated 02.03.2020 in O.S.No.9
of 2018 on the file of III Additional District Judge, Vellore @ Thirupattur
and allow the appeal with cost.
For Appellant : Mr.M.Murali
Government Advocate
For Respondent: Mr.S.Srinivasa Narayanan
1/10
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A.S. No. 294 of 2021
JUDGMENT
Heard.
2. This appeal challenges the judgment and decree dated 02.03.2020 of
the learned III Additional District Judge, Vellore @ Tirupathur, in O.S. No. 9
of 2018.
3. The plaintiff’s case, in brief, is that she owns the premises bearing
Door No. 4, Ananda Nagar 1st Street, By-Pass Road, Ambur, Vellore
District. The defendant, a department of the State Government, was
permitted to occupy the premises with effect from 03.02.2014 for official
purposes. At the time of occupation, the plaintiff stated that the monthly rent
would be Rs. 40,000/- or the rate to be fixed by the Public Works
Department (PWD), whichever was lower. The PWD thereafter fixed the rent
at Rs. 28,370/- per month. By letter dated 25.01.2016, the plaintiff demanded
arrears of rent of Rs. 6,52,510/- for the period ending December 2015.
4. By letter dated 03.02.2016, the defendant, referring to G.O. Ms. No.
480 dated 26.11.2015, unilaterally fixed the rent at Rs. 16,370/- per month
and enclosed a demand draft for Rs. 3,09,861/- towards arrears. The plaintiff
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declined consent and, by letter dated 05.05.2016, reaffirmed that the rent
payable was Rs. 28,370/- per month. Thereafter, by legal notice dated
18.02.2017, the plaintiff terminated the oral licence and demanded vacant
possession and arrears. The defendant, by reply dated 31.03.2017, denied the
allegations. Consequently, the suit was filed for recovery of possession,
arrears of rent of Rs. 4,49,539/- with interest, and damages of Rs. 5,00,000/-
for unauthorised occupation.
5. Written statement in brief: The defendant contends that the suit is
not maintainable for non-compliance with Section 80 CPC, no statutory
notice having been issued to the Government or the competent authority, and
that the plaintiff also failed to obtain leave under Section 80(2) CPC. It is
further pleaded that the plaint is improperly valued and that the Government
of Tamil Nadu, being the actual tenant, is a necessary party. The defendant
denies liability for the rent claimed and asserts that the rent fixed under G.O.
Ms. No. 480 dated 26.11.2015 is binding.
6. The trial court decreed the suit in the plaintiff’s favour for arrears of
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rent and possession, dismissing the claim for damages; however, it neither
framed nor addressed an issue regarding the absence of notice under Section
80 CPC.
7. Upon consideration of the pleadings, the evidence on record, and
the grounds urged in appeal, the following points arise for determination:
1. Whether the suit filed without notice under Section 80 CPC is
maintainable?
2. Whether the suit is bad for non-joinder of the Government of Tamil
Nadu as a necessary party under Order XXVII Rule 5-A CPC?
3. Whether the rent fixed by the PWD is binding on the defendant or
the rent fixed under G.O. Ms. No. 480 applies?
4. Whether the judgment and decree of the trial court are liable to be set
aside?
8. Points 1 and 2: These are pure questions of law that go to the root
of the suit’s maintainability. The defendant, being an Assistant
Commissioner (Sales Tax), is a “public officer” within the meaning of
Section 2(17)(g) CPC. The transaction with the plaintiff was undertaken in
his official capacity to secure office accommodation for the Department.
Accordingly, the suit is, in substance, one against the Government for acts
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done by its officer in an official capacity.
9. Section 80(1) CPC stipulates that no suit shall be instituted against
the Government or a public officer in respect of any act done in an official
capacity unless two months’ prior notice has been served on the Government
or the concerned officer. Admittedly, no such notice was issued, nor was
leave under Section 80(2) CPC obtained. The requirement is mandatory and
not a mere procedural formality.
10. In Odisha State Financial Corporation v. Vigyan Chemical
Industries, reported in [2025 SCC OnLine SC — decided on 05.08.2025],
the Hon’ble Supreme Court held (para 44):
“We have already held that the mandatory requirement under
Section 80 CPC was not complied with… On that ground alone,
the suit against the appellant was not maintainable and there was a
clear bar on the jurisdiction of the trial court… The initiation of
the suit against the appellant is illegal and a nullity, and hence,
cannot be enforced.”
11. Similarly, in Gangappa Gurupadappa Gugwad Vs. Rachawwa,
reported in AIR 1971 SC 442, (paragraph10), the Supreme Court held that
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where non-compliance with Section 80 CPC is apparent on the face of the
plaint, the court must reject the plaint at the threshold, the defect being fatal
and not curable.
12. Applying the foregoing principles, the suit—having been instituted
without the statutory notice and without obtaining leave under Section 80(2)
CPC—is barred by Section 80 CPC and is, therefore, not maintainable.
13. Further, under Order XXVII Rule 5-A CPC, where a suit is
instituted against a public officer for an act done in his official capacity, the
appropriate Government must be impleaded. In the present case, the State of
Tamil Nadu has not been made a party. This non-compliance is fatal and
renders the suit defective for non-joinder of a necessary party.
14. The respondents contend that the notice dated 18.02.2017
(Ex.A20), though addressed only to the sole defendant, ought to be treated as
a notice under Section 80 CPC. They rely on Y. Savarimuthu v. State of
Tamil Nadu and others, reported in (2019) 13 SCC 142, where the Supreme
Court held that a communication expressly asserting that premature
termination of the contract before the extended period was invalid and
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warning that, failing compliance, legal proceedings would be initiated
against the State, satisfied the Section 80 CPC notice requirement on those
facts.
15. In the present case, however, Ex.A20 contains no clear or specific
intimation of an intention to institute legal proceedings or any notice of
proposed action against the State. Further, Section 80(1)(c) CPC requires the
plaint to aver that such notice was duly delivered or left at the concerned
office, an averment conspicuously absent here. The attempt to treat Ex.A20
as a statutory notice under Section 80 CPC is thus an afterthought and cannot
be accepted.
16. Even assuming, arguendo, that Ex.A20 qualifies as a notice under
Section 80 CPC, the suit is nonetheless vitiated by the non-joinder of the
State Government, a defect fatal to its maintainability. As held by the
Karnataka High Court in State of Karnataka Vs. Eastern Medicals (23 Apr
1993), when a claim is laid against a public officer for acts done in his
official capacity, Order XXVII Rule 5-A CPC mandates impleading the
Government as a necessary party and serving the Section 80 notice on the
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Government itself; service on subordinate officers is insufficient, and absent
notice to the Government, the suit is not maintainable.
17. In view of the foregoing, this Court holds that the suit, having been
instituted without a valid notice under Section 80 CPC and without
impleading the State Government as a necessary party under Order XXVII
Rule 5-A CPC, fails to satisfy mandatory statutory requirements and is liable
to be dismissed.
18. In light of the findings on Issues 1 and 2, it is unnecessary to
examine the merits of rent fixation or arrears. As the suit is barred by Section
80 CPC and is defective for non-joinder of the Government, the trial court’s
judgment and decree cannot be sustained.
19. In the result, the appeal is allowed. The judgment and decree dated
02.03.2020 in O.S. No. 9 of 2018 passed by the learned III Additional
District Judge, Vellore @ Tirupathur, are hereby set aside. O.S. No. 9 of
2018 is rejected under Order VII Rule 11(d) CPC for non-compliance with
Section 80 CPC. No order as to costs.
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12.11.2025
dpq
Index: Yes / No
Speaking Order / Non-speaking Order
Neutral Citation: Yes / No
To
1. The III Additional District Judge,
Vellore @ Tirupathur.
2.The Section Officer,
VR Section,
High Court of Madras,
Chennai
DR. A.D. MARIA CLETE, J
dpq
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12.11.2025
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