Hon’ble Mr. Justice G.D. Sharma, Judge

M.M. KHAJURIA Appellant
versus
AB. RASHID Respondent

C. Rev. Nos. 51 / 1997 and 69 / 1997, decided on 10.8.2000.

 J&K Civil Procedure Code Svt. 1977 - Order 27 Rule 5AO.27 R.5(A) read with S. 80 - Non-joinder of necessary party - Suit against Public Officer - State not a party - Suit decreed - Whether valid - Held : No.

Advocates who appeared in this case :
Sr. Addl. Advocate General, Mr. M. I. Qadri for the petitioner
Mr. M.A.Qayoom, Advocate for the respondent

Cases referred : Chronological
1. Ganga Ram v. Gujamal AIR 1923 lahore 444
2. Adiveppa v. Rachappa AIR 1948 Bombay 211
3. Hira Lal Patni v. Sri Kali Nath AIR 1962 SC 1999
4. Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman AIR 1970 SC 1475
5. P.G. Reddy v. Golla Obulamma AIR 1971 A.P. 363
6. Sundar Dass v. Ram Parkash AIR 1977 SC 1201
7. Ramakrishana v. Laxminarayana Timmayya AIR 1984 Karnataka 45
8. Prabodh Verma v. State of UP 1984 (4) SCC 251
9. Major S.S. pathania v. Ex-Brig N. L. Sribastara and others 1989 KLJ 38
10.A.V. Hanifa v. Salima Dhanu AIR 1992 Mad: 111
11.Urban Improvement Trust Jodhpur v. Gokal Marain AIR 1996 SC 1819

Revision petition No. 51/1997 is directed against the order dated 30.6.1997 passed by the learned Addl. District Judge, Srinagar whereby he rejected the prayer of the petitioner for dropping the execution proceedings pending against him. This relief was claimed in the application made under section 47 of the Code of Civil Procedure wherein plea was taken that decree was a nullity as being passed without impleading the State of J&K as a party.

Through the medium of revision petition No. 69/97, order dated 30.6.1997 passed by the learned Addl. District Judge, Srinagar has been challenged whereby he dismissed the application of the petitioner for the restoration of the application which was dismissed on 25.10.1994 for non-appearance. The earlier application had been made under O. 9 R.13 CPC for setting aside the ex-parte decree passed on 29.5.1991.

By this common order both the revision petitions shall be decided.

The factual matrix of the case in brief is that petitioner while posted as Director General of J&K police vide order No. 1012 of 1985 dated 20.9.1985 transferred the respondent. At that time, he was serving as a constable in the CID wing of police, Srinagar and was ordered to swap his place in Jammu Wing of that branch. The order is reproduced here under :

"Order No. 1012 of 1985

Dated 20.9.1985

In the interest of administration Constable Ab. Rashid Rather No. 366/CID is hereby transferred from CID to Jammu Range with immediate effect.

Advance pay / TA as admissible under rules is also sanctioned in favour of the tranferee.

Sd/-

(M. M. Khajuria) IPS

Director General of Police,

J&K Srinagar.

No. 15056 Dated: 20.05.1985

Copy for information and necessary action to the :

1. D.I.G. of Police Jammu range, Jammu with the request that the constable be posted in the area where there is not a large muslim population and watch his activities.

2. D.I.G. of Police, CID, J&K, Srinagar.

3. O.B. File.

Sd/-

A. I. G (P)

For Director General of Police, Sgr."

When this order of transfer was passed on 20.9.1985, the respondent was on leave which expired on 26.9.1985. He did not join the duty and send a telegram to the Superintendent of Police, (AHJ Airport, Srinagar) with a request to extend the leave by two months as he was sick. After the expiry of two months period, he again telegraphically applied for extension of leave by four months. The Supdtt. of Police, AHJ, Airport Srinagar vide his order No. 20 of 1986 dated Feb. 20,1986 placed him under suspension with effect from Sept. 27, 1985. The order of suspension was challenged in Writ Petition and the court vide order dated March 18, 1986 directed the petitioner to disburse the subsistence allowance to the respondent. The order of transfer was also challenged in writ jurisdiction and interim direction was given by the court to the DIG, CID Range, Jammu not to implement the direction given in the transfer order which required his posting in the area where there was not a large muslim population and his activities were to be watched. When these developments were taking place, the petitioner cancelled the above said transfer order vide his order No. 293 of 1986 dated 5.3.1986.

The genesis of this litigation is the direction contained in the transfer order. The respondent felt hurt in his pride and took it that he had been punished with no fault on his part by dubbing him as a communal. According to him the direction was maliciously issued by misusing official position. Notice under section 80 CPC was given to the petitioner through Advocate Mian Qayoom wherein "token damages" to the tune of rupees fifty thousand were claimed for the loss and injury suffered. When no reply of the notice was received, respondent on 16. 4. 1986 filed suit in this court claiming the damages in the amount of Rs. 50,000/-. In para 10 of the plaint, it is averred that petitioner without any power or authority and in colourable exercise of his powers had issued the direction in the transfer order therefore impleading of the State of J&K as a party was not required. On 17.4.1986 the suit was transferred for trial to the court of learned 3rd Addl. District Judge, Srinagar where the petitioner was being represented by the Public Prosecutor (Mr. M. A. Rathore).

In the written statement preliminary objections were raised regarding the maintainability of the suit. it was inter-alia pleaded that transfer order in question in any way did not adversely affect the service career of the respondent so he had no cause of action and locus-standi to file the suit. The transfer order was issued in the interest of administration and this was an act done in the discharge of sovereign functions of the State. The State was a necessary party in the proceedings and in its absence no damages could be awarded. On these facts it was pleaded that since the impugned order was never implemented so no damage was caused to the respondent. The respondent was suspended because he was unauthorisedly absent from duty. The allegation of ill-will and malice were vehemently denied.

On March 14, 1998, the following nine issues were raised from the pleadings:

1. Whether the order of transfer by the defendant under his No. 1012 of 1985 dated 20.9.1985 was made malafidely and has been made in order to punish the plaintiff? OPP

2. Whether the order of transfer dated 20.9.1985 has lowered the prestige and reputation of the plaintiff in the estimation of public and has caused a stigma to his service career? OPP

3. Whether the damage caused by the order is beyound repairs and has rendered the plaintiff unable to continue in service? OPP

4. Whether order No. 1012 of 1985 dated 20.9.1985 has been issued by the defendant without any power or authority and that the injury suffered by the plaintiff has been caused by the defendant in his personal capacity? OPP

5. Whether the plaintiff has no cause of action and the suit merits dismissal? OPD

6. Whether the suit merits dismissal under the provisions of Specific Relief Act? OPD

7. Whether the suit deserves to be dismissed because the suit has been wrongly valued for the purpose of court fee and jurisdiction and the requisite court fee has not been paid by the plaintiff ? OPD

8. Whether the State is a necessary party and if so, what is its effect on the suit? OPD

9. To what relief the plaintiff is entitled to?

The respondent was asked to lead the evidence to prove those issues, the burden of proof of which was on him and he examined Abdul Ahad Raina, Ghulam Mohammad Wani, Abdul Gani Raina and Syed Ahmadullah. The statements of these witnesses were recorded in presence of the counsel of the petitioner who had cross-examined them. The petitioner retired from service in the year1989 and was proceeded ex-parte on 7.2.1991. Thereafter, the statement of the respondent was recorded as his own witness. On 28.2.1991, the case was posted for arguments on 7.3.1991 but the arguments could not be heard as the counsel of the respondent was not present. On 29.3.1991, the arguments of the counsel of the respondent were heard and case was posted for judgment on 19.4.1991. On that day, the judgment was not ready and the case was posted for 4.5.1991. Order dated 4.5.1991 reveals that the Presiding Officer stood transferred and the reader of the Court adjourned the case for 9.5.1991 Meanwhile, respondent made application before the district Judge, Srinagar for the transfer of the case to some other court. The learned District Judge called the record of the case and without giving any notice to the petitioner on 11.5.1991 transferred the case from the file of 3rd Additional District Judge, Srinagar to the court of learned Addl. District Judge, Srinagar. The learned Addl. District Judge, Srinagar received the record of the case on 14.5.1991 in the presence of the respondent. Without giving any opportunity to the counsel of the respondent for advancing the arguments, the case was straightway adjourned for judgement on 29.5.1991 when the judgement was announced.

When the decree was put to execution, the petitioner made application under section 47 CPC praying that the decree was a nullity. The main ground of attack was that under section 79 CPC it was obligatory for the respondent to implead the State of J&K as a party in the suit. Since that has not been done so the decree is a nullity. The executing court after hearing the counsel for the parties passed the impugned order holding that the objection raised in the application did not relate to the satisfaction or discharge of the execution of the decree in question.

This order has been challenged on the grounds that when the petitioner passed the transfer order in question he was a government employee and under the provisions of J & K C.S.R. no government employee is personally liable for any order passed by him during the course of his employment. The decree is a nullity because the suit was instituted against the petitioner for damages in respect of passing the transfer order in question which was passed while discharging the official functions as Director General of J&K police. Under the provisions of the O.27 R 5(A) CPC it is required that government should have been impleaded as a necessary party. Issue No. 8 was an issue of law which required no proof on the basis of evidence. The trial court while deciding the issue was required to address itself on the legal position whether the State of J&K was a necessary party or not. The finding of the trial court that issue has not been proved is contrary to law and consequently decree passed is a nullity.

In revision petition No. 69/97 it is pleaded that the impugned order suffers from illegality because the application for the restoration of the case has been dismissed without appreciating the facts of the case. It is also pleaded that the High Court had stayed the proceeding but the trial court during operation of the stay passed the judgement and decree. The other grounds stated in the revision petition are of factual nature and need not be reproduced here.

Heard the arguments.

Learned counsel appearing for the petitioner has very ably submitted that this was a suit filed against a public officer for damages and under O.27 R. 5 (A) CPC, the Government was a necessary party to be impleaded in the proceeding. Under Section 80 CPC, notice should have been delivered to or left at the office of Chief Secretary to Government which has not been done in this case. Section 80 CPC imposes an embargo for filing a suit 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. Until the expiration of two months after the service of the notice in the manner specified therin. To buttress his contention, the learned counsel cited the case of Major S.S. pathania v. Ex-Brig N. L. Sribastara and others (1989 KLJ 38). In this case, the learned Single Judge held that in a suit against a public officer for damages, the government has to be impleaded as a party.The other case cited by him is of Ramakrishana v. Laxminarayana Timmayya (AIR 1984 Karnataka 45) wherein it has been held that when an officer was a necessary party and was not impleaded, such an objection of his non-joinder and want of notice under Sec. 80 CPC could be raised in second appeal. The suit was held inherently defective and no adjudication could be made.

The other limb of the argument of the learned counsel is that under section 99 CPC no decree can be reversed or substantially varied nor any case can be remanded in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in the proceeding in the suit not effecting the merits of the case or the jurisdiction of the court but this provision does not apply to non-joinder of a necessary party. Under O. 1 R. 9 CPC it is provided that no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. There is proviso added to this rule which says that nothing shall apply to non-joinder of a necessary party. After citing these provisions of law, the counsel contends that non-arraignement of a necessary party does not save the proceeding including decree passed there under because the importance of necessary party has been shown special significance by keeping it away from the sweep of the above said law. In order to bring round his view point, the counsel cited the case of P.G. Reddy v. Golla Obulamma (AIR 1971 A.P. 363). In this case, suit for the recovery of mortgage debt was filed by one of the heirs of the mortgage and other co-heirs were not joined within the period of limitation. It was held that suit was defective and defect was one of substance not curable under O. 1 R. 9 and 10 CPC. The other case cited by the counsel is of Adiveppa v. Rachappa (AIR 1948 Bombay 211). In this case suit was filed by one of the mortgagees for the recovery of the mortgage debt without joining his co-mortgagees as parties. Co-mortgagees were added as defendants after expiry of limitation. It was held that the whole suit must fail.

Concluding his arguments, the learned counsel urged that non-arraignement of the State of J&K as a party in the suit was a defect. The trial court could take cognizance of the suit only after the mandatory requirements of section 80 CPC had been complied with, otherwise the decree passed is a nullity and cannot be executed.

In rebuttal, Mr. Qayoom, has contended that the condition imposed in the transfer order that DIG CID, Jammu Range "shall not post the respondent where there is large muslim population and his activities be watched," is not an act done in the colour of official duties but has its origin in personal vendatta. This fact had been explained in the plaint and as such there was no necessity for impleading the State of J&K as a party. The provisions of O. 27 R. 5(A) CPC are of directory nature and at the most the omission of arraignment could be a case of non-joinder or mis-joinder of party and this irregularity is covered under section 99 CPC. Non-arraignment of the State as a party has prejudically affected the decision. This plea of not impleading the State as a party stands waived because the plea had found place in issue No. 8 burden of proof of which was on the petitioner who did not discharge the same by leading evidence. The findings given in the case have become final as not challenged in appeal or revision. The findings as a whole including finding on issue No. 8 cannot be now questioned in execution proceedings because the executing court cannot go behind the decree, It can go behind the decree only if there is a lack of inherent jurisdiction. The powers of the executing court has been exhaustively dealt with in catena of rulings and the learned counsel has cited the case of Hira Lal Patni v. Sri Kali Nath (AIR 1962 SC 1999), Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman (AIR 1970 SC 1475), Sundar Dass v. Ram Parkash (AIR 1977 SC 1201) A.V. Hanifa v. Salima Dhanu (AIR 1992 Mad: 111) Urban Improvement Trust Jodhpur v. Gokal Marain, (AIR 1996 SC 1819).

In AIR 1962 SC 199 (Supra) it has been held that objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a Court to try the case. Competence of a court to try a case goes to the very root of the jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction. In AIR 1970 SC 1475 (Supra) it has been held that "when a decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. But where objection as to jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the question raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. "Same principle has been reiterated in AIR 1977 SC 1201 (supra) by specifically holding that executing court cannot go behind the decree nor it can question its validity or correctness. There is one exception to this general rule and that is, that where the decree is sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its validity can be set up in an execution proceeding. In AIR1996 SC 1819 (supra) the trial court had decreed the suit granting certain benefits but had no jurisdiction to entertain those claims, such a decree was nullity and the question of nullity was allowed to be set up even at the stage of execution. In AIR 1992 Mad. 111 (supra) it is held that question raised before the trail court and decided by it cannot again be raised in execution proceeding.

The arguments advanced by the counsel for the parties have been considered.

The question which falls for consideration and determination is whether the trial court had the competence to try the case and whether it is a case of inherent lack of jurisdiction. Petitioner herein in his official capacity as Director General of Police had passed the transfer order in question. There can be no challenge to his authority as being the Head of Police Force to have transfered the respondent from Kashmir Wing to Jammu Wing. DIG of Police, Jammu Range was subordinate to him and he had issued the direction that respondent be posted in the area where there was no large muslim population and activities required to be watched. This direction is the bone of contention in the present proceeding. According to the respondent, the direction was without any foundation but issued because of personal animosity, ill-will and hatred as such malice and per se actionable. In the plaint no particulars are given in support of this contention. It was official duty of the petitioner to keep every member of the police force under discipline and control to serve the national interest as militancy during those days was trying to spread its ugly tentacles in the police force. This is a legal presumption that official acts are done in accordance with law and rules unless proved otherwise. The direction in question could become actionable on the basis of strict strong proof which required to be discharged with specificity and particularity. An allegation of general nature is not suffice to establish malice. The narration of this factual background is necessary to establish the malicious act which has been made as basis to claim the damages. The provisions of O. 27 R. 5 (A) CPC are attracted when damages are claimed or O. 27 R. 5 (A) CPC is reproduced hereunder:

"Government be joined as party in a suit against a public officer: where suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the government shall be joined as a party to the suit."

A bare perusal of this rule makes it crystal clear that this is a mandatory provison of law and not of directory nature. The word "shall" has been used to implead the government as a party in the suit when the suit is filed against a public officer for damages or other relief in respect of any act alleged to have been done by him in official capacity. The order of transfer in question containing the alleged malicious directions are part and parcel of one and the same order. The direction has a nexus with the transfer order as the same was passed in the interest of administration. It cannot outrightly be said that such a direction could not be given because it falls outside the sphere of the official functions. The element of direct nexus could be delinked on the basis of credible documentary proof to be attached with the plaint. It was one of the essential official duties of the petitioner to curb the undesirable elements in the Police Force and directions even of more penal nature could be issued depending upon the facts of a particular case. Heavy burden of proof was on the respondent to establish even at the stage of filing the suit; that direction in question had emanated from personal ill-will, hatred and vendatta. A bald assertion made in para No. 8 of the plaint that direction was malicious was not suffice to keep at bay the application of mandatory provisions of section 79, 80 and O. 27 R. 5 (A) CPC. Section 80 CPC starts with mandatory requirement that no suit shall be instituted against the Government or against a public officer in his official capacity, until the expiry of two months next after notice in writing has been served in the manner prescribed in the Section. In the Plaint a statement is required to be made that such notice was so delivered or left. In the instant case notice under section 80 CPC was only given to the petitioner through registered post. In the notice there is an endorsement that a copy was forwarded to the Chief Secretary for substituted service in place of the petitioner in case the law required so. This express bar could only be dispensed with after seeking the leave of the court as prescribed under sub-clause (3) of Section 80 CPC. The respondent has not impleaded the State of J&K as party nor any notice was delivered to the Chief Secretary on behalf of the Government and no leave of the court had been obtained under Sub-Clause (3) of Section 80 CPC. It is thus established that the impugned decree was passed violating the express mandatory provisions of sections 79, 80 as well as O. 27 R. 5 (A) CPC. The apex court in the case of Prabodh Verma v. State of UP (1984 (4) SCC 251 dismissed the writ petition for non-joinder of necessary parties.

Issue No. 8 is an issue of Law which required no proof by leading the evidence. Admittedly the State of J&K had not been impleaded as a party in the suit. The trial court was expected to give a finding based on reasons why the State was not required to give a finding based on reasons why the State was not required to be impleaded as a party. Equally finding was also required about the effects of not impleading the State as a Party. The trial court has expressed no opinion on these significant aspects but has decided the issue in a casual manner by holding that the petitioner did not discharge the burden of proof for proving issue No. 8. This is no decision of the issue in the eye of law and the argument is not available that question raised before the trial court and decided by it cannot be again raised in execution proceeding. Such a decision can also not operate as waiver. Be that as it may, from the careful perusal of the record, it is revealed that the decree in question is not valid because the proceedings were conducted in an illegal and irregular manner. This will manifest from the facts that on 29.3.1991, the trial Judge after hearing the arguments of the counsel of the respondent, posted the case for judgement on 19.4.1991 which could not be announced and adjournment was granted for 4.5.1991. On this date, the learned Presiding Officer had been relieved of the charge of the office on account of his transfer and the reader of the court posted the case on 9.5.1991 for further orders. Meanwhile, the respondent approached the learned District Judge, Srinagar with a prayer to transfer the case to some other court. On 11.5.1991 the learned District Judge, Srinagar without giving notice of the transfer application to the petitioner called the record from the trial court and transfered the case to the court of Addl. District Judge, Srinagar on the plea that it was of emergent nature. The office of the District Judge, Srinagar on 14.5.1991 vide No. 104/DJS despatched the record of the case to the transferee court (Addl. District Judge, Srinagar) where it was received on the same day. The learned Addl. District Judge on the same day (14.5.1991) took up the case in the court and after recording the presence of the respondent posted it for judgement on 29.5.1991. No opportunity was given to the respondent for advancing arguments. Accordingly, on 29.5.1991, the Judgement was announced in the presence of the counsel of the respondent. The learned District Judge initially committed illegality when on the application made before him for the transfer of the case he did not issue notice of the same to the petitioner. This application was made before him after 4.5.1991 and before 9.5.1991. He called the record of the case by hand and on 11.5.1991 transfered the case from the file of trial Judge to the file of Addl. District Judge, Srinagar. It was imperative requirement of section 24 of CPC for giving notice of the application to the petitioner. This material irregularity committed by him is liable to be set aside in revision. The Lahore High Court in the case of" Ganga Ram v. Gujamal (AIR 1923 lahore 444) held that where a case is transfereed from one court to another without notice to the defendant, the latter is entitled to have an ex-parte decree, passed against him by the second court set-aside, even though it appears that he very probably knew of the transfer. The order of transfer dated 11.5.1991 does not state what was such an emergency. To add fuel to the fire when the learned Addl. District Judge, Srinagar received the record of the case on 14.5.1991, he with amazing alacrity posted it for judgement on 29.5.1991. The only thing which he did was that he recorded the presence of the respondent in the interim order but did not ask him whether he wanted the case to be argued. The judgement was delivered on the fixed date i.e. 29.5.1991. It is enigmatic to note why the principle of natural justice known as adi alterampartem was given a go by the concerned Judges. Undoubtedly, the respondent was interested in getting a favourable verdict in hot haste as that could help him in other litigation started by him by invoking the writ jurisdiction of the court where he had locked his horns with the petitioner in his official capacity and impleading the state also as one of the parties. The learned Sr.A. A. G. has stated at the bar that final curtain has now also been drawn on that litigation as the respondent has succeeded in getting himself promoted as Sub-Inspector in the Police Force vide decision given in L.P.A. No. 8/1999 on July 30, 1999. That he has got departmental promotion also and presently is working as Inspector in the Police Force. This unusual and irregular course adopted in the proceeding cannot go unnoticed. A mason and a millionaire are required to be treated equally before the eye of law and this equality doctrine finds itself as a fundamental right recognized under the constitution. The respondent at that time was working at the lowest rung of the police force as a constable who had pitted himself against the topslot of the police hierarchy (DGP). The transfer order in question had not been given any effect because of the stiff resistance shown by the respondent. The petitioner while in service himself had withdrawn the order.The respondent all along was not contended with that but had been persuing the proceeding with full zeal and enthusiasm. The petitioner laid down the robes of office in 1989 and the Public Prosecutor who had been defending him in the proceeding also stopped appearing for him and he was proceeded exparte. With the change of the forum for the trial of the case he was denied the right of being heard which is a natural right. The respondent was omniscient in the proceedings at every stage. His proximity and intimacy is established by the manner the proceeding were conducted when in hurry the justice was burried. Justice should not only be done but manifestly and undoubtedly be seen to be done. Where a Judge quails Justice wails. On this view of the matter, the learned trial Judge (Mr. A. R. Bhat) is required to explain why the case was taken up on the same day when it was received from the office of the District Judge Srinagar and how the respondent was present before him. What was the hurry to post the case for judgement without giving any opportunity to the respondent for advancing the arguments. The Registrar General is directed to ellicit explanation from him within two months.