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Bembiri Kothanath Devaki Kutti Amma's son Padmanabha Nayar Vs. Chali Parambil Ezhuvan Vellappan's son Appu alias theyyan (07.08.1940 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1941)2MLJ242
AppellantBembiri Kothanath Devaki Kutti Amma's son Padmanabha Nayar
RespondentChali Parambil Ezhuvan Vellappan's son Appu alias theyyan
Excerpt:
- - but i am of opinion that on the plain words of the section, the contention must fail......is necessary in a suit instituted against a person who was at the time of the cause of action a public officer and is sued in respect of his act as such public officer, but has ceased to be a public officer by the time the suit was instituted.2. the petitioner was an acting adhikari in which capacity he attached the respondent's land for arrears of revenue. to raise the attachment, the respondent paid a sum of money. the present suit is to recover an amount alleged to be in the hands of the petitioner in excess of the amount due towards revenue. there is no doubt that the petitioner at the time of the receipt of this money came within the definition of a public officer and that his act in receiving the money from the plaintiff was one which he purported to do in his official capacity......
Judgment:

Wadsworth, J.

1. This revision petition raises the question whether notice under Section 80 of the Civil Procedure Code is necessary in a suit instituted against a person who was at the time of the cause of action a public officer and is sued in respect of his act as such public officer, but has ceased to be a public officer by the time the suit was instituted.

2. The petitioner was an acting adhikari in which capacity he attached the respondent's land for arrears of revenue. To raise the attachment, the respondent paid a sum of money. The present suit is to recover an amount alleged to be in the hands of the petitioner in excess of the amount due towards revenue. There is no doubt that the petitioner at the time of the receipt of this money came within the definition of a public officer and that his act in receiving the money from the plaintiff was one which he purported to do in his official capacity. If, therefore, he is to be made to refund an excess collection, the suit is one which would require notice under Section 80 of the Civil Procedure Code if the petitioner was at the time of the suit a public officer. It is however contended that under Section 80, notice is required of a suit against a person who was a public officer at the time of the official act which gave rise to the claim even though he is no longer a public officer when the suit is filed. No authority has been quoted for or against this contention; but I am of opinion that on the plain words of the section, the contention must fail. Granted that the section contemplates an act done by a public officer in his official capacity as forming the basis of a suit for which notice is required, one must remember that the opening words of the section are,

No suit shall be instituted against...a public officer.

and to read those words as including a suit against a person who is not a public officer, but was a public officer at the time of the cause of action would be to extend the section beyond its apparent purport. The object of this section is to give time for a public officer threatened with a suit in respect of his official acts to take the orders of his superiors on the question whether the suit shall or shall not be defended and to get permission to use the services of the law officers of the Crown, if necessary. Such considerations would not ordinarily arise in the case of a person who has ceased to be in the employ of the Government at the time of the suit. There is nothing in the definition of a 'public officer' in Section 2(17) of the Civil Procedure Code to justify the inference that it includes a person who was once in the employ of Government but is so no longer.

3. I am of opinion that the learned District Munsif was right in holding that notice under Section 80, was not necessary in this case. The revision petition is therefore dismissed with costs.


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