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State of Jammu and Kashmir Vs. Lucky Glass Works (Plaintiff) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2867 of 1961
Judge
Reported inAIR1969Cal11,72CWN795
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(7B) and 80
AppellantState of Jammu and Kashmir
RespondentLucky Glass Works (Plaintiff) and anr.
Appellant AdvocateN.C. Chakravartty, G.P. and ;Jyotsna Lal Chatterjee, Adv.
Respondent AdvocateM.C. Surana, Adv.
DispositionPetition allowed
Excerpt:
- .....in writing has been delivered to, or left at the office of (c) in the case of a state against a state government, a secretary to that government or the collector of the district.'the question is whether the territory of jammu and kashmir is a state and whether that state is a state government within the meaning of section 80(c). i have been referred to article 1 of the constitution which refers to the state in india and article 1(2) is as follows:'the states and the territories thereof shall be as specified in parts a, b and c of the first schedule.'3. i understand that the territory of jammu and kashmir was formerly in part b but by another amendment of the constitution, namely, the 7th amendment the territory of jammu and kashmir has become a state within part a. therefore it is.....
Judgment:
ORDER

P. Chatterjee, J.

1. The short question involved in these proceedings is whether the notice under Section 80 of the Civil Procedure Code need be served upon the State of Jammu and Kashmir if a suit is instituted against that State in Calcutta.

2. Section 80 of the Code of Civil Procedure is as follows:

'No suit shall be 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, until the expiration of two months next after notice in writing has been delivered to, or left at the office of (c) in the case of a State against a State Government, a Secretary to that Government or the Collector of the District.'

The question is whether the territory of Jammu and Kashmir is a State and whether that State is a State Government within the meaning of Section 80(c). I have been referred to Article 1 of the Constitution which refers to the State in India and Article 1(2) is as follows:

'The States and the territories thereof shall be as specified in Parts A, B and C of the First Schedule.'

3. I understand that the territory of Jammu and Kashmir was formerly in Part B but by another amendment of the Constitution, namely, the 7th Amendment the territory of Jammu and Kashmir has become a State within Part A. Therefore it is impossible to say that the State of Jammu and Kashmir and the Government of that State is not a State Government, nor can it be said that it is not a State within the meaning of the Indian Constitution. Therefore, notice under Section 80 of the Code was required to be served if a suit was to be instituted against that State. But the trial court held otherwise. According to the trial court, the Code of Civil Procedure would not apply to the State of Jammu and Kashmir and therefore, notice under Section 80 C. P. C, would not be necessary.

4. Undoubtedly if the opposite party plaintiff instituted the suit at Kashmir and Jammu, the procedure would be governed by the law there and it may be that a notice under Section 80 of the Code would not have been necessary. The question is if a suit is instituted where the Code of Civil Procedure applies, will the operation of Section 80 of the Code be excluded with regard to suits against States which are outside the State when the suit is instituted. I find no reason for any such consideration. The word 'State Government' in Section 80(c) of the Code refers to any State in India and does not refer to the States where the Code of Civil Procedure is in force. Therefore if a suit is instituted in any State against any other State Government, a notice under Section 80 of the Code must be served.

5. Learned Advocate for the opposite party refers me to the definition of the word 'India' in Section 2(7B) of the Code and it is said that the word 'India' should be understood in a particular manner in the Code of Civil Procedure. But that word 'India' does not occur in Section 80 of the Code. Therefore, there is no question of applying that interpretation to Section 80 of the Code. I, therefore, must hold that the suit is not maintainable without giving notice to the Government of the State of Jammu and Kashmir. The phrase 'State Government' has not been defined in the Code. We therefore interpret the word 'State' as in the Constitution.

6. The Rule is made absolute. The matter is sent back to the Court below for decision in accordance with law.

7. The petitioner will get costs of hearing of this Rule from the Opposite Party and the hearing cost is assessed at one gold mohur.


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