Holding

Service of notice under Section 80 CPC was not required on the Education Officer, and the suit was maintainable; the High Court's order was set aside.

Summary

The appellants, Ram Kumar and others, were allotted land in lieu of land acquired from their father, but the District Collector later revoked the order and directed that the land be handed over to the District Education Officer. The appellants served a notice under Section 80 of the CPC on the State Government through the Collector but did not serve notice on the Education Officer, and subsequently filed a suit for declaration of the revocation as void and for recovery of possession. The trial court held that the Education Officer had not acted in his official capacity and therefore notice under Section 80 was not required; the High Court reversed this view and dismissed the suit for lack of such notice. On appeal, the Supreme Court affirmed the trial court's reasoning, holding that the Education Officer performed no official act and the suit was maintainable without a separate notice to him, and that the notice served on the Collector satisfied the statutory requirement. Consequently, the High Court's order was set aside and the appeal was partly allowed, restoring the trial court's decision.

Issues considered

Whether service of notice under Section 80 of the Code of Civil Procedure, 1908, is required on the District Education Officer (respondent No.3) when he has not performed any act in his official capacity.
Whether the suit for recovery of possession is maintainable in the absence of such notice.
Whether the High Court could entertain the revision when the suit had already been dismissed on merits.

Legislation cited

Code of Civil Procedure, 1908s. 80

Subjects

Section 80 CPCnotice requirementpublic officerofficial capacityland acquisitionpossessionmaintainability of suitconsequential relief

Judgment

[2008] 13 S.C.R. 1097

RAM KUMAR AND ANR.
v.
· ·STATE OF RAJASTHAN AND ORS .. ·
(Civil Appeal Nos.1..15~116 of 2001)"
SEPTEMBER 29; 2.008
[TARUN CHATTERJEE AND DALVEER BHANDARI,
JJ.)

Code of Civil Procedure, 1908-' s, 80:... Notice undet'-
Land of appellants' acquired and in lieu thereof certain laf!d • c
given to them :... Recalling or said order by District Collector
·and land given to Education Officer - Challenge to - Suit for
recovery of possession of said land from Education Officerby
appellants·:.... Also issuance of notice u/s. BO to District Collec-
tor before (iling su(t -Notice uls. 80 to Education Officer'- ":0
Requirement of - Held: Not necessary - Education .Officer
even though a public officer had not done any act in his offi- ·
cial capacity - Appellants challenged the order of District
Collector and the relief sought in the suit was consequential
in .nature - They did not challenge· any act of'Education Of-
ficer - c>rder passed by District Collector was in. his official E
capacity and service of notice to him was sufficient· compli-
ance of s. 80 - Hence, order of trial court that service ·of notice.
u/s 80 to Education Officer not n.ecessary, is upheld and that
of High Court holding otherwise, is set aside. ' · :.
.F
'> i
Respondent no. 1 and 2 initiated proceedings for ac-
quisition of certain lands of appellant's father. Thereafter,
respondent no. 2-District ·Collector b,y ord_er dated
20.11.1968 transferred .certain land to-the appellants in li,eu
of the land acquired. The appellants were delivered pos- G
session of the -land. However, respondent i:io. 2 rev9ked
the order and passed a fresh order date~ 20.04.1974 that
out of the lands delivered to the appellant, respondent
no. 3-Education 'Officer be given possession of 7 bigas
1097 H
1098 SUPREME COURT REPORTS [2008) 13 S.C.R.

A of land. Appellants approached various Authorities but
were unsuccessful. Appellants served a notice u/s. 80 CPC
on the State Government through respondent No.2 but
did not receive any reply. Appellants then filed the suit for
declaration that the order dated 20.11.1968 be declared
B null and void and respondent no. 3 be directed to give
the posses.sion of the said land to appellants. Issue was
raised before the trial court that whether the suit is to be
dismissed for non-service of notiC:e u/s. 80 CPC on re-
spondent No.3 by the appellants. Trial court decided the
c issue in favour of'the appellants. It held that respondent
No.3, though a public officer-Education Officer-had not
done any act in his official capacity, thus, notice u/s. 80
was not required. However, High Court held otherwise
and dismissed the suit in entirety. Hence the present ap-
D peal.
Partly allowing the appeal, the Court
HELD: 1.1 The respondent No.2 passed orders dated
20.11.1968 and 20.04.1974 in his official capacity and no-
tice u/s. 80 CPC was duly served upon him before filing
E .the suit. Since the possession of the suit land was taken
over from the appellants by respondent Nos.1 and 2 and
delivered to respondent No.3, a prayer was made in the
plaint to pass a decree directing the respondent No.3 to
deliver the possession to the appellants, which was con-
F sequential in nature. Therefore, it is clear that the respon-
dent No.3 had not done any act in his official c~pacity
and, therefore, the trial court rightly held that service of
notice u/s. 80 CPC, in the facts and circumstances of the
case, was not at all necessary, as only a decree for pos-
G session was prayed for which was delivered by the re-
spondent Nos. 1 & 2 to Respondent No. 3 on the basis of
recall of the order dated 20.11.1968. [Para 9] [1107,A-DJ
1.2 High Court committed an error in holding that the
H respondent No. 3 in the facts as alleged in the plaint could
RAM KUMAR & ANR. v. STATE OF RAJASTHAN 1099
& ORS.

be said to have acted as a public officer in his official ca- A ·
pacity. There is no reason to disagree. with the view ex-
pressed by the trial court. The appellants do not'seek to
set aside any order of the respondent No.3 or to declare .
illegal any of the acts of respondent No.3. It merely sought
decree for recovery of possession of the suit land to the s
appellants. The suit which is not in respect of any act done
by the respondent No.3, as a public officer, and in which
no act of respondentNo.3 is either challenged or sought
to be set aside is not a suit to whi<;h s. 80 can very w~I.
apply. Therefore, in the facts and circumstances of the c.
instant case, the respondent No.3 had not acted in his
official capacity for which service of notice u/s. 80 CPC
was necessary. It was respondent No. 2 who· had passed
the two orders dated 20.11.1968 and 20.04.1974 and in
fact, who had passed the order of exchange of lands·and
0
also the order recalling the earlier order in his official ca-
pacity. Respondent No. 2 was Administrator and overall
in-charge in the District and the notice served on 'the State
Government through District Collector of the District was
sufficient compliance with the requirements of s. 80 CPC.
Therefore, the High Court misdirected itself in deciding E
the issue regarding requirement of separate service of
notice u/s. 80' ~PC. [Paras 10) [1107,E; 1108,A-E]
1.3 The appellants have made the respondent No. 3
as a party although he was a public officer only on the F
ground that possession was delivered to him by the re-
spondent No. 2 in the exercise of his official capacity. For
the purpose of possession' to be delivered back to tile ·
appellants, the respondent No. 3 was made a party by'
which he had not at all acted in discharge of his official
G .,
capacity. A look at the reliefs claimed in the plaint would·
clearly show that only a consequential relief was claimed
in the suit to the extent that possession of the suit land
should be restored in favour of the appellants by the re-
spondent No. 3. Therefore, even in the absence of ser-
H
1100 SUPREME COURT REPORTS [2008] 13 S.C.R. A.

A vice of notice on respondent No.3 u/s. 80 CPC, the suit
was maintainable in law. [Para 12] [1109,E·H]
1.4 The High Court erred in reversing the order of
the trial Court holding that service of notice on respon-
dent No. 3 u/s. 80 CPC was not necessary to be served to
8 maintain the suit. Thus, the order of the trial court is re-
stored. [Paras 11 and 14] [1108,G; 1110,E]
State of Maharashtra and Anr. vs. Shri Chander Kant AIR
1977 SC 148 - distinguished.
c 2. From the record it appears that the suit itself was
dismissed on merits after the issue as to the maintain-
ability of the suit for non-service of notice upon the re-
spondent No. 3 was decided in favour of the appellants.
It is/was now pending in appeal before the appellate court.
D Therefore, by any stretch of imagination, it cannot be said
that at the time the revision was decided, it was open to
the High Court to deal with the issue passed by the trial
court when the suit itself'was dismissed on merits. That
is to say, the revision became infructuous in view of the
E dispo$al of the suit on merits. For this reason also, the
h:npugned order of the High Court is liable to be set aside.
Accordingly, if the appeal is still pending for decision, the
appellate court is directed to decide all the issues in the
suit e:iccept the issue which is being decided in favour of
....
F the appellants by this judgment on merit within the pe-
~
~

riod stated. [Para 13] [1110,A-D]
Case Law Reference
AIR 1977 SC 148 distinguished. Paras 11, 12
-
G CIVILAPPELLATE JURISDICTION: Civil Appeal Nos. 115-
116of2001
From the final Judgment and Order dated 26.3.1998.and +1
23.3.1999 of the High Court of Judicature for Rajasthan at Jodh-
pur in S.S. Civil Revision Petition No. 480 of 1994 and S.8.
H
Civil Defect Case No. 1788 of 1998 respectively. · · " · . ·A.··
; f'f • '.- ~

Shiv Pujan Singh and Niranjana Singh for tti.e Appellant~'.:~:
· · Aruneshwar Gupta, Nave·en Kumar Singh' and Shashwat · ·
Gtipta for the Respondents. ' " · · · ··
' - 'I : • • ·"" p~~ ' .... ~~- - B t·~
..·.,The
. Judgment
.
of tne
'
•'
Court was deliveretj
,, - '
by ..
TARUN CHATTERJEE, J. 1. These appea:1~ by special
leave are directed against the judgment and order dated 26th
of March, 1998 passed'by a·learned Judge of the High Court'of
Judicature for Rajasthan·at Jodhpur in S.B. Civil Revision Peti'- c
tion No.480of1994 and order dated 23rc1 of March; 1999 passed· ·
in S.B. Civil Defect Case No.1788 of 1998 which arbse out of
an ap'plication for'review of the order dated'261h of March,' 1998:
By the order dated 261h of March, 1998, the learned Judge'had '
s~t ~side t~e order pa.ssed by ~he learned Munsif, 1st Class;·:"D .',
T1bb1 by which the learned Muns1f held that the defendant No.3/ ·
respondeht No.3 (in short 'respondent No.3') was not need~d
a
fo be served with notice under Section'80 of the Code of Civif
Procedure {in short the 'CPC'), as the respondent No.3, being · ·
a Dist~ict Education ?ffic~r, had not done any act in hfs officia~_,:iE ..
capacity. ;· · · · · · ' · '
;!'t' . ;... ... . ~ , ~ . · •.·. . : . -~:'1~.~r~·;
--~· Thefact,s leading ~o t~e filing of ttiese a·ppe~ls,m~tbe ;r
summari~ed as follo."Ys: : · ... i ; · ,.;.;

·· The proceedings for~acquisitiorf of the land belonging lo·· ·.
one Shri Dau lat Ram; father of the appellants situated at Chak · F.
No.12 M.KS. Tehsil Tibbi, Mu. No.180/242, Kila No.5~8(pres" , •.
ently .Chak N0.3 D.P.M.14 to 16 and 24-25) ad-measuring 9 ·'.
bighas and Mu.No.180/242, Kila No.4-5 ad-measuring 2 bighas' ··
and Mu.No.181/242 Kila No.1-2, ad-measuring 2bighas, total~ 1 r
ing all 13 bighas in ABADI Mauza Daulatpura, were initiated by ."G
the Bhakhra Colonizatioh Department and the Deputy Colo hi-.
zation Commissioner, Bhakhra Hanumangarh, while acquiring
this land along with other lands by orders dated 3.1.1962; .or~·'. •
dered his subordinates to put up proposal expeditiously tcitrans- :·:·: ..
fer in.lieu of the. land to be acquired for ABADI any other~and, inf·. M !.~
1102 SUPREME COURT REPORTS [2008] 13 S.C.R.
~ ~

A favour of the Kha.tedar\Mauroosi-holder). The said Bhakhra
Colonization Department was wound up and all the powers
thereof were vested in the officers of the Revenue Department.
Hence, the father of the appellants filed an application dated
22.11.1969 before the Tehsildar (Revenue) Tibbi for transfer in
B terms of the .order passed by the Deputy Colonization Com-
missioner in lieu of his acquired land, the vacant land situated
in Chak No.M.K.S. (presently Chak No.D.P.M.), bearing
Mu.No.180/240, Kila No.9 (1bigha),11to13 (3 bighas), 18 to
23 (6 bighas) ad-measuring in all 10 bighas and Mu.No.181/
246, Kila No.3, 8 (2 bighas) ad-measuring in all 12 bighas,
c whereupon after conducting an inquiry the TehSildar (Revenue)
Tibbi submitted his proposal before Deputy Collector,
Hanumangarh and Deputy Collector submitted on 13th of No-
vember, 1968, Sriganganagar, the defendant No. 2 accorded
transfer of the said land in lieu of the acquired land. The District
D
Collector, Sriganganagar, by his order dated 201h of November,
1968 accorded his approval to this transfer and the file con-
cerned was returned to the Deputy Collector, Hanumangarh. In
compliance with the order dated 201h of November, 1968 passed
by the District Collector, Sriganganagar, the transfer entry of
E the land to be carried out in lieu of the acquired 'land was made
in the revenue record and the same was approved by the
Tehsildar (Revenue) Tibbi on 3rd of Octoper, 1970 and the names
relating to the lands were mutated in the revenue records and
the possession of the land concerned too was exchanged. Ac-
F cordingly, the father of the appellants gave up possession of .,. ,

the acquired land measuring 13 Bighas as detailed in para·1 of
the plaint, in favour of the State and in lieu thereof, possession
of the land, detailed in para 2 of the plaint, was delivered to the
father of the appellants who came into possession thereof in
G the capacity of Khatedar. The said land, which was transferred
in exchange along with other lands in their entirety whereby out
of the land acquired in exchange, the land bearing No. 180/
240, Kila No. 9 (1Bigha),11to13 (3 Bighas), 18 to 23 (6 Bighas)
ad-measuring 10 Bighas fell into the share of appellant No. 1
H Ram Kumar and Mu. No. 181/246, Kila No. 3 and 8 (2 Bighas)
RAM KUMAR &ANR. v. STATE OF RAJASTHAN 1103
>-- & ORS. [TARUN CHATTERJEE, J.)
ad-measuring 2 Bighas fell into the share of appellant No. 2 A
Rajendra Kumar and the transfer entry of this portion was made
against$. No. 33 in the Khata No. 11/27 dated 131h January,
1971 and was certified on 201h of February, 1971 and this land
was thus mutated on 13th of Janaury, 1971 in the names of the
-<I appellants in revenue records Jamabandi. B
3~ The District Collector (Defendant No. 2) however re-
voked the earlier order dated 2Qth of November, 1968 by pass-
ing a fresh order on 201h of April, 1974. The appellants ap-
proached various authorities praying for an order restraining
the defendant No. 2 (hereinafter referred to as "Respondent c
No.2) from delivering possession of the said land· to District
Education Officer, being Respondent No. 3. After being unsuc-
cessful before different authorities, the appellant served a no-
tice under Section 80 of the CPC read with Section 52 of the
rJ Rajasthan State Land Acquisition Act No.24 of 1953 on the re- 'D
spondent No.2 in his official capacity on 13th of December, 1985.
Having failed to receive any reply, the appellants thereafter filed
the suit on 25th of March, 1987 seekfng declaration that the or-
der dated 2Qth of April, 1974 passed by the respondent No.2
was null and void and ineffective and the appellants shall be E
delivered back possession of the said land, particulars of which
has been described in paragraph 12 of the plaint, (herein after
referred to as the 'suit land') from respondent No.3.
4.Ajoint written statement was filed on behalf of the State
.. · Government, Rajasthan and respondent No.2 who was arrayed F
as defendant No. 2 and a separate written ~tatement was filed
on behalf of respondent No.3. It is by way of an additional plea
in the said written statement filed by respondent No.3, a ques-
tion was raised as to the maintainability of the suit for non"ser-
vice ofnotice under Section 80 of the CPC on respondent No.3. G
5. By an order dated 7th of July, 1992 the trial court framed
t· several issues for trial in the suit and one of such issues, namely,
issue No.4 was decided by the trial court as a preliminary issue
which reads as follows:
H
~·
1104 SUPREME COURT REPORTS [2008] 13 S.C.R.

A Issue No.4 - "Whether the suit of the plaintiff deserves
to be dismissed for not serving of notice under Section
80 of the CPC on defendant No.3 by the plaintiffs."
6. By an order dated 24th of March, 1994, Issue No.4 was
decided by the learned Munsif, 1st Class Tibbi in favour ofthe
B appellants and against the respondent No.3, inter alia, holding
that respondent No.3, although a public officer being the Dis-
trict Education Officer, was not required to be served notice
under Section 80 of the CPC as he had not done any act in his
official capacity. Feeling aggrieved by this order, respondent
C No.3 filed a revision petition before the High Court and the High
Court by the impugned order held that since respondent No.3
being a District Education Officer must be served with a notice
under section 8'0 of the CPC as he was acting in the official
capacity. Accordingly the High Court had set aside the order of
D the'trial court and dismissed the suit in its entirety on the groun'd
of non-service of notice upon the respondent No. 3. It is this
order, which is now under challenge before us in appeal.

7. Before we proceed with the merits of the appeals
against the afore$aid order of the High Court passed in revi-
E sion, we may keep it on record that it was brought to our notice
that by a final judgment and decree dated 24th of March, 1994,
the suit itself was dismissed on merit by the trial court and a
regular first appeal was filed by the appellants in the Court of
the District Judge, Hanumangarh which was still pending at the
F 'time of decision of the revision case before the High Court. It is
not known now whether the said appeal has yet been decided
by the High Court or that in view of the order passed by the High·
Court in the aforesaid revision case which is under challenge
before us, the appeal has also been dismissed not only on merit
G but also on the g"tound that the suit was not maintainable in law
in view of non service of notice upon the respondent No.3. Be
that as it may, it would now be appropriate for us to decide the
question as to wheth.er the non-service of notice upon the re- .
spondent No.3 under Section 80 of the CPC before filing the
H suit would be fatal and the court would have no other alternative
... . . .. ,.
RAM KUMAR & ANR. v. STATE OF RAJASTHAN 1105
... i·
. & ORS. [TARUN CHATTERJEE, J.]
· but to dismiss the suit for such non sen/ice. In order to decide A
this question, it WC?uld be appropriate to refer to Section 80 of
the CPC which reads as \..mder:
"Section 80 - NOTICE -
. (1; Save as otherwise provided in sub-section .(2), no B ·
suits· shall be instituted against th~ ·Gqvernment
(including the Gov~rnm(?nt of ·state'·.of Jam mu &
Kashmir) 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 c
months next after notice in writing has ·been
delivered to, of'left .at.the office of . ·
(a) in the case: of a suit against the Central
, +
Government except' where it .relates Ci_;, to
-·. Railway ·a .secretary
. .to that (3overnment
~
· D .-
· ;.(bJ . in· case of a suit against. th:e · 'central
.Government, where it relates to Railway, the -
General Manager of that Railway; .
(bb) in- case of a suit against the ·Government' of. . E
_State of Jammu & Kashmir the Chief Secretary
to that Government or any other officer
_authorized by that officer on this behal~
(c) in ca,se of a .suit agains,t ·any other Sta~e _ F 1
Government, a Secretary tQ that Goverl}ment
or the Collector qf the District; and in case or
a public'
. , officer
.
delivered. to him or'.-· left at his
office, stating the cause of action, the name,
descriptfon, and place of ~resideQce of -the
plaintiff
. and
. ,, ' . the relief
.
which he. claims,
. . . and the . ' . G
plain~ 'snail contain a statement that such .
~ . . . .' ., ,)' '}
notice• has been so delivered .or left.
. , µ
,. ·: . . . "..: ~·

(2) - No suit instit~ted against the .Go-vernment oriigalhsf i~
. a pu_blic officer .in respect of any a9t .purporting to
;. : ; L ..:· .. ,. . . ~ . . .' . . .} \ I . . ~. • . : . ' : H f.
~,.

1106 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 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
B 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
c
(b) the cause of action and the relief claimed by the
plaintiff had been substantially indicated."
8. Before we go into the scope and effect of Section 80 of
the CPC, we may look at the allegations and reliefs claimed in
D the suit. As noted herein earlier, the trial court decided the is-
sue, namely, issue No.4 on the ground that the respondent No.3
had not acted in his official capacity in the present case and,
therefore, service of notice under Section 80 of the CPC on
respondent No.3 was not necessary, whereas the High Court
E reversed the order of the trial Court and held that the respon-
dent No.3 had acted in his official capacity and, therefore, non
service of the notice on Respondent No. 3 would invite the court
to dismiss the suit in its entirety. Let us now look into the allega-
tions made in the plaint as well as the reliefs claimed in the
F same. The land of the appellants was acquired by respondent
Nos. 1 an<] 2 and in lieu thereof, possession, as described in
para 2 of the plaint, was delivered to the appellants by the order
of respondent No.2 in his official capacity, but respondent No.2
revoked the said order and out of the said lands, as described
G in para 2 of the plaint, possession of 7 bighas of land was deliv-
ered by respondent Nos.1 and 2 to respondent No.3 in respect
whereof the appellants prayed that possession of the said 7
bighas of land be delivered back to the appellants by respon-
dent No.3 by way of consequential relief.
H 9. From the aforesaid facts alleged in the plaint, it would
RAM KUMAR & ANR. v. STATE OF RAJASTHAN 1107
& ORS. [TARUN CHATTERJEE, J.]

be evident that it was the respondent No.2 who had passed A
two orders dated 201h.of November, 1968 and 201hof April, 1974
in his official capacity and that the notice under Section 80 of
the CPC was duly served upon him before filing the suit. As
noted herein earlier, since the possession of the suit land was
taken over from the appellants by respondent Nos. 1 and 2 and B
delivered to respondent No.3, a prayer was made in the plaint
to pass a decree directing the respondent No.3 to deliver the
possession to the appellants, which was consequential in na-
ture. It is, therefore, clearthat the respon.dent No.3 had not done
any act in his official capacity and, therefore, in our view, as c
rightly held by the trial court that service.of notice under Section
80 of the CPC, in the facts and circumstances of the case, was
not at all necessary, as only a decree for possessionwas prayed
for which was delivered by the respondent Nos. 1 & 2 to Re-
spondent No. 3 on the basis of recall of the order dated 20th of
D
November, 1968.
10. Before we proceed further, we may keep it on record .
that the respondent No. 3 is a public officer within the meaning
of Section 2(17) and Section 80 of the CPC. Therefore, let us
consider whether the respondent No. 3 had acted, in the facts E
and circumstances of this case, in his official capacity or· not. In
our view, High Court had committed an error in holding that the
respondent No. 3 in the facts as alleged in the plaint could be
said to have acted as a public officer in his official capacity. It
was respondent No. 2 who had passed the aforesaid two or- F
" 4 de rs dated 201h of November, 1968 and 201h of April, 1974 and
· Jn fact, who had passed thia order of exchange of lands and
also the order recalling the earlier orde.r of 1968 in his official
capacity. In that view of the matter, in our view, notice served on
the District Collector, Sriganganagar was sufficient and com- G
plete notice to the Government Middle School, Daulatpura which
was represented through the Education Officer (Students Insti-
tutions), Hanumangarh. Therefore, in our view, the High-Gm.frt
• • had misdirected itself in deciding the issue regarding require-
ment of separate service of notice under. $ection 80 of the CPC. H
1108 SUPREME COURT REPORTS [2008] 13 S.C.R.

A Looking into the allegations made in the plaint and the reliefs
claimed, we do not find any reason to disagree with the view
expressed by the trial Court when it had held that no act was
performed by the respondent No. 3 in his official capacity. If we
look at the plaint in the present case, it would be clear that in the
B plaint, no act of respondent No.3 is being challenged. The ap- ,_
pellants do not seek to set aside any order of the respondent
No.3 or to declare illegal any of the acts of respondent No.3, it
merely seeks a decree for recovery of possession in the suit to
hand over possession of the suit land to the appellants. The suit
c which is not in respect of any act done by the respondent No.3,
as a public officer, and in which no act of respondent No.3 is
either challenged or sought to be set aside is not a suit to which
Section 80 of the CPC can very well apply. Therefore, in the
facts and circumstance~ of the present case, the respondent
D No.3 had not acted in his official capacity for which service of.
notice under Section 80 of the CPC was necessary. That apart, ,.
it is not in dispute that the respondent No. 2 was Administrator
and overall in-charge including the Government Middle Schools
(Students Institutions) in the District and the notice served on
the State Government through District Collector of the District
E was sufficient compliance with the requirements of Section 80
of the CPC. In view of the aforesaid fact, it was not necessary
to sep_arately serve a notice to respondent No.3 as we find that
no order was passed by the District Education Officer, which
was under challenge in the suit itself.
F
11. In view of our discussions made hereinabove, we are ~ ..,.
therefore of the view that the High Court had fallen in error in
reversing the order of the trial Court holding that service of no-
tice on respondent NO. 3 under Section 80 of the CPC was not
necessary to be served to maintain the suit. In State of
G Maharashtra and Anr Vs. Shri Chander Kant (AIR 1977 SC
148), this Court laid down the principle as to when service of
notice on the State/defendants under Section 80 of the CPC
was necessary. In the said decision, this Court observed as • •
follows:- ·
H
RAM KUMAR & ANR. .v, ·STATE OF RAJASTHAN 1109
& ORS. [TARUN CHATTERJEE, J.]

. "The language of Section $0 of the Code of Civil A
. Procedure is that a notice is td be given against not only
the Gqvwnment but also ag_B_ir;st the. Public. Office in
' .._· r.e~pect of ·.any act purporting 'to be done Jn- his official
-"capacity:· The Registrar is a Public Officer. Th,~. order is
an act purporting to be· done)n his officiaJ ,capacity., . B
·.. , . !nth~ present case, the suit is (o be set aside the ordJr
·.. '• ', .made QY, filPublic Officer in respept of an act done :in the
l . ·- dlscr.ar~~·''qt,:Qi~ off~cial dut~e~. ,Therefore, notice~ unde,;
- Section 80 of the Code of C1v1/ Procedure was reqwred:"
.. ~. •' ... ·, '. . ~ . .- ·. . ., l ·
c
· 12. From the aforesaid, itwould bi;i evident thatthis Cou(t
held that service under Section 80 of the CPC was necessary as
Jn.that case, the suit was. filed for setting-aside an order passed
by .a public officer .in respect of an. ai:;t done in the discharge of
his official duties. In that view of the matter, in th at decision, it was
held that
service of notice under Section 80 of the CPC was nec-
0
essary and in th~ absence of that.service, the suit must be dis-
mis~ed. This is· not 'the factual position in this case. We have
afready held that Respondent No. 3 had not passed any order as
a public officer nor the appellants had' asked for setting aside
ahy order passect by the respondent;No. 3 as a public officer in E ·
of
resped any act done in the discharge of his official duties. As
noted herein earlier, the appellants have made the respondent
No. 3 as a party alth9ugh he was a public officer only on the ground
that possession was delivered to him by the respondent No. 2 in
the exercise of his official capacity. For the purpose of posses- F
sion to be delivered back to the appellants, the respondent No. 3
was made a party by which; in our view, he had not at all acted in
discharge of his official capacity. A look at the reliefs claimed in
the plaint would clearly show that only a consequential relief was
claimed in the suit to the extent that possession of the suit land G
$hould be restored in favour of the appellants by the respondent
No. 3. Therefore, in view of the aforesaid discussion made here-
inabove, we hold that even in the absence of service qf notice on
the respondent No.3 under Section. 80 of the CPC, the suit was
maintainable in law. H
1110 SUPREME COURT REPORTS [2008] 13 S.C.R.

A 13. Before concluding, we may also keep it on record, as
noted herein earlier, that from the record it appears to us that
the suit itself was dismissed on merits after the issue No. 4 as
to the maintainability of the suit for non-service of notice upon
the respondent No. 3 was decided in favour of the appellants. It
B is/was now pending in appeal before the appellate court. There-
fore, by any stretch of imagination, it cannot be said that at the
time the revision. was decided, it was open to the High Court to
deal with Issue No.4 passed by the trial court when the suit itself
was dismissed on merits. That is to say, the revision became
c infructuous in view of the disposal of the suit on merits. For this
reason also, the impugned order of the High Court is liable to
be set aside. Accordingly, if the appeal is still pending for deci-
sion, we direc:t the appellate court to decide all the issues in the
suit excepting Issue No.4 which is being decided by us in favour
of the appellants by this judgment on merit within a period of six
0 +
months from the date of supply of a copy of this judgment.
14. For the reasons aforesaid, the impugned order is set
aside and the order of the trial court holding that the suit was
maintainable for non-service of notice under Section 80 of the
E CPC on the respondent No.3 is hereby restored. The appeals
are allowed to the extent indicated above. There will be no or-
der as to coi;ts.
N.J. Appeal partly allowed.