2025:HHC:8795 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 147 of 2024 Date of decision 2.4.2025. Prem Singh ...Petitioner. Versus Tilak Raj ...Respondent Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the petitioner : Ms. Vandana Kumari, Advocate vice Mr. Surinder Saklani, Advocate. For the respondent : Ms. Shrutika, Advocate. Satyen Vaidya, Judge (oral): By way of instant petition, petitioner has assailed order dated 16.10.2024, passed by the learned Civil Judge, Court No.2, Sarkaghat, District Mandi, H.P. in CMA No. 304 of 2023 in Civil Suit No. 87 of 2023, whereby, the application of the petitioner under Order 7 Rule 11 Code of Civil Procedure (for short the ‘Code’) has been rejected. 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- 2. Respondent herein is the plaintiff before learned trial Court. He has filed a suit for damages on account of malicious prosecution against the petitioner/defendant. It is averred in the plaint that the plaintiff was serving the Forest Department. On 11.5.2010, the petitioner/ defendant made a false and frivolous complaint against the plaintiff with malicious intent, which had resulted into registration an FIR No. 128 of 2010. The plaintiff was prosecuted in pursuance to the aforesaid FIR and finally, he was acquitted by the criminal Court vide judgment dated 21.9.2022. On such cause, the plaintiff instituted the suit, as noticed above. 3. The petitioner/defendant filed an application under Order 7 Rule 11 of the Code, seeking rejection of plaint on the ground that the petitioner/defendant at the relevant time i.e. when he had made the complaint on 11.5.2010, was a public servant, working as Deputy Ranger and it was in such capacity that he had filed the complaint. He has further alleged that there was no malice against the plaintiff and the complaint was filed on the basis of facts, as had emerged before the defendant. On -3- this count, it was submitted that since the defendant was a public servant, the plaintiff was required to issue a prior notice under Section 80 of the Code. Since the said requirement was not fulfilled, the suit was against law and the plaint was required to be rejected. 4. The application was contested by the plaintiff by filing the reply and the contents averred therein were denied generally. 5. Learned trial Court vide impugned order has dismissed the application of the petitioner/defendant by holding that since at the time of filing of the suit, the petitioner/defendant was not a government servant, the provisions of Section 80 of the Code will not have any application. 6. Section 80 of the CPC reads as under:- “80. Notice.— (1) 6 Save as otherwise provided in sub- section (2), no suits 7 shall be instituted against the Government (including the Government of the State of Jammu and 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 months next after notice in writing has been delivered to, or left at the office of— -4- (a) in the case of a suit against the Central Government, except where it relates to a railway a Secretary to that Government; (b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway; [(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorized by that Government in this behalf; (c) in the case of a suit against any other State Government], a Secretary to that Government or the Collector of the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. (2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return -5- the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit 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 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 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 (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.” 7. In order to attract the mischief of said Section, two requirements are to be fulfilled simultaneously. Firstly, the suit should be against the public officer and such suit should be in respect of any act purported to be done by such public officer in his official capacity. In the facts of the case at hand, admittedly, petitioner/defendant stood retired on the date of institution of the plaint by the plaintiff. Thus, one of the conditions was not fulfilled and hence no fault can be found with the impugned order passed by the learned trial Court. -6- 8. In result, there is no merit in the petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of. (Satyen Vaidya) 2nd April, 2025 Judge (kck)