1  ( 2026:HHC:34859 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.398 of 2026 Decided on:- 17.08.2026 Shiv Dev Singh & Anr. …Petitioners Versus Hari Ram & Ors. …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 _______________________________________________________________ For the petitioners : Mr. Sumit Sood, Advocate. For the respondents : Mr. Mohinder Zharaick and Mr. H.S. Rawat, Additional Advocates General, with Ms. Ranjna Patial, Deputy Advocate General, for respondent No.6. Virender Singh, Judge (Oral) Petitioners have filed the present petition, under Article 227 of the Constitution of India, against the order dated 17.02.2026, passed by the Court of learned Civil Judge, Senior Division, Shimla, District Shimla, H.P., (hereinafter referred to as the trial Court), in Civil Suit No.107 of 2026, titled as Shiv Dev Singh and another versus Chain Ram and others. 2. By way of order dated 17.02.2026, the learned trial Court has deleted the name of defendant No.5, from the array of the parties, on account of the fact, that notice under 1 Whether Reporters of local papers may be allowed to see the judgment? 2 Section 80 of CPC, has not been served, as such, suit is held to be not maintainable, against respondent No.1. 3. For the sake of convenience, the parties to the present lis, are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 4. Brief facts, leading to the filing of the present petition, before this Court, as borne out from the record, annexed with the petition, may be summed up, as under:- 4.1. Plaintiffs have filed a suit for recovery damages amounting to Rs.21,00,000/-, on account of malicious prosecution of plaintiffs, resulting into their acquittal, in Criminal Case No.352/2021, titled as State of H.P. versus Shiv Dev Singh and another, decided on 13.01.2025, by the Court of learned Judicial Magistrate, First Class, Court No.3, Shimla, District Shimla, H.P., arising out of case FIR No.185 of 2020, dated 14.08.2020. 4.2. In the said suit, defendant No.5, has been sued, in his official capacity, as Station House Officer, at Police Station Chirgaon, District Shimla, H.P., by leveling the allegations, against defendant No.5, that he had got demarcation conducted on the spot on 07.01.2020, in the 3 absence of the plaintiffs and no encroachment was shown, because, wrong points were shown on the spot. 4.3. The plaintiffs had filed objections to the said demarcation report, whereby, Tehsildar, vide order dated 25.02.2022, directed the concerned Revenue Officer to again carry out the demarcation, in the presence of the parties. 4.4. According to the plaintiffs, it has also come in the notice of defendant No.5, that vide notice dated 07.09.2019, issued by the Town and Country Planning, defendants No.1 and 2 had raised illegal construction of their building, contrary to the building plan. 4.5. It is also the case of the plaintiffs that defendant No.5 has wrongly submitted the report under Section 173(2) of Cr.P.C., against them. As per the record, defendant No.5, was Station House Officer, who has submitted the charge sheet, in case FIR No.185 of 2022, dated 14.08.2022, which resulted into acquittal of the plaintiffs, vide judgment of acquittal dated 13.01.2025. 4.6. The plaintiffs have also served the notice upon the defendants, but admittedly, the said notice does not fall within the definition of the notice Under Section 80 of CPC, as the same has been served, upon the defendants with a 4 request to pay a sum of Rs.21,00,000/- as recovery of expenses and towards damages from the date of service of the notice. 5. The learned trial Court, thereafter, on 17.02.2026, ordered to delete the name of defendant No.5, from the array of parties and issued notices against the defendants, except defendant No.5. 6. The said order has been assailed, before this Court, by way of the present petition. 7. Provisions of Section 80 of the CPC, are reproduced, as under:- “80. Notice.—(1) Save as otherwise provided in sub-section (2), no suits [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. (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; (d) and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, 5 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 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.]” 8. From the averments, as made in the plaint, defendant No.5, had acted in discharge of his official duties and falls within the definition of ‘public servant’. A futile attempt has been made by the learned counsel appearing for the plaintiffs, by contending that the notice has been served, 6 upon the defendants, but, the said notice also does not fulfill the ingredients of Section 80 of CPC. 9. In this case, the learned counsel appearing for the plaintiffs has relied upon the decision of Hon’ble Andhra Pradesh High Court, in C. Arjun Rao (D-1) versus Dr. T. Rama Mohan Rao and another, reported in 2004(1) Civil Court Cases 464 (A.P). With due respect to the law laid down by the Andhra Pradesh High Court, the same is not applicable, to the facts and circumstances of the present case, as in this case, defendant No.5, was Station House Officer and whatsoever, he has done, has been done, in his official capacity and in discharge of his duties. As such, to the considered opinion of this Court, non-serving of the notice under Section 80 of CPC, has rightly been held to be not maintainable and the name of defendant No.5 has rightly been ordered to be deleted from the array of parties. 10. Even, if the facts and circumstances of the present case are seen, in the light of the decision of Hon’ble Supreme Court, in Amalgamated Electricity Co. (Belgaum) Limited versus Municipal Committee, Ajmer, reported as AIR 1969, Supreme Court 227, then, the order passed by the learned trial Court, cannot be interfered 7 with that too, in the limited jurisdiction, under Article 227 of the Constitution of India. Relevant paragraph-7 of the judgment, is reproduced as under:- “7. We shall first take up the question of notice under s. 233 of Ajmer Merwar Municipalities Regulation. The contention of the defendant is that the notice issued is invalid inasmuch as the same was issued on behalf of the Ajmer Electric Supply Co. Ltd. after that company was amalgamated with the plaintiff. The next ground of attack is that the said notice is invalid because it does not set out the name and the place of abode of the intending plaintiff. These contentions have commended themselves to the learned Judges of the High Court. Section 233 of the Ajmer Merwar Municipality Regulation prescribes: "Section 233:Suits against Committee or its officers. No suit shall be instituted against a Committee, or against any member, officer or servant of a Committee, in respect of any act purporting to be done in its or his official capacity, until the expiration of one month next after notice in writing has been, in the case of a Committee, delivered or left at its office, and in the case of an officer or servant, delivered to him or left at his office or place of abode, stating the cause of action and the name and place of abode of the intending plaintiff; and unless the plaint domains a statement that such notice has been so delivered or left: Provided that nothing in this section shall apply to any suit instituted under section 54 of the Specific Relief Act, 1877. (I of 1877)." So far as suits against public officials are concerned this section is an exact reproduction of s. 80, Civil Procedure Code. But s. 80, Civil Procedure Code has two parts namely: (1) Suits against Governments and (2) Suits against public officers in respect of acts purporting to be done by those public officers in their official capacity. So far as suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by s. 80, Civil Procedure Code. But when we come to suits against public officers, s. 80, Civil Procedure Code applies only to suits in respect of any 'act' purporting to be done by a public officer and that in his official capacity. Hence before s. 80 can be relied on in any suit against a public officer, it must be shown 8 that it is a suit in respect of an 'act' purporting to be 'done by him 'in his dial capacity. In view of the provisions of 'the General Clauses Act, the expression 'act' also includes illegal omissions. Therefore if the suit does not relate to any 'act' or 'illegal omission' purporting to be done by a public officer in his official capacity, s. 80 will not have any application. Similar is the position under s. 233 of the Ajmer Merwar Municipalities Regulation.” 11. In the present case, it has been alleged against defendant No.5, that he has pursued the false complaint, against the plaintiffs and despite demarcation, dated 01.03.2021, FIR No.185 of 2020, dated 14.08.2020, under Sections 341, 447 of IPC, was registered, against the plaintiffs. 12. From no stretch of imagination, at this stage, it can be said that there was no legal requirement for serving the notice, under Section 80 of CPC, upon defendant No.5. 13. In view discussion made here-in-above, there is no occasion for this Court to interfere with the well reasoned order, passed by the learned trial Court. Consequently, the present petition is dismissed. 14. Pending application(s), if any, also stand(s) disposed of. (Virender Singh) August 17, 2026 Judge (subhash sharma)