Page No.# 1/10 GAHC010097522026 2026:GAU-AS:7084 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP/71/2026 DR. VARNALI DEKA, IAS EX-DISTRICT COMMISSIONER, NALBARI, DAUGHTER OF SH. KAMALESH DEKA, RESIDENT OF HOUSE NO 24, RAKSHA ENCLAVE, SECTOR OMEGA I, GR NOIDA- 201310 VERSUS DR. UPAKUL SARMAH S/O JANAKI NATH SARMAH, RESIDENT OF SONAKI ENCLAVE, BONGAON PATH, BELTOLA, GUWAHATI - 781028, DISTRICT- KAMRUP (M), ASSAM. 2:THE EDITOR ASOMIYA PRATIDIN GUWAHATI SADIN BUILDING MANIRAM DEWAN PATH CHANDMARI GUWAHATI - 781003 DISTRICT- KAMRUP (M) ASSAM. 3:THE EDITOR ASOMIYA KHABOR KHABOR BUILDING FRONTIER PUBLICATION PRIVATE LIMITED F.A. ROAD KALAPAHAR GUWAHATI- 781016 DISTRICT- KAMRUP (M) ASSAM. 4:THE LOCAL CORRESPONDENT Page No.# 2/10 NIYOMIYA BARTA BAHJANI C/O THE EDITOR NIYOMIYA BARTA NEWS LIVE BUILDING CHRISTIAN BASTI GUWAHATI - 781005 DISTRICT- KAMRUP (M) ASSAM Advocate for the Petitioner : MR. N DEKA, W AHMED,MR B CHOUDHURY Advocate for the Respondent : MD S HOQUE (FOR CAVEATOR), MR. M DEKA (FOR CAVEATOR) BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 20.05.2026 Heard Mr. N. Deka, learned senior counsel, assisted by Mr. B. Choudhury, learned counsel for the petitioner. Also heard Mr. S. Hoque, learned counsel appearing for the respondent/caveator. 2. By filing this application under Section 115 CPC, the petitioner, who is the defendant no.1 in T.S. No. 2/2025, has assailed the order dated 01.04.2026, passed by the learned Civil Judge (Senior Division), Nalbari, thereby dismissing Misc. (J) Case No. 53/2025, filed under Order VII Rule 11 read with Order VI Rule 16 of the CPC. 3. The learned senior counsel for the petitioner has submitted that at the relevant point of time, the petitioner/defendant no.1, who was the then District Commissioner, Nalbari district. At the said relevant time, the wife of the respondent/plaintiff was posted as a Circle Officer under the Office of the District Commissioner, Nalbari. Page No.# 3/10 4. It has been submitted that in connection with an official work, on 08.03.2024, the office peon from the establishment of the District Commissioner, Nalbari, had gone to the rented house of the Circle Officer to serve a letter. Later on, the said office peon submitted a complaint before the petitioner alleging that he had suffered unruly behavior and harassment by the respondent no.1/plaintiff, who had recorded his video, when he had gone there. Accordingly, the petitioner, as the District Commissioner, Nalbari, had written a letter to the Registrar, Bhattadev University, Pathsala, Bajali, where the respondent no.1/ plaintiff was serving, to enquire into the matter. 5. It was submitted by the learned senior counsel for the petitioner that subsequently, the respondent no.1- plaintiff had issued an advocate’s notice dated 30.08.2024 to the petitioner/ defendant no.1 by registered post, alleging mala fide intention to defame the respondent no.1/ plaintiff and he was asked to reply within 15 days from the date of receipt of the notice as to why legal action, criminal and civil, should not be initiated against the petitioner. 6. It was submitted that thereafter, by projecting having been defamed, the respondent no.1/ plaintiff had filed T.S. No. 2/2025, before the Court of Civil Judge (Senior Division), Nalbari, amongst others, praying for decree of compensation of Rs.2.00 Crore from the petitioner /defendant no.1; a decree for attachment of movable and immovable properties, for payment of decreetal amount on failure to comply with the decree; and for any other relief as the respondent no.1/ plaintiff may be entitled to. 7. The learned counsel for the petitioner has submitted that all the communications, with which the respondent no.1/ plaintiff was aggrieved and referred to in the plaint, they were all issued/ made in her capacity as the then District Commissioner, Nalbari, but no notice under Section 80 CPC was served Page No.# 4/10 on the petitioner. Moreover, Govt. of Assam would be a proper and necessary party and therefore, the petitioner had filed an application under Order VII, Rule 11, read with Order VI, Rule 16 of the CPC for striking out paragraph nos. 3 to 42 of the plaint of T.S. No. 2/2025, as frivolous and vexatious under Order VI, Rule 16 CPC and for rejecting the plaint under Order VII, Rule 11 of the CPC. The said petition no. 827/2025 was registered as Misc. (J) Case No. 53/2025. 8. The learned trial Court, by the impugned order dated 01.04.2026, rejected the said petition, inter alia, on the ground that the respondent/defendant no.1 had made some allegations of unruly behavior and harassment against the respondent/plaintiff in writing to the Registrar of Bhattadev University, Pathsala and subsequently, those official communications were made public by means of newspaper publication which defamed the respondent. It was also held that while considering application for rejection of plaint, only the plaint can be referred to and not the pleadings of the respondent/ defendant no.1. The learned trial court had, by referring to the advocate’s notice, had held that the notice was sufficient compliance with Section 80 CPC. It was also held that the petitioner had acted beyond her official capacity by making the communications public and therefore, the Government was not a necessary party. The learned Court, by referring to the provisions of Order XXVII, Rule 7(1) CPC, had observed to the effect that the said provision refers to “where the defendant is a public servant”, but there is no specific requirement that the act for which such public servant is being sued must be done by him in his official capacity and therefore, though Order XXVII, Rule 5-A CPC refers to “Suits by or on against the Government of Public Officers in their official capacity”, but in some Rules, the words “acts done/acting in the official capacity” are mentioned and in some, those words are not there and Page No.# 5/10 thus, the said provisions are not intended to cover only the official acts done in official capacity by a public servant. Thus, it was held that the plaintiff was the dominus litis in a suit and it is for the plaintiff to choose his adversaries and if he does not array a party in a suit, he does at his own risk and in the said regard, reference was made to the case of NAK Engineering Company Private Limited v. Tarun Keshrichand Shah & Ors., 2026 SCC OnLine SC 4. Resultantly, the said misc. case was rejected. 9. Thus, it was submitted that as the learned Court had accepted that a part of the actions of the petitioner in issuing a letter to Bhattadev University was in official capacity, the act was official and the suit was liable to be rejected for non-service of notice under Section 80 CPC. 10. Per contra, the learned counsel for the respondent has submitted that as the said office peon had come to the rented house of the petitioner at late night about 8.30 pm, for the safety of the family including the minor girl child of the respondent, the respondent no.1 had made a video of the office peon while serving the communication to the respondent no.1/plaintiff’s wife. Though the peon had left without any incident, later on for harassing and defaming the respondent no.1/-plaintiff a false case of harassment was made, and thereafter, the matter was leaked to the TV and print media, which had defamed the petitioner. It was stated that the act of defaming the respondent no.1/ plaintiff was not done in official capacity but in the personal capacity of the petitioner, the suit was maintainable in the present form and not liable to be rejected. 11. Be that as it may, as this Court is not examining the nature of the complaint made by the Office Peon, no comments are made thereon. Page No.# 6/10 12. It would suffice to mention that the respondent no.1/ plaintiff had issued an advocate's notice dated 30.08.2024, to the petitioner in her name, suffixing her name with abbreviation ‘DC”, which means District Commissioner. It was stated in the said advocate’s notice that the acts of the petitioner amounted to resorting to falsehood and there was embarrassment and harassment to the respondent no.1/plaintiff and accordingly, alleging ulterior motive, the petitioner- defendant was put on notice to respond within 15 days, else to file legal action, both criminal and civil shall brought to be initiated for defaming the respondent no.1/plaintiff. 13. On the said ground and on projecting that the suit and the injunction application were filed against the petitioner/defendant without serving any notice under Section 80 CPC, the respondent, by filing T.S. No.2/2025 prayed for compensation amounting to Rs.2.00 Crore. 14. The core issue is whether or not the action taken by the petitioner/ defendant was in his personal capacity. In this regard, the sequence of some events, as mentioned in the respondent no.1/ plaintiff’s advocate’s notice dated 30.08.2024, is not disputed by the respondent- plaintiff, which are - (a) that the office peon had gone to the residence of the respondent to serve an official communication to the wife of the petitioner, who was administratively under the petitioner/ defendant, but was then under suspension; (b) the said office peon had submitted a letter dated 26.07.2024, which was forwarded to the petitioner/ defendant by the All Assam District Administration Employees Union and it is not in dispute that the said act was done by the petitioner in her capacity as District Commissioner, Nalbari; (c) the petitioner/ defendant had written letter dated 02.08.2024, to the employer of the respondent/ plaintiff in the letterhead of District Commissioner, Nalbari. In the plaint, the respondent- Page No.# 7/10 plaintiff had claimed that the petitioner had written a letter dated 12.05.2024, to the Principal Secretary to the Govt. of Assam, Revenue and Disaster Management Department. The said letter was written in the letterhead of District Commissioner, Nalbari. It is merely alleged in the plaint that the news was leaked to the media, which had defamed the respondent. In the plaint, the respondent no.1/ plaintiff has alleged to the effect that the entire allegations against the respondent no.1/ plaintiff were false and fabricated. 15. Thus, it ex facie appears that the major part of the sequence of events which has given rise to the cause of action for the suit, as pleaded in paragraph 40 of the plaint, had occurred on 08.03.2024 (i.e. the date when office peon had visited the house of the respondent no.1/ plaintiff to serve official dak); 02.08.2024 (when District Commissioner’s letter was sent to Bhattadev University); 22.08.2024 and 27.08.2024 (which relates to publication of news in newspapers); 06.09.2024, (when reminder of the District Commissioner was sent to the Bhattadev University). Therefore, the plaint and specifically paragraph 40 of the plaint contains specific pleading that the cause of action arose in terms of certain steps taken by the District Commissioner, Nalbari. 16. The Court is unable to accept the submissions of the learned counsel for the petitioner that though letters and communications were made by the petitioner/ defendant as District Commissioner, Nalbari, by using official letterhead, those actions were personal to the petitioner and done in her personal capacity. 17. In the considered opinion of the Court, the cause of action for the suit, which is a bundle of facts, cannot be read independent of each other so as to treat the letters and steps taken by the petitioner/ defendant to be in Page No.# 8/10 her official capacity as District Commissioner, Nalbari and defamation of the respondent no.1/ plaintiff is in his personal capacity, when in paragraph 40 of the plaint, which relates to cause of action for the suit, reference is made to letters by DC. DC is a known and generally used abbreviation of “District Commissioner”. 18. The Supreme Court of India, in the case of Gopal Singh (Dead) by LRs. v. Swaran Singh & Ors., (2019) 2 SCC 177, has held that a suit not maintainable against State and its authorities without notice under Section 80 CPC or without seeking leave from Court for dispensing with notice in terms of Sec.80(2) CPC. 19. In the case of State of A.P. v. G.V. Suryanarayana, AIR 1965 SC 11, the Full Bench of the Supreme Court of India had held that whether the imperative provisions of the statute are complied with, the court must face the following questions; (i) Whether the names, description and residence of plaintiff are given so as to enable the authorities to identify the person serving the notice; (ii) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; (iii) whether the notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; (iv) whether the suit is instituted after the expiration of two months next after notice has been served and the plaint contained a statement that the notice has been so delivered or left. In the said context, it may be mentioned that in the case of Y. Savarimuthu v. State of T.N., (2019) 13 SCC 142, has explained what is substantial compliance of notice under Section 80 CPC. It was held in that case that the notice by the lawyer was sent to authorities concerned; it was sent by registered post and served on the authorities; cause of action was sufficiently set out; more than two months had Page No.# 9/10 elapsed after serving the notice after which suit was filed. Thus, in this suit, when no notice was served on the appropriate Government, the finding of the learned trial Court that there was sufficient compliance of notice under Section 80 CPC is found contrary to the said law settled by the Supreme Court of India. 20. In connection with the issue relating to notice under Section 80 CPC, this Court in the case of Sudersan Ch. Paul Vs. Chita Ranjan Das, (1990) 2 GLR NOC 34, had held that the true test to determine if notice was necessary is whether the suit was in respect of an ‘act’ done by a public officer and if it was, notice was necessary even though the plaintiff had described the defendants as proforma defendants. In the case of State of A.P. Vs. Pioneer Builders, (2006) 12 SCC 119, the Supreme Court of India had held that Section 80 notice was mandatory. 21. If the impugned order is allowed to stand, it would mean that a District Commissioner can write letters in the said official capacity. But when those official records are allegedly leaked to the media, as allegedly claimed by the respondent no.1/ plaintiff, the said act was done in personal capacity. In order to arrive at such a conclusion, the learned trial Court ought to have considered any materials or official directives from the Government that prohibits a District Commissioner from sharing any information whatsoever with the media, even when a complaint was made by the All Assam District Administration Employees Union, information of which was published in the newspaper annexed to the plaint, which forms an integral part of the plaint. 22. Thus, it is noticed that the learned trial Court had erred in law and on facts in not appreciating the contents of the advocate’s notice dated 30.08.2024 and the plaint as a whole. Page No.# 10/10 23. Therefore, in light of the discussions above, the Court is of the considered opinion that the impugned order dated 01.04.2026, passed by the learned Civil Judge (Senior Division), Nalbari, thereby dismissing, under Order VII Rule 11 read with Order VI Rule 16 of the CPC (arising out of T.S. No. 2/2025) is not sustainable and the said order is set aside. 24. Resultantly, the proceedings of the said Misc. (J) Case No. 53/2025 is restored to the file of the learned Civil Judge (Senior Division), Nalbari, for a fresh hearing and decision of the matter in accordance with law. 25. The parties shall appear before the said learned Court on the date fixed in the suit and by producing a certified copy of this order, await for further orders to be passed by the said learned Court. JUDGE Comparing Assistant