Suit Instituted As Against Private Persons Can’t Be Dismissed For Non-Compliance Of Sec. 80 CPC Notice: Kerala HC [Read Judgment]

‘The suit instituted as against private persons cannot be dismissed under Section 80 C.P.C. even if the cause of action against such persons and the person who would come under the purview of Section 80 C.P.C. is one and the same.’

The Kerala High Court in Thomas Cherian v Kurian Mathew has held that suit instituted as against private persons cannot be dismissed under Section 80 of the Code of Civil Procedure (CPC) even if the cause of action against such persons and the person who would come under the purview of Section 80 CPC is one and the same.

In this case, the lower court had dismissed the suit in entirety as against all the defendants citing non-compliance of the mandate under Section 80 although the first defendant was a private person.

Justice P Somarajan, in the plea challenging the lower court order, observed that the embargo under Section 80 CPC has no application in the matter of a suit instituted against a private person.

“If a suit is found to be bad under Section 80 C.P.C., it would operate only against such Public Officer, the State Government or the Central Government, as the case may be. It is neither permissible nor advisable to dismiss the whole suit which was filed both against private persons and the persons who would come under the purview of Section 80 C.P.C. (Central Government, State Government or a Public Officer in his official capacity). The suit instituted as against private persons cannot be dismissed under Section 80 C.P.C. even if the cause of action against such persons and the person who would come under the purview of Section 80 C.P.C. is one and the same,” the court said.

Further elaborating, Justice Somarajan said: “The requirement under Section 80 C.P.C. being precautionary in nature, a pedantic approach should be avoided. It is neither intended to defeat nor to delay any valuable right. The section is not intended to defeat or adjourn the grant of any relief or in agitating any dispute permissible under Section 9 C.P.C. against any private person. The embargo under Section 80 C.P.C would be available only to the Central Government, the State Government or to a Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity.”

In such situations, the court said, that suit should be proceeded in so far as it is against the private persons, subject to the question of maintainability of the suit on any other grounds available. “The Lower Court ought to have proceeded with the suit as against the first defendant who would not come under the purview of mandate under Section 80 C.P.C. irrespective of whether the suit was based on the same cause of action or different cause of action,” the court added.

Read The Judgment Here: