Ram Kumar & Anr vs State Of Rajasthan & Ors

2. The facts leading to the filing of these appeals may be summarized as follows:

3. The District Collector (Defendant No. 2) however invoked the earlier order dated 20th of November, 1968 by passing a fresh order on 20th of April, 1974. The appellants approached various authorities praying for an order restraining the defendant No. 2 (hereinafter referred to as "Respondent No.2) from delivering possession of the said land to the respondent No. 3 to District Education Officer, being Respondent No. 3. After being unsuccessful before different authorities, the appellant served a notice under Section 80 of the CPC read with Section 52 of the Rajasthan State Land Acquisition Act No.24 of 1953 on the respondent 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 seeking declaration that the order dated 20th of April, 1974 passed by the respondent No.2 was null and void and ineffective and the appellants shall be 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.

6. By an order dated 24th of March, 1994, Issue No.4 was decided by the learned Munsif, Ist Class Tibbi in favour of the appellants and against the respondent No.3, inter alia, holding that respondent No.3, although a public officer being the District 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 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 6 under section 80 of the CPC as he was acting in the official capacity. Accordingly the High Court had set aside the order of the trial court and dismissed the suit in its entirety on the ground of non-service of notice upon the respondent No. 3. It is this order, which is now under challenge before us in appeal.

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 is/was now pending in appeal before the appellate court. 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 Issue No.4 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 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 decision, we direct the appellate court to decide all the issues in the suit excepting Issue No.4 which is being decided by us in favour of 15 the appellants by this judgment on merit within a period of six 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 CPC on the respondent No.3 is hereby restored. The appeals are allowed to the extent indicated above. There will be no order as to costs.