P B SHAH AND CO Vs. CHIEF EXECUTIVE OFFICER
HIGH COURT OF CALCUTTA
P.B.SHAH AND CO.
CHIEF EXECUTIVE OFFICER
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Bachawat, J. -
(1.) This is an appeal from an order rejecting the plaint in a suit. The plaintiffs claim to be the occupiers of premises No. 34, Netaji Subhas Road, Calcutta. The plaintiffs challenge the validity of an order of demolition of the premises in question passed on the 28th April, 1958, by the then Commissioner, Corporation of Calcutta. There are seven defendants to the suit. The first defendant is described as the "Chief Executive Officer, Corporation of Calcutta working for gain at No. 5, Surendra Nath Banerjee Road, Calcutta"; the third defendant is described as the "City Architect, Corporation of Calcutta working for gain at No. 5, Surendra Nath Banerjee Road, Calcutta''; the second defendant is the Corporation of Calcutta. The plaint asks for a perpetual injunction restraining the defendants Nos. 1 to 3, their servants or agents from giving effect to the aforesaid order of demolition dated the 28th April, 1958. The plaintiffs obtained from the Trial Court a temporary injunction in terms of the prayer of the plaint during the pendency of the suit. The suit was set down for hearing on the preliminary question of the maintainability of the suit in the absence of the service of a notice under Section 80 of the Code of Civil Procedure upon, the defendant No. 1, the Chief Executive Officer, Corporation of Calcutta. The Trial Judge came to the conclusion that the Chief Executive Officer then functioning as the Commissioner, Corporation of Calcutta was a public officer within the meaning of Section 2 (17) (h) of the Code of Civil Procedure and that in the absence of the service of a notice upon him under Section 80 of the Code the suit could not be entertained by the Court, and as such the plaint should be rejected.
(2.) The order rejecting the plaint is in any event erroneous. On the finding that the suit was not maintainable against the defendant No. 1, the suit should have been dismissed against him, but the plaint as a whole could not be rejected. It may be that in the absence of the defendant No. 1 the suit would become defective for nonjoinder of necessary parties, and if so, the suit will have to be dismissed against the other defendants also.
(3.) On the question whether the Chief Executive Officer functioning as the Commissioner, is a public officer within the meaning of Section 2 (17) (h) of the Code a very lengthy argument was addressed before us. Ultimately, however, we find that the appeal has to be disposed of on a very narrow ground.;
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