Wanchoo, C. J. - (1.) THIS is an appeal by Mst. Safia Bai and others against the judgment and decree of the Civil Judge, Udaipur, dismissing the suit brought by the plaintiffs appellants on a preliminary point, viz, that notice, under sec. 80 C. P. C. had not been given to the receiver
(2.) THE facts put forward in the plaint may be briefly narrated in order to understand the point involved. THE suit was filed originally in the court of the Munsiff by there sisters one of whom is now dead and is represented by her heirs. THE defendants were Karansingh, mortgagee of the property in dispute, three brothers of the plaintiffs who were the mortgagors, and two sister of the plaintiffs who did not join in the suit and were therefore, made defendants. THE case of the plaintiffs was that they and their sisters who were defendants had certain shares in the property with their brothers who mortgaged the entire property including their shares. THE plaintiffs' claimed that the mortgage be cancelled so far as if related to their share and property be partitioned and possession be given to them. During the pendency of the suit in the Munsiff's court, two of the defendants-brothers of the plaintiff, became insolvent and a receiver was appointed by the court in whom their property vested. Soon after, the Munsiff came to the conclusion that he had no jurisdiction to entertain the suit as it was beyond his pecuniary jurisdiction, and he returned it for presentation to proper court. The suit was then presented to the court of the Civil Judge and two more defendants were added in the plaint viz. , Gulam Abbas and the receiver of the insolvents' estate. Paragraph 10 (B) was added to the plaint to show why this addition had been made. In that paragraph it was stated that defendant No. 8 (who was the receiver) had sold the property to defendant No. 7 (Gulam Abbas) and the letter had got possession of it and consequently they were being made parties. The suit was presented in proper court in April, 1947 with these additions. The order under appeal was passed in August, 1951, more than four years after, but we find the except for defendants No. l, namely Karan Singh, no written statement had been filed till the disposal of the suit by the other defendants or even by the receiver. We also find that no objection as to the suit being bad because notice under sec. 80 C. P. C. had not been given to the receiver was taken by Karansingh in his written statement. The learned Civil Judge, however, proceeded to decide the question whether the suit was maintainable in view of the provisions of sec. 80 C. P. C. on some kind of oral request made to him on behalf of defendant No. 1 and the receiver, He did not even frame an issue on this point before dismissing the suit on account of this defect. We are of opinion that this kind of disposal of the suit was improper, and it was the duty of the Civil Judge to get the parties to file a written statement and to frame proper issues before proceeding to decide any issue as a preliminary issue. We also find that in this suit there was an application for amendment of the plaint with respect to the crucial paragraph, 10 (b), which we have set out above. By this amendment, the plaintiffs wanted to delete the allegation that there had been a sale by the receiver in favour of Gulam Abbas, defendant No. 7, and wanted to substitute another reason for impleading defendants 7 and 8, which was in these words : "defendants 2 and 3 have been declared insolvents and a receiver of their property has been appointed by the District Judge. Consequently, the receiver Madanlalji Karanpuria is being made defendant No. 8 Further, as the property in dispute is in the possession of Gulam Abbas who had paid off the mortgage money to defendant No. 1 and got the property from him, he is being made defendant No. 7". They also stated in support of their prayer for amendment that they had come to know from Gulam Abbas that there had been no sale in his favour by the receiver. The record does not show that this application for amendment was considered at all by the court. We have referred to it because it has an important bearing on the question whether notice under sec. 80 C P. C. was necessary in this case. The argument on behalf of the appellants is that in view of the amendment that they had prayed for, no notice under sec. 80 of the Civil Procedure Code was necessary and the court was unjustified in dismissing their suit on the ground of want of notice on the basis of their allegation in the original paragraph, 10 (b), of the plaint without deciding their amendment application. On the other hand it is contended on behalf of the respon-dants that notice to the receiver under sec. 80 was necessary under any circumstances even if the amendment was to be allowed. The contention is that the receiver is a public officer and whenever he is made a party, a notice under sec. 80 must be given to him. We are of opinion that the broad proposition contended for on behalf of the respondents is not correct. The relevant part of sec 80 C. P. C. is as follows: - "no suit shall be 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, until the expiration of two months next after notice in writing has been delivered to or left at the office of. . . . . . " So far as Government is concerned, notice is necessary under sec. 80 in every case in which Government is made a party; but so far as the public officer is concerned, notice is only necessary in those cases where the suit is in respect of any act purporting to be done by such public officer in his official capacity. If the suit is not in respect of such act, the notice under sec. 20 is not necessary. A distinction on these lines has been drawn by Courts and we may refer to a few cases in this connection. In Kashi Bai vs. Chunilal (1), the receiver was made a party without notice under sec. 80. It was held that though a receiver appointed under Provincial Insolvency Act may be a public officer within the meaning of sec. 80 C. P. C. yet a suit to recover a mortgaged property being not a suit in respect of any act done by the receiver as such is maintainable without notice under sec. 80. " In that case it was pointed out that the office was a necessary party as representing the equity of redemption but the relief claimed in the suit had nothing to do with any act done by him in his public capacity and, therefore, no notice under sec. 80 was necessary. In Shiam Devi vs. Bankey Lal (2), a suit was brought for a declaration that a certain deed of gift was obtained by fraud and should be cancelled. The Official Receiver was made a party to the suit but no notice was given to him under sec. 80. The gift deed was not executed by the receiver but by the plaintiff herself; It was held that no notice was necessary because it was not a suit instituted against a public officer in respect of an act purporting to be done by him in his official capacity. In Revati Mohan vs. Jatindra Mohan (3), a question arose whether notice under sec. 80 was necessary to a manager appointed under sec 95 of the Bengal Tenancy Act. assuming that such manager was a public officer. Their Lordships of the Privy Council held that "it is only where the plaintiff complaints of some act purporting to have been done by the public officer in his official capacity that a notice is enjoined. " But where, as in that case a mortgagee sued upon a mortgage executed by the public officer, and the mortgage imposed no personal liability upon the public officer but merely provided that if payment was not made the mortgagee would be entitled to realize his dues by sale through the court and the mortgage made no claim against the public officer personally, no notice of such a suit was required. We are of opinion that the decision of their Lordship in this care clearly shows that a distinction has to be drawn between those cases where the suit is against a public officer because of certain acts done by him in his official capacity and those cases in which a public officer has to be made a party as for example in the case of a receiver in order to represent an insolvent's estate but without any complaint against the acts of the official receiver. Learned counsel for the respondent drew our attention to certain cases in support of the broad proposition which he has urged. It is not necessary to deal with those cases in detail. It is enough to point out that those are cases mainly about sales or threatened sales by the receiver, and the considerations which apply to such cases are different, and they are covered by the words of sec. 80 to which we have referred above. We reject therefore the argument that simply because the receiver was made a party to the suit, a notice under sec. 80 was necessary to him.
(3.) THIS brings us back to the question of the amendment. As we have pointed out above, a notice might have been necessary to the receiver if the allegation remained as it was put forward in paragraph 10 (b) of the plaint. But there was an application for amendment by the plaintiffs which has yet not been disposed of. If that application is allowed, then it may put a different complexion on the matter (though we do not express any opinion finally about it ). The court below was wrong in dismissing the suit for want of notice under sec. 80 of the Code of Civil Procedure, without disposing of the amendment application. The appeal must, therefore, be allowed and the case remanded to the trial court for re-hearing. It will first call upon the defendants to reply to the amendment application and then decide whether the amendment application should be allowed or not. Thereafter the defendants should be called upon to file their written statement. The court will then from issues and if necessary decide such other preliminary issues as may arise including one about notice under sec. 80 C. P. C. if raised on the amended pleadings. We, therefore, allow the appeal, set aside the decree of the court below and send the case back for retrial according to law on the lines indicated above. As the suit was disposed of by the trial court on a preliminary point, we give a certificate to the plaintiffs under sec. 13 of the Court Fees Act for refund of the court fees paid on the memorandum of appeal in this Court. In view of the manner in which the case was dealt with in the trial court, we think that the parties should bear their own costs of this Court. Costs of the trial court will abide the final result. .;