- (1.) THE plaintiff-appellant filed a suit for damages amounting to Rs. 25,000/-, against the defendant- respondent, with the averment that the plaintiff-appellant on 30. 9. 1981, was posted as Station House Officer at Srimadhopur and was to retire on the same date, that at the relevant time, respondent Dr. Balwant Singh was the concerned Deputy Inspector General of Police for the area comprising Srimadhopur; that a departmental enquiry was pending agaisnt him (the plaintiff- appellant) and the defendant-respondent was the Disciplinary Authority in the capacity of Deputy Inspector General of Police; that the defendant-respondent acted with malice and undue haste and passed the order dated 30. 9. 1981, holding the plaintiff- appellant liable for the charges, levelled against him and passed the order of punishment, whereby, the plaintiff was reverted from the rank of Sub-Inspector of Police to the lower rank of Assistant Sub-Inspector of Police; that the matter was carried in an appeal and in the appeal, the punishment of reversion was set aside by the Inspector General of Police, vide the order dated 3. 9. 1982; and that the order of reversion, passed by the defendant- respondent, was contrary to the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter to be called as "the CCA Rules") and caused him great mental, physical and financial loss, which was quantified at Rs. 25,000/- , for which, the suit was filed. In the written-statement, the averments made in the plaint, were denied. It has been contended that as many as 15 charges were levelled against the plaintiff- appellant and an enquiry u/r. 16 of the CCA Rules, was conducted. THE Enquiry Officer found 10 charges proved fully and 2 charges proved partially. On the relevant date, the matter came up before the defendant- respondent and the order of reversion of the plaintiff-appellant, was passed. It has been further contended in the written- statement that the case of the plaintiff, was based on the discharge of official duties by the defendant-respondent, and as such, in the absence of the State of Rajasthan being impleaded as a party to the suit, the suit itself, is not maintainable.
(2.) ON the basis of the pleadings of the parties, the learned trial Court framed as many as 7 issues. The Issue No. 3 is as under:- "whether the State Government is a necessary party to the suit and for this reason this suit is not maintainable?" This Issue No. 3 was tried as a preliminary issue, being purely a legal one. The learned trial Court vide its order dated 28. 5. 1987, found that the State was a necessary party to the suit, in terms of O. 27, R. 5-A of the Civil Procedure Code, 1908 (hereinafter to be called as "the CPC"), as the suit for damages was based on the action of the defendant-respondent acting in his official capacity. The learned trial Court also found that at this belated stage, the application of the plaintiff-appellant, filed on 8. 4. 1986, for impleading the State as a party to the suit, could not be admitted, as the suit against the State Government was beyond limitation on the date of the application. Aggrieved by the order/judgment of the learned trial Court dated 28. 5. 1987, the plaintiff-appellant filed an appeal in this Court, u/s. 96 of the CPC the said appeal came to be heard and decided o n 7. 12. 1993, by the learned Single Judge, who dismissed the appeal with costs. Feeling aggrieved by the afore- said order and judgment dated 7. 12. 1993, this special appeal has been preferred. We have heard both the sides. The learned counsel for the plaintiff-appellant, has contended that the suit has been brought against the defendant- respondent in the personal capacity and in this regard, the Issue No. 2 was framed by the learned trial Court and that without deciding the Issue No. 2, the Issue No. 3 cannot be decided, because, the latter is dependent on the former issue. The Issue No. 2, raised by the learned trial Court, is as to whether the plaintiff is not entitled to prefer the present suit against the defendant, for the reasons mentioned in para 20 of the written-statement. In para 20 of the written-statement, the defendant has pleaded that whatever act in the matter, had been done by him, was done as a Deputy Inspector General of Police, Jaipur Range and Disciplinary Authority, and not in the personal capacity, and as such, the plaintiff is not entitled to prefer the present suit against him (the defendant ). The Issue No. 3 is as to whether the State Government is a necessary party to the suit and for this reason, the suit is not maintainable.
(3.) OBVIOUSLY, the Issue No. 3 is not dependent on the Issue No. 2. A suit against a defendant may be maintainable, yet, the State Government may be a necessary party. Order 27, R. 5-A CPC, does not make a suit for damages against a public ser- vant non- maintainable. It simply provides that where the relief sought, is in respect of the act done by him in his official capacity, State is to be joined as a party. Thus, the question as to whether the State Government is a necessary party or not, is quite independent of the question as to whether the suit against the defendant, is maintainable or not. To our mind, therefore, the above-said argument of the learned counsel for the appellant, is not tenable. It has been contended by the learned counsel for the plaintiff-appellant that whatever action was taken by the defendant-respondent, against the appellant, was taken in his personal capacity and not in his official capacity, and as such, the State Government was not a necessary party; that the order of reversion passed against the plaintiff-appellant, was passed by the defendant-respondent totally in his personal capacity and due to personal grudge and to cause injury to the plaintiff-appellant and that in this view of the matter, the defendant-respondent was personally responsible for his action and so, the learned trial Court erred in holding that the State Government was a necessary party to the suit and non-joinder of the State as a party, is fatal for the plaintiff-appellant. Thus, according to the learned counsel for the plaintiff-appellant, the learned trial Court erred in dismissing the suit on the ground of non-joinder of the necessary party. Order 1, R. 9 of the CPC, provides that no suit shall be defeated for the misjoinder or non-joinder of the party, but at the same time, it also provides that nothing in the rule shall apply to non-joinder of a necessary party. ;