ROHITASH SINGH Vs. PRITHVI SINGH

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE plaintiff-respondent Nos. 1 and 2 filed a suit for recovery of a sum of Rs. 30,000/- as compensation for their alleged malicious prosecution in the trial Court. The summons were issued to the defendants. The defendant No. 1 /respondent No. 3-Kawal singh filed his written-statement. So far as defendant No. 2/petitioner is concerned, he did not file any written-statement; he filed an application under Order 7, Rule 11, CPC for dismissal of the suit on the ground that he is a public servant and the act, alleged to have been done by him, was so done by him in the official capacity, hence, as per the provisions of Section 80 of the CPC, a notice was necessary to be served upon him but the plaintiffs did not serve any notice upon him.

(3.) THE learned trial Court, vide its order dated 31st October, 2002, rejected the application only on the ground that without filing written-statement on behalf of the defendant no. 2/petitioner, his application under Order 7, Rule 11, CPC is not maintainable in view of the judgment of the bombay High Court, reported in AIR 1986 bombay 46, Nishit M. Prabhu Verlekar v. Chandranath, and of this Court in the case reported in 1995 DNJ (Rajasthan) 703. Being aggrieved with the same the defendant no. 1/petitioner preferred this revision petition.