Fazor Ali vs Banvashi Barman And 2 Ors.

Page No. 1/8
GAHC010219502025

2026:GAU-AS:15851

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/422/2025
FAZOR ALI
S/O LATE MUZAFFAR ALI, RESIDENT OF VILLAGE DINGDINGA, P.O-
CHIRAKUTI, P.S- FAKIRGANJ, DISTRICT- DHUBRI, ASSAM, PIN- 783330
VERSUS
BANVASHI BARMAN
W/O LATE BIPUL CH. BARMAN, RESIDENT OF VILLAGE CHAIBARI
HINDUPARA, P.O AND P.S- LAKHIPUR, DISTRICT- GOALPARA, ASSAM, PIN-
783129
2:CHANBALA BARMAN
D/O LATE BIPUL CH. BARMAN
R/O VILLAGE NAGARGAON
P.O- TIKRIKILLA
P.S- TIKRIKILLA
DISTRICT- WEST GARO HILLS
MEGHALAYA
PIN- 794109
3:AMIO BALA BARMAN
D/O LATE BIPUL CH. BARMAN
RESIDENT OF VILLAGE CHAIBARI HINDUPARA
P.O AND P.S- LAKHIPUR
DISTRICT- GOALPARA
ASSAM
PIN- 783129

Page No. 2/8

:: BEFORE ::
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
For the Petitioner : Mr. A. R. Sikdar, Advocate
For the Respondents : Mr. M. M. Zaman, Advocate


Date of Hearing : 13.10.2026

Date of Judgment : 16.10.2026
JUDGMENT & ORDER
1. Heard Mr. A. R. Sikdar, the learned counsel for the petitioner. Also
heard Mr. M. M. Zaman, the learned counsel for the respondents.
2. This application under Article 227 of the Constitution of India has been
preferred by the petitioner, namely, Fazor Ali, impugning the order dated
18.06.2024, passed by the Court of the Civil Judge (Senior Division), Goalpara,
in Misc.(J) Case No. 128/2024, arising out of Title Suit No. 85/2022, whereby
the prayer for impleading the Circle Officer, Lakhipur Revenue Circle, Goalpara,
as defendant no. 4 as well as prayer for amendment of the plaint has been
rejected.
3. Mr. A. R. Sikdar, the learned counsel for the petitioner submits that the
father of the present petitioner had purchased the land which has been
described in Schedule-A to the plaint from the father of the present respondent
in the year 1967 by executing a registered sale deed. Thereafter, in the year
1972, the present petitioner also purchased the Schedule-B land by executing a

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registered sale deed. He submits that at the time of purchase by the father of
the petitioner as well as the petitioner of the aforesaid land, the said land
was“Patta land”.
4. He further submits that in the month of November, 2022, the
respondent tried to dispossess the present petitioner, as such, he approached
the Civil Judge (Senior Division) by filing a title suit, which has been registered
as Title Suit No. 85/2022, seeking declaration of his right, title and interest as
well as recovery of possession.
5. The learned counsel for the petitioner further submits that in the said
title suit which was registered as Title Suit No. 85/2022, which was contested by
the present respondents. In the written statement filed by the respondents, a
plea was taken that both the Schedule A and B land were converted to Khas
land. As such, the petitioner sought an amendment of the plaint as well as also
a prayer for impleading Circle Officer, Lakhipur Revenue Circle as defendant No.
4 in the aforesaid suit. The said case was registered as Misc.(J) Case No.
128/2024. However, he submits that the said Misc. case was rejected by the
Trial Court by its order dated 28.2.2024. He submits that the main ground for
rejection was that no notice under Section 80 of the Code of Civil procedure,
1908 was served on the Government officials, namely, the Circle Officer of
Lakhipur Revenue Circle before making him a party in the suit.
6. The learned counsel for the petitioner further submits that
subsequently, after the rejection of the said prayer, the present petitioner again
filed another application under Order 6 Rule 17 read with Order 1 Rule 10 of the
Code of Civil Procedure, 1908 with a similar prayer. He submits that this time

Page No. 4/8
before making the prayer for impleading the Circle Officer of Lakhipur Revenue
Circle as party, the notice under Section 80 of the Code of Civil Procedure, 1908
was issued. However, he submits that the Trial Court by the impugned order
dated 18.06.2025, passed in Misc.(J) Case No. 128/2024 again rejected the said
application.
7. He submits that the Trial Court has erred in rejecting the said
application without considering the fact that the fact of conversion of the suit
land into Khas land came to the knowledge of the petitioner only after filing of
the suit when the said fact was disclosed for the first time in the written
statement filed by the present respondents.
8. He further submits that since the second time, the notice under Section
80 of the Code of Civil Procedure, 1908 was issued before filing the
impleadment application, the Trial Court has erred in rejecting the impleadment
application. He submits that allowing the impleadment application as well as
amendment application made by the present petitioner would help in avoiding
the multiplicity of the suits. As such, the Trial Court ought to have allowed the
said prayer.
9. He further submits that the amendment sought were also necessary to
adjudicate the issues involved in the suit. He has also submitted that the fact of
conversion of the suit land into Khas land was not in the knowledge of the
present petitioner, as such, he could not have sought for the amendment in
spite of the exercise of due diligence before framing of the issues. In support of
his submission, he cited a ruling of the Apex Court in the case of “ The State of
West Bengal and others Vs. PAM Developments Private Limited and another ” ,

Page No. 5/8
“ (2025) 3 SCC 356 ”
reported in .
10. On the other hand, Mr. M. M. Zaman, the learned counsel for the
respondents has submitted that the Trial Court has rightly rejected the prayer
for impleadment of Circle Officer, Lakhipur Revenue Circle, Goalpara on the
ground that the cause of action for impleading the Circle Officer had arisen
before the filing of the Title Suit No. 85/2022. Hence, the notice under Section
80 of the Code of Civil Procedure, 1908 ought to have been filed before filing of
the said suit.
11. He further submits that the petitioner earlier also approached the Trial
Court by filing similar application under Order 6 Rule 17 read with Order 1 Rule
10 seeking amendment of the plaint and impleadment of Circle Officer. However,
the said prayer was rejected by the Trial Court by its order dated 28.02.2024,
passed in Misc.(J) Case No. 88/2023. As such, he submits that the second
application on the same subject matter is barred by the principles of
constructive res judicata.
12. The learned counsel for the respondents has also submitted that when a
person intends to file a suit against Government official or the government, a
notice under Section 80 of the Code of Civil Procedure had to be issued and only
after expiry of two months of the date of delivery of the said notice, the suit
may be filed against the Government.
13. He submits that in the instant case, the suit was filed without complying
with the provisions of Section 80 of the Code of Civil Procedure, 1908. As such,
the Trial Court has correctly dismissed the prayer for impleadment as well as

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amendment. In support of his submission, he cited a ruling of the Co-ordinate
Bench of this Court in the case of “ Nepal Ch. Das Vs. Kanailal Das and others”,
[Judgment dated 28.04.2023, in CRP(IO) No. 66/2019.
14. I have considered the submissions made by the learned counsel for both
sides and having gone through the materials available on record. I have also
gone through the rulings cited by the learned counsel for both sides in support
of their respective submission.
15. In this case, it appears that the present petitioner had approached the
Trial Court on two occasions seeking impleadment of Circle Officer of Lakhipur
Revenue Circle as defendant No. 4 in the Title Suit No. 85/2022 as well as
seeking amendment of the plaint after such impleadment. However, on both the
occasions, the Trial Court rejected the prayer on the ground that Section 80 of
the Code of Civil Procedure, 1908 has not been complied with.
16. The Trial Court while rejecting the application for amendment on the
second occasion by the impugned order also held that as an additional prayer
has been made by the plaintiff to the effect that a direction may be issued to
defendant No. 4 to correct revenue records of the suit land from Government by
converting the same from Government Khas land to Patta land and name of the
present petitioner may be recorded Pattadar in the suit land. The Trial Court was
of the view that a new cause of action was introduced by the said amendment.
17. It appears that on both the occasions, the petitioner find common
petition making two separate prayers of impleadment and amendment in the
same application, which is contrary to the provisions contained in Gauhati High

Page No. 7/8
Court Civil Rules and Orders.
18. As the prayer for amendment of plaint made by the present petitioner
before the Trial Court is interlinked with the prayer for impleading the Circle
Officer of Lakhipur Revenue Circle, Goalpara, unless the impleadment
application is allowed, the amendment sought for by the present petitioner may
not be allowed.
19. Apparently, no notice under Section 80 of the Code of Civil Procedure,
1908 was issued and delivered to the Circle Officer, Lakhipur Revenue Circle,
Goalpara before filing of the Title Suit No. 85/2022. Though, after rejection of
the first prayer for impleadment and amendment of the plaint by order dated
28.02.2024, in Misc.(J) Case No. 88/2023, the petitioner has issued notice under
Section 80 of the CPC, however, the embargo contained in Section 80(1) of the
Code of Civil Procedure, 1908 is a mandatory condition precedent and 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
or left at the office of such Government or public officer.
20. The provision contained in Section 80 of the Code of Civil Procedure,
1908 is express and mandatory in nature and same admits no exception outside
what has been provided in the statute itself. After filing of a suit without issuing
notice under Section 80 of the Code of Civil Procedure, 1908 as has been done
in this case, there cannot be post facto regularization of the requirement of
Section 80 of the Code of Civil Procedure, 1908 by issuing such notice during
the pendency of the suit.

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21. This Court also does not find any error of jurisdiction by the Trial Court
or violation of principles of natural justice in deciding the aforesaid application to
warrant any interference by this Court in exercise of its supervisory jurisdiction
under Article 227 of the Constitution of India. This Court, thus, finds no error in
the impugned order passed by the Trial Court justifying any interference with
the same by this Court in exercise of its supervisory jurisdiction.
22. Under the facts and circumstances of this case, the present petitioner
may only pray before the Trial Court to allow him to withdraw the suit with a
leave to file a fresh suit after complying with the mandatory requirement of
Section 80 of the Code of Civil Procedure, 1908. That may also be subject to
other limitations of law, if any such limitation is provided for in any statute.
23. In view of the discussions made and reasons stated in the foregoing
paragraphs, this CRP (IO) is accordingly dismissed.
24. The stay granted earlier regarding further proceeding of Title Suit No.
85/2022, pending before the Court of learned Civil Judge (Senior Division),
Goalpara is hereby vacated.
25. Send a copy of this judgment to the Trial Court for information and
doing the needful.

Abhishe
k Prem
Digitally signed
by Abhishek Prem
Date: 2026.10.16
14:29:29 +05'30'
JUDGE
Comparing Assistant