IN THE COURT OF HONBLE CIVIL JUDGE, Sr.

DIVISION

IN THE MATTER OF:

Mr. RAMESH KUMAR. PETITIONER NO. 1

Mr. RAJAN MEHTA...PETITIONER NO. 2
VERSUS
Mr. HARISH YADAV. DEFENDANT

Civil Suit filed for Damages for Malicious Prosecution

ON SUBMISSION TO THE COURT

WRITTEN STATEMENT ON BEHALF OF THE DEFENDANT

Most Respectfully Submitted

MEMORIAL ON BEHALF OF THE RESPONDENT

Page 1

TABLE OF CONTENTS

INDEX OF REFERENCES.........................................................................................................................3
LIST OF ABBREVIATIONS......................................................................................................................4
STATEMENT OF JURISDICTION............................................................................................................5
STATEMENT OF FACTS...........................................................................................................................6
ISSUES RAISED........................................................................................................................................7
ARGUMENTS ADVANCED......................................................................................................................8
A. A.
WHETHER THE PLAINTIFF HAD SERVED A NOTICE UNDER SECTION 80
C.P.C TO THE
DEFENDANT?......................................................................................................
...........................8
B. B.
WHETHER THE CHARGE SHEET AGAINST THE PLAINTIFF WAS FILED BY
THE SHO IN HIS OFFICIAL
CAPACITY?..........................................................................................................
..10
C. C.
WHETHER THE SHO WAS PERFORMING DUTY IN DISCHARGE OF
OBLIGATIONS IMPOSED BY
LAW?..................................................................................................................
.......10
D. D.
WHETHER CIVIL SUIT FILED BY PLAINTIFFS IS MAINTAINABLE OR
NOT?..........................11
PRAYER...................................................................................................................................................12

MEMORIAL ON BEHALF OF THE RESPONDENT

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INDEX OF REFERENCES
STATUTES REFFERED:
1. The Code of Civil Procedure, 1908
2. Code of Criminal Procedure, 1973
3. Indian Evidence Act, 1872

CASES REFFERED:
Kasturi Lal v. State of UP, 1965 AIR 1039
N. V. Ashar v. State of Gujarat, 1984 (2) GLR 1333
State of A.P. v. Pioneer Builders, AIR 2007 SC 113
State of Madras v. ChitturiVenkata, AIR 1957 AP 675

BOOKS REFFERED:
1. C.K. Takwani, Civil Procedure, Eastern Book Company.
2. Ratan Lal &Dhiraj Lal, The Code of Criminal Procedure, LexisNexis.
3. Batuk Lal, The Law of Evidence, Central Law Agency.
1.

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LIST OF ABBREVIATIONS
1. CPC
2. CrPC
3. AIR
4. HC
5. SC
6. GLR
7. NOC
8. Pg.
9. Ors.
10.AP.
11. UP.
12.Anr.
13.SHO

Code of Civil Procedure

Code of Criminal Procedure
All India Reporter
High Court
Supreme Court
Gujarat Law Reporter
Notes on Case
Page
Others
Andhra Pradesh
Uttar Pradesh
Another
Station House Officer

STATEMENT OF JURISDICTION

MEMORIAL ON BEHALF OF THE RESPONDENT

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The present civil suit has been filed by the plaintiff for damages under the head of malicious
prosecution. The respondent accept the jurisdiction of this Hon'ble court and dont refute the
same.

STATEMENT OF FACTS

MEMORIAL ON BEHALF OF THE RESPONDENT

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1. Petitioners are human rights activists.

2. The two friends had held many rallies and also filed writs in the court
against the police department and especially against the SHO Yamunanagar.
3. On 21st December 2015 at about 7 pm, the petitioners while walking saw a
dead body of a girl.
4. They immediately reported about the murder to the SHO Yamunanagar
Police Station.
5. After investigation on 25th December 2015 Petitioners were arrested.
6. Petitioners were discharged by the Sessions Court due to lack of evidence on
the record.
7. Petitioners have filed a suit to claim damages from the Defendant for the
injury to their reputation they have suffered on account of malicious
prosecution by the Defendant.

ISSUES RAISED
A. WHETHER THE PLAINTIFF HAD SERVED A NOTICE UNDER
SECTION 80 C.P.C TO THE DEFENDANT?
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B. WHETHER THE CHARGE SHEET AGAINST THE PLAINTIFF WAS

FILED BY THE SHO IN HIS OFFICIAL CAPACITY?
C. WHETHER THE SHO WAS PERFORMING DUTY IN DISCHARGE OF
OBLIGATIONS IMPOSED BY LAW?
D. WHETHER CIVIL SUIT FILED BY PLAINTIFFS IS MAINTAINABLE
OR NOT?

ARGUMENTS ADVANCED
A. WHETHER THE PLAINTIFF HAD SERVED A NOTICE
UNDER SECTION 80 C.P.C TO THE DEFENDANT?
80. Notice- (1) Save as otherwise provided in sub-section (2), no suit shall be instituted
against the Government (including the Government of the State of Jammu and Kashmir)
or against a public officer in respect of any act purporting to be done by such public officer
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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
(a) in the case of a suit against the Central Government, except where it relates to a
railway, a Secretary to that Government;
(b) in the case of a suit against the Central Government where it relates to a railway, the
General Manager of that railway;
(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the
Chief Secretary to that Government or any other officer authorised by that Government in
this behalf;
(c) in the case of a suit against any other State Government, a Secretary to that
Government or the Collector of the district;
and, in the case of a public officer, delivered to him or left at his office, stating the cause of
action, the name, description and place of residence of the plaintiff and the relief which he
claims; and the plaint shall contain a statement that such notice has been so delivered or
left.
(2) A suit to obtain an urgent or immediate relief against the Government (including the
Government of the State of Jammu and Kashmir) or any public officer in respect of any act
purporting to be done by such public officer in his official capacity, may be instituted , with
the leave of the court, without serving any notice as required by sub-section (1); but the
court shall not grant relief in the suit, whether interim or otherwise, except after giving to
the government or public officer, as the case may be, a reasonable opportunity of showing
cause in respect of the relief prayed for in the suit:
Provided that the court shall, if it is satisfied, after hearing the parties, that no urgent or
immediate relief need be granted in the suit, return the plaint for presentation to it after
complying with the requirements of sub-section (1).

(3) No suit 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 shall be dismissed
merely by reason of any error or defect in the notice referred to in sub-section (1), if in such
notice
(a) the name, description and the residence of the plaintiff had been so given as to enable
the appropriate authority or the public officer to identify the person serving the notice and
such notice had been delivered or left at the office of the appropriate authority specified in
sub-section (1), and
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(b) the cause of action and the relief claimed by the plaintiff had been substantially
indicated.
In a suit filed by an individual against an individual, the plaintiff may not give a notice to the
defendant before filing the suit. But, where a suit is fixed is filed by an individual against the
government or against a public officer, a notice thereof is mandatory. The plaint shall contain a
statement that such notice has been served. Section 80 provides for requirement of notice prior to
institution of suit against the government or against a public officer in respect of act done or
purporting to be done by him in his official capacity. It prohibits institution of a suit against the
government or a public officer until expiration of two months after delivery of notice to the
officers named in the provision. However, where an immediate relief is sought, the court may
allow institution of suit against the government or any public officer without serving such notice.
But, in case, the court shall not grant any relief in the suit without hearing the defendant. If upon
hearing the parties the court is satisfied that no immediate relief need be granted in the suit, the
plaint shall be returned. The plaint so returned may be presented after complying with the
requirement of notice.
The term public officer is defined in section 2(17) of the code. the definition says that every
judge, every member of an All-India service, every commissioned or gazetted officer in the
military, naval or air forces of the union, and every officer of a court of justice and of
government who performs the duty as mentioned, is a public officer.
The government, unlike private parties is expected to consider the matter objectively and
dispassionately and after obtaining proper legal advice, it can take an appropriate decision in the
public interest within a period of two months allowed by the section by saving public time and
money and without driving a person to avoid litigation. The legislative intent behind the
provision is that public money should not be wasted for unnecessary litigation.
In the case of N. V. Ashar v. State of Gujarat, reported in 1984 (2) GLR 1333, a decision
rendered by single Bench of this Court, it was held that the only consideration at the time of
granting leave without serving statutory notice under Section 80(1) of C.P.C. is whether the suit
for obtaining urgent and immediate relief against the Government. It is the urgency or immediate
nature of the relief which would be relevant for deciding whether leave should be granted or not
and not whether the plaintiff has good case for obtaining such immediate and urgent relief by
way of interim order.
In State of A.P. v. Pioneer Builders, AIR 2007 SC 113, the apex court held that service of notice
is imperative except where urgent and immediate relief is to be granted by the court in which
case a suit against the government or a public officer may be instituted in the absence of notice
but with the leave of the court. Such leave is a condition precedent and must precede the
institution of a suit without serving notice. Though no procedure is specified as to how the leave

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is to be sought for a given case, yet the order granting the leave must indicate the ground pleaded
and application of mind thereon.
The fact sheet is absolutely silent about any such leave of the court, therefore moving forward
under the assumption that leave was granted by the court would be a prejudicial to the
defendants cause

B.

WHETHER THE CHARGE SHEET AGAINST THE

PLAINTIFF WAS FILED BY THE SHO IN HIS OFFICIAL

CAPACITY?
The expression any act purporting to be done by such public officer in his official capacity
takes within its weep acts as also illegal omissions. It covers past as well as future acts. All acts
done or which could have been done under the color or guise by an offence in the ordinary
course of his official duties would be included therein.
Similar in State of Madras v. ChitturiVenkata, AIR 1957 AP 675, the AP High Court held that
if allegations in the plaint relate to an act purporting to be done by a public officer, whatever the
relief prayed for, the section is attracted and a notice is mandatory.

C.

WHETHER THE SHO WAS PERFORMING DUTY IN

DISCHARGE OF OBLIGATIONS IMPOSED BY LAW?

The exemption of the state from liability to pay damages for tortious act of the servants, where a
government servant in carrying out or purporting to carry out duties imposed by the law has been
justified on the ground that in such cases, the government servant purports to carry out duties
imposed by the letter of the law and is controlled by the law and not by the government.
The Supreme Court in Kasturi Lal v. State of UP, 1965 AIR 1039, The Apex Court held that if
tortious act is committed by a public servant and it gives rise to a claim for damages, the
question to ask is was the tortious act committed by the public servant to discharge of statutory
functions which are referable to, and ultimately based on, the delegation of the sovereign powers
of the state of such public servants? If the answer is affirmative, the action for damages for loss
caused by such tortious act will not lie.

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D.

WHETHER

CIVIL

SUIT

FILED

BY

PLAINTIFFS

IS

MAINTAINABLE OR NOT?
The present suit for damages on account of malicious prosecution is not at all
sustainable because there is the mandatory notice required to be served on a public
officer under section 80 cpc which was not conformed and there is no such case of
malicious prosecution.
Further the petitioners have only been discharged by the court on account of lack of
evidence on record and not acquitted and there is still scope of trial if new evidence
is found out.
Any judgement by this court other than in favour of the defendant would cause a
huge amount of discourage to the Police Department and the defendant who would
be afraid to file a chargesheet against an individual in future in order to avoid suits
with regard to damages on account of malicious prosecution.

PRAYER

MEMORIAL ON BEHALF OF THE RESPONDENT

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Wherefore in light of issues raised, arguments advanced, reasons given and

authorities cited, it is humbly prayed before this Honble Court to hold, adjudge
and declare:
That the petition for damages on account of malicious prosecution filed by
the petitioners be dismissed.
That the respondent be paid litigation expenses up to the amount of Rs
20,000 on account of harassment and agony faced by them.
The Court may in its discretion grant any provisional relief and also make any such
order as it may deem fit in terms of equity, justice and due conscience

Counsel for Defendant

MEMORIAL ON BEHALF OF THE RESPONDENT

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