TMI Blog1963 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... re ultimately quashed by the High Court on an application in revision made by the defendant. After the decision in that criminal revision case, defendant No. 1 with the Custodian, defendant No. 2, contemplated to dispossess the plaintiffs from the suit lands. To repel that apprehension, the present suit was brought in which the plaintiffs alleged that the Custodian had declared the defendant No. 1's brother Syed Maslehuddin as an evacuee and half the property in suit to be the evacuee property without proper materials and legal evidence and, as such, he (Custodian) had no right to take possession of any portion of the lands which never vested in him in law. It is not necessary to refer to several other allegations made in the plaint, challenging the title and possession of defendant No. 1 as they will not be necessary for the disposal of the appeal. The reliefs sought in the plaint were declaration of the plaintiffs' title as occupancy raiyats and confirmation or, in the alternative, recovery of their possession over the suit lands. They prayed for mesne profits in case they were held to be out of possession and they wanted to withdraw the money which lay in deposit in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement to the effect that the plaintiffs did not comply with the provisions of Section 80 of the Code of Civil Procedure and, as such, the suit was fit to be dismissed. This bar against the suit or want of notice under Section So was not taken in the original written statements, and in their applications for amendment the defendants stated that they had omitted to mention this bar through oversight. To both the applications for amendment, the plaintiffs objected but on hearing both sides, the Court below allowed the amendments subject to the payment of a cost of ₹ 4/- to the plaintiffs. This wag on the 10th of August, 1959, and on the 4th of December, 1959 the issues were recast by introducing issue No. 3 as follows: Is the suit maintainable in absence of service of notice under Section 80, Civil Procedure Code? On that day that issue was taken up for hearing as defendant No. 1 had filed a petition on the 23rd of September, 1959, to decide that point first. The Court after hearing the arguments on both sides held that the Custodian, defendant No. 2, was a public officer and a notice under Section So, Civil Procedure Code, was necessary to be given to him before the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itten statements were filed. No doubt, the amendments were opposed by the plaintiffs; but after hearing both sides the trial Court allowed them. The plaintiffs withdrew the cost of ₹ 4/- that was given as a condition precedent for allowing the amendments. As I have stated above, the amendment was brought on record on the 4th of December, 1959, by framing a new issue in accordance with that, although the Court had allowed the amendments on the 10th of August 1959. The plaintiffs cannot now raise any objection against the amendments as they accepted the cost allowed by the Court in that respect. In the case of Kapura Kuer v. Na-rain Singh, AIR 1949 Pat 491 the trial Court had restored an application under Order 9 Rule 13, Civil Procedure Code, in relation to a suit, subject to the condition of payment of some cost to the other side. The cost was paid and thereafter the application was restored; but the other side came in revision to the High Court against that order of restoration. It was held that the party having accepted the amount of cost awarded to her as a condition precedent to the restoration of the application in question was estopped from challenging the legality or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst an order of temporary injunction passed by the Subordinate Judge, Hazaribagh, in a title suit restraining the defendant from taking over the management of the estate of the plaintiff until the disposal of the suit. The appellate Court was to consider if there were fair questions to be more properly determined in the suit itself in which case a temporary injunction was justified. In the context, the argument on behalf of the respondent (plaintiff) that the notice served on the Government was a sufficient compliance with Section 80 or, alternatively, by the conduct of the defendant and the circumstances of the case, the defendant was to be taken to have waived the notice came for consideration. Their Lordships relied upon the case of Vellayan Chettiar v. Government of the Province of Madras, 74 Ind App 223 : AIR 1947 PC 197. I shall refer to that case a little later in detail. 7. Another Bench decision of this Court in the case of State of Bihar v. Kamaksha Prasad, AIR 1962 Pat 303 took a similar view about the possibility of waiver in regard to a notice under Section go, Civil Procedure Code. In that case, a proclamation under Section 15 of the Police Act for stationing ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an appeal was brought to the High Court of Bombay which was dismissed but not on the ground of want of notice. The High Court held that the notification challenged in the suit was valid. The Judicial Committee, however, came to the opposite conclusion and found that the demand made by the Collector for payments, in recovery of the costs of additional police, was premature and not in accordance with the Act. After that, it became necessary to consider if the plaintiff-appellants were to be non-suited for not giving a previous notice of two months as contemplated under Section 80, Civil Procedure Code. In that case, a notice was given to the Collector but the suit was filed before the expiry of two months thereafter. The Secretary of State, who was a party, was not given any notice. In the plaint it was stated that as the suit is for an injunction, and as the defendants are about to recover the amount demanded in the notices soon, the suit is filed before the completion of the period of two months. No particulars, however, were stated or proved to show that the Collector intended to enforce the orders before the expiry of two months of notice. The main argument was that as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f if the provisions of the statute were rigorously enforced, arose in such a case by reason of the fact that the objection to the maintainability of the suit on account of want of notice under Section 80, Civil Procedure Code, was not taken in the written statement but was raised only at the time of hearing when a second suit by the plaintiff, based on the original cause of action, would be barred. What would constitute a waiver, if at all, is a different matter, but the view that in no case there can be a waiver, either express or implied, either by conduct or otherwise, by a public officer or the Government cannot prevail in view of what the Judicial Committee observed in the case of AIR 1947 PC 197 where their Lordships explained what was really meant in the case of 54 Ind App 338 : AIR 1927 PC 176, Another case of the Judicial Committee on this point Gaekwar Baroda State Railway v. Hafiz Habibul Haq, 65 Ind App 182: (AIR 1938 PC 165) was also explained. It was said that the observations of Lord Sumner in delivering the opinion of the Board in the case of 54 Ind App 338 : (AIR 1927 PC 176) were directed solely to the construction of the Section and it had not been decided that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0th of July, followed by a similar prayer of defendant: No. 2 on the 10th of August, 1959. The amendment was allowed on that date subject to payment of cost to the plaintiff. A new issue, based on that amendment, was settled on the 4th of December, 1959. Learned Counsel for the appellants urged that the long delay between the filing of the written statement in December 1957 and the prayer for its amendment in August, 1959, after making the plaintiffs pay a large sum of money by way of deficit court-fee, was sufficient to establish that the Custodian waived his right to a notice under Section 80 by his dilatory conduct. To support this argument, reliance was placed on the case of Puma Chandra v. Radharani Dassya, AIR 1931 Cal 175 where their Lordships observed that the plea of bar under Section 80 must be taken at the earliest possible opportunity and if it is raised at a very late stage when the plaintiff would be precluded, by the law of limitation, from bringing a further suit, the defendant must be deemed to have waived the privilege of notice. In that case, the suit was filed on the 1st of February and the written statement on the 16th of June and issues were settled on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not raised till the suit came in second appeal before a single Judge of this Court. In a Letters Patent Appeal arising out of that, Courthey-Terrell, C.J., with whom Varma, J. agreed, held that as the plea of bar was not raised till the second appeal by which time more than two years had elapsed from the accrual of the cause of action and the plaintiff's further suit had become barred by limitation, the defendant was to be taken to have waived the want of notice. Their Lordships relied upon the case reported in AIR 1931 Cal 175 to which I have just referred. The Privy Council decision in 54 Ind App 338: AIR 1927 PC 176 was also noticed as that was placed in counter argument. The facts of the present case are different inasmuch as neither the plaintiffs' action can be said to have become barred by limitation with reference-to the case under Section 145, Criminal Procedure Code, which by the orders of the High Court was quashed, nor the plea of bar was postponed till after the hearing of the suit in the trial Court. In that view f cannot see how the dictum of the reported case can be applied here. 11. For the appellants the case of Wasant Shripat v. G.M. Khandekar, AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce which was not given. With these facts on the background, coupled with the delay of one year and nine months, their Lordships did not have any hesitation in holding that the liquidator should be deemed to have waived his rights to the notice in the particular circumstances of the case. The suit was commenced under the directions of the High Court in a proceeding where the liquidator was a party and, as such; he had full notice and knowledge of the suit before hand. His conduct in keeping back the plea till the plaintiffs were made to pay advalorem court-fee was taken to constitute a waiver. Learned Counsel before us argued that in the present case the Custodian with the defendant No. 1 also raised objection about the court-fee and the plaintiffs had to pay a large sum on the valuation determined by the Court. In the Nagpur case, AIR 1949 Nag 25 the suit being for a declaration the objection was raised that in the nature of that suit, ad valorem court-fee was payable and not that the suit had been under-valued to avoid larger court-fee. In the present action the plaintiffs decided from the beginning to pay ad valorem court-fee on the valuation of their action but they had under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instituted 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 the notice in writing has been delivered to 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. Because of the mandatory nature of this provision, it was argued that this amounts to a legal bar against a suit and, as such, will be covered by Clause (d) of Rule 11 of Order 7. To me the contention appears to be faulty, particularly in view of the decisions in the cases of AIR 1947 PC 197, AIR 1950 Pat 366 and AIR 1962 Pat 303 where it was clearly laid down that, in some circumstances, waiver of a notice by a public officer can be deemed from his conduct, either expressly or impliedly. In such a case, for absence of a notice or a statement in that regard in the plaint the suit does not become defective. Learned Counsel urged that in a case of that nature the plaintiff must state in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immoveable property.....calculated from the date on which a copy of the proclamation has been affixed in the court-house of the judge ordering the sale. This provision corresponded to Section 290 of the old Code. In the case of Tasadduk Rasul Khan v. Ahmad Hussain, ILR 21 Cal 66 (PC) the Judicial Committee dealt with the question whether the non-compliance with the requirements of Section 290 by holding the sale before the expiry of 30 days made the sale itself a nullity. Their Lordships rejected the argument that non-compliance within the interval of 30 days between the proclamation and sale by itself invalidated the sale because Section 290 prescribed that no sale shall take place until after the expiration of at least 30 days from the date of the prolongation fixed up in the courthouse. Their Lordships thought, at the most it was an irregularity and could be covered by Section 311. Substantial injury was to be proved in addition to this irregularity before the sale could be set aside. Thus the use of the word shall in Rule 11 of Order 7 will be viewed in similar light. The provisions in the Civil Procedure Code do not affect the jurisdiction of the Court. They only regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds Recovery Act as well as under Section. 80, Civil Procedure Code; as the Secretary of State was a party defendant. The Subordinate Judge, before whom the appeal was brought, accepted all the findings but he held that for want of notice under Section 80, the suit was not maintainable against the Secretary of State but it could proceed against other defendants. In second appeal against that, it was contended that where Section 80 is applicable, want of notice will bar the entire suit which must fail as a whole. That was accepted but the basis of that appears to be the case of 54 Ind App 338 : (AIR 1927 PC 176) where Section 80 was stated to be manaatory admitting of no exceptions. The learned Judge also referred to the case of Venkata Rangiah v. Secretary of State, ILR 54 Mad 416 : (AIR 1931 Mad 175) in which the same Privy Council decision was stressed upon and followed. But in view of what was held in the case of AIR 1947 PC 197 that there can be exception to Section 80, where the waiver of the prescribed notice can be established, the total prohibition against a suit viewed from the section (Section 80), as the only ground for bringing a suit involving that point, under, Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssembly of the free city of Chandernagar, for a declaration that a certain resolution passed by that Council was illegal and invalid and for some mandatory orders on the defendants including the Council and the Assembly and the other defendants in their capacity as members thereof. No sooner the suit was filed, the Subordinate Judge, Chandernagar, rejected the plaint under Order 7 Rule 11 (d) as no notice as contemplated under Section 80 was given. He took the view that the Council of Administration was the Government. Chandarnagar is a French possession in West Bengal. Next day, another fresh plaint was filed and it met the same fate. The plaintiff thereupon came to the High Court. Their Lordships observed that Clause (d) of Rule 11 of Order 7 was attracted only when, on the admitted facts as appearing from the plaint itself, the suit was prima facie barred. They gave an example of a plaint where it appears that the cause of action arose beyond the period of limitation fixed under the statute and there is no indication in the plaint that such limitation is saved in any way. Even in a case of that nature, according to their Lordships, an opportunity is to be given to the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property may be excluded from the suit along with the Custodian and in respect of rest of the property, the action will continue against defendant No. 1. An application under Order 41 Rule 27, Civil Procedure Code, for admitting the order of the competent officer separating the interest of the evacuee was made before us. It had to be rejected as no sufficient cause was shown to explain the delay in filing the order. We have thus no material before us to come definitely to a conclusion in this respect. Even if we take notice of the subsequent legal proceeding and decision in this regard, as a Court of appeal can do, that will not be helpful to the plaintiffs until they amend their plaint suitably and change their averments in accordance with the changed position. Whether the suit on the plaint, as it stands, can be maintained against the defendant No. 1 or what amendment, if applied for by the plaintiffs, will be allowed to the plaint, are matters for the trial Court to decide. 19. The result is that the appeal is allowed in part and the judgment and decree of the trial Court are modified to the extent that the defendant No. 2 is expunged from the suit and the case against the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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