Appeal from Order No.71 of 2000

16th December, 2000

Petitioner Counsel: Shri.V.P. PANPALIA
Respondent Counsel: Shri.S.S. DOIFODE

Cases Cited:
Dhirendra Nath Gorai plus Subal Chandra Nath & ors. vs. Sudhir Chandra Ghosh, AIR 1964 SC 1300 [Para 12,14]
Vasant Ambadas Pandit vs. Bombay Municipal Corporation, AIR 1981 Bombay 394 [Para 12]
Paleti Sivarama Krishnaiah vs. Executive Engineer, N.C. Canals Sathenapalli, AIR 1978 A.P. 389 [Para 14]
Vellayan vs. Madras Province, AIR 1947 PC 197 [Para 14]
Purna Chandra Sarkar vs. Radharani Dassya, AIR 1931 Cal 175 [Para 14]
State vs. Bamadeb, AIR 1971 Orissa 227 [Para 14]
Dhian Singh vs. Union of India, AIR 1958 SC 274 [Para 14]
Lal Badri Singh vs. Mahesh Prasad, AIR 1955 Vindhya Pradesh 28 [Para 19]
Madhavji Sakarchand vs. Gopal Mansang, AIR 1953 Kutch 42 [Para 19]
State of Orissa vs. Orissa Oil Industries Ltd., AIR 1982 Orissa 245 [Para 19]

JUDGMENT

JUDGMENT :- Since both the parties in this appeal consented for the final disposal of this case, the matter was fixed for final hearing.

2. The appeal is taken up for final hearing by consent of both the parties.

3. The order impugned in this appeal was passed by the learned 2nd Additional District Judge, Yavatmal, on 13-6-2000 in Regular Civil Appeal No.192/94 whereby he allowed the said appeal, set aside the judgment and decree in Regular Civil Suit No.172/92 passed by Civil Judge, Senior Division, Yavatmal, on 30-7-1994 and remanded the matter back to the lower Court, that is to the Court of Civil Judge, Senior Division, Yavatmal, with a direction to return the plaint to the plaintiff, who is the present appellant, for presentation after complying with the provisions of Section 80 of Civil Procedure Code.

4. The Government of Maharashtra through Collector, Yavatmal, issued a demand notice to the plaintiff (present appellant) by making the assessment of his plot as converted from agricultural to industrial use. The stand of the plaintiff was that he was already making the payment in accordance with the assessment for non-agricultural use as per the settlement of the year 1930-31. The contention of the plaintiff thus was that the demand made by the Collector was illegal and was without examining the earlier record. However, the Collector, by the order dated 17-6-1992, confirmed the recovery of the amount, which was mentioned in the aforesaid notice.

5. Aggrieved by the above mentioned order of the Collector confirming the recovery, the plaintiff (present appellant) filed a Civil Suit being Regular Civil Suit No.172/92 claiming permanent injunction restraining the Collector and the State of Maharashtra from making the recovery of the amount in pursuance of the order dated 17-6-1992. In this suit, the plaintiff also presented an application for the grant of temporary injunction together with an application for leave of the Court under Section 80(2), C.P.C. for dispensing with the notice under Section 80(1), C.P.C. The application for leave to dispense with the notice under Section 80(1), C.P.C. was at Exhibit 5 on the Trial Court's record. It was mentioned therein that the said application was being moved due to the urgency in the matter.

6. The notice of temporary injunction application Exhibit 6 was given by the Court to the defendants. However, the notice of leave application Exhibit 5 does not seem to have been issued. On appearance of the defendants, the temporary injunction application was decided by the learned Trial Judge, by the order dated 10th February, 1993 passed below Exhibit 6 (It was a common order passed in this suit as well as in some other suits). The temporary injunction restraining the defendants from giving effect to the concerned notices issued by the Collector for the recovery of amount on the basis of non-agricultural assessment was granted in favour of the plaintiff. However, no order granting leave to institute the suit by dispensing with the notice under Section 80(1), C.P.C. was passed on Exhibit 5 at any point of time. The learned Civil Judge, Senior Division, Yavatmal, disposed of the suit by the judgment dated 30-7-1994 whereby the suit was decreed for permanent injunction restraining the defendants from executing the order dated 17-6-1992 in respect of the recovery of the amount concerned from the plaintiff. The defendants, i.e. the State of Maharashtra and the Collector, Yavatmal, challenged this judgment and decree vide Regular Civil Appeal No.192/94, which came up for hearing before the 2nd Additional District Judge, Yavatmal.

7. The learned 2nd Additional District Judge, Yavatmal, reversed the judgment and decree passed by the Civil Judge, Senior Division, Yavatmal, by his judgment and order dated 13-6-2000 passed in Regular Civil Appeal No.192/94 and remanded the matter back to the Trial Court with a direction to return the plaint to the plaintiff for presentation after complying with the provisions of Section 80 of Civil Procedure Code, as aforesaid. The Additional District Judge noted in his judgment that the Trial Court did not pass any order allowing or disallowing the application made by the plaintiff for filing the suit without serving the notice on the defendants under Section 80, C.P.C. The learned Judge was, therefore, of the opinion that it could not be said that the Trial Court had granted permission to the plaintiff to institute the suit by dispensing with the notice. He also observed that there was no mention in the roznamas of the Trial Court about the hearing and order on the application Exhibit 5 under Section 80(2), C.P.C. for the grant of leave to institute the suit by dispensing with the notice. He was, therefore, of the view that the suit was not tenable in law. The learned Additional District Judge further observed that there was no urgency in the matter and, therefore, the notice could not have been dispensed with. During the course of further discussion, the learned Judge also observed that since no permission was granted by the Trial Court to dispense with the notice under Section 80, C.P.C. by giving a speaking order, it is presumed that the permission to file the suit on the application Exhibit 5 under Section 80(2), C.P.C. was refused by the Court and, therefore, the Court could not have granted any relief to the plaintiff since the suit itself was not maintainable in absence of the notice under Section 80, C.P.C. In this view of the matter, the Additional District Judge gave a finding that the judgment and decree passed by the Trial Court was illegal and nullity. Taking this view, the learned Judge passed the aforesaid order of remand of the case to the Trial Court with a direction, as detailed earlier.

8. The finding of the learned 2nd Additional District Judge, Yavatmal, that since no orders were passed on the application Exhibit 5, leave to institute the suit by dispensing with the notice under Section 80(1), C.P.C. was presumed to be refused, is incorrect. Non-passing of any order on the application for leave is not a refusal or a deemed refusal of leave. The other side also may say that since the Court proceeded further with the temporary injunction application and also disposed of the suit on merits, the application Exhibit 5 for the grant of leave was deemed to have been allowed. However, the factual position is that the said application is neither rejected nor allowed. The Trial Court failed to pass an order on the said application through inadvertence.

9. The learned Assistant Government Pleader supported the above reasoning adopted by the Additional District Judge. He submitted that there was no urgency in the matter. He pointed out that the cause of action in the suit accrued to the plaintiff on 17-6-1992, whereas the suit was filed by the plaintiff not immediately thereafter, but as late as on 24-8-1992. The learned A.G.P. further invited the attention of this Court to the fact that although the suit was filed on 24-8-1992, no attempt was made by the plaintiff to obtain immediate orders on the application for the grant of temporary injunction. It was pointed out that the show cause notice on the temporary injunction application Exhibit 6 came to be issued three days after the institution of the suit, that is on 27-8-1992. The learned A.G.P. also submitted that the application for the grant of temporary injunction application Exhibit 6 was decided long thereafter, that is on 10-2-1993. In his opinion, all these facts indicate that there was no urgency in the matter and, therefore, the notice under Section 80(1), C.P.C. ought to have been issued by the plaintiff.

10. The learned counsel for appellant (original plaintiff) canvassed that it is a well settled position of law that if the notice under Section 80, C.P.C. is waived, the Court is competent to proceed ahead with the suit and pass the decree. He also contended that the defendants (present respondents) neither in their written statement in the Trial Court nor in the grounds of appeal presented in the District Court, have raised any objection regarding the non-passing of an order on the application Exhibit 5 filed by the plaintiff in the suit for the grant of leave to institute the suit by dispensing with the notice or about the want of notice under Section 80(1), C.P.C. Thus, according to the learned counsel for the plaintiff-appellant, the procedural compliance was waived by the defendants.

11. The question is whether the waiver of notice under Section 80, C.P.C. by the Government or its officers would permit the Court to dispense with the mandatory requirement of issuance of notice. In other words, whether the notice under Section 80, C.P.C. is capable of being waived. The learned counsel for the plaintiff-appellant cited two authorities on the point that though the notice under Section 80, C.P.C. is mandatory, it is capable of being waived.

12. The first authority on this point cited by the learned counsel is Dhirendra Nath Gorai plus Subal Chandra Nath and others v. Sudhir Chandra Ghosh and others, AIR 1964 SC 1300. The distinction between irregularity and nullity is explained in this authority. It was observed that the safest rule to determine what is an irregularity and what is nullity is to see whether the party can waive the objection ; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity. It was further observed that a waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived for consent cannot give a Court jurisdiction where there is none; Where such jurisdiction is not wanting, a directory provision can be waived; But a mandatory provision can only be waived if it is not conceived in the public interest but in the interest of the party that waives it. The learned counsel for the plaintiff-appellant submitted that although the provision requiring the issuance of notice under Section 80, C.P.C. is a mandatory provision, it can be waived because it is not conceived in the public interest but it is in the interest of the party that waives it. He advanced the arguments that the provision of the issuance of notice under Section 80, C.P.C. is for the benefit of the State because it gives a time to the State to consider the case of the plaintiff and thus when it is in the interest of that party, the said party can waive it. The observations in para (7) of this cited case about the findings of the Judicial Committee are relevant to the present case. They are as below :

"The Judicial Committee in AL. AR. Vellayan Chettiar v. Government of Madras 74 Ind App 223 at p.228: (AIR 1947 PC 197 at p.199) pointed out that there was no inconsistency between the propositions that the provisions of S.80 of the Code of Civil Procedure were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefit they were provided. In that case the Judicial Committee held that S.80 of the Code of Civil Procedure was explicit and mandatory; but still it held that it could be waived by the authority for whose benefit that was provided."

In Vasant Ambadas Pandit v. Bombay Municipal Corporation and others, AIR 1981 Bombay 394, the suit was filed against the Corporation without issuing a notice under Section 527 of the Bombay Municipal Corporation Act. The issuance of notice was mandatory. However, since there was a waiver of the notice by Corporation, it was held that the Court had jurisdiction to try the suit. The following observations are important :

"No suit can be instituted without service of notice if such service of notice is required statutorily as a condition precedent. The giving of the notice is a condition precedent to the exercise of jurisdiction. But, this being a mere procedural requirement, the same does not go to the root of jurisdiction in a true sense of the term. The same is capable of being waived by the defendants and on such waiver, the Court gets jurisdiction to entertain and try the suit."

In this cited case, there was an express waiver of the statutory notice and it was held that the notice was capable of being waived.

From the ratio of the cases cited above that the notice under Section 80 of Civil Procedure Code is capable of being waived, it further follows that if the notice is waived, the plaint need not be returned for compliance.

13. The learned A.G.P. contended that in the instant case, the issuance of the notice under Section 80(1), C.P.C. was not waived by the defendants. He pointed out that in the written statement filed on behalf of the State of Maharashtra and Collector, Yavatmal, on the Trial Court's record, which is at Exhibit 16, the defendants, at the end of para 2, have pleaded that it was not necessary to reply the averments of the plaintiff as regards the dispensing with notice since the Court had granted leave to the plaintiff under Section 80(2), C.P.C. to institute the suit by dispensing with the mandatory notice. The learned A.G.P. canvassed that these pleadings indicate that the defendants were under the impression that the leave under Section 80(2), C.P.C. to bring the suit without notice was granted to the plaintiff and, therefore, the defendants did not raise any objection as to the non-issuance of notice.

14. The material on record shows that the State Government and the Collector had not waived the notice under Section 80(1), C.P.C. in express terms. However, the learned counsel for the plaintiff-appellant submitted that there was a deemed waiver of the notice on the part of the defendants (State of Maharashtra and Collector, Yavatmal). The question is whether such deemed waiver is contemplated in law and if it is so, whether in the instant case, the defendants are deemed to have waived the issuance of notice under Section 80, C.P.C. and what is its effect. In this connection, the learned counsel for the plaintiff-appellant cited Paleti Sivarama Krishnaiah v. Executive Engineer, N.C. Canals Sathenapalli and another, AIR 1978 A.P. 389. In this cited case, the principle that although the notice under Section 80, C.P.C. is mandatory, even a mandatory provision can be waived if it is not concerned in public interest, but in the interest of the party that waives it, is followed and it was held that the notice under Section 80 is meant for the benefit of the party to whom it is intended and it can be waived by the party for whose benefit it is intended. In this cited case, an objection was raised in respect of non-issuance of notice in the written statement, but no issue was framed on that point and no objection was taken subsequently on that score at any stage of the trial nor any application was made for the amendment of issues. It was held that the defendant was deemed to have waived the notice. An elaborate discussion of the facts and law on the above point was made in this case. The observations in the earlier authorities were reproduced.

In para 14, the observations in Vellayan v. Madras Province, AIR 1947 PC 197 were quoted as below :

"The notice required to be given under S.80 is for the protection of the authority concerned. If in a particular case he does not require that protection and says so he can lawfully waive his right to the notice."

Then the aforesaid observations, which are already reproduced above from Dhirendra Nath Gorai plus Subla Chandra Nath and others v. Sudhir Chandra Ghosh and others, AIR 1964 SC 1300, as regards the distinction between irregularity and nullity are also relied upon in this cited case in para 16. The aforesaid principles are concluded in para 18 of the cited case. While considering the facts of that particular case, which were indicating that the party was deemed to have waived the notice, it was pointed out that though the plea raising an objection to the non-issuance of notice was taken in the written statement, no issue in that respect was framed, no objection in that respect was taken in suit at any stage and even in the grounds of appeal, the plea of want of notice was not taken but the said plea was taken for the first time in the arguments in appeal. In such circumstances, it was held that the defendant concerned was deemed to have waived the notice.

The learned counsel for the plaintiff-appellant submitted that the case of the plaintiff herein is on a better footing. He pointed out that in the cited case, the plea of want of notice was raised, whereas in the present case no such plea was taken and the absence of urgency was not pleaded. Further in the cited case, the plea of want of notice was taken for the first time at the time of arguments in the appeal, whereas in the present case that plea was not taken by the defendants even at the stage of arguments in the appeal and the lower Appellate Court itself suo motu dealt with that issue.

Again the following observations in Purna Chandra Sarkar v. Radharani Dassya, AIR 1931 Cal 175, which are reproduced in para 21 of the above said authority, are relevant. They are as under :

"The plea of want of notice under S.80, C.P.C., which is a clear bar to the institution of proceedings against public officer must be taken at the earliest possible opportunity and must be specifically pleaded. Where such a plea is taken by the defendant at a very late stage of the suit and at a time when the plaintiff would be precluded by the law of limitation from bringing a further suit against the defendant, the defendant must be deemed to have waived the privilege of notice."

In para 23 of the case cited above, the observations in State v. Bamadeb, AIR 1971 Orissa 227 are quoted as below :

"When an objection that a suit is not maintainable in the absence of a notice under S.80 is not raised in the trial Court and no issue is joined on this point and the suit is decreed, the plea as to want of notice must be deemed to have been waived and when the plea is taken for the first time in appeal, the appellate Court is not entitled to dismiss the suit on the ground of absence of notice under S.80."

In para 24 of the authority, the observations in Dhian Singh v. Union of India,, AIR 1958 SC 274 are reproduced as below :

"It is relevant to note that neither was this point taken by the respondent in the written statement which is filed in answer to the appellant's claim nor was any issue framed in that behalf by the trial Court and this may justify the inference that the objection under S.80 had been waived."

In view of the above decisions of the different Courts, the second appeal in the case cited above was allowed and the judgment and decree of the lower Appellate Court in so far as it related to the maintainability of the suit was set aside and the judgment and decree of the Trial Court was restored.

15. In the present case also, although the pleadings of the defendants in their written statement indicate that the defendants were under a wrong impression that the leave to institute the suit without notice was granted, they did not plead that there was no urgency and, therefore, the notice under Section 80, C.P.C. could not have been dispensed with. It was open for them to raise this objection in the written statement. Not only that, no such objection was raised in the written statement, but it was never raised by the defendants either in the suit at any stage or in the appeal even at the time of arguments. The lower Appellate Court suo motu dealt with that aspect and passed the order remanding the case, as already stated above. Though as per Section 80(2), C.P.C., the leave is granted at the time of the institution of suit, there is also a further stage when the parties are heard. The proviso to sub-section (2) of Section 80, C.P.C. reads :

"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)."

Thus an opportunity of being heard is there to the parties even after the institution of the suit and if the Court is satisfied on hearing the parties that there is no urgency, the plaint can be returned for the compliance of the requirement of sub-section (1), that is for issuance of notice. Thus in the present case even though the defendants were under the mistaken impression that the leave was granted, the plea of absence of urgency and want of notice could have been raised by them when they appeared after the service of show cause notice on temporary injunction application upon them. Failure on their part to raise the objection in above respect clearly suggests that they had impliedly waived the notice. It can, therefore, be said that there was a deemed waiver on the part of the defendants.

16. In addition to the above submissions, the learned counsel for the plaintiff-appellant also resorted to the provision of Section 99, C.P.C., which states :

"No decree shall be reversed or subsequently varied, nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case or the jurisdiction of the Court."

17. The learned counsel for the plaintiff-appellant submitted that the suit was proceeded with by the Trial Judge without notice under Section 80, C.P.C.. The defendants did not raise any objection about the want of notice and the decree was passed. He further canvassed that there was a deemed waiver on the part of the defendants, but even if it is taken that there was any error, defect or irregularity in the proceedings, that would not affect the merits of the case or the jurisdiction of the Court and, therefore, the lower Appellate Court ought not to have reversed the decree and remanded the case. The submissions of the learned counsel are worth accepting.

18. The learned counsel for the plaintiff-appellant also made a reference to the provision of Order XLI, Rule 2, C.P.C., which reads as below :

"The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this rule :

Provided that the Court shall not rest its decision on any other grounds unless the party who may be affected thereby had a sufficient opportunity of contesting the case on that ground."

For the purpose of the present matter, the proviso is important. In the instant case, though the defendants had not raised the ground of want of notice under Section 80, C.P.C., the learned Judge of the lower Appellate Court rested his decision on that ground and reversed the decree and remanded the matter. However, the record does not show that the plaintiff, who was the respondent in the appeal before the lower Appellate Court, was given an opportunity of contesting the case on that ground.

19. The learned A.G.P., who appears on behalf of the respondents in this appeal, cited some cases. The first one is Lal Badri Singh v. Mahesh Prasad and others, AIR 1955 Vindhya Pradesh 28. The principle enunciated in this case is that where a plea of limitation depends on a question of fact, such plea cannot be raised for the first time in appeal, as a matter of right, but the appellate court has a discretion to allow such a question to be raised; Where a question cannot be decided without taking fresh evidence, the appellate court will generally refuse to entertain the plea but where the plea of limitation involves a question of law which can be decided on the facts proved or admitted before the court, it can be raised at any stage of the proceedings or the Court can deal with such issue suo motu. The cited case further lays down that the mere fact that the defendant does not refer to the Article of Limitation Act specifically in his written statement cannot debar him from showing subsequently on the admitted or proved facts of the case that the suit brought against him is time barred. The above said case was cited by the learned A.G.P. in support of his proposition that the Court can take cognizance of the issue involving point of law at any stage of the proceedings suo motu. The case cited above has no application to the present case obviously for the reason that the issue involved in the cited case is of limitation, which is on a different footing and which goes to the root of the case. The issue of want of notice is entirely a different issue and if there is a deemed waiver, the plea in that respect cannot be taken at the appellate stage, as it would cause serious prejudice to the plaintiff.

The next case cited by the learned A.G.P. is Madhavji Sakarchand and others v. Gopal Mansang and another, AIR 1953 Kutch 42. This case was cited by the learned A.G.P. on the point that the question of jurisdiction can be raised for the first time in appeal. Obviously, this case has also no application to the present one for the same reason that the issue involved is different and the cited case is on a different footing.

The third case cited by the learned A.G.P. is State of Orissa and others v. Orissa Oil Industries Ltd. and others, AIR 1982 Orissa 245. This case was cited on the point that the notice under Section 80, C.P.C. is a condition precedent even for the suit for injunction. The facts of this case are also different. In this cited case, the permission to file the suit on the application under Section 80(2), C.P.C. was not granted by the Court. So it was held that the Court could not grant interim injunction on the day the suit was admitted, as the suit itself was not maintainable for the absence of notice under Section 80, C.P.C. In the present case, the leave to institute the suit by dispensing with the notice was not refused and there was a deemed waiver on the part of the defendants.

20. The learned 2nd Additional District Judge, Yavatmal, held that the suit itself was not maintainable for want of notice and in this view of the matter, he remanded the case back to the Trial Court with a direction to return the plaint to the plaintiff for presentation after complying with the provisions of Section 80, C.P.C.

21. As a result of the whole discussion made above, I hold that the above order of remand does not deserve to be sustained. The same shall have to be set aside and the matter will have to be remanded back to the lower Appellate Court for deciding the appeal on merits. Hence, the following order:

22. The appeal is allowed. The judgment and order passed by the learned 2nd Additional District Judge, Yavatmal, in Regular Civil Appeal No.192/94 setting aside the Trial Court's decree and remanding the matter back to the Trial Court with a direction to return the plaint to the plaintiff for presentation after complying with the provisions of Section 80, C.P.C., is set aside.

The matter is remanded back to the lower Appellate Court with a direction to decide the aforesaid Regular Civil Appeal on merits, excluding the ground of non-maintainability of the suit for want of notice under Section 80, C.P.C.

No order as to costs.

Appeal allowed.