Commanding Officer, Airforce, Gorakhpur and Others vs Sushila Devi

Sudhir Agarwal, J.—1. The appeal is restored to its original number vide order of date passed on restoration application.

The application seeking condonation of delay having been allowed vide order of date passed on Delay Condonation Application, let appeal be registered with regular number and old number shall also continued to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two numbers.

As requested by learned counsel for parties, I proceed to hear this appeal under Order 41 Rule 11 CPC

This is defendants'' appeal under Section 100 CPC arising from judgment and decree dated 24.05.2002 passed by Additional District Judge, Court No. 11, Gorakhpur allowing Civil Appeal No. 23 of 2001 and decreeing Original Suit No. 330 of 1998 with permanent injunction restraining defendants-appellants from interfering in possession of plaintiff-respondent upon property in dispute.

Learned counsel for the appellants submitted that property in dispute was not identifiable but relying on evidence adduced by parties, Lower Appellate Court has recorded a finding that property was identifiable. Findings of Lower Appellate Court in this regard read as under:

"In the plaint as well, the plaintiff has mentioned the arazi (plot) purchased by her and the boundary around it. Moreover, it is verified also from the report of Ameen (58C) and the map (59C) that the plot purchased by the plaintiff is identifiable at the spot and construction is present thereon. In this way, it is established from the evidence available on record that the plaintiff is owner having occupation over the disputed plot bearing arazi No. 489/6/2, measuring 4 de.7 kadi (2052 square feet) and her construction is present thereon." (English translation by the Court)

The appellants could not point out any error, factual or otherwise, in aforesaid findings and hence in view of this Court no substantial question of law does arise on this aspect.

It is then contended that Section 80 CPC notice was not given hence suit was liable to be dismissed. On this aspect I find that no issue was framed either before Trial Court or before Lower Appellate Court. For the first time in second appeal such issue cannot be allowed to be raised for the reason that requirement of notice under Section 80 CPC can be waived by State for whose benefit the provision has been made.

This issue has been considered by a Special Bench of this Court in Sunni Central Board of Waqfs v. Sri Gopal Singh Visharad and others, 2010 ADJ Page 1 (SFB)(LB) and in the majority judgment delivered by myself (concurred by Hon''ble S.U. Khan, J.) on this issue, it has been said:

"622. Now we come to the second part of this issue i.e. 10 (b). The legislative intent of Section 80 is to give the Government sufficient notice of the suit which is proposed to be filed against it so that it may reconsider the decision and decide for itself whether the claim made could be accepted or not. The object of the section is advancement of justice and securing public good by avoidance of unnecessary litigation (Bihari Chowdhary and another v. State of Bihar and others , 1984 (2) SCC 627; State of Andhra Pradesh and others v. Pioneer Builders , AIR 2007 SC 113).

We, however, proceed to consider certain authorities cited on behalf of the defendant No. 10 to press upon their submission that in case of non compliance of Section 80 C.P.C., it is the duty of the Court to reject the plaint outright even if no objection is raised by anyone since it is a jurisdictional issue.

Prior to Section 80 C.P.C., 1908, similar provision existed in Section 424 of C.P.C., 1882. Considering the purpose and objective of such a provision, in Secretary of State for India In Council v. Perumal Pillai and others , (1900) ILR 24 (Mad.) 271 it was held:

"...object of the notice required by section 424, Civil Procedure Code, is to give the defendant an opportunity of settling the claim, if so advised, without litigation."

With reference to Section 80 C.P.C. of 1908, the objective and purpose came to be considered in Secretary of State for India In Council v. Gulam Rasul Gyasudin Kuwari , (1916) ILR XL (Bom.) 392 wherein it was held as under:

"...the object of section 80 is to enable the Secretary of State, who necessarily acts usually through agents, time and opportunity to reconsider his legal position when that position is challenged by persons alleging that some official order has been illegally made to their prejudice."

In Raghunath Das v. Union of India and another , AIR 1969 SC 674, in para 8, the Court said:

"8. The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in Section 80, Civil Procedure Code are not intended to be used as booby traps against ignorant and illiterate persons."

The object and purpose of enactment of Section 80 C.P.C. was also noticed in State of Punjab v. M/s. Geeta Iron and Brass Works Ltd. , AIR 1978 SC 1608 as under:

"A statutory notice of the proposed action under S. 80 C.P.C. is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted."

The requirement of notice under Section 80 C.P.C. has also been held mandatory. In Bhagchand Dagaduss v. Secretary of State for India in Council , AIR 1927 PC 176, it was held that the provision is express, explicit and mandatory. It admits no implications or exceptions. It imposes a statutory and unqualified obligation upon the Court. Therein a noticed was issued under Section 80 C.P.C. on 26.6.1922, but the suit was instituted before expiry of the period of two months from the said date. The Judicial Committee Observed:

"To argue as appellants did, that the plaintiffs had a right urgently calling for a remedy, while Section 80 is mere procedure, is fallacious, for Section 80 imposes a statutory and unqualified obligation upon the Court."

This decision was followed by Judicial Committee in Vellayan Chettiar v. Government of Province of Madras , AIR 1947 PC 197.

In Government of the Province of Bombay v. Pestonji Ardeshir Wadia and Ors. , AIR 1949 PC 143 it has been held that provisions of Section 80 of the Code are imperative and should be strictly complied with.

A Constitution Bench of the Apex Court in Sawai Singhai Nirmal Chand v. Union of India , AIR 1966 SC 1068 also took the same view. Following the above authorities in Bihari Chowdhary (supra), the Apex Court, in para 6, observed:

"6. It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under Section 80 C.P.C. is attracted, can not be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the Section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable."

In none of the above noted cases, the Courts had the occasion to consider whether a Suit for non compliance of Section 80 C.P.C. ought to be dismissed even if the authority for whose benefit the provision has been made is not inclined to press this objection or is interested to get the decision on merits from a competent Court of law. On the contrary, slight divergent view was also going on simultaneously as is evident from some of the authorities of the Apex Court.

In Dhian Singh Sobha Singh v. Union of India , AIR 1958 SC 274 (page 281), the Court observed that Section 80 C.P.C. must be strictly complied with but that does not mean that the terms of Section should be construed in a pedantic manner or in a manner completely divorced from common sense. It observed:

"The Privy Council no doubt laid down in Bhagchand Dagadusa v. Secretary of State , AIR 1927 PC 176 that the terms of section should be strictly complied with. That does not however mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced from common-sense. As was stated by Pollock, C. B., in Jones v. Nicholls, (1844) 13 M&W 361 : 153 ER 149 "we must import a little commonsense into notices of this kind." Beaumont, C. J., also observed in Chandu Lal Vadilal v. Government of Bombay, , AIR 1943 Bom 138 "One must construe Section 80 with some regard to common-sense and to the object with which it appears to have been passed."

In para 17 of the judgment while referring to and relying on its earlier decision of Sangram Singh v. Election Tribunal, Kotah, , AIR 1955 SC 425, the Apex Court said:

"Section 80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the Courts may do justice between the parties. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it."

The protection provided under Section 80 is given to the person concerned. If in a particular case that person does not require protection, he can lawfully waive his right. This is what was held in Dhirendra Nath Gorai and Sabal Chandra Shaw and others v. Sudhir Chandra Ghosh and others , AIR 1964 SC 1300 where considering a pari materia provision, i.e. Section 35 of Bengal Money Lenders Act, 1940 the Apex Court held that such requirement can be waived. Similarly, while considering Section 94 of the Representation of People Act, 1951, the above view was reiterated in S. Raghbir Singh Gill v. S. Gurucharan Singh Tohra and others , 1980 (Suppl.) SCC 53. All the aforesaid decisions have been followed in Commissioner of Customs, Mumbai v. M/s. Virgo Steels, Bombay and another , AIR 2002 SC 1745 and it has been held that notice in such a case can be waived.

A Full Bench of the Bombay High Court in Vasant Ambadas Pandit v. Bombay Municipal Corporation and others , AIR 1981 Bombay 394 while considering a similar provision contained in Section 527 of Bombay Municipal Corporation Act, 1888 held

"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 Amar Nath Dogra v. Union of India , 1963 (1) SCR 657; State of Punjab v. Geeta Iron and Brass Works Ltd. , 1978 (1) SCC 68 and Ghanshyam Dass v. Dominion of India , 1984 (3) SCC 46 the Apex Court also held that notice under Section 80 C.P.C. or similar provisions of other Acts are for the benefit of a particular authority. The same can be waived as they do not go to the root of jurisdiction in the true sense of the term. Referring to the aforesaid judgments as well as the Full Bench judgment of Hon''ble Bombay High Court in Vasant Ambadas Pandit (supra), the Apex Court in Bishandayal and sons v. State of Orissa and others , 2001 (1) SCC 555 (para 16) said that there can be no dispute to the proposition that a notice under Section 80 can be waived.

In fact we find in Ghanshyam Dass and Ors. v. Dominion of India and Ors. (supra) wherein a three judges Bench considered the correctness of the decision of this Court in Bachchu Singh v. Secretary of State for India in Council, , ILR (1903) 25 All 187, Mahadev Dattatraya Rajarshi v. Secretary of State for India , AIR 1930 Bom 367 and earlier decision in S.N. Dutt v. Union of India, , AIR 1961 SC 1449. Though the facts of that case are slightly different but what has been observed by the Apex Court is of some importance. The Apex Court while reiterating the Privy Council''s observations in Bhagchand Dagadusa (supra) that requirement of Section 80 C.P.C. of giving notice is express, explicit an mandatory and admits of no implications or exceptions, however observed that one must construe Section 80 with some regard to common sense and to the object with which it appears to have been passed. It also observed that our laws of procedure are based on the principle that "as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities". The Apex Court overruled its decision in S.N. Dutt (supra) as also the Bombay High Court''s decision in Mahadev Dattatraya Rajarshi (supra) and this Court''s decision in Bachchu Singh (supra). In the case before the Apex Court though notice was issued but on a closer scrutiny, the High Court found that it was not a valid notice under Section 80 C.P.C. and therefore non suited the plaintiff. This judgment was reversed by the Apex Court making the abovesaid observations. The Court reiterated that the object of notice contemplated by Section 80 is to give to the Government and public officers an opportunity to consider the legal position and to make amends or settle the claim, if so advised, without litigation so that public money and time may not be wasted on unnecessary litigation.

Considering the objective of such enactment and the fact that party concerned can waive it, we are of the view that the plea of want of notice under Section 80 cannot be taken by a private individual since it is for the benefit of the Government and its officers.

A Division Bench of Hon''ble Bombay High Court in Hirachand Himatlal Marwari v. Kashinath Thakurji Jadhav , AIR (29) 1942 Bombay 339 said "In the first place defendant 3 is not the proper party to raise it, and in the second place the receivers in our opinion must be deemed to have waived their right to notice. It is open to the party protected by S. 80 to waive his rights, and his waiver binds the rest of the parties. But only he can waive notice, and if that is so, it is difficult to see any logical basis for the position that a party who has himself no right to notice can challenge a suit on the ground of want of notice to the only party entitled to receive it. We think therefore that this ground of attack is not open to defendant 3; and for our view on this point direct support may be obtained from 32 Cal. 1130."

In view of above exposition of law laid down by Special Bench, it is quite clear that objection with respect to want of notice under Section 80 CPC cannot be taken by a private individual since it is for the benefit of Government and its officials. It can be taken only by Government and would be considered if it is pressed by those for whose benefit the provision has been made. In the present case, appellants though are Government but did not show that plea of want of notice was either raised or pressed before Court below. In fact it appears that appellants had shown a conduct before Court below so as to obtain a judgment on merits. That being so, for the first time in second appeal, in my view, appellants could not be allowed to raise plea of want of notice under Section 80 C.P.C.

No other point has been raised. The appeal has been decided by Lower Appellate Court after appreciation of evidence and no substantial question of law has arisen from the judgment. Under Section 100 of CPC, a second appeal can be entertained by this Court only if it involves substantial question of law. In other words it does not confer any jurisdiction on this Court to interfere with pure questions of fact, which have been considered and adjudicated by courts below after appreciation of evidence recording well considered findings. If there is a finding of fact, based on proper appreciation of evidence, and, material on record, and no perversity, illegality or irregularity in those findings are found, the second appeal is not at all entertainable by this Court under Section 100 of the CPC. Even mere illegality or irregularity in findings would not permit interference. They require something more.

There are two situations in which, ordinarily, interference with findings of fact is permissible, namely, (a) when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion, and (b) where a finding has been arrived at by court below by placing reliance on inadmissible evidence, which if would have been omitted, an opposite conclusion would have been possible. I derive these principles from some of the authorities of Apex Court and, briefly, it would be appropriate to refer the same.

In Dilbagrai Punjabi v. Sharad Chandra, , AIR 1988 SC 1858, the Court affirmed the observations of High Court that First Appellate Court is under a duty to examine entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue, and the error which arises is of magnitude that it gives birth to a substantial question of law, the High Court would be entitled to set aside the finding.

In Jagdish Singh v. Nathu Singh, , AIR 1992 SC 1604, it was said, where finding by court of facts is vitiated by non consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper finding.

In Sri Chand Gupta v. Gulzar Singh, , AIR 1992 SC 123 the Court upheld interference by High Court in second appeal where the Lower Appellate Court relied an admission of third party treating it as binding on the defendant though it was inadmissible against the said defendant.

In Sundra Naicka Vadiyar v. Ramaswami Ayyar, , AIR 1994 SC 532 the Court said where certain vital documents for deciding the question of possession were ignored, such as compromise, an order of revenue Court relying on oral evidence was unjustified.

In Ishwar Dass Jain (Dead) through Lrs. v. Sohan Lal (Dead) through Lrs., , 2000(1) SCC 434 the Court in paras 11 and 13 of the judgment clearly mentioned two situations in which inference with findings of fact is permissible. It is said:

"11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion...."

"13. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible...."

In Govindaraju v. Mariamman, , 2005(2) SCC 500 the Court said that existence of substantial question of law is the sine qua non for exercise of jurisdiction under Section 100 of the C.P.C. If a second appeal is entertained under Section 100 without framing substantial questions of law then it would be illegal and would amount to failure or abdication of duty cast on the Court. The Court relied on its earlier decisions in Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors., , 1997 (5) SCC 438; Panchugopal Barua v. Umesh Chandra Goswami , 1997 (4) SCC 413; and, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar , 1999 (3) SCC 722.

Section 100 of the CPC, first of all, places an obligation upon appellant to precisely state in the memorandum of appeal a substantial question of law involved therein which he proposes to urge before the Court. After hearing him this Court has to satisfy itself that a substantial question of law is involved in the case and it shall formulate that question. This is the next stage. This Court after hearing appellant may come to the conclusion that the question stated in memorandum of appeal itself constitutes a substantial question of law but then it has to be formulated by Court on its own. It will become a substantial question of law only when the Court has satisfied itself and put its seal by formulating it. The mere substantial question of law is not sufficient but it must be one such question which is involved in the case. An abstract question of law may be substantial but unless it is one which is involved in the case concerned, it will not satisfy the requirement of Section 100(4) of the CPC.

In Santosh Hazari v. Purushottam Tiwari, , 2001 (3) SCC 179 the Court considered what the phrase "substantial question of law" means. It says that the phrase is not defined in the Code. The word "substantial", as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substances or consequence, or academic merely.

A Full Bench of Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, , AIR 1951 Madras 969 considered this term and said, "when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law."

The above observations were affirmed and concurred by a Constitution Bench in Sir Chunilal Mehta and Sons Ltd. v. The Century Spinning and Manufacturing Company Ltd. , AIR 1962 SC 1314. Referring to above authorities, the Court in Santosh Hazari (supra) said:

"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

The decision in Santosh Hazari (supra) has been followed in Govindaraju (supra) and Thiagarajan and others v. Sri Venugopalswamay B. Koll and others, , AIR 2004 SC 1913.

In view of above, the appeal is dismissed under Order 41 Rules 11 CPC. Interim order, if any, stands vacated.

Delay Condonation Application No. 95441 of 2003

The application is restored to its original number vide order of date passed on restoration application. As requested by learned counsel for the applicants, the same is taken up for final disposal under the Rules of this Court.

This is an application filed under Section 5 of Limitation Act seeking condonation of delay of 180 days in filing appeal.

I have heard learned counsel for the applicants.

Delay in filing appeal is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.

Heard.

Delay in filing recall application is explained satisfactorily. It is hereby condoned. The application is accordingly allowed.

This is an application for recall of order dated 30.05.2013, whereby the delay condonation application as well as appeal was dismissed.

I have gone through the affidavit filed in support of this application. The cause shown for absence of learned counsel for appellants, when case was called in the revised list, is sufficient. The order dated 30.05.2013 is recalled and delay condonation application as well as appeal is restored to its original number. The application is, accordingly, allowed.