Jhanak Singh vs Sandeep Singh And Others

Vivek Jain, J

The present revision has been filed challenging the order passed by the trial court dated 29.10.2025 thereby rejecting the application of the petitioner-defendant No. 1 for rejection of claim under Order 7 Rule 11 CPC.

The counsel for the petitioner has contended that the application for rejection of plaint ought to have been allowed by the Trial Court and the Trial Court has erred in not allowing the application under Order 7 Rule 11 CPC, and committed error of law.

It is argued that the relief sought in the plaint is not only against private persons but against the State of Madhya Pradesh as well as the Tahsildar, who have been impleaded as party in the suit and a prayer has been sought that mutation in the land be carried out in a particular manner and since that mutation has to be done by the Tahsildar, therefore a direction has been sought against the Tahsildar to carry out mutation in favour of the petitioner in a particular manner and therefore the petition having been filed against a Public Officer, hence a proper notice under Section 80 CPC was a essential requirement and in absence of a proper notice under Section 80 CPC, the Trial Court could not have entertained the suit and the plaint ought to have been rejected.

By elaborating the assertions, the learned counsel for the petitioner has contended that as per Section 80 CPC, notice is required to be issued whenever a suit is 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, at least two months prior to date of institution of the suit and since Tahsildar is a Public Officer, therefore the notice under Section 80 CPC which has been given only to the Collector does not properly satisfy compliance of Section 80 CPC. It is argued that even if the benefit of Section 80(2) CPC is to be sought even then a proper notice is a primary requirement and hence the party even if it is instituting suit prior to expiry of two months from date of notice, is bound to first issue a proper notice under Section 80 CPC.

It is further contended that the ingredients of notice are laid down in Section 80 (1) CPC itself which requires the notice to be delivered to the Public Officer or left at his office stating the cause of action, name, description and place of residence of plaintiff and the relief which he claims and the plaint contains statement that such notice has been so delivered. It is argued that in the present case the notice is only a skeletal notice and only mentions that one suit in respect of a agricultural land in a particular survey number is being instituted and no more ingredients are mentioned in the notice that what is the relief is being sought in the suit, and also cause of action has not been mentioned. It is argued that in absence of mentioning cause of action and the relief prayed in the suit, the notice itself is defective and nullity.

It is argued that the suit is not formal suit as against the State and even though there may not be any interest in the land of the State Government but since the petitioner wants a consequential mutation to be carried out by the State Government authorities, therefore the notice under Section 80 CPC in proper manner was required to be issued. It is further argued that even if benefit of Section 80 (3) is to be claimed by the plaintiff, even then the plaintiff has to show that the name, description and residence of the plaintiff had been so given as to enable the public officer to identify the person serving the notice and cause of action and relief claimed by the plaintiff had been substantially indicated which is not there in the notice in question and therefore for want of compliance of Section 80(3)(b) CPC, the notice was defective.

Heard.

In the present case, the litigation is between private parties and the State of Madhya Pradesh has been impleaded only because it is a suit regarding agricultural land and Tahsildar has been impleaded only because the consequential mutation is to be carried out by the Tahsildar in case the suit is decreed. Therefore, it appears that the Tahsildar has been impleaded only by way of abundant caution so that at the time of execution of decree the plaintiff would be able to get the decree executed by getting mutation done by the Tahsildar which would be easier if the Tahsildar is impleaded as party.

The basic purpose of notice under Section 80 CPC is to grant opportunity to the public officers to reconsider the legal position and to settle the disputes, if so advised, without forcing the parties into litigation. The legislative intent is only to save public money and time on unnecessary litigation so that the State authorities can examine the reasonable claims to avoid being drawn into unnecessary litigation. The purpose is advancement of cause of justice and not as a weapon against ignorant and rustic litigants.

It is not in dispute that the plaintiff had moved an application under Section 80(2) CPC seeking exemption from notice and as per Section 80(2) CPC, suit can be instituted with leave of the court without serving the notice as required by Section 80(1) and once permission has been granted by the court under Section 80(2) CPC, therefore, the contentions of the petitioner defendant no. 1 pale into insignificance.

However, since the issues have been raised before this court, they have to be considered by this court. It is pertinent to note here that the person bringing the application under Order 7 Rule 11 CPC was not the public officer or the State Government, but a private litigant. As already discussed above, since the purpose of Section 80 CPC is to enable the public officers to examine the claims of private parties to avoid any avoidable litigation, therefore, the objection for non-compliance of Section 80 or insufficient compliance of Section 80 can only be taken by the public officer or the State Authority and not by the private litigant. In Gaja Vs. Dasa Koeri AIR 1964 Allahabad 471, the High Court of Allahabad held as under :-

Closely linked with the question of waiver is the question whether the bar of Sec. 80 can be pleaded by a party other than those to whom notice is required to be given. The answer to the latter question follows, in my opinion, as a corollary from the answer to the former. If notice can be and has been waived by the authority concerned the natural conclusion appears to be that it is not open to any other party to the suit to urge want of notice against the maintainability of the suit. In Rup Lal Agarwala v. Dkansar Coal Co. [A.I.R. 1933 Patna 49.] it was observed that:“A third party is not competent to raise the question of notice when the Secretary of State has waived it.” In Hira Chand Himat Lal Marwari v. Kashinath Thakurji Jadhav [A.I.R. 1942 Bom. 339.] it was similarly ob served that:“A party who has himself no right to notice cannot challenge a suit on the ground of want of notice to the only party entitled to receive it.” I may also refer to the case of Bodi Venkataswami v. Adada Mahalaxmi [A.I.R. 1949 Madras 747.] , which dealt with Sec. 49 of the Madras Court of Wards Act requiring two months' notice for the institution of a suit against the Court of Wards. It was held there that:“The plea as regards the want of statutory notice is only available to the Court of Wards which is entitled to such notice and not to the other defendants after the Court of Wards itself waived the objection and further that such waiver on the part of the person principally concerned affects the other parties as well.” If the authority for whose benefit Sec. 80 has been enacted does not claim the benefit it is not for other persons to press into service the provisions of that section for defeating a suit. This result, as I have said above, follows from the position that the objection as to notice is capable of being waived.

In Raj Kumari v. Board of Revenue, 1984 SCC OnLine All 664, the Allahabad High Court again considered the entire law and held that the party for whose benefit, notice is to be issued, can waive it and waiver may be inferred in absence of objection. It was held as under :-

I have considered the arguments advanced by the counsel for either side. In District Board, Banaras v. Churhu Rai (AIR 1956 All 680) (supra), a Division Bench of this Court has held that it is always open to a defendant for whose benefit notice prescribed by law to waive it and as such if a plea in regard to the want of notice was not pressed in the trial Court nor the same was raised in the first or second appeal, it would be deemed that the same has been waived. Similar view has been taken in Ishtiyaq Husain v. Zafrul Islam (AIR 1969 All 161) (supra) where Hon'ble S.K. Verma, J., as he then was, held that no doubt S. 80, C.P.C. is mandatory and notice has to be issued and served on the State before filing a suit, but this plea can be waived also. Similar is the view expressed in Hira Chand Himmat Lal v. Kashi Nath Thakurji, AIR 1942 Bom 339, where a Division Bench of the Bombay High Court held that a party in whose favour S. 80, C.P.C., prescribed notice to be given, can waive his right to the same. Similar is the view taken in Dhian Singh Shobha Singh v. Union of India (supra) where the Supreme Court held that no doubt S. 80, C.P.C., has to be strictly complied with but nevertheless notice should not be scrutinized in a pedantic manner completely divorced from common sense. In that case the controversy was that in the notice under S. 80, C.P.C., only a sum of Rs. 3,500/- was claimed, but later on it was found that the plaintiff was entitled to more than the sum of Rs. 3,500/ -. The High Court did not accept the claim of the plaintiff on the ground that he did not claim any amount more than Rs. 3,500/-. In that reference the Supreme Court held that the approach of the High Court was erroneous. It was further held in Chandu Lal Vadilal v. Government of Bombay, AIR 1943 Bom 138 that one must construe S. 80, C.P.C., with some regard to common sense and with the object to which it appears to have been based. Further it has been held in Gaja v. Das Koery (AIR 1964 All 471) (supra) by Hon'ble Ganeshwar Prasad, J. that it is open to the authority concerned for whose genefit the notice has been issued to waive it also. The natural conclusion is that it is not open to other party (i.e., respondents 4 and 5 in the instant case) to urge the want of notice against maintainability of the suit. It is the authority for whose benefit S. 80 has been enacted can raise an objection about want of notice and press the same. Similar view has been taken by Hon'ble Katju, J., in Banarsi Rai v. D. Ahir, 1964 All LJ 239. In Julal Mandal v. Union of India, AIR 1978 Patna 42, it was held in similar circumstances that if an issue was framed by the trial court about the effect of want of notice under S. 80, C.P.C., and the issue was not pressed by the Government, it means that the Government has waived the right to press the same and it was a clear case of waiver and no other private party can press the said issue in respect of want of notice. Similarly in AIR 1947 PC 197, it has been held that the provision of S. 80, C.P.C., are mandatory no doubt, but it does not mean that the notice meant for the benefit of the authorities cannot be waived by the said authorities. In the instant case the State of U.P. has filed a written statement and an issue was also framed on the point but it did not press the issue and the suit was decreed even against the State of U.P. The State did not file first or second appeal, hence it is clear that the State has waived the plea of notice under S. 80, C.P.C. It is not open to respondents 4 and 5 to raise that plea as no prejudice has been caused to them.

Even in those cases where there is no waiver, then also, the plaint cannot be mechanically rejected. In Gangappa Gurupadappa Gugwad v. Rachawwa, (1970) 3 SCC 716, the Supreme Court has held that where a relief is claimed by the plaintiff against the State Government, in that event the delivering of notice is mandatory and in case it has not been done the plaint can be rejected for want of notice, but where no relief has been claimed against the State, the plaint cannot be rejected for want of notice and in that case it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under S. 80, C.P.C., was necessary. It was held as under :-

No doubt it would be open to a court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If for instance the plaintiff's cause of action is against a Government and the plaint does not show that notice under Section 80 of the Code of Civil Procedure claiming relief was served in terms of the said section, it would be the duty of the court to reject the plaint recording an order to that effect with reasons for the order. In such a case the court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by Section 80 of the Code is being claimed, it would be the duty of the court to go into all the issues which may arise on the pleadings including the question as to whether notice under Section 80 was necessary. If the court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties, apart from the question as to the applicability of Section 80 of the Code and absence of notice thereunder should not operate as res judicata in a subsequent suit where the identical questions arise for determination between the same parties.

It is further held by Hon’ble Apex Court in Bishandayal and Sons v. State of Orissa, (2001) 1 SCC 555 that notice under Section 80 CPC can be waived by the authority concerned. It was held as under :-

The next question for consideration is whether the amendment suit was not maintainable for want of notice under Section 80 of the Code of Civil Procedure. In this behalf the appellants have relied upon the cases of Amar Nath Dogra v. Union of India [AIR 1963 SC 424 : (1963) 1 SCR 657] , State of Punjab v. Geeta Iron & Brass Works Ltd. [(1978) 1 SCC 68 : (1978) 1 SCR 746] , Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46] and Vasant Ambadas Pandit v. Bombay Municipal Corpn. [AIR 1981 Bom 394 : 1981 Mah LJ 706 : 1981 Bom CR 793 (FB)] In these cases it has been held that a notice under Section 80 CPC or equivalent notices under Section 527 of the Bombay Municipal Corporation Act are for the benefit of the respondents and the same can be waived as they do not go to the root of jurisdiction in the true sense of the term.

Such waiver can be inferred even from non-appearance of the party and non-filing of written statement. In the present case, defendants No. 7 and 8 have already been proceeded ex-parte by the trial court after service and it is clear that these defendants have no interest in outcome of the suit and they have consciously decided to remain ex-parte despite the State having all the facilities of defending the suit against the State. Therefore, it is to be inferred that the State and public officers have waived the notice under Section 80 CPC.

Therefore, in the considered opinion of this court, even the application filed by the petitioner under Order 7 Rule 11 is itself was not maintainable and such an application could have been considered only if it had been filed by the State Government or any of the public officers.

So far as the issue raised that the notice was issued only to the Collector and not to the Tehsildar separately is concerned, as per Section 80 of CPC the following has been provided.

“80. Notice.—

[(1)] [ Save as otherwise provided in sub-section (2), no suits [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 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 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 authorized 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

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]”

As per Section 80 (1)(c), in case of suit against State Government, the notice is to be issued to the Collector of the District. It has been held by Hon’ble Apex Court in the case reported in Ghulam Rasool v. State of J & K, AIR 1983 SC 1188 that notice to the Collector being issued, but being not separately issued to a public officer is not a defect and the notice issued to Collector is sufficient compliance of Section 80(1) CPC. Therefore, this objection of the petitioner also must fail.

In view of the aforesaid discussion, the defect in form and particulars of the notice pales into insignificance. Even otherwise, the State had no interest in the cause of action and the relief claimed in the suit because no relief was claimed against the State and the Tahsildar has only been called upon in the relief clause of the plaint to comply with the final decree in the matter of consequential mutations of revenue entry as per decree of the court and therefore, even this absence to mention the relief clause and cause of action would not make the notice defective in view of the relief claimed in the plaint in this particular case.

Consequently, no error can be found in the order passed by the trial court, the revision fails and is dismissed.