This is a revision petition presented by the plaintiff in O.S No. 128/58 on the file of the District Munsif's Court, Nandyal, against an order of that court dated 14-9-1959 rejecting an application by the plaintiff for permission to withdraw the suit with liberty to institute a fresh suit in respect of the subject-matter of the suit.
2. The facts relevant for purposes of this petition are these:—
3. The plaintiff is a Government employee working as the Commissioner of Nandyal Municipality. According to the Service Register, his date of birth is 20-7-1903 and he would be superannuated on the completion of 55 years. While so, he had instituted a suit in the Court of District Munsif, Nandyal, on 14-6-58 for a declaration that his correct date of birth was 20-12-1906 and that an alteration should be made to that effect in the Service Register and also prayed for an injunction against the State of Andhra Pradesh to restrain it from enforcing his retirement in accordance with his date of birth as now shown in the service Register.
4. It would appear that it was discovered later that the State of Andhra Pradesh was not served with proper notice, in terms enacted under Section 80 of the Civil Procedure Code, wherefore the plaintiff applied to the court for permission to withdraw from the suit with liberty to file a fresh suit. He alleged that the suit was liable to fail for a formal defect.
5. The District Munsif dismissed that application observing that it was a fatal defect and not a formal one and that the petitioner shall be precluded from filing a fresh suit on the same cause of action. It is the correctness of this finding that is canvassed before me.
6. It is conceded before me that the plaintiff has not complied with the requirements of notice as enacted under section 80 C.P.C It is also conceded that it is fatal to the institution of the suit.
7. The law is settled on this question that “section 80 C.P.C is express, explicit and mandatory, and it admits of no implications or execeptions,” vide Bhagachand v. Secretary of State . A.I.R 1927 P.C 176 @ 184. vide also The Government of the province of Madras v. Vellayyan Chettiar . 1944 2 M.L.J 65 D.B..
8. In the present case, the non-compliance consisted in the suit having been instituted before the expiration of two months next after notice in writing had been delivered to the respondent. This would lead us on to the question as to the action be taken in respect of such a suit which is instituted.
9. The Privy Council in the aforecited case has observed thus at page 185:
“The consequence is that the appellant's present position in regard to the taxes imposed on them is as if their action had never been brought. It was unsustatainable in limine. They commenced their suit before the law allowed them to sue and can get no relief in it either by declaration or otherwise.”
10. These observations admit of no ambiguity that a suit, which was instituted without proper compliance of the requirements of notice as enacted under section 80 C.P.C was unsustainable and such a suit must be deemed to have not been instituted at all.
11. The question of application of O. XXIII C.P.C to such a suit cannot therefore, be acceded to. That provision must necessarily relate to a properly instituted suit and a formal defect occuring therein.
12. It would, therefore, appear that the plaint in such a suit should have been rejected under Order VII, Rule 11, C.P.C
13. Sri Bhujangrao has brought to my notice certain decisions which have taken that view and rejected the plaint. In Sree Rajah Venkala Rangaiah Apparao Bahadur v. The Secretary of state for India in Council . A.I.R 54 Mad. 416., Sundaram Chetti, J., affirmed the orders of the lower Court rejecting the plaint on the ground that notice under section 80, C.P.C, was not given to the defendant. That decision was affirmed in letters patent Appeal by a Division Bench by its decision in Venkata Rangaiah Apparao Bahadur v. Secretary of State . A.I.R 1935 Mad. 389.. It would appear that this view is in conformity with the view taken by a Division Bench of the Calcutta High Court in Jagadishchandra Deo Dhabal Deb v. Debendraprasad Bagchi . I.L.R 58 Cal. 850.. That court observed that it was the duty of the Court to scrutinize this aspect of the notice which was a pre-requisite to the institution of the suit. The Division Bench of the Calcutta High Court had referred with approval to a Division Bench decision of the Allahabad High Court in Bachu Singh v. The Secretary of state for India in council . I.L.R 25 All. 1187..
14. It would appear that the rulings referred to still hold the filed and the rejection of the plaint is the proper order to make when it is discovered that there was non-compliance with the mandatory provision enacted under section 80 C.P.C with regard to the notice to be issued.
15. It would, therefore, consider that the trial court might properly reject the plaint under order 7, Rule 11, C.P.C This is the only order that could be made in this revision. Ordered accordingly. No costs.
Orders accordingly.