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Hassian Ali Mirza v. The State Of Andhra Pradesh
Structured Summary of the Provided Legal Opinion
Factual and Procedural Background
The appellant (who was the plaintiff in the original suit) stood surety for one Ahmad Abdul Hakim, who had been awarded an Indian Scholarship to study medicine in Bombay for three and a half years. The scholarship-holder entered into an agreement with the then Government of Hyderabad on 22-9-1925, and the appellant executed a surety bond dated 23-9-1955 in favour of the Government of Hyderabad. The scholarship-holder completed his studies in Bombay but was not given suitable employment by the State Government and later proceeded to the United Kingdom for further studies. The Government of Hyderabad declared the scholarship-holder a defaulter and called upon the appellant to make good a sum of Rs. 5,250 alleged to be due from the scholarship-holder.
The Collector, by order dated 22-10-1950, directed the appellant to pay Rs. 5,250 within two months and warned that coercive recovery processes would follow default. The appellant filed a suit under Section 6 of the Government Demands Act (No. IV of 1308 F.) challenging the Collector's order and seeking to set it aside (and other reliefs), but the lower Court dismissed the suit as not maintainable on the preliminary ground that the plaintiff had not given the notice required by Section 80 of the Civil Procedure Code to the State of Andhra Pradesh (the defendant).
Legal Issues Presented
- Whether a suit instituted under Section 6 of the Government Demands Act (No. IV of 1308 F.) is maintainable when the plaintiff has not given the notice prescribed by Section 80 of the Civil Procedure Code to the Government (State).
- Whether a suit under Section 6 of the Government Demands Act is to be regarded as a continuation of the proceedings before the Taluqdar (i.e., in the nature of an appeal), such that the requirement of Section 80 CPC is inapplicable.
Arguments of the Parties
Appellant's Arguments (as summarized in the opinion)
- The suit under Section 6 of the Government Demands Act is merely a continuation of the proceedings before the Taluqdar and is in the nature of an appeal from the Taluqdar's order; accordingly, notice under Section 80 CPC is not necessary.
- Order 21, Rule 63 CPC (analogous to Section 6 of the Government Demands Act in structure) supports the proposition that suits of this character are continuation/appeal-like proceedings and therefore do not require fresh Section 80 notice.
- Relied upon Madras High Court decisions (e.g., Raja of Damnad v. Subramaniam Chettiar and others) holding that such claim-suits, being continuations of prior proceedings, do not require a fresh statutory notice under provisions similar to Section 80 CPC.
Respondent / Government Pleader's Arguments (as summarized in the opinion)
- Mr. Sarma, the learned Government Pleader, argued that Section 80 CPC is mandatory in language and applies to all suits instituted against the Government in a Civil Court, including suits founded on special statutes; he relied on Bhagchand v. Secretary of State (Privy Council) to stress the mandatory nature of Section 80.
- He contended that the view taken by the Madras High Court decisions (which treated certain claim suits as continuations and excluded the need for fresh notice) was incorrect and required reconsideration.
- Alternatively, he submitted that the Taluqdar's proceedings in the present case were not proceedings of a Civil Court but revenue proceedings (i.e., proceedings initiated by a revenue officer), and hence the subsequent suit in a Civil Court cannot be treated as a continuation of Civil Court proceedings exempting it from Section 80 requirements. He relied on Doraisingham v. Muthayya Chettiar and Madras Province v. Maharaja of Jeypore to support this position.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bhagchand v. Secretary of State, AIR 1927 PC 176 | Held that Section 80 CPC is express, explicit and mandatory; it admits of no implications or exceptions. | The Government Pleader relied on this Privy Council authority to argue that Section 80 applies to all suits against the Government. The Court noted the decision but reviewed other authorities and the particular statutory scheme of the Government Demands Act before concluding Section 80 was not necessary in this case. |
| Raja of Damnad v. Subramaniam Chettiar, ILR 52 Mad 465 : AIR 1928 Mad 1201 | Decided that a suit under Order 21, Rule 63 CPC to set aside an order dismissing a claim petition is a continuation of the claim proceedings and therefore no fresh statutory notice (analogous to Section 80) is necessary. | The Court relied on this decision as establishing the principle that suits of that character are continuation/appeal-like proceedings; it applied that principle by analogy to Section 6 suits under the Government Demands Act and followed the decision. |
| Phulkumari v. Ghanshyam Misra, ILR 35 Cal 202 (PC) | Referenced by earlier decisions as supporting the proposition that certain statutory suits are continuation-like and need not be treated as fresh suits for the purpose of prior notice requirements. | Used by the Court (through intermediate citations) as part of the chain of authority supporting the rule that continuation/appeal-like suits need not adhere to fresh Section 80-style notice requirements. |
| Venkataraju v. Suryanarayana, 1942-2 Mad LJ 791 : AIR 1943 Mad 248 | Held that a claim suit under Order 21, Rule 63 CPC cannot be dissociated from the claim petition which gives rise to it and is in the nature of an appeal; therefore, no fresh notice under provisions similar to Section 80 is necessary. | The Court cited this authority in support of the same principle and treated it as reinforcing the Raja of Damnad decision for parity of reasoning. |
| Mahomed Yusuf v. Province of Madras, AIR 1943 Mad 341 | Held that by parity of reasoning a notice under Section 80 CPC need not be given before instituting a suit under Order 21, Rule 63 CPC to set aside an order passed on a claim petition. | The Court cited this decision to show that the Madras High Court had applied the continuation principle to Section 80 questions; the present Court followed that line of authority. |
| Doraisingham v. Muthayya Chettiar, AIR 1936 Mad 583 (Varadachariar, J.) | Distinguished ILR 52 Mad 465 and held that a suit under the Survey and Boundaries Act filed without giving the notice prescribed by the comparable statutory provision was not maintainable because the prior survey proceedings could not reasonably be regarded as proceedings in a Civil Court. | The Government Pleader relied on this decision to argue that proceedings before a revenue officer are not Civil Court proceedings and therefore do not give rise to the continuation principle. The Court considered this distinction but concluded it did not apply to the Government Demands Act because those proceedings are, in the Court's view, analogous to Civil Court proceedings. |
| Madras Province v. Maharaja of Jeypore, AIR 1943 Mad 284 | Held that suits under Section 14 of the Madras Survey and Boundaries Act filed without Section 80 notice were not maintainable; treated survey proceedings as distinct from Civil Court proceedings for this purpose. | Cited by the Government Pleader in support of the argument that Section 80 applies; the Court considered the decision but found it distinguishable from the present case because the Government Demands Act's Taluqdar proceedings have Civil Court characteristics. |
| S.N. Dutt v. Union of India (Supreme Court decision — cited without full citation in text) | Referred to the Privy Council's Bhagchand decision on the mandatory nature of Section 80 CPC. | The opinion notes that Bhagchand was referred to by the Supreme Court in S.N. Dutt. The Court relied on the chain of authorities overall but ultimately followed the Madras decisions treating certain statutory suits as continuations and exempt from fresh Section 80 notice. |
Court's Reasoning and Analysis
The Court began by acknowledging the literal language of Section 80 CPC, which is "very general and mandatory" and on its face appears to apply to any suit instituted against the Government, requiring a two-month notice in prescribed form. The Government Pleader relied strongly on this literal, mandatory reading and on Bhagchand (Privy Council) to support the contention that Section 80 admits no exceptions.
The Court then examined the statutory scheme of the Government Demands Act (No. IV of 1308 F.) as relevant to the present case:
- Section 2 specifies the demands recoverable under the Act.
- Section 3 requires the Taluqdar to prepare a memorandum (in a specified form), and declares that such memorandum shall be deemed to be a decree by a Court against the person in favour of the Government; it further provides that the Taluqdar may recover the demand in accordance with execution procedure and shall be deemed to be a Court for the purposes of recovery.
- Section 4 requires service of a copy of the memorandum on the defaulter and allows the defaulter two months from such service to make objections.
- Section 5 prescribes that if objections are raised the Taluqdar shall hear them, take evidence, make inquiries and pass an order; for these purposes the Taluqdar has the powers of a Civil Court in civil suits (to summon witnesses, make inquiries, etc.).
- Section 6 allows the person aggrieved by the Taluqdar's order (or by the memorandum or by realization) to institute a suit in the Court of the District Judge (or Divisional Judge where appropriate) within one year; the Court is empowered to pass appropriate orders and to stay execution subject to the same conditions as an appellate court.
On this statutory analysis the Court concluded that the Taluqdar, when preparing the memorandum, hearing objections, taking evidence and passing orders under Section 5, is to be "deemed to be a Civil Court." The statutory language treats the memorandum as a decree and confers Civil Court-like powers on the Taluqdar. The suit under Section 6 is therefore essentially an appellate/continuation proceeding from those Taluqdar proceedings: it is instituted in the District Judge's Court which has powers analogous to an appellate court to review the Taluqdar's order or the memorandum.
Given this view of the nature of the Taluqdar proceedings and the Section 6 suit, the Court considered the line of Madras High Court decisions (Raja of Damnad v. Subramaniam Chettiar; Venkataraju v. Suryanarayana; Mahomed Yusuf v. Province of Madras) which had held that suits brought under provisions analogous to Order 21, Rule 63 CPC are continuations of earlier claim proceedings and do not require the fresh notice mandated by a provision analogous to Section 80 CPC. The Court found these authorities to be directly applicable on a parity of reasoning.
The Court addressed the Government Pleader's reliance on cases (Doraisingham and Madras Province v. Maharaja of Jeypore) that treated certain statutory suits (under the Survey and Boundaries Act) as different because prior proceedings were not Civil Court proceedings. The Court distinguished those cases on the ground that the statutory scheme of the Government Demands Act makes the Taluqdar's proceedings effectively Civil Court proceedings (memorandum deemed to be a decree; Taluqdar vested with Civil Court powers). Thus the Doraisingham/Madras Province line was not accepted as controlling here.
Balancing the mandatory language of Section 80 CPC against the statutory design of the Government Demands Act and the cited authorities, the Court concluded that the Section 6 suit in the present case is a continuation/appeal-like proceeding from the Taluqdar's proceedings, and therefore the notice under Section 80 CPC was not necessary before instituting the Section 6 suit.
Holding and Implications
Holding: The Court's final disposition was as follows:
Appeal allowed; the judgment and decree of the lower Court are set aside and the suit is remanded to the lower Court for trial and disposal in accordance with law.
Consequences and implications:
- Direct effect: The lower Court's dismissal for want of Section 80 notice is reversed; the plaintiff's suit under Section 6 of the Government Demands Act will proceed to trial in the lower Court.
- Other orders: Costs will abide the result; the appellant shall be issued a certificate for refund of the Court-fee paid on the memorandum of appeal (as directed in the opinion).
- Precedential implication: The Court expressly followed the line of Madras High Court authorities (e.g., ILR 52 Mad 465 / AIR 1928 Mad 1201 and allied decisions) and applied their principle by parity of reasoning to the Government Demands Act scheme. The opinion concluded that Section 80 CPC notice was not necessary in this factual and statutory context. The Court did not purport to create a novel exception to Section 80 beyond following this established line of authority.
Note: This summary is confined strictly to the facts, arguments, authorities and reasoning expressly contained in the provided opinion. No information beyond the text of the opinion has been added or inferred.
1. The question that arises for determination in this appeal is whether a suit under Section 6 of the Government Demands Act (No. IV of 1308 F.) is maintainable though the notice prescribed by Section 80 Civil Procedure Code is not given by the plaintiff to the Government. The question arises under the following circumstances.
2. The appellant was the plaintiff in this suit which was dismissed by the lower Court as not maintainable for the reason that the notice under Section 80 Civil Procedure Code was not given to the State of Andhra Pradesh who is the defendant in the case. The allegations in the plaint are that one Ahmad Abdul Hakim was awarded an Indian Scholarship for studying medicine in Bombay for a period of 31/2 years and that he entered into an agreement with the then Government of Hyderabad on 22-9-1925. The plaintiff stood surety for him and executed a surety bond dated 23-9-1955 in favour of then Government of Hyderabad. The scholarship holder completed his course of study in Bombay and returned to Hyderabad; but the State Government would not entertain him in any suitable job, and, therefore, the scholarship-holder had to remove himself to the United Kingdom for further studies. On that, the Government of Hyderabad declared the scholarship-holder as a defaulter" and called upon the plaintiff to make good The sum of Rs. 5,250/- alleged to be due to the Government from the scholarship-holder. The Collector, by his order dated 22-10-1950, directed the plaintiff to pay to the Government a sum of Rs. 5,250/- within two months from the date thereof and that in default of compliance with his order for payment as aforesaid, coercive process would be employed for the recovery of that amount. Therefore, the present suit was filed as provided by Section 6 of the Government Demands Act (No. IV of 1308 F). Several grounds are urged in the plaint claiming that the order of the Collector demanding the plaintiff for payment (sic) of the money due to the Government cannot be sustained. But the suit was dismissed on a preliminary ground that notice under Section 80 Civil Procedure Code was not given.
3. Therefore, the question that arises for determination is whether the suit has to fail for the reason that the plaintiff has not given notice as required by Section 80 Civil Procedure Code. Section 80 Civil Procedure Code 13 as follows:-
"No suit shall be 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, 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 a Railway, the General Manager of that railway;
(c) in the case of a suit against a 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."
The language of this section is very general and mandatory, in that, it states that no suit shall be, instituted against the Government until the expiration of two months next after the notice in writing prescribed therein had been served on the Government. This appears to apply to any suit that might be filed against the Government. On behalf of the learned Government Pleader, Mr. Sarma relied upon the decision of the Privy Council in Bhagchand v. Secretary of State, AIR 1927 PC 176 wherein Their Lordships of the Privy Council pointed out that:
"The Act, albeit a procedure Code, must be read in accordance with the natural meaning of its words. Section So is express, explicit and mandatory, and it admits of no implications or exceptions."
This decision has been referred to by the Supreme Court in the recent decision reported in S.N. Dutt v. Union of India . But Mr. Jalil Ahmed, the learned counsel for the appellant contended that this suit is a proceeding which is merely a continuation of the proceeding before the Talukdar and is in the nature of the appeal and that, if that be so notice under Section 80 Civil Procedure Code is not necessary. He drew our attention to Order 21, Rule 63 Civil Procedure Code, which, according to him, is analogous to Section 6 of the Government Demands Act.
In Raja of Damnad v. Subramaniam Chettiar, ILR 52 Mad 465 : (AIR 1928 Mad 1201), the question arose whether a suit should fail for the reason that notice under Section 49 (i) of the Madras Court of Wards Act was not given by the plaintiff therein before instituting a suit under Order 21, Rule 63, Civil Procedure Code. At p. 183 (of ILR Mad) : "(at p. 1207 of AIR), Phillips, J., after referring to Section 49 (1) of the Court of Wards Act, held that a suit under Order 21, Rule 63 Civil Procedure Code to set aside the order of the Court dismissing the claim petition must be deemed to be a continuation of those claim proceedings and that, therefore, no fresh notice required by Section 40 (i) of the Court of Wards Act is necessary. The learned judge referred to the observations of the Privy Council in Phulkumari v. Ghanshyam Misra, ILR 35 Cal 202. This decision was referred to and the same principle was applied by another Division Bench of the Madras High Court in Venkataraju v. Suryanarayana, 1942-2 Mad LJ 791 : (AIR 1943 Mad 248). The question there was whether a claim suit filed under Order 31, Rule 63 was in the nature of an appeal against the order passed in the claim petition. In considering that question, the learned judges also referred to the decision of the Privy Council in ILR 35 Cal 202. (PC) and held that a suit brought under Order 21, Rule 63 cannot be dissociated from the claim petition which gives rise to it and is in fact an action in the nature of an appeal from the order passed on the claim petition.
These two decisions were referred to by Somayya, J., in Mahomed Yusuf v. Province of Madras, AIR 1943 Mad 341. The question that arose for decision in that case was whether notice under Section 80 Civil Procedure Code was necessary before instituting a suit under Order 21, Rule 63 Civil Procedure Code to set aside an order passed on a claim petition. The decision in ILR 52 Mad 465 : (AIR 1928 Mad 1201) was referred to by the learned judge, who pointed out that Section 49 (1) of the Court of Wards Act is quite similar to Section 80 C.P.C. and held, that on a parity of reasoning, a notice under Section 80 C.P.C. need not be given before a suit under Order 21, Rule 63 could be filed.
It is, therefore necessary to see whether this suit under Section 6 of the Government Demands Act is a continuation of the proceedings instituted by the Taluqdar under that Act. Section 2 specified the demands recoverable under the Act. Section 3 prescribes that the Taluqdar of the District in which a person resides or in which any sum is recoverable from such person shall prepare a memorandum in the form set forth in the 1st schedule specifying the reasons therefor and shall sign it and affix the office seal to it. Section 3 further states that such memorandum shall be deemed to be a decree by a Court against that person in favour of the Government and that the Taluqdar may recover the demand mentioned in the Memorandum in accordance with the procedure relating to the execution of decrees and shall be deemed to be a Court for the purposes of the recovery proceeding and that all provisions relating to the proceedings in the passing of decrees shall apply to such proceeding. Section 4 prescribes that a copy of the memorandum shall be served on the defaulter and that within two months from the date of such service, it will be open to that person to make any objection, he thinks fit, to the memorandum and to the recovery of any amount from him.
If any such objection was raised before or after notice, the Taluqdar shall hear his objections, take such evidence as may be produced by such person and make necessary enquiry and pass an order for the memorandum to stand or to be modified or set aside and for the costs of the inquiry. This is prescribed by Section 5 of the Act which further states that the Taluqdar shall for the summoning of the witnesses and for making inquiry have all the powers which a Civil Court has in civil suits in respect of such matters. Then Section 6 is the Section under which the present suit is filed and is as follows: -
"If such person is aggrieved by such order, he may institute a suit against the Government in this Court of the District Judge for setting aside the order or for the refund of the sum realised in execution of the memorandum within one year from the date of the order or of the memorandum or of the realisation of the sum, as the case may be, if no order is passed within one year from the date of the objection. But if such District Judge is the Taluqdar himself, such suit shall be instituted in the Court of the Divisional Judge, and it may also be beard by the Assistant Divisional Judge. The Court may pass such order as it may seem proper and may, at any time before the execution of the memorandum or order, make an order for the stay of execution subject to the same conditions as would apply to an appellate Court in appeal regarding staying of execution of judgment under appeal."
The suit prescribed by this Section is one to set aside the order of the Taluqdar passed under Section 5 of the Act or for refund of the sum realised in execution of the memorandum. The period of limitation for such a suit is one year from the date of the order of memorandum or of the realisation of the sum as the case may be. The suit had to be filed in the Court of the District Judge; but if such District Judge himself was the Taluqdar whose order was sought to be set aside, such suit shall be instituted in the Court of the Divisional Judge and it may also be heard by the Assistant Divisional Judge. Section 6 further states that the Court may pass an order at any time staying the execution of the memorandum subject to the same conditions as would apply to an Appellate Court in appeal regarding staying of execution of judgment under appeal.
From these sections, it is quite clear that the Taluqdar, when preparing the memorandum or when hearing the objections or when making necessary enquiries under Section 5 of the Act, has to be deemed to be a Civil Court. There is a provision for the appointment of District Judges as Taluqdars functioning under the provisions of this Act. The District Judge, before whom the suit under Section 6 of the Act is filed, is vested with all the powers of an appellate Court so that any order passed by the Taluqdar under Section 5 or any memorandum prepared by the Taluqdar under Section 3 are virtually under appeal in the suit before the District Judge or the Divisional Judge or the Assistant Divisional Judge, where the District Judge is a Taluqdar. In the face of these provisions, there cannot be any doubt that the suit filed under Section 6 of the Act is really a continuation of the proceeding initiated by the Taluqdar under the Act. If that be the real position and if the view taken in the decisions of the High Court of Madras above referred to are to be followed, then no notice under Section 80 Civil Procedure Code would be necessary before the present suit is filed under this Act.
4. But Mr. Sarma appearing for the learned Government Pleader very strongly relied upon the language of Section 80 Civil Procedure Code and submitted that it applies to all suits filed in a Civil Court whether as prescribed by any other Act or under the general law under Section 9 Civil Produce Code. He urged that the view taken by the High Court of Madras in the cases above referred to is wrong and that they require reconsideration. In the alternative, he contended that even assuming that the principle laid down in those decisions is correct, they do not apply to the present case, because in the present case, the proceedings initiated by the Taluqdar are not by a Civil Court but by a revenue officer and that, therefore, the suit which is filed in the Civil Court cannot be held to be a continuation of the proceeding initiated by the Revenue Department of the Government.
In support of this argument, he relied upon the decision of Varadachariar, J., in Doraisingham v. Muthayya Chettiar, AIR 1036 Mad 583. There the question arose under Section 49 of the Madras Court of Wards Act. That suit was filed under the Survey and Boundaries Act and it was filed without giving notice prescribed by Section 49 of Madras Court of Wards Act. The learned Judge no doubt distinguished the decision in ILR 52 Mad 465 : (AIR 1928 Mad 1201). He held that a suit filed under Section 14 of the Survey and Boundaries Act stands on a different footing from a claim suit, at least for one reason, viz., whereas in a claim suit the prior proceedings will ordinarily be in a Civil Court, the survey proceedings cannot reasonably be regarded as proceedings in a Civil Court. Similar is the view taken by Happell. J,. in Madras Province v. Maharaja of Jeypore, AIR 1943 Mad 284. In that case also suits were filed under Section 14 of the Madras Survey and Boundaries Act without giving notice as required by Section 80 Civil Procedure Code. The learned judge held that the suits were not maintainable for want of notice under Section 80 Civil Procedure Code. He referred to the decision of Varadachariar, J., in AIR 1936 Mad 583 as well as the decision in ILR 52 Mad 465 ; (AIR 1928 Mad 1201), But as we have pointed out, the proceedings under the Government Demands Act are very similar to the proceedings in a Civil Court under Order 21 Rule 63 Civil Procedure Code. No distinction on principle could be made between the present case and the cases in ILR 52 Mad 4(35 : AIR 1928 Mad 1201); 1942-2 Mad LJ 791 : (AIR 1943 Mad 248) and AIR 1943 Mad 341. The principle laid down in ILR 52 Mad 465 : (AIR 1928 Mad 1201) and the other cases referred above is applicable on a parity of reasoning, having regard to the fact that the proceedings instituted by the Taluqdar and the enquiry made by him and the order passed by him under Section 5 are really in the nature of proceedings in a Civil Court. This principle was first laid down in the decision in ILR 52 Mad 465 : (AIR 1928 Mad J 201) and it does not appear to have been challenged in any subsequent case. Therefore, we would follow it. Though prima facie off the language of Section 80 Civil Procedure Code it appears that that section applies to all suits without any exception, still in view of the principle laid down in the decisions referred to above, wo hold that notice under Section 80 Civil Procedure Code is not necessary in the present case, as the suit in the present case is only a continuation of the proceedings initiated by the Taluqdar and is in the nature of an appeal against the memorandum issued by the Taluqdar or the order made by him.
5. The appeal is allowed find the judgment and decree of the lower Court are set aside and the suit is remanded to the lower Court for trial and disposal in accordance, with law. Costs will abide the result. A certificate for refund of the Court-fee paid on the memorandum of appeal shall be issued to the appellant.
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