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Case Number

Second Appeal No. 787 of 1976

Attorney(S)

For the Appellant: A. Hanumantha Rao, Advocate.
For the Respondent: K. Ramaswamy, Advocate.

Judges

Amareswari, J.

Acts

1971 orissa 227 the rule

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Smart Summary

Structured Summary of the Opinion — Second Appeal

Factual and Procedural Background

The appellant is the plaintiff in Original Suit No. 1208 of 1971 (filed in the Court of First Additional District Munsif, Guntur) and the first respondent in Appeal Suit No. 80 of 1974 (filed in the Court of First Additional District Judge, Guntur). The plaintiff sued for an injunction to restrain the defendants (and their associates) from digging a "bode channel" along a new line (apqs/qs) shown in the plaint plan and to compel adherence to the channel alignment (ab/ac) originally sanctioned by the government. The plaintiff alleged that the proposed new channel would pass through and damage his low-lying land (demarcation No. 195) and that the first defendant had caused the channel to be dug contrary to the sanctioned plan. The plaintiff and another owner made representations to engineering officials and served a registered notice protesting the new channel, but the digging continued.

The first defendant denied responsibility and said the government is responsible for digging the channel. The second defendant (executive engineer, N.S. Canals) denied the plaintiff's allegations, pleaded that land had been acquired for the apqs alignment and that the plaintiff was not entitled to question it, and also pleaded non-joinder of government and non-compliance with Section 80, Civil Procedure Code (CPC).

The trial court framed issues on maintainability against the second defendant without impleading the government, entitlement to injunction, and whether the second defendant was a necessary party. The trial court held that authorities deviated from the approved plan and granted the injunction. The trial court also held that the second defendant was a necessary party and that the suit was maintainable against him without impleading the government. The second defendant appealed, contending non-compliance with Section 80 CPC and non-joinder of government made the suit not maintainable and that the injunction was wrongly granted.

The lower appellate court agreed that notice under Section 80 CPC could not be waived and that the suit was not maintainable for want of such notice and for not impleading the government; it nonetheless considered the merits and found that an injunction should have been granted, but dismissed the suit on maintainability grounds. The plaintiff filed this second appeal against the appellate court's dismissal.

Legal Issues Presented

Whether notice under Section 80, CPC is mandatory and whether that notice can be waived in suits against the government or public officers sued in their official capacity.
Whether a suit is maintainable against a public officer (the executive engineer) in his official capacity without impleading the government as a party.
Whether the plaintiff was entitled to the injunction sought (i.e., whether the digging of the channel along the new alignment infringed the plaintiff's rights and should be restrained).

Arguments of the Parties

Appellant's Arguments

The appellant (plaintiff) contended that the notice required by Section 80 CPC must be deemed to have been waived on the facts of the case and that the lower appellate court's holding that a Section 80 notice can never be waived is contrary to law.
The second defendant (executive engineer) is a necessary party because he, in his official capacity, was causing the channel to be dug contrary to the commandment plan; therefore the suit should not fail for non-impleading the government.
The trial court was correct in granting the injunction; the digging was contrary to the approved plan and caused loss to the plaintiff.

Respondent's Arguments

The respondent argued that notice under Section 80 CPC is mandatory and cannot be waived, and that in any event the notice was not waived in this case.
If the court holds the suit is maintainable despite the alleged defect, the respondent sought a remand to the lower appellate court to consider the merits properly because the appellate court had not considered the record on merits in view of its maintainability finding.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hirachand Himmatlal v. Kashinath Thakurji, AIR 1942 Bom 339	Held that it is open to the party protected by Section 80 to waive his right to a notice; only the party entitled to notice can waive it.	The court cited it to support the proposition that the protection under Section 80 can be waived by the person for whose benefit it exists.
Vellayan v. Madras Province, AIR 1947 PC 197	Observed that the notice under Section 80 is for the protection of the authority and that the authority may lawfully waive that protection.	Used by the court to show authority for the proposition that a Section 80 notice can be waived by the authority concerned.
Bhagchand Dagdusa v. Secretary of State, AIR 1927 PC 176	Held that Section 80 is to be strictly complied with and is applicable to all forms of action and kinds of relief (including injunctions).	The court recognized this as authority that Section 80 must be complied with but also noted later authorities on waiver; the case was part of the precedent chain discussed.
Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300	Explained test for what is waivable: mandatory provisions conceived in public interest cannot be waived; directory provisions or provisions intended for the benefit of a party can be waived.	The court relied on this analysis to determine whether Section 80 (though mandatory) could be waived when it is intended for the benefit of the party who is entitled to it.
State v. Bamadeb, AIR 1971 Orissa 227 (referring to Sawai Singhai v. Union of India, AIR 1966 SC 1068)	Stated that Section 80 is mandatory and referenced Supreme Court authority, but also noted a current of cases holding that the protection under Section 80 can be waived.	The court used this decision to acknowledge the tension in authorities: Section 80's mandatory character but also decisions supporting waiver by the protected party; it contributed to the court's synthesis of principles.
Sawai Singhai v. Union of India, AIR 1966 SC 1068	Referenced (via State v. Bamadeb) as a Supreme Court decision approving earlier Judicial Committee precedents that emphasized strict compliance with Section 80.	Mentioned as part of the authorities that treat Section 80 as mandatory; the court balanced this with authorities allowing waiver.
Chekka Subrahmanyam v. Union of India, (1950) 2 MLJ 656; (AIR 1951 Mad 416)	Observed (in that case) that the terms of Section 80 are explicit and mandatory and cannot be waived (the court here notes that waiver was not in issue in that case).	The present court distinguished this case, noting that the observation that Section 80 cannot be waived was not directly decided on facts of waiver and therefore did not support an absolute rule barring waiver.
Purna Chandra Sarkar v. Radharani Dassya, AIR 1931 Cal 175	Held that the plea of want of notice under Section 80 must be taken at the earliest opportunity and that a late plea may be deemed waived where it would cause prejudice.	The court cited it to support the conclusion that a defendant who raises Section 80 late may be deemed to have waived the privilege.
Bhola Nath Ray v. Secretary of State, (1912) 16 Ind Cas 849 (Cal)	Held that notice was waived where an objection to the validity of the notice was taken in the written statement but no issue was raised on the point.	The court relied on this decision in reasoning that failure to press the Section 80 point in pleadings/trial can constitute waiver.
Basudeb v. Padmanav, ILR 1959 Cut 258	Held that when an objection under Section 80 is not raised at trial and no issue is joined, the plea must be deemed waived and cannot be raised first on appeal to dismiss the suit.	The court relied on this to support the proposition that raising Section 80 for the first time on appeal is improper where it was not pressed at trial.
Dhian Singh v. Union of India, AIR 1958 SC 274	Noted that where the point was neither taken in written statement nor formulated as an issue it may justify an inference that the objection under Section 80 was waived.	Used to support the inference of waiver where the issue was not taken up at trial.
Lalchand v. Union of India, AIR 1960 Cal 270	Explained that provisions waived in the course of trial cannot afterwards be set up to reverse earlier steps; a party must act consistently with positions taken during litigation.	The court cited this to emphasize that a party who fails to press the Section 80 objection at trial cannot later use it to prejudice the opponent.
Secretary of State v. Pullela Rangaswami, AIR 1938 Mad 583	Held (on its facts) that omission to frame an issue about non-maintainability for want of Section 80 did not amount to waiver where no plea was taken in the written statement.	The present court distinguished this case on its facts, noting that here a plea was taken in the written statement but not pressed; thus Pullela Rangaswami did not advance the respondent's case.

Court's Reasoning and Analysis

The court structured its analysis in two main parts: (A) whether Section 80 CPC is mandatory and can be waived; and (B) whether the suit is maintainable against the second defendant without impleading the government, together with the merits on injunction.

(A) On Section 80 CPC and waiver

The court acknowledged the admitted facts: no Section 80 notice was issued by the plaintiff before filing suit; the second defendant was sued in his official capacity and therefore a Section 80 notice is necessary unless it has been waived.
The court surveyed authorities ranging from cases that emphasize strict compliance with Section 80 to cases holding that the authority entitled to the notice may waive it. The opinion distilled the following principles (explicitly stated in the text):
- In suits against the government or a public officer, notice under Section 80 is necessary.
- Such notice is generally mandatory and should be strictly complied with.
- Even a mandatory provision can be waived if it is intended for the benefit of the party waiving it rather than being conceived in the public interest.
- Section 80 notice is meant for the benefit of the party to whom it is intended and can be waived by that party.
The court considered the competing authorities that suggested Section 80 cannot be waived (for example, Chekka Subrahmanyam) and explained that those authorities did not necessarily decide waiver and thus could not be taken as establishing a blanket rule that waiver is impossible.
Applying the principles to the case facts, the court examined whether the second defendant had waived the right to notice. The court noted:
- A plea about non-issuance of Section 80 was taken in the second defendant's written statement but no issue was framed on this matter at trial.
- No objection was raised by the second defendant about Section 80 at trial, no application was made to amend issues, and the point was not argued before the trial court.
- The suit was tried on merits and the trial court reached findings against the second defendant; the Section 80 point was first pressed before the appellate court at arguments.
The court concluded that, in these circumstances, the second defendant must be deemed to have waived the right to object for want of notice under Section 80 CPC.
The court distinguished authorities (e.g., Pullela Rangaswami) where no plea was taken in written statement, emphasizing that in the present case a plea was taken but not pressed; this factual difference meant the cited authority did not mandate a contrary result.

(B) On maintainability without impleading the government and merits

The court analysed whether the suit was non-maintainable because the government was not impleaded. It noted that the second defendant, the executive engineer, was the person concerned who prepared or regulated the original plan and was the public officer whose conduct the plaintiff sought to restrain in an official capacity.
The court concluded that the second defendant was a necessary party and that a suit could be maintained against him in his official capacity without necessarily impleading the government. Thus non-joinder of the government did not render the suit non-maintainable in the circumstances.
On the merits, the lower appellate court had examined the evidence and found that the plaintiff was entitled to an injunction. The trial court had earlier granted injunctions (including against the first defendant); the first defendant did not appeal. Because the second appellate court (this court) reversed the appellate court's maintainability finding, the court held that the trial court decree should be restored and that the injunction (as framed by the trial court and as confirmed in substance by the lower appellate court) be maintained.

Holding and Implications

Holding: The second appeal is allowed.

The court set aside the lower appellate court's judgment and decree insofar as they dismissed the suit for non-maintainability (lack of Section 80 notice and non-impleading of government). The trial court's judgment and decree were restored. The trial court's injunction (including the restraint as to taking the channel in demarcation No. 195 except along the sanctioned commandment plan alignment or as lawfully altered by competent authorities) was confirmed. No order as to costs was made.

Implications:

Direct effect on parties: the plaintiff's suit is decreed and the injunction against the defendants (including the first defendant, against whom no appeal was preferred) is restored; the second defendant cannot avoid the suit on the ground of lack of Section 80 notice in the specific procedural posture of this case.
On precedent: the court reconciled earlier authorities and held that while Section 80 is mandatory in purpose, the protection it affords may be waived by the party for whose benefit it exists; admissible waiver may be inferred from conduct such as raising the point late, not framing an issue, or not pressing the point at trial. The court reversed the lower court's categorical position that Section 80 can never be waived, distinguishing cases relied on by the lower court where waiver had not been in issue.
The opinion does not purport to lay down an absolute new rule beyond the application to these facts; it affirms that the facts and procedural conduct determine whether waiver can be found and confirms the injunction relief already found appropriate on the merits by the lower appellate court.

Disposition: Appeal allowed; trial court decree restored; no order as to costs.

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Paleti Sivaramakrishnaiah v. Executive Engineer, N.C Canals Sathenapalli, And Another

(1) The plaintiff in o. S. No. 1208 of 1971 on the file of the court of first additional district munsif, guntur and the first respondent in a. S. No. 80 of 1974 on the file of the court of first additional district judge, guntur is the appellant in this second appeal.

(2) The suit filed by the plaintiff is one for injunction restraining the defendants of their associates from getting the bode channel dug in the line shown as qs in the plaint plan or in any other direction except in the direction shown as ab in the plaint plan as sanctioned by the government, the plaintiff is the owner of a land in demarcation no. 195 to the north of the land on his brother one, paleti veeraiah. It is his t case that the line of the field covered by demarcation no. 195 is from the south to north. There is a canal called "53 p. B. Subminor canal". According to the plaintiff two bode canal :according to the plaintiff two bode canals ac and ab shown in the plaint plan have their source from plaint plan have their source from "53 p. B. Sub - minor canal" and they were originally sanctioned by the government to irrigate the lands covered by demarcation nos. 211, 210 and 195. The first defendant who is an adjoining owner got a channel dug up to apq no. 210 as opposed the original bode channel. The plaintiff and another owner by name g. Kotaiah, who were affected by the new channel, approached the second defendant and the engineering department officials and made several representations protesting against the digging of new bode channel apq contrary to the original bode channels ac and ab approved by the government. A registered notice was also issued by the other owner g. Kotaiah protesting against the digging of the new channel apq. In spite of the registered notice the defendants were digging the channel in continuation from point q towards east along the line qs as shown in the plaint plant instead ab approved by the government. The proposed channel according to the plaintiff passes through his land , which is now low lying area and causes a lot of damage to him. The first defendant was trying to dig the channel with the view to save his land and if the channel is dug in the new direction, the plaintiffs land would be affected as the stagnated water cannot be drained away towards south as it is in a higher level. As the new channel was being dug contrary to the approved plan the plaintiff sought an injunction restraining the defendants from proceeding with the digging of the channel.

(3) The first defendant , who is the adjoining owner of the land in demarcation no. 210 filed a written statement contending that he has nothing to do with the digging of the channel as it is the responsibility of the government to dig the channel and provide irrigation water to the land holders and that there was no cause of action against him. The second defendant, who is the executive engineer, n. S. Canals filed a separate written statement contending that the complaint of the plaintiff is not genuine and that the land was acquired along apqs for the purpose of bode channel and the plaintiff is not entitled to question the digging of the channel along apqs. He has also denied the allegation of the plaintiff that the first defendant got the bode channel dug with the help of the second defendant along the lad apq contrary to the approved plan. He further raised a plea in the written statement that the suit should fail as no notice under s. 80 c. P. C. Was given and that he is neither necessary nor a proper party to the suit.

(4) On these pleadings the trial court has framed the following issues: - (1) whether the suit is maintainable against the second defendant without impleading the government as party; (2) whether the plaintiff is entitled for injunction as prayed for and; (3) whether the second defendant is a necessary party to the suit. On issue no. 2, namely, whether the plaintiff is entitled for injunction, after an elaborate consideration of the evidence of p. Ws. 1 to 3 on the side of the plaintiff and the evidence of p. Ws1 and 2 on behalf of the defendants, the trial court held that the original commandment plan was not adhered to and that the p. W. D. Authorities deviated from the original courses of ab channel and adopted the new course apqs infringing upon the land of the plaintiff. In that view the trail court has granted injunction against the defendants as prayed for.

(5) As regards the other two issues namely, whether the second defendant is a necessary party or not and whether the suit is maintainable against the second defendant without impleading the government as a party and the trial court held that the second defendant is a necessary party and that the suit is maintainable even though the government has not been implead as a party. In arriving at the said conclusion, the trial court had observed that the original commandment plan ex. B - 1 was prepared under the authority of the second defendant and that since he is the authority concerned regulating the excavation of the bode channel as per the commandment plan he is a necessary party to the suit. The trial court further held that the executive engineer, n. S. Canals, the second defendant is a limb of the government and that it was not necessary that the government represented by the district collector guntur has to be impleaded. In that view the suit was held to be maintainable against the second defendant without impleading the government as a party. It may be noted in this connection that no issue was framed regarding the non issuance of notice under s. 80 , c. P. C. To the second defendant and whether the suit is maintainable without issuing the said notice and consequently no finding was given by the trial court.

(6) Aggrieved by the said judgement and decree of the trial court, the second defendant preferred an appeal before the district judge, guntur. It was contended by the second defendant that the suit against him is not maintainable as no notice under s. 80 c. P. C. Was issued before filing of the suit and the suit is bad for not impleading the government as a party. It was also contended on merits that the trial court was in error in granting the injunction.

(7) On the other hand it was contended on behalf of the plaintiff that in the circumstances of the case, the second defendant must be deemed to have waived the notice under s. 80 c. P. C. Though this plea was taken in the written statement no issue was framed and the second defendant has not caused this issue to be framed nor was this matter canvassed before the trail court. It was further contended on behalf of the plaintiff that the second defendant was a necessary party and that the suit is maintainable even though the government has not been made party to the suit. On merits it was contended on behalf of the plaintiff that the trial court was perfectly right in holding that the defendants were digging the channel contrary to the commandment plan with a view to cause loss to the plaintiff.

(8) The lower appellate court has agreed with the contentions of the second defendant and held that the three cannot be a waiver of notice under s. 80. C. P. C. And since no notice issued under s. 80, c. P. C. , the suit is not maintainable. The lower appellate court further held that without impleading the government it is not proper to claim a relief against the public officer in his official capacity and that the suit is not maintainable without impleading the government as a party. The lower appellate court has also considered the case on merit, and gave a finding that the plaintiff is entitled to an injunction. But in view of the finding the notice under s. 80 has not been given and the government has not been made a party, the suit was dismissed. Hence the second appeal by the plaintiff.

(9) In this second appeal, sri hanumantha rao, the learned counsel for the appellant has raised three contentions. (1) notice under s. 80, c. P. C. Must be deemed to have been waived in the circumstances of the case and that the finding of the lower appellate court that notice u/s. 80, c. P. C. Can never be waived is contrary to law (2) the second defendant is a necessary party to the suit as it was he who in his official capacity, was getting the channel dug contrary to the commandment plan approved by the government and that the suit cannot fail for not, impleading the government as defendant. (3) the trial court was right in granting injunction as prayed for by him.

(10) On the other hand it is contended by sri rama swamy the learned government pleader appearing for the second respondent that notice under s. 80, c. P. C. Is mandatory and cannot be waived under any circumstances and that in fact it was not waived in the present case. He further contends that in case it is held that the suit is maintainable, the matter has to be remanded to the lower appellate court for considering the case on merits as the lower appellate court has not considered the evidence of record in the view it has taken that the suit is not maintainable for want of proper notice in the absence of government as a party.

(11) The first question that arises for consideration in this case is whether notice under s. 80 c. P. C. Is mandatory and can never be waived. It is admitted by both the parties that no notice was issued under s. 80 c. P. C. Before filing the suit by the plaintiff. It is also conceded by the learned counsel for the appellant that the notice issued by p. W. 2 to the second defendant under s. 80 c. P. C does not ensure to the benefit of plaintiff. It is further conceded by the learned counsel for the appellant that a notice under s. 80 c. P. C. Is necessary since the second defendant was sued in his official capacity as representing the government. On these admitted facts the short of question that has to be determined is whether a notice under s. 80 c. P. C. Can be waived and having regard to the circumstances of the case can it be said that it has been waived.

(12) At this stage it is useful to note some decided cases bearing on this question.

(13) In hirachand himatlal v. Kashinath thakurji, air 1942 bom 339 a division bench of the bombay high court observed that

"it is open to the party protected by s. 80 to waive his right to a notice. But only he can waive notice, and the 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."

(14) In vellayan v. Madras province air 1947 pc 197 it is observed as follows: -

"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"

(15) In bhagchand dagdusa v. Secy. Of state air 1927 pc 176 it was held that

" s. 0 is to be strictly complied with and is applicable to all forms of action and all kinds of relief."

. In the said case, the plaintiff filed a suit for injunction before the expiry of two months time against an official in respect of an act purporting to have been done in discharge of his duties. It was contended that s. 80 is not applicable to cases where relief of injunction is claimed. It was held that a notice is necessary under s. 80 even in a case for injunction.

(16) In dhirendra nath v. Sudhir chandra, air 1964 sc 1300 considering the question whether a mandatory provision can be waived it as observed as follows (at p. 1304) : -

"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. A waiver is an international 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. Even if it is assumed that the provision in s. 35 is mandatory, on a true construction of that section. It is clear that it is intended only for the benefit of the judgement debtor and therefore he can waive the right conferred on him under that section."

(17) In state v. Bamadeb, air 1971 orissa 227 the rule is stated as follows (at p. 228) : -

"that a notice under s. 80 c. P. C is mandatory and the question is no more open to doubt in view of the decision of their lordships of the supreme court in air 1966 sc 1068, sawai singhai v. Union of india. The decision of their lordships of the judicial committee in air 1927 pc 176, bhagchand dadgusa v. Secy. Of state was approved in the aforesaid supreme court decision, but there is also another current of judicial thought which cannot be ignored, courts have taken the view that the protection available under s. 80 c. P. C. Either to the state government or a public officer can be waived."

(18) From all these decisions the following principles emerge. In suits against the government or against a public officer in discharge of his official duties notice under s. 80 c. P. C. Is necessary. Such a notice is mandatory and should be strictly complied with/ 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. Notice under s. 80 c. P. C. Is meant for the benefit of the party to whom it is intended. Notice under s. 80 can be waived by the party for whose benefit it is intended.

(19) Sri rama swamy, the learned counsel for the respondent has invited my attention to a decision of the madras high court in chekka subrahmanyam v. Union of india, (1950) 2 mlj 656 : (air 1951 mad 416) , where it is observed that the terms of s. 80 c. P. C. Are explicit and mandatory and cannot be waived". In fact this is the decision which was relied upon by the lower court for holding that a notice under s. 80 c. P. C. Can under no circumstances be waived and the lower court felt that this being a ruling of the madras high court prior to 1954 it was binding. But it is to be seen here that the question of waiver did not arise in this case. The facts were that the plaintiff issued a notice to the defendant - union of india asking the latter to pay a particular sum with interest at 6 % per annum and that if the said sum is not paid within two months from the date of the notice a suit would be filed in due course for recovery thereof. To the said notice an objection was raised by the defendants that it is not stated therein that the suit will be filed against the governor - general in council and that the provision of s. 80 are mandatory and since it is not stated that the suit will be against the governor - general of council s. 80 is not complied with, while holding that the terms of s. 80 are mandatory the learned judges have held that the notice issued by the plaintiff was in accordance with s. 80 merely because he did not mention that the suit will be against the governor - general in council it cannot be said that s. 80 was not complied with. In that connection an observation was made that the provisions of s. 80 c. P. C. Are explicit and mandatory and cannot be waived. The question of waiver as such did not fall for consideration in that case. On the other hand the contention was that s. 80 was not complied with. The only question before the court was whether the notice issued by the plaintiff in that case was in strict compliance with s. 80 or not. Having regard to the term s of the notice it was held that the notice did not conform with the requirements of s. 80. The observation that the notice under s. 80 cannot be waived is only causal as the question of waiver has not cropped up. The decision in vellayan v. Madras province, air 1947 pc 197 is an authority for the proposition that a notice under s. 80 can be waived by the person for whim the said notice is intended. Having regard to the various decisions, the finding of the lower appellate court that a notice under s. 80 c. P. C. Cannot be waived is not sustainable.

(20) The next question that has to be considered is whether it can be said that notice was waived in the present case. No finding is given by the lower appellate court in this regard. But it is unnecessary to remand this case on that ground as the question is one of inference from admitted facts. In the present case though a plea was raised in the written statement, no issue was framed. No objection was taken by the second defendant on this score nor any application made for amendment of the issues. The second defendant has not taken this point at the trial of the suit nor was it argued before the trial court. In these circumstances i am not of the opinion that the second defendant must be deemed to have waived the notice. The suit was contested on merits and a finding has been given by the trail court that the second defendant by his action is causing wrongful loss to the plaintiff and should therefore be restrained by an injunction. The plea of want of notice does not even appear to have been raised in the grounds of appeal before the appellate court, but taken for the first time at time of arguments in the appeal. In these circumstances, i am of the opinion that the second defendant must be deemed to have waived the notice.

(21) In purna chandra sarkar v. Radharani dassya, air 1931 cal 175 it is observed that 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 pleased. 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. "

(22) In bhola nath ray v. Secretary of state, (1912) 16 ind cas 849 (cal) it was held that

"notice was waived on behalf of the secretary of state, where in the written statement of the secretary of state in suit, an objection was taken to the validity of the notice, but no issue was raised upon the point."

(23) In state v. Bamadeb, air 1971 orissa 227 it was held that the notice under s. 80, c. P. C. Can be waived and the raising of a plea in the written statement and not joining an issue in the trail court was held to be waiver. The orissa high court relied upon an earlier decision of the same high court in basudeb v. Padmanav, ilr 1959 cut 258 wherein it was held that

"when an objection that a suit is not maintainable in the in the absence of a notice under s. 80 is not raised in the trial court and no issue is jointed on this point and the suit is decreed the plea as to want of notice must be deemed to have 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."

(24) In dhian singh v. Union of india, air 1958 sc 274 it was stated that "it is relevant to note that neither was this point taken by the respondent in the written statement which it filed in answer to the appellants claim not 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.

(25) Mr. Justice mitra of the calcutta high court in lalchand v. Union of india, air 1960 cal 270 stated that "if the provisions of law were waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or about to be taken upon the footing of waiver. When the litigant had, without mistake, induced by the opposite party, taken a particular position in the course of litigation, he must act consistently with it, especially, if to allow him to do otherwise would prejudice the opponent. If mr. Ghosh therefore wanted to rely on the invalidity or insufficiency of the notice under s. 80, c. P. C. It was for him to raise a specific issue on this question.

(26) In view of this catena of decisions i am of the opinion that the lower appellate court was wrong in allowing the plea of waiver for the first time to be raised in the appeal at the time of arguments and the second defendant must be deemed to have waive the notice in the circumstances of the case.

(27) The learned counsel for the respondent has invited my attention to a decision in secy. Of state v. Pullela rangaswami, air 1938 mad 583 wherein it was held that omission to frame an issue that the suit is not maintainable for want of notice under s. 80, c. P. C. Does not amount to waiver of the plea on behalf of the respondents. But the facts of the said case are different. That is a case where no plea was taken in the written statement about the non - maintainability of the suit. But in the present case a plea of want of notice under s. 80 though specially taken in the written statement was not pressed as an issue either at the time of framing of the issue or at the time of trial of the suit. It is not a case of omission on behalf of the respondents, but the circumstances clearly show that the said plea having been raised was not pressed. Further the decision appeals to have proceeded on the footing that there cannot be a waiver of the plea as the provisions of s. 80, c. P. C. Are mandatory. Hence that decision in my view does not advance the case of the respondent.

(28) The next contention of the learned counsel for the appellant was that the lower appellant court was in error in holding that the suit is not maintainable without impleading the government as a party. The submission of the learned counsel for the appellant has considerable force. The second defendant is the executive engineer, m. S. Canals, sathenapalli, it is under his authority that the original plan was prepared. The relief prayed for by the plaintiff is to restrain the second defendant from digging to bode channel contrary to the commandment plan. Hence the second defendant is the person concerned regulating the excavation of the bode channel. He is a necessary party to the suit and he represents the government. The injunction that is sought for is against the second defendant as a public officer in his official capacity. In these circumstances, i an of the opinion that the suit cannot be said to be non maintainable merely because the government is not made a party.

(29) The last submission made on behalf of the appellant was that the suit should be decreed as the finding of the lower appellate court on merits in the his favour. The lower appellate court has considered the question of grant of injunction under issue no. 3 whether the plaintiff is entitled for an injunction as prayed for. Even though the suit is held to be not maintainable, the lower appellant court has considered the question on merits and after considering the evidence on record it has held that the defendant should be restrained from taking the channel in demarcation no. 195 except along the alignment as per the commandment plan or as per the alignment that may be changed if necessary by the concerned authorities from time to time. In view of this finding of the lower appellate court on merits i think that it is unnecessary to remand the case to the lower appellate court for a fresh consideration. On merits both the courts have given a finding in favour of the plaintiff. While the trial court decreed the suit of the plaintiff the lower appellate court dismissed the same on the ground that it is not maintainable for want of proper notice under s. 80, c. P. C. , even though no merits it has held that the plaintiff was entitled for an injunction. Since the finding of the lower appellate court that the suit is not maintainable is reversed by me, it follows that the plaintiffs suit has to be decreed. The finding of the lower court that the second defendant is restrained from taking the channel in demarcation no. 195 except along the alignment as per the commandment plain is hereby confirmed. The trial court has granted in injunction even against the first defendant. The first defendant has not chosen to prefer any appeal against the said decree and judgement. Hence the lower appellate court was not right in vacating the injunction as against the first defendant.

(30) In the result, the second appeal is allowed, the judgement and decree of the lower appellate court in so far as it relates to the maintainability of the suit is set aside and the judgement and decree of the trail court are restored. There will be no order as to costs.

(31) Appeal allowed.

Paleti Sivaramakrishnaiah v. Executive Engineer, N.C Canals Sathenapalli, And Another

Structured Summary of the Opinion — Second Appeal

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Paleti Sivaramakrishnaiah v. Executive Engineer, N.C Canals Sathenapalli, And Another

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