Agarwala, J.:— The plaintiff-respondent instituted a suit in the Court of the Munsif of Barh to recover the rent of a holding. The rent of the holding in suit is payable in equal shares to the proprietors of two estates one of which is a khas mahal. The Secretary of State was impleaded as a pro forma defendant but no notice under Section 80 of the CPC, was served on him. On objection taken in the trial Court the learned Munsif held that non-compliance with S. 80 barred the maintenance of the suit. The plaint was therefore rejected. On appeal by the plaintiff to the District Judge of Patna, the learned District Judge has held that as no relief was claimed against the Secretary of State notice under S. 80 was not necessary. In coming to this conclusion the learned Judge has taken into consideration the fact that the notice required by S. 80 must state among other things the cause of action and the relief which the plaintiff claims. In the view of the learned Judge, these requirements of the section indicate that where no cause of action against the Secretary of State is alleged, and no relief is sought as against him, no notice is required. I am unable to accept this interpretation of this section. S. 80 deals with two, classes of suits, (a) suits against the Secretary of State for India in Council and (b) suits against a Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity. With regard to both these classes of suit the section is clear and peremptory that notice must be served on the Secretary of State or on the Public Officer, as the case may be, as a condition precedent to the institution-of the suit. The learned District Judge referred to an observation in 57 Cal 1127(1) at p. 1134 where the learned Chief Justice of the Calcutta High Court in a suit against an Official Receiver, indicated that there may be cases against Public Officers, which do not require notice, and that suits ex contractu against Public Officers would fall within that class of cases. It is doubtful whether that proposition can be maintained in view of the decision of the Privy Council in 61 Cal 470(2), at p. 475, where Sir George Lowndes said:
The learned Subordinate Judge held that the section had no application to suits in contract, and this dictum was rightly repelled by Mukerji, 3., who delivered the judgment of the High Court. Having regard to the decision of this Board in 51 Bom 725(3), their Lordships think that no such distinction is possible.
2. In the Bombay case referred to, at p. 747 of the report, Viscount Sumner said:
Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. A suit in which inter alia, an injunction is prayed is still ‘a suit’ within the words of the section, and to read any qualification into it is an encroachment on the function of legislation.
3. To accept the interpretation of the learned District Judge in the present case would entail reading into the section a qualification that in a suit against the Secretary of State notice is not required where no relief is sought as against him. It is impossible to insert these words in the section or to read the section as if these words found a place in it. The words of the section are perfectly unambiguous that no suit shall be instituted against the Secretary of State until two months after notice of the suit has been served upon him. There is no qualification of this requirement and no qualification can be read into the section.
4. The order of the learned District Judge remanding the case to be disposed of on the merits will therefore be varied to this extent: that the name of the Secretary of State will be expunged from the action. The appellant is entitled to his costs in this Court and in the Court below.
5. Varma, J.:— I agree.
B.D/R.K
6. Order varied.