JUDGMENT
(Delivered by The Chief Justice.)
The first and second respondents are the proprietors of the village of Karaikudi. They instituted a suit in the Court of the District Munsif of Devakottai against the Provincial Government and the Municipal Council of Karaikudi for a decree setting aside a decision of a Survey Officer under the Madras Survey and Boundaries Act 1923. S. 14 of the Act gives an aggrieved party the right of bringing a suit to challenge a decision of the Survey Officer, provided he does so within three years from the date of the notification of the order. The suit was filed on the 13th September 1936, which was within the time allowed, and the plaintiffs averred that they had given to the defendants the notice required by law. The defendants filed separate written statements on the 3rd February 1937, but no objection was taken by them to the validity of the notice. Before the District Munsif a question arose with regard to the value of the subject matter of the suit and it was eventually decided that the value exceeded that of the pecuniary jurisdiction of the District Munsif. Consequently, on the 30th November, 1938 the plaint was returned to the plaintiffs for presentation to the Court of the Subordinate Judge of Devakottai. It was presented to the Subordinate Judge's Court on the 13th September, 1939. On the 23rd March, 1940, the Municipal Council filed a fresh written statement and their example was followed by the Provincial Government on the 29th of that month. In the new written statements objection was taken to the validity of the notice. A preliminary issue was framed on this question on the 12th November, 1940 and was decided by the Subordinate Judge in favour of the plaintiffs. The case was then tried on the merits and resulted in the order of the Survey Officer being set aside. The appeal has been filed by the Provincial Government against this decree. The Municipal Council, as the third respondent, supports the appellant.
The Provincial Government says that the notice which it received did not comply with the requirements of S. 80 as it was only given on behalf of one of the proprietors, whereas there are admittedly two proprietors. The Subordinate Judge held that it sufficiently indicated that there were two proprietors; but here he clearly erred and the learned Counsel for the plaintiffs-respondents rightly has made no attempt to support the judgment on this ground. The Subordinate Judge also held that the defendants had waived their right to question the notice and that in any event they were estopped by their conduct from saying that it was bad. The plaintiffs-respondents maintain that here the Subordinate Judge was right.
S. 80 of the Code of Civil Procedure says that no suit shall be instituted against the Crown or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiry of two months next after notice in writing has been given of the claim. The section requires that the notice shall state the cause of action, the name, description and place of residence of the plaintiff and the relief that he claims and that the plaint shall contain a statement that the notice has been served. S. 350 of the Madras District Municipalities Act 1920, contains similar provisions with regard to suits against Municipal Councils. Before the decision of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India (1) there was some divergence of opinion in India with regard to the interpretation of S. 80 of the Code of Civil Procedure, but their Lordships' decision in that case set all doubt at rest. They said that the section is express, explicit and mandatory, and it admits of no implications or exceptions. They added that it imposes a statutory and unqualified obligation upon the Court.
Before dealing with the question of waiver and estoppel, we may mention that in the course of his arguments on behalf of the plaintiffs-respondents Mr. V. Ramaswami Ayyar suggested that notice given on behalf of one of the plaintiffs was a sufficient compliance with the section, and in this connection he referred to the decision of this Court in Secretary of State for India in Council v. Perumal Pillai (2) where it was held that a notice was not invalid because it only proceeded from two out of three joint owners. That case was decided long before the judgment of the Privy Council in Bhagchand Dagadusa v. Secretary of State for India . The question has, however, been raised in this Court since the pronouncement of their Lordships. In Appa Rao v. Secretary of State for India (3) Sundaram Chetty J. held that where the notice had been given by only one of two plaintiffs who had instituted a suit against the Secretary of State, it was not a compliance with the section; and his judgment was upheld by a Division Bench in an appeal under Cl. 15 of the Letters Patent: Sree Rajah Venkata Rangiah Appa Rao Bahadur v. The Secretary of State for India (4). That judgment is binding on us, but we may add that we find ourselves in complete agreement with it. As S. 80 requires the notice to state the name of the plaintiff, the names of all when there are more than one must be given.
Support for the argument based on waiver and estoppel is to be found in the decision of the Bombay High Court in Hirachand Himatlal v. Kashinath Thakurji (5), in that of the Calcutta High Court in Purna Chandra Sarkar v. Radharani Dassya (6) and in that of the Patna High Court in Ramnarain Prasad… v. Ram Kishun Prasad…. (7). But we consider that the learned Judges who decided those cases had not sufficient regard to the wording of S. 80 and to its interpretation by the Judicial Committee in Bhagchand Dagadusa v. Secretary of State for India . In Hirachand Himatlal v. Kashinath Thakurji a Division Bench of the Bombay High Court held that delay in objecting to the notice under S. 80, even of long duration would not be a ground in itself for holding that the notice had been waived, but if the plaintiffs were prejudiced by the delay it would be another matter and in such circumstances the defendant must be deemed to have waived his right to notice. In that case the objection to the notice had been taken at such late stage that a fresh suit would have been time-barred. It was in these circumstances that the Court considered that the doctrine of waiver operated. The decision of the Calcutta High Court in Purnachandra Sarkar v. Radharani Dassya was to the same effect and based on similar facts. The reasoning of the Patna High Court in Ramnarain Prasad… v. Ram Kishun Prasad…. was also the same.
S. 80 says expressly that no suit shall be instituted until the expiration of the two months after the notice. Therefore, if the notice given is defective as is the case here, the section has not been complied with, which means that the Court has no jurisdiction to try the action. The language of the section is in the imperative and consequently there can be no question of waiver and no question of estoppel. It is very desirable, of course, that the defendants should take an objection at the earliest possible moment, but failure to do so will not deprive the section of its force. If the section works hardship it is for the Legislature to remedy it as the Privy Council has pointed out. Support for our opinion is to be found in the judgment of Venkataramana Rao J. in Marina Ammayi v. Secretary of State for India in Council (8) where it was held that it was not open to a Collector to waive a plea as to want of proper notice under S. 80. In that case the suit was filed before the expiration of the two months. The objection was not taken until the trial had commenced. The learned Judge said that having regard to the imperative nature of the provisions of the statute it was not open to the Collector to waive the requirements of the section and referred to the decision of the Privy Council in Gaekwar Baroda State Ry. v. Hafiz Habib-ul-Haq . In that case a suit had been filed against the Gaekwar State Baroda Railway through the manager and engineer-in-chief of the undertaking. That official appeared and pleaded that the suit as framed was not maintainable as the Railway was owned by the Maharaja of Gaekwar of Baroda, a sovereign prince, and was managed by his Government. It was pleaded that the privilege under Ss. 86 and 87 of the Code of Civil Procedure had been waived. Their Lordships held that there could be no waiver in such a case. The provisions of Ss. 86 and 87 were imperative and having regard to the public purpose which they serve they could not be waived. The same reasoning applies here.
As the appeal must be allowed on the ground that S. 80 of the Code of Civil Procedure was not complied with, it is not necessary for us to discuss the merits. The appellant is entitled to costs here and below and they will be paid by the plaintiffs-respondents.
N.R.R