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Smt. Raj Kumari v. Board Of Revenue, U.P, Allahabad And Others
Structured Summary of the Opinion
Factual and Procedural Background
This petition under Article 226 challenges the Board of Revenue's order dated 10-3-1977 and an Additional Commissioner order dated 18-6-1973. The underlying civil suit (filed under S. 209 of the U.P.Z.A. and L.R. Act) was brought by the petitioner together with Om Prakash for ejectment of respondents 4 and 5 from plot Nos. 11/6/4 (about 23 bighas) in village Pandri Jagir, Pargana Richa, Tahsil Baheri, District Bareilly. The plaintiffs alleged purchase by sale deed dated 22-6-1966 and continued peaceful possession; defendants (respondents 4 and 5) alleged the plaintiffs were not bhumidhars, the sale deed was illegal, the land was not identifiable on the spot, and that they (defendants) had sirdari rights. The plaint also claimed damages.
The State Government filed a separate written statement denying the plaintiffs' claim and specifically objecting that notice under S. 80, C.P.C. had not been given or served on the State, asserting want of maintainability. The trial court framed an issue as to whether notice under S. 80 had been served and its effect. The trial court concluded that although the State filed a written statement, it did not contest the matter further and therefore the want of proper notice under S. 80 did not affect the case. The trial court decreed the suit on 29-9-1972.
Respondents 4 and 5 preferred a first appeal. The appellate authority dismissed the appeal on merits except it held that notice under S. 80, C.P.C. was mandatory and in its absence the suit was defective; accordingly the appeal was allowed on that ground and the suit was dismissed under Order VII, Rule 11, Civil P.C. A second appeal by the petitioner failed, and the petitioner seeks quashing of the Board of Revenue's and Additional Commissioner's decisions by this writ petition.
Legal Issues Presented
- Whether the absence of service of notice under S. 80, Civil P.C. (when the State has been made a party and has filed a written statement but has not pressed the issue or led evidence) can be taken by private defendants to render the plaint defective and justify dismissal under Order VII, Rule 11, C.P.C.
- Whether a plaint that does not claim relief against the State must be rejected under Order VII, Rule 11, C.P.C. for want of compliance with S. 80, C.P.C., even when the State has filed a written statement but subsequently did not press the issue, lead evidence, or appeal.
Arguments of the Parties
Appellant's (Petitioner's) Arguments
- The State of U.P. filed a written statement raising want of notice under S. 80, C.P.C., but thereafter did not lead any evidence or otherwise press that plea in the trial. The petitioner argued that by filing a written statement and then not contesting the matter further (not pressing the issue and not appealing), the State effectively waived the S. 80 notice requirement.
- It was submitted that while S. 80, C.P.C. may be mandatory in form, the State may choose to waive the notice and such waiver binds other parties; therefore private defendants (respondents 4 and 5) cannot raise want of notice after the State has waived it.
- The petitioner relied on several precedents to support the waiver principle (examples expressly relied upon in the opinion include Nirjhin Kumar v. Gram Samaj; Banarsi Ram's case; Gaja v. Das Koery; Ishtiyaq Husain v. Zafrul Islam; Banaras v. Churhu Rai; Vellayan v. Madras Province; Kabul Singh v. Board of Revenue).
Respondents' Arguments
- The respondents contended that service of notice under S. 80, C.P.C. was mandatory because in a suit under S. 209, U.P. Z.A. and L.R. Act the State of U.P. was a necessary party by reason of S. 209(2) as amended by U.P. Act No. XXI of 1961. Consequently, absence of notice rendered the suit liable to be rejected.
- They relied on authorities including State of Madras v. C.P. Agencies, Gangappa Gurupaddappa Gugwad v. Rachawwa, Dhian Singh Shobha Singh v. Union of India, and Shanti Pada Ganguli v. Union of India to press the mandatory nature of S. 80.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nirjhin Kumar v. Gram Samaj (1980 Rev Dec 164 : 1980 UPLT NOC 98) | Where State did not take plea about want of notice before trial court and ex parte decree occurred against State, the plea was deemed waived and could not be raised later on appeal. | The court cited it to support the proposition that the State can waive S. 80 notice and, if it does, private parties cannot later raise want of notice to defeat the suit. |
| Banarsi Ram's case (1964 All LJ 237) | Referenced by counsel; the specific principle as applied in this opinion is not detailed beyond reliance by petitioner. | The opinion records reliance on the authority but does not extract a distinct rule beyond its use among other authorities supporting waiver. |
| Gaja v. Das Koery (AIR 1964 All 471) | Held that the authority for whose benefit a notice has been issued can waive that notice. | Cited as authority for the proposition that the State (or authority protected by S. 80) may waive the notice and hence private parties cannot urge want of notice against maintainability. |
| Ishtiyaq Husain v. Zafrul Islam (AIR 1969 All 161) | Although S. 80 C.P.C is mandatory and notice has to be issued and served, the plea can be waived. | Used to support the conclusion that S. 80 may be waived by the authority entitled to the notice. |
| District Board, Banaras v. Churhu Rai (AIR 1956 All 680) | Division Bench held it is open to a defendant for whose benefit a statutory notice is prescribed to waive it; failure to press the plea in trial or appeals amounts to waiver. | Applied to conclude the State waived the right to insist on S. 80 in this case because it did not press the issue or appeal. |
| Vellayan v. Madras Province (AIR 1947 PC 197) | Stated that while S. 80 provisions are mandatory, the notice meant for the benefit of authorities can be waived by those authorities. | Relied upon to support the proposition that the statutory notice can be waived by the authority for whose benefit it is enacted. |
| Kabul Singh v. Board of Revenue (Writ Petition No. 789 of 1972; judgment dated 19-7-1976) | Held that the State or public authority can waive the notice under S. 80 and such waiver binds other parties. | Cited by the petitioner and treated as supportive authority that the State may waive S. 80 and bar others from raising it. |
| Hira Chand Himmat Lal v. Kashi Nath Thakurji (AIR 1942 Bom 339) | Division Bench held that a party in whose favour S. 80 prescribes notice can waive the right to that notice. | Used to demonstrate an established line of authority permitting waiver by the beneficiary of S. 80. |
| Dhian Singh Shobha Singh v. Union of India (AIR 1958 SC 274) | Supreme Court held S. 80 should be strictly complied with but notice should not be scrutinized in a pedantic manner divorced from common sense (example: amount claimed in notice). | Applied to endorse a pragmatic approach to S. 80 and to support that waiver or non-technical compliance may be recognized where appropriate. |
| Chandu Lal Vadilal v. Government of Bombay (AIR 1943 Bom 138) | S. 80 should be construed with regard to common sense and its object. | Cited to reinforce that strict formality should not defeat substantive rights when the notice's purpose has been served. |
| Julal Mandal v. Union of India (AIR 1978 Patna 42) | Where an issue on want of notice was not pressed by the Government, it amounted to waiver by the Government. | The court regarded this later decision as relevant and consistent with the conclusion that the State waived insistence on S. 80 by not pressing the issue. |
| Shanti Pada Ganguli v. Union of India (AIR 1976 Patna 74) | Referenced in the context of cases on S. 80 and notice; the opinion notes Julal Mandal is later than this decision. | The court observed that Julal Mandal (AIR 1978 Patna 42) is the more relevant authority in similar circumstances. |
| State of Madras v. C.P. Agencies (AIR 1960 SC 1309) | Held that S. 80 is express, explicit and mandatory; its object is to give the Government/public officer sufficient notice of a proposed suit so they can consider the claim. | The court acknowledged this binding principle of mandatory notice, but distinguished the present case because no relief was claimed against the State and the State had effectively waived insistence on S. 80 by its conduct. |
| Gangappa Gurupaddappa Gugwad v. Rachawwa ((1970) 3 SCC 716 : AIR 1971 SC 442) | Supreme Court dictum: If the plaint on its face is barred (e.g., relief against Government but no S. 80 notice shown), the court should reject the plaint; otherwise the court should try issues and such adjudication may operate as res judicata. | The court quoted this dictum and applied its distinction: because no relief was claimed against the State in the present case, the plaint need not be rejected under Order VII, Rule 11 for want of S. 80 notice and the court could adjudicate issues on merits. |
| Banarsi Rai v. D. Ahir (1964 All LJ 239) | Referenced as having expressed a view consistent with waiver of S. 80 by the authority entitled to it. | Used as another supporting authority for the waiver principle. |
Court's Reasoning and Analysis
The court undertook a review of the relevant authorities concerning S. 80, C.P.C. and the effect of a beneficiary authority's conduct when the question of notice is raised. The analysis unfolded in the following steps:
- Acknowledgement of the mandatory character of S. 80 in principle: the court accepted that S. 80 is express and aims to give the State or public officer an opportunity to consider and respond to claims brought against them (citing State of Madras v. C.P. Agencies and other authorities).
- Distinction based on relief actually claimed: the court emphasized the distinction drawn in the Supreme Court's dictum in Gangappa Gurupaddappa Gugwad — if a plaint on its face seeks relief against the Government and does not show S. 80 compliance, the court should reject the plaint; but where no relief is sought against the State, the court should proceed to decide issues on the pleadings and the absence of a formal notice should not automatically result in rejection under Order VII, Rule 11.
- Waiver principle applied to the facts: an extended body of High Court and other decisions (including Banaras v. Churhu Rai, Ishtiyaq Husain, Julal Mandal, and others) was considered to establish that the authority for whose benefit the notice is enacted can waive it. The court found the State had filed a written statement, an issue was framed on the point, but the State did not press that issue, did not lead evidence, and did not file first or second appeals despite the decree being passed against it.
- Conclusion of waiver and error below: on the facts, the court concluded the State had chosen not to press the S. 80 plea and thereby waived the right to insist on strict compliance. Accordingly, it was not open to respondents 4 and 5 (private parties) to urge want of notice to defeat the suit. The Board of Revenue and the Additional Commissioner therefore erred in rejecting the plaint under Order VII, Rule 11 solely on the ground of absence of S. 80 notice.
- Relief limited to the error: having identified the error (illegal rejection of the plaint under O.7, R.11 for want of S. 80 notice), the court allowed the writ petition to quash those appellate orders and to restore the trial court's decree.
The court took care to apply the authorities narrowly to the facts: it did not hold that S. 80 is never mandatory, but held that where no relief is claimed against the State and where the State has effectively waived insistence on the notice (by failing to press the issue, lead evidence or appeal), private parties cannot rely on absence of notice to render the plaint defective.
Holding and Implications
Core Ruling: The petition is allowed — the writ of certiorari is issued quashing the judgment dated 10-3-1977 of the Board of Revenue and the judgment dated 18-6-1973 of the Additional Commissioner insofar as they hold the plaint defective for want of notice under S. 80, C.P.C.
Direct consequences on the parties:
- The trial court's decree dated 29-9-1972 in favour of the petitioners is maintained.
- The appellate orders of the Additional Commissioner and Board of Revenue (to the extent they rejected the plaint under Order VII, Rule 11 for want of S. 80 notice) are quashed.
- There shall be no order as to costs.
Broader implications:
The decision applies established principles from existing authorities regarding (a) the mandatory object of S. 80, C.P.C., and (b) the recognized ability of the authority for whose benefit the notice is prescribed to waive it by conduct (for example, by not pressing the issue, not leading evidence, or not appealing). The opinion does not purport to create a new rule of law; rather, it applies and synthesizes precedents to the facts of this case to hold that the State's conduct amounted to waiver and accordingly private parties may not rely on want of the S. 80 notice where no relief was claimed against the State.
Disposition: Petition allowed.
1. By this petition under Art. 226 of the Constitution, the petitioner has prayed for a writ of certiorari quashing the order dated 10-3-1977 passed by the Board of Revenue in a suit under S. 209 of the U.P.Z.A and L.R, Act (hereinafter referred to as the Act) filed by the petitioner along with Om Prakash for ejectment of respondents 4 and 5 from plot Nos. 11/6/4 area about 23 bighas situate in village Pandri Jagir, Pargana Richa, Tahsil Baheri, District Bareilly. The suit was filed by making allegations that plaintiff purchased the land from Hari Raj Singh by sale deed dated 22-6-1966 and came in possession over the land and continued in possession peacefully, but respondents 4 and 5 i.e, defendants 1 and 2 took possession otherwise then in accordance with law and against the consent of the petitioner in 1375F. The relief for damages was also claimed. Respondents 4 and 5 contested the suit alleging that the plaintiffs were not bhumidhars and the sale deed was illegal and the land was not identifiable on the spot and that the defendants were not trespassers, rather they have acquired sirdari rights. It may also be stated that the defendants did not take any objection about the validity of the notice under S. 80, C.P.C
2. The State Government, however, filed a separate statement denying the plaintiffs claim and also took an objection that notice under S. 80, C.P.C, was not given to or served on the State and that the suit was not maintainable. The trial Court framed issue 1 on the ground whether plaintiff had served notice on the State and in case notice has not been served what is its effect. This issue was, however, replied to the effect that although the State Government has filed the written statement but it did not contest the matter further and hence the validity of the notice under S. 80, C.P.C, does not have any effect on the case. The suit was on merits decreed by the judgment and order dated 29-9-1972.
3. Respondents 4 and 5 preferred a first appeal which was dismissed as regards the other points, but it was held that notice under S. 80, C.P.C was mandatory and on account of the absence of the notice the suit was defective and liable to be dismissed under O. 7, R. 11-D, Civil P.C In this view of the matter the appeal was allowed and the suit of the petitioner was dismissed. The second appeal filed by the petitioner also failed. It is against the judgment of the Board of Revenue dated 10-3-1977 and of the Additional Commissioner dated 18-6-1973 that the present petition has been filed.
4. Sri N.S Singhal appearing for the petitioner has urged that even though the State of U.P was made a party and has filed written statement making objection that no notice was served on the State, but the State did not lead any evidence in support of the plea taken in the written statement. As regards want of notice under S. 80, C.P.C, it was decided by the trial Court on issue 1 that the State did not contest the suit after filing written statement hence the want of proper notice under S. 80, C.P.C, cannot be taken by respondents 4 and 5 particularly when the State of U.P has been made a party to the petition, but it has chosen not to contest the petition. The learned counsel further urged that even though the provision of delivering notice and serving the same on the State as contemplated by S. 80, C.P.C, may be mandatory, but the State has chosen not to lead any evidence and absented after filing the written statement, hence it has waived the notice under S. 80, C.P.C, and that objection cannot be taken by respondents 4 and 5. He relied upon Nirjhin Kumar v. Gram Samaj, 1980 Rev Dec 164 : (1980 UPLT NOC 98) a single Judge decision of this Court where it has been held that where the State of U.P did not take the plea about want of notice before the trial court and the suit was decreed ex parte against the State of U.P and no appeal was filed by the State before the lower appellate court. Hence in the circumstances the plea in regard to want of notice has been waived by the State of U.P and now it was not open to the State of U.P or Gram Samaj to take up this plea at the second appellate stage. He further relied upon Banarsi Ram's case, 1964 All LJ 237 and Gaja v. Das Koery, 1964 All LJ 969 : (AIR 1964 ALL 471) and also reliance was placed on Ishtiyaq Husain v. Zafrul Islam, AIR 1969 All 161 and also reliance was placed on District Board, Banaras v. Churhu Rai, AIR 1956 All 680 and also reliance was placed on Vellayan v. Madras Province, AIR 1947 PC 197. He further relied upon a judgment dated 19-7-1976 in Writ Petition No. 789 of 1972, Kabul Singh v. Board of Revenue (decided by Hon'ble Mr. Justice Banerji) relying upon the relevant authorities pertaining to the want of notice under S. 80, C.P.C, it was held that the State Government or the public authority in whose favour the notice can be given can very well choose to waive the notice and it is not open to private parties to raise that objection. It is open to the party protected by S. 80, C.P.C, to waive his rights and the waiver binds the rest of the parties.
5. Sri Shripat Narain Singh, appearing for the respondents urged that the service of notice on the State was mandatory as in a suit under S. 209, U.P.Z.A and L.R Act, the State of U.P was a necessary party in view of the provisions of S. 209(2) as amended by U.P Act No. XXI of 1961. He relied on the State of Madras v. C.P Agencies, AIR 1960 SC 1309, Gangappa Gurupaddappa Gugwad v. Rachawwa, (1970) 3 SCC 716 : AIR 1971 SC 442, Dhian Singh Shobha Singh v. Union of India, AIR 1958 SC 274 and also on Shanti Pada Ganguli v. Union of India, AIR 1976 Patna 74.
6. I have considered the arguments advanced by the counsel for either side. In District Board, Banaras v. Churhu Rai (AIR 1956 All 680) (supra), a Division Bench of this Court has held that it is always open to a defendant for whose benefit notice prescribed by law to waive it and as such if a plea in regard to the want of notice was not pressed in the trial Court nor the same was raised in the first or second appeal, it would be deemed that the same has been waived. Similar view has been taken in Ishtiyaq Husain v. Zafrul Islam (AIR 1969 All 161) (supra) where Hon'ble S.K Verma, J., as he then was, held that no doubt S. 80, C.P.C is mandatory and notice has to be issued and served on the State before filing a suit, but this plea can be waived also. Similar is the view expressed in Hira Chand Himmat Lal v. Kashi Nath Thakurji, AIR 1942 Bom 339, where a Division Bench of the Bombay High Court held that a party in whose favour S. 80, C.P.C, prescribed notice to be given, can waive his right to the same. Similar is the view taken in Dhian Singh Shobha Singh v. Union of India (supra) where the Supreme Court held that no doubt S. 80, C.P.C, has to be strictly complied with but nevertheless notice should not be scrutinized in a pedantic manner completely divorced from common sense. In that case the controversy was that in the notice under S. 80, C.P.C, only a sum of Rs. 3,500/- was claimed, but later on it was found that the plaintiff was entitled to more than the sum of Rs. 3,500/-. The High Court did not accept the claim of the plaintiff on the ground that he did not claim any amount more than Rs. 3,500/-. In that reference the Supreme Court held that the approach of the High Court was erroneous. It was further held in Chandu Lal Vadilal v. Government of Bombay, AIR 1943 Bom 138 that one must construe S. 80, C.P.C, with some regard to common sense and with the object to which it appears to have been based. Further it has been held in Gaja v. Das Koery (AIR 1964 All 471) (supra) by Hon'ble Ganeshwar Prasad, J. that it is open to the authority concerned for whose genefit the notice has been issued to waive it also. The natural conclusion is that it is not open to other party (i.e, respondents 4 and 5 in the instant case) to urge the want of notice against maintainability of the suit. It is the authority for whose benefit S. 80 has been enacted can raise an objection about want of notice and press the same. Similar view has been taken by Hon'ble Katju, J., in Banarsi Rai v. D. Ahir, 1964 All LJ 239. In Julal Mandal v. Union of India, AIR 1978 Patna 42, it was held in similar circumstances that if an issue was framed by the trial court about the effect of want of notice under S. 80, C.P.C, and the issue was not pressed by the Government, it means that the Government has waived the right to press the same and it was a clear case of waiver and no other private party can press the said issue in respect of want of notice. Similarly in AIR 1947 PC 197, it has been held that the provision of S. 80, C.P.C, are mandatory no doubt, but it does not mean that the notice meant for the benefit of the authorities cannot be waived by the said authorities. In the instant case the State of U.P has filed a written statement and an issue was also framed on the point but it did not press the issue and the suit was decreed even against the State of U.P The State did not file first or second appeal, hence it is clear that the State has waived the plea of notice under S. 80, C.P.C It is not open to respondents 4 and 5 to raise that plea as no prejudice has been caused to them.
7. As regards the decision of the Supreme Court in Gangappa Gurupadappa Gugwad v. Rachawwa, (1970) 3 SCC 716 : AIR 1971 SC 442 (supra) relied upon by the respondents, it is stated that the Supreme Court at page 446, under para 10, has held, the relevant portion is extracted as under:—
“No doubt it would be open to a Court not to decide all the issues which may arise on the pleadings before it, but if it finds that the plaint on the face of it is barred by any law, if for instance the plaintiff's cause of action is against a Government and the plaint does not show that notice under S. 80, Civil P.C claiming relief was served in terms of the said Section it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by S. 80 of the Code is being claimed, it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under S. 80 was necessary. If the Court decides the various issues raised on the pleading, it is difficult to see why the adjudication of the rights of the parties, apart from the question as to the applicability of S. 80 of the Code and absence of notice thereunder should not operate as res judicata in a subsequent suit where the identical questions arise for determination between the same parties.”
8. The aforesaid dictum of the Supreme Court evinces that where a relief is claimed by the plaintiff against the State Government, in that event the delivering of notice is mandatory and in case it has not been done the plaint can be rejected for want of notice, but where no relief has been claimed against the State, the plaint cannot be rejected for want of notice and in that case it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under S. 80, C.P.C, was necessary and the plaint cannot be dismissed under O. 7, R. 11, C.P.C In the instant case also as the relief was not claimed by the petitioner against the State Government hence the plaint need not be rejected under O. 7, R. 11, C.P.C In the State of Madras v. C.P Agencies, AIR 1960 SC 1309 it has been held that S. 80 is express, explicit and mandatory and admits of no implications or exceptions. The object of the section is manifestly to give the Government or the Public Officer sufficient notice of the case which is proposed to be brought against it. It is just to enable the State Government or the Public Officer to consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In that connection it is necessary to inform the State Government or the public officer in respect of the nature of the suit proposed to be filed against it and the facts on which the claim is founded and the precise reliefs asked for. In the instant case no doubt the State Government was made a party but no relief of claim against it nor any interest of the State was involved. The land has not even vested in the State of U.P or the Gaon Sabha. The State of U.P was properly served and it has filed written statement also and taken the plea about want of notice, but it did not pres that issue nor lead any evidence in support of the plea taken. These facts make it abundantly clear that the State has chosen to waive the plea of notice. Julal Mandal v. Union of India, AIR 1978 Patna 42 is a later decision than Shanti Pada Ganguli v. Union of India, AIR 1976 Patna 74 (supra) and I am of the view that AIR 1978 Patna 42, is the relevant authority on the subject under similar situation as in the present case where the issue was not pressed by the State Government about want of notice and later on the Government did not file any appeal and it was held by the Patna High Court that the notice would be deemed to have been waived by the State Government.
9. In the instant case even though an issue was framed on the want of notice under S. 80, C.P.G, and its effect but the said issue was not pressed by the State Government, nor any evidence was led in support of the said issuer. Even though the suit was decreed by the trial court and the said decree was against the State Government also, but no first or second appeal was filed by the State Government either before the Additional Commissioner or the Board of Revenue and the contest remains solely between the petitioner on one side and respondents 4 and 5 on the other. While considering the merits of the case, the Additional Commissioner has held under Annexure 11 (on page 31 of the paper book) that so far as the merit of the appeal preferred by Jaswant Singh, etc. (respondents 4 and 5) was concerned, it was without any substance. The first appeal of the respondents 4 and 5 was allowed by the Additional Commissioner just on the ground that notice was not given under S. 80, C.P.C, to the State Government, hence the plaint was dismissed under O. 7, R. 11, C.P.C, But in view of the ratio decided of the decisions referred to above, it is clear that where no relief has been claimed against the State Government, it is not necessary to serve the notice on the State Government and particularly in a case where the issue was framed on the point but the State Government did not lead any evidence and even though the suit was decreed no first or second appeal was filed by the State Government nor that issue was raised subsequently before higher authorities. In this view of the matter it is clear that the Board of Revenue and the Additional Commissioner committed error on the face of record in holding that the plaint should be reacted under O. 7, R. 11, C.P.C, particularly in a case like the present one where no relief was claimed against the State Government.
10. For the reasons aforesaid the plaint was illegally rejected under O. 7, R. 11, C.P.C, and the order passed by respondents 1 and 2 cannot be sustained. In view of the discussion aforesaid, I allow the petition and issue a writ of certiorari quashing the judgment dated 10-3-1977 passed by the Board of Revenue and the judgment dated 18-6-1973 passed by the Additional Commissioner (in so far as it is in respect of the validity of the notice under S. 80, C.P.C). The decision of the trial Court dated 29-9-1972 is maintained. Under the circumstances of the case there shall be no order as to costs.
11. Petition allowed.
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