Judgement Appeal (No. 11 of 1946) from a judgment and decree of the High Court (March 23, 1944) reversing a judgment and decree of the Subordinate Judge of Devakottai (July 16, 1942). The following facts are taken from the judgment of the Judicial Committee The suit in which the appeal was brought was instituted by two plaintiffs, Al. Ar. Vellayan Chettiar and Rao Bahadur, O.A.P.R.M. Arunachalam Chettiar, against the respondents, the Government of the Province of Madras and the Municipal Council of Karaikudi, claiming to have set aside the decision of the Appellate Survey Officer in regard to certain land in Karaikudi village by declaring that such land belonged to them, with other appropriate relief. The first plaintiff died while this appeal was pending and was represented by the third appellant, Al. Ar. Kalairaja. The decision of the Appellate Survey Officer having been given on January 19, 1935, notice was on June 30, 1936, given on behalf of the first plaintiff only to the Collector of Madura claiming that that decision was erroneous and that the erection of certain structures and certain work done by the second respondent were unlawful, and threatening that unless amends were made within two months a suit would be filed against both respondents. It was not seriously contended that that notice was given on behalf of anyone except the first plaintiff, though it contained a single reference to proprietors (in the plural) of the village. Section 80 of the Code of Civil Procedure is, so far as is material, as follows " No suit shall be instituted against the Crown....until the expiration of two months next after 14 notice in writing has been delivered to or left at the office of . . . (c) in the case of a suit against a Provincial Government, a Secretary to that Government or the Collector of the District, and....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." Notice having been given on behalf of the first plaintiff only, on September 13, 1936, both plaintiffs filed a suit in the Court of the District Munsif of Devakottai against both the respondents claiming the relief already stated. In that suit the respondents put in written statements on February 3, 1937, but no exception was taken to the notice. Objection was, however, taken to the jurisdiction of the Munsif in view of the value of the subject-matter of the suit and, after inquiry had been made that objection prevailed. Accordingly on November 30, 1938, the plaint was returned to the plaintiffs under Or. VII., r. 10, for presentation to the Court of the Subordinate Judge of Devakottai. Nearly ten months later, on September 13, 1939, the plaintiffs presented the plaint in the present suit in the said court claiming the relief already mentioned. The plaint contained the following averments " 12.—(a) Though the first plaintiff alone "was a party to the survey proceedings inasmuch as plaintiffs 1 and 2 are the landholders and proprietors of the Karaikudi village, this suit is filed by both of them. 13.....notices of suit were given to both the defendants on June 30, " 1936, and were served in their offices on July 2, 1936.” Both the respondents filed written statements on March 23, 1940, and each pleaded that " the suit notice alleged is not in accordance with law and the suit is, therefore, not maintainable." On April 6, 1940, a number of issues were settled, only one of which was material to this appeal, namely "9. Whether proper notice of suit has been given." On November 12, 1940, two further issues were framed as follows " 9.—(a) Whether the defendants have waived their right to a "proper notice of suit? 9.—(b) Whether defendants are "estopped from contending that no proper notice of suit was given to them? " Those issues were all decided in favour of the plaintiffs by the learned Subordinate Judge, but on appeal to the High Court (Leach C.J. and Shahab-ud-din J.) his decision was on all points reversed. Hence this appeal, which was brought by both plaintiffs, of whom, as already stated, the first had since died, the third appellant being substituted in his stead. 1947. May 22. Khambatta K.C. and Umrigar for the appellants. Hence this appeal, which was brought by both plaintiffs, of whom, as already stated, the first had since died, the third appellant being substituted in his stead. 1947. May 22. Khambatta K.C. and Umrigar for the appellants. The two questions in this appeal are first, whether the notice of suit given by the first appellant complied with the requirements of s. 80 of the Civil Procedure Code, and, secondly, whether, assuming that the notice was defective, the terms of s. 80 permit waiver, and, if so, have the respondents waived their right to question the notice, or are they estopped by their conduct from alleging that it is defective. As to the first question, the notice here was given by only one of the two original plaintiffs, although there is a reference in the notice to " plaintiffs " in the plural. Before the decision of the Board in Bhagchand Dagadusa v. Secretary of State for India (1) there were decisions of the courts in India to the effect that a notice given by only one out of two plaintiffs would be a sufficient compliance with the section. [Counsel were requested by the Board not to refer to any authorities on this point prior to the decision in Dagadusas case (( 1927) L. R. 54 I. A. 338.).] In Venkata Rangiah Appa Rao v. Secretary of State for India (( 1931) A. I. R. (Mad.) 175.) it was held that a notice by one out of two plaintiffs would not be a good notice under s. 80, and that view was upheld on appeal (( 1935) A. I. R. (Mad.) 389.). As to the question whether s. 80 permits a defendant to waive his right to a proper notice, the courts in India are not in agreement, some Indian High Courts having held that on the true interpretation of the Boards decision in Dagadusas case ([ 1927] L. R. 54 I. A. 338.) there can be no waiver or estoppel. As to the question whether s. 80 permits a defendant to waive his right to a proper notice, the courts in India are not in agreement, some Indian High Courts having held that on the true interpretation of the Boards decision in Dagadusas case ([ 1927] L. R. 54 I. A. 338.) there can be no waiver or estoppel. [Reference was made to Purna Chandra Sarkar v. Radharani Dassya (( 1931) A. I.R. (Cal.) 175.), Ramnarain v. Ram Kishun (( 1934) A. I. R. (Pat.) 354.), Marina Ammayi v. Secretary of State for India (( 1941) A. I. R. (Mad.) 446.), Hirachand Himatlal Marwari v. Kasinath Thakurji (( 1942) A. I. R. (Bom.) 339.), Erachshaw Hormusji Ginwalla v. Secretary of State (( 1943) A. I. R. (Bom.) 160.) and Gaekwar Baroda State Ry. v. Hafiz Habib-ul-Haq (( 1938) L. R. 65 I. A. 182.).] It is submitted, next, that on the facts of this case there has been waiver by the Government. Their original written statement contained no mention of any objection as to lack of a valid notice, and all proceedings in the District Munsif s Court were carried out on the basis that a proper notice had been issued. It was only three years later, when the suit was transferred to the court of the Subordinate. Judge, that objection to the validity-of the notice was taken at a time when a fresh suit would have been barred by limitation. It is also submitted that the respondents are now estopped by their conduct from pleading the want of a proper notice. Sir Thomas Strangman K.C. and Jayakar for the respondents were required to deal only with the question of waiver and estoppel. The present suit was not instituted until presentation of the plaint to the proper court, in this case, the court of the Subordinate Judge. As soon as that was done, an objection as to lack of a valid notice was taken by the respondents. There was nothing here in the nature of waiver, nor could there be waiver. Section 80 is mandatory and explicit, and cannot be whittled away by hardship caused to the aggrieved party through the operation of limitation. In any case, it appears that in the present case the appellants could have been in time by giving a fresh notice s. 14 of the Indian Limitation Act. Section 80 is mandatory and explicit, and cannot be whittled away by hardship caused to the aggrieved party through the operation of limitation. In any case, it appears that in the present case the appellants could have been in time by giving a fresh notice s. 14 of the Indian Limitation Act. With regard to the cases cited on behalf of the appellants, in Puma Chandra Sarkars case (3) the objection was taken two years later, and it is common to all the cases cited that there was only one proceeding and not two, as in the present case. It is submitted on the authority of the Boards decision in Dagadusas case (( 1927) L. R. 54 I. A. 338.) and in the Gaekwar Baroda State Ry. case (( 1938) L. R. 65 I. A. 18) that no question of waiver or estoppel can arise where a notice is defective. Khambatta K.C. replied. July 2. The judgment of their Lordships was delivered by Lord Simonds, who stated the facts set out above and continued. This appeal raises a. question of some importance on s. 80 of the Code of Civil Procedure. Their Lordships are of opinion that the judgment of the High Court should be sustained. On the first issue the decision of this Board in Bhagchand Dagadusa v. Secretary of State for India (ij appears to be decisive. It was there said that s. 80 is express, explicit and mandatory, and admits of no implications or exceptions. The question there was whether a suit, in which an injunction was claimed, was a "suit" within the section. This Board decided for the reason above briefly stated that it was. In the present case the question is whether, a notice having been given on behalf of one plaintiff stating his cause of action, his name, description and place of residence and the relief which he claims, a suit can then be instituted by him and another. It is clear to their Lordships that it cannot. The section according to its plain meaning requires that there should be, in the language of the High Court of Madras, "identity of the person who issues" the notice with the person who brings the suit." See Appa Rao v. Secretary of State for India (( 1931) A. I. R. (Mad.) 175.) and on appeal (( 1935) A. I. R. (Mad.) 389.). To hold otherwise would be to admit an implication or exception for which there is no justification. The notice, then, being defective, the appellants urge that the respondents have " waived their right to a proper notice " of the suit " or, alternatively, are " estopped from con-" tending that no proper notice was given." There appear to be two questions here involved, (1.) whether it is competent for the defendant in a suit, to which s. 80 applies, to waive his right to a proper notice, and (2.) whether, on the assumption that it is so competent, the respondents in this case waived their right. On the first question the respondents have relied on two cases which came before this Board. In the case of Bhagchand Dagadusa (1), to which reference has already been made, no question of waiver arose. The observations of Lord Sunnier, in delivering the opinion of the Board, were directed solely to the construction of the section and cannot, in their Lordships opinion, be regarded as deciding that it is not competent for the authority, for whose benefit the right to notice is provided, to waive that right. There is no inconsistency between the propositions that the provisions of the section are mandatory and must be enforced by the court and that they may be waived by the authority for whose benefit they are provided. The second case relied on was Gaekwar Baroda State Ry. v. Hafiz Habib-ul-Haq (( 1938) L. R. 65 I. A. 182.). There the sections of the Code under consideration were ss. 86 and 87, which, in effect, make the consent of the Governor-General in Council a condition of a suit being brought against a Sovereign Prince, and it was held that that condition could not be waived by the Sovereign Prince. But their Lordships would observe that this decision, which related to a consent by a third party, who was not a party to the suit, is not a governing authority where the only person concerned is himself a party to the suit. The condition to which ss. 86 and 87 relate is created not, or not merely, for the benefit of the Sovereign Prince, but to serve an important public purpose. The condition to which ss. 86 and 87 relate is created not, or not merely, for the benefit of the Sovereign Prince, but to serve an important public purpose. It is for that reason that the consent of the Governor-General in Council is required, and for that reason that there can be no waiver of his consent by a Sovereign Prince. On the other hand, there appears to their Lordships to be no reason why the notice required to be given under s. 80 should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required if in the particular case he does not require that protection and says so, he can lawfully waive his right. The second question is whether, in the case under appeal, the respondents did waive their right, or, alternatively, are estopped from saying that they did not. It is clear, at least, that they did not do so expressly, and it seems that there is little difference between saying that they impliedly did what they did not do expressly and saying that they cannot be heard to say that they did not do so. The burden lies on the appellants to establish the facts on which they rely for raising the implication or creating the estoppel, and it is necessary to look at them a little more closely at this stage. In the suit instituted in the Court of the Subordinate Judge, the subject of the present appeal, the respondents in their written statements pleaded want of proper notice. So far as the proceedings in this suit are concerned, the appellants can point to nothing on which they rely, but they look back to the earlier proceedings and say that in their original plaint in the Court of the District Munsif they averred that they had given proper notice, that the respondents in their written statements in that suit did not deny, and must be taken to have admitted, that averment, and that the implication of this implied admission is that they waived their right to a proper notice, or, alternatively, that by the implied admission the appellants were induced to act on the assumption that a proper notice had been given, so that the respondents are estopped from denying the fact. It is to be observed that the whole of the conduct on which the appellants rely took place before ever an effective suit was instituted. It could not be suggested that, until a suit is instituted, the question of proper notice or the want of it could be raised. It comes, therefore, to no more than this, that in a suit which was wrongly brought in the Court of the District Munsif the respondents were content to rely on want of jurisdiction for one reason only when two reasons were available. They were successful in the plea which they raised. On the suit being instituted in the Court of the Subordinate Judge—and for this purpose it is immaterial whether the suit is to be regarded as a new suit or the old suit re-instituted in another court—they at once raised the plea on which they have ever since relied. Their Lordships see no reason why they should not do so. The plaintiffs were in error throughout in instituting a suit which s. 80 prohibited. The respondents were under no duty to them to point out their error. They might have been negligent in their own interest in not raising the plea at an earlier stage, but negligence cannot give rise to an estoppel unless there is a duty of care. Their Lordships are therefore of opinion that the appellants have not established any facts on which the respondents must be deemed to have waived proper notice or are estopped from asserting want of proper notice. If in the result the appellants find themselves precluded by the Limitation Act from prosecuting any action which might otherwise have been open to them, that is a fortuitous result for which the respondents cannot be held responsible. On the whole case their Lordships, though they do not in all respects concur in the reasoning of the High Court, are of opinion that the appeal should be dismissed, and they will humbly advise His Majesty accordingly. The appellants must pay the costs of the appeal.