Judgment :- 1. This revision petition by the 1st defendant-Assistant Collector of Central Excise is against an order disallowing the application for amendment of his written statement by adding the plea that the suit is barred under S.80 CPC., for want of notice. The suit was instituted by the 1st respondent-plaintiff on 8-12-1964 for a declaration that he is the sole proprietor to manufacture and sell "Chandrika soap" in all parts of Madras State except the District of Kaniakumari by virtue of a gift deed executed by his father-the 2nd respondent and also for a perpetual injunction restraining the petitioner from cancelling the exemption granted to him from imposing Excise duty on the first consignment of 100 tons of soap in every financial year. The petitioner filed a very lengthy written statement on 2181965 raising various contentions and finally the suit went to trial when the 1st respondent was examined as P.W.1 on 221167. When the trial was in progress, the petitioner filed a petition to amend the written statement on 26-12-67 raising the contention that the 1st respondent has no right to file a suit questioning the notice issued by the petitioner asking him to show cause why the exemption granted to him should not be withdrawn as, according to him, he was enjoined upon to issue such notice in good faith in discharge of his official functions under the powers conferred upon him by virtue of the Central Executive Manual. The contention was that a civil court has no jurisdiction to entertain such a suit. This additional written statement was, however, admitted by the court below on terms and again the suit was posted to continue the trial, when again the petitioner filed another application on 4-7-68 to amend the written statement contending that the suit is not maintainable as no notice under S.80CPC. has been given to him. The lower court dismissed that petition on 9 9 68. It is against that order the revision petition is filed. 2. It is clear from the facts so far stated that the petitioner sought to amend the written statement some 3 years after the original written statement was filed, but more than 4 years from the date of the institution of the suit. It is against that order the revision petition is filed. 2. It is clear from the facts so far stated that the petitioner sought to amend the written statement some 3 years after the original written statement was filed, but more than 4 years from the date of the institution of the suit. It is contended on behalf of the 1st respondent that the inordinate delay in moving the lower court to admit fresh written statement is a circumstance to show that the petitioner had waived his defence as regards want of notice under S.80 CPC. The officer, who filed the petition in the lower court, did not subscribe to an affidavit as to why there was delay in filing the additional written statement. The affidavit in support of the petition showed that the written statement had to be accepted on the basis of his petition. However, the petition contained the allegation that the contention could not be raised in time on account of oversight and not due to any negligence on his part. The officer did not make any such allegation in his affidavit. Anyhow, one fact is clear in this case to show that there had been inordinate delay in seeking to file the additional written statement. In this regard I will examine some of the cases on the point to ascertain whether in the circumstances of the present case there is waiver on the part of the petitioner in raising the requisite contention in his written statement. I have already stated that the written statement was filed more than 3 years after the original written statement came in the court. It is also relevant to point out that on almost a parallel contention, the written statement was once amended on 20 2 68. That contention was covered by the provisions of S.9 CPC. Even then the petitioner did not think it necessary to amend the written statement on the allegation that the suit is bad for want of notice under S.80 CPC. In a decision reported in Purnachandra Sarkar v. Radharani Dassya (AIR. 1931 Calcutta 175) it is seen that the suit in that case was instituted on 121924 while the written statement was filed on 16 61924. In a decision reported in Purnachandra Sarkar v. Radharani Dassya (AIR. 1931 Calcutta 175) it is seen that the suit in that case was instituted on 121924 while the written statement was filed on 16 61924. In that written statement nothing, whatever, was said or even hinted about the question of notice and on 19 71924 issues were framed on the existing allegations in the plaint and written statement. However, no issue was framed on the question as to notice. But, two years after the institution of the suit, that is to say, on 11-2-1926 the contesting defendant made an application to the court for the first time that the defendant was entitled to a notice under S.80 CPC. The trial of the suit did not come up until 23-3-1927 and when the trial began the question of notice under S.80 was for the first time seriously canvassed between the parties. However, the court permitted an additional issue to be framed regarding the question as to want of notice. But, when the matter came up in appeal on that issue, the High Court of Calcutta made the following observation: "We are of opinion, having regard to what I have said, that the learned Additional District Judge was right in coming to the conclusion that it is not reasonable for the respondents to have taken the plea of want of notice so long after the institution of the suit. In fact the contention of the appellants before him, that is to say, the present respondents, was that the defendants by their delay waived their objection and this must be given effect to. There is ample authority for saying that where a plea of this kind, which is a clear bar, is taken, it must be taken at the earliest possible opportunity and it must be specifically pleaded." 3. More or less the same view has been expressed in a decision reported in Ramnarain v. Ram Pishun (AIR. 1934 Patna 354). There is ample authority for saying that where a plea of this kind, which is a clear bar, is taken, it must be taken at the earliest possible opportunity and it must be specifically pleaded." 3. More or less the same view has been expressed in a decision reported in Ramnarain v. Ram Pishun (AIR. 1934 Patna 354). At page 355 the observation is as follows: "Now the fact that this plea as taken before the learned judge in open court was a plea which had never been raised before in the history of the case, and further having regard to the fact that at the time of the hearing before the learned judge more than two years had elapsed since the arising of the cause of action and it was impossible for the plaintiff to bring another suit, further that no issue had been raised at any time in the case as to whether or not notice had been served and inasmuch as the defendant had not at any time taken any point on the subject of notice to him, it must be held that the want of notice had been waived." 4. In another decision reported in Hirachand Himatlal v. Kashinath Thakurji (AIR. (29) 1942 Bombay 339) it is pointed out that if any prejudice to the plaintiff was caused by the delay in raising the contention, it would result in the defendant being deemed to have waived his right to notice. On a review of the case law on this aspect of the question, the learned judges of the Bombay High Court expressed the opinion as follows at page 340: "One rule that seems to be deducible from these cases is that any prejudice to the plaintiff caused by the delay would result in the defendant being deemed to have waived his right to notice, even though delay, however long, would not necessarily by itself be a ground for holding that he had waived it. In the present case the objection was not taken at all until 24th March, 1941, two years after the issues were first framed; and by that time the plaintiff's rights under the Specific Relief Act were barred. In view of these findings the question whether notice was or was not necessary in this particular case need not be considered." 5. In the present case the objection was not taken at all until 24th March, 1941, two years after the issues were first framed; and by that time the plaintiff's rights under the Specific Relief Act were barred. In view of these findings the question whether notice was or was not necessary in this particular case need not be considered." 5. Regarding prejudice to the plaintiff in the instant case it is more or less admitted that if the suit is to be dismissed on the plea of want of notice, he would be prejudiced to a great extent and the success of his contention depends upon a declaration to the effect that as the sole proprietor of his concern, he is entitled to export 100 tons of soap every year without any excise duty, which otherwise the petitioner will be entitled to impose upon him. If the present suit is dismissed and a fresh suit is to be entertained on the same cause of action, it would be clear that such a suit would be barred in respect of his money claim for more than 3 or 4 years. So, in the instant case prejudice is likely to be caused to the 1st respondent if the amendment sought is allowed. 6. However, the learned counsel of the petitioner raises the contention that the plaintiff in the instant case cannot be allowed to contend just as. a defendant in the matter of amendment of the written statement as, according to the learned Government Pleader, the defendant would be entitled to rest upon a vested right by virtue of the expiration of the period of limitation in his favour. But, according to him, such a concession shall not be given to the plaintiff. But, that line of argument was found against in a decision reported in Erachshaw Hormmsji v. Secretary of State (AIR. (30) 1943 Bombay 160). The observation is at page 164. It runs as follows: "If the plaintiff had asked for amendment of the plaint at a time when his suit would be time-barred, it would have been open to the Government to contend that it should not be allowed on the ground that it would deprive it of the defence of limitation. The observation is at page 164. It runs as follows: "If the plaintiff had asked for amendment of the plaint at a time when his suit would be time-barred, it would have been open to the Government to contend that it should not be allowed on the ground that it would deprive it of the defence of limitation. I do not see any reason why such an argument should not be open to the plaintiff when the Government applies for amendment at a stags which would materially prejudice him. The order of the lower court, therefore, is in my opinion, materially irregular and should be set aside. The amendment of the written statement about the plea of notice under S.80 is disallowed and the added issue is deleted." 7. In Wasant Shripat Deshpande v. G. M. Khandekar (AIR. (36) 1949 Nagpur 25) it was held that a party entitled to notice could waive his right, and delay in raising objection for want of notice was sufficient indication that the defendant must be deemed to have waived his right to notice in the circumstances of such case. In this decision reliance was placed upon an earlier ruling of the Judicial Committee in Vellayan Chettiar and others v. The Government of the Province of Madras through the Collector of Ramnad at Madura and another (AIR. 1947 Privy Council 197). Their Lordships in that decision observed as follows:' "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." 8. That it is open to the authority concerned to waive such notice is referred to by my learned colleague Madhavan Nair, J. in Narayani Pillai v. Raman Pillai (1968 KLT. 836). At page 841 the following observation is made by Madhavan Nair, J. on the authority of the earlier decisions of the Supreme Court. It runs as follows: "The State of Madras v. C. P. Agencies (AIR. 1960 SC. 836). At page 841 the following observation is made by Madhavan Nair, J. on the authority of the earlier decisions of the Supreme Court. It runs as follows: "The State of Madras v. C. P. Agencies (AIR. 1960 SC. 1309) where S.80 has been held to be mandatory and admitting no exception so that "no suit shall be filed against the Government until after the expiry of two months from the service of a notice in the manner therein prescribed." But in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh (AIR. 1964 SC. 1300) the Supreme Court has cited with approval AL. AR. Vellayan Chettiyar v. Government of Madras (74 Indian Appeals 223 at p. 228) where the Privy Council held the provisions of S.80, CPC., though mandatory, waivable by the authority for whose benefit they were provided. It indicates that a notice under S.SO CPC cannot be a jurisdictional condition. The Supreme Court has not said that a notice under S.80 CPC. is a condition of jurisdiction of the Court to hear the suit. When it is said that such notice might be waived by the Government it becomes obvious that the inherent jurisdiction of the Court is not dependent on it." 9. In Union of India v. Tej Narain (AIR. 1957 Madhya Bharat 108) objection as to sufficiency of notice under S.80 CPC. was raised at a later stage (delay of over 2 years). It was held that the defendant should have deemed to have waived his right to notice under S.80. Reliance in that decision was placed upon earlier rulings on the point. 10. Again in another decision reported in Secretary of State v. Sheoramjee (AIR. 1952 Nagpur 213) it was pointed out that that the suit was bad for want of notice under S.80 must be taken at the earliest opportunity especially if the delay would prejudice the plaintiff in the suit. There was 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 and if in the particular case he does not require the protection, he can lawfully waive his right. On this question at page 215 the learned judges in the above Nagpur decision made the following observation: "As already pointed out, neither deft.1 nor deft. It is for his protection that notice is required and if in the particular case he does not require the protection, he can lawfully waive his right. On this question at page 215 the learned judges in the above Nagpur decision made the following observation: "As already pointed out, neither deft.1 nor deft. 2 raised a plea that the suit was bad for want of notice under S.80, Civil PC., to deft. 2 & that the suit was liable to dismissal. All objections regarding the maintainability of the suit for want of notice are to be taken at the earliest opportunity & if that is not done at the proper time & the plff. is prejudiced, it will not be open to the daft, to raise the plea of want of notice at a very late stage of the case. He would be deemed to have waived the notice & may be estopped by his conduct from pleading the want of notice. 11. In a decision reported in Jugalkishore v. Piparia Municipality (AIR. 1958 Madhya Pradesh 393) the point was whether notice under S.48 of the CP. and Berar Municipalities Act had been waived on the analogy of waiver under S.80 CPC. In dealing with that case, the learned judges made the following observation: "The principle that a notice under S.80, Civil PC., is for the protection of the authority concerned, and, if in a particular case, he does not require that notice, he can lawfully waive his right to the notice applies to a notice under S.48 of the CP. and Berar Municipalities Act. Therefore, in a suit against a Municipal Committee where there was no objection raised in the written statements by any of the defendants about a notice under S.48, it should be taken that they waived their right to such a notice." 12. As against the above rulings, the learned Government Pleader relied upon a decision reported in Secretary of State v. Pullela Rengaswami (AIR. 1938 Madras 583). That was a case in which neither the party, nor the lower court made any reference to notice though a specific contention was raised in the written statement to the effect that as no notice of the suit was given to the authority prior to the suit as required by law, the suit shall be dismissed summarily. 1938 Madras 583). That was a case in which neither the party, nor the lower court made any reference to notice though a specific contention was raised in the written statement to the effect that as no notice of the suit was given to the authority prior to the suit as required by law, the suit shall be dismissed summarily. But, when the matter came before the High Court, this contention was raised on the basis of the allegations in the written statement. The High Court of Madras rightly held that the question as to waiver did not arise in that case as a specific contention had been raised in the written statement in the court below. However, they expressed the opinion that the provision as to notice in S.80 CPC. is explicit and mandatory and that it admits of no implications or exceptions. It does not appear that the above dictum can be accepted as conclusive in view of the Supreme Court comment which is referred to in another place in the course of this judgment. The decision in AIR. 1938 Madras 583 does not however run counter to the various decisions cited above. It is seen from the above rulings that in cases where there had been inordinate delay in raising the contention as in the circumstances of the present case a waiver on the part of the authorities could be inferred. I am, therefore, of the opinion that there had been a waiver in view of the facts and circumstances of the case on hand. The conclusion arrived at by the court below that the amendment petition shall not be allowed holds good. I find no ground to interfere with that conclusion. 13. In the result, the revision petition is dismissed. However, in the circumstances of the case, I do not make any order as to costs.