In this revision petition filed under Para 34 of Tripura (Courts) Order, 1950, by Jatindra Bhattacherjee, the defendant in Money Suit No. 8 of 1963 filed by the Government of India and the Union Territory of Tripura, the legality of the order dated 9-1-1967. by which the Additional Subordinate Judge held that though notice under Sec. 80 of the Civil Procedure Code was neces­sary in the context of the pleadings adopted by the plaintiffs yet the defen­dant must be deemed to have waived that notice, is challenged. Succinctly put, the relevant facts are that Jatindra took over as Sub-Treasury Officer at Dharmanagar, on 7-11-1960, on transfer from Udaipur. Much before 10-3-1961, on which date the Sub-Treasury at Dharmanagar was sealed by the Government, it transpired that the affairs of the Sub-Treasury were "in a complete mess" to use the words of the plaint. After examining the records and cash of the Treasury, the Government reached the conclusion that there had been misappropriation of a colossal amount. Consequently. the plaintiffs brought a suit on 16-10-1963 against Jatindra "for recovery of or com­pensation for misappropriated Govern­ment money, valued at Rs. 98,649.88". The written statement was filed by Jatindra on 3-5-1965 and issues were settled between the parties on 20th January, 1966. Thereafter, on 11-7-1966, Jatindra moved an application praying that two additional issues should be framed, one relating to Article 300 of the Constitu­tion and the other bearing on section 80 of the C. P. Code. A copy of that ap­plication had been supplied by the defen­dant to the plaintiffs' counsel before the matter was taken up on 6-8-1966 by the Court. The learned counsel for the plaintiffs, it appears from the proceed­ings recorded by the Court on that day, did not raise any objection to the fram­ing of the two additional issues sought by the defendant. It is mentioned in the relevant order that the stand of plain­tiffs' counsel was that the points pressed by the defendant "are law points and as such they may be taken up even at the time of the hearing of argument of the suit". It is also mentioned in that order that "the learned Advocate for the plaintiff., however, did not object to framing two additional issues as prayed for by the defendant". The Court then proceeded to frame the two issues and remarked in the final para of the order that "the defdt. It is also mentioned in that order that "the learned Advocate for the plaintiff., however, did not object to framing two additional issues as prayed for by the defendant". The Court then proceeded to frame the two issues and remarked in the final para of the order that "the defdt. to file additional W. S. if any by the date". The case was then adjourn­ed for hearing arguments on the two newly formulated issues. Arguments on those issues were actually heard on 3-1-1967 and it is on that date that the defendant put in his amended written statement. During the course of argu­ments, it looks apparent, the plaintiffs' counsel raised the plea that even if notice under Section 80 of the Code was legally necessary, the same must be taken to have been waived by the defen­dant. 3. The trial Court held by Its order dated 9-1-1967, that "in the light of the plaint as a whole, it appears that the alleged omissions and commissions on the part of the defdt. cannot be shorn of their official character" and that, as such. it was obligatory on the plaintiffs to give a notice under Section 80 before filing the suit. How­ever, at the same time the Court was clearly of the opinion that since the defendant had not raised the objection relevant to Section 80 in his written statement, filed on 3-5-196£, and had come out with such an objection more than a year thereafter, he must be deem­ed to have waived the notice. The defendant having felt aggrieved with this latter finding has come up in revi­sion. 4. Shri H. C. Nath. Government Advocate, challenged in this Court the finding of the trial Court that notice under section 80 was essential for main­taining the suit. Alternatively, he placed reliance on the plea of waiver and so supported the conclusion of the trial Court that the defendant had waived the notice. Shri R. Ghosh, representing the defendant, urged, on the contrary that the suit of the nature disclosed by the plaint could not have been validly filed without compliance with the provisions of Section 80, and added that the trial Court had grievously erred in holding that the defendant had waived the notice. 5. To settle the controversy whether notice under Section 80 was requisite or not. it is necessary that the allegations made in the plaint should be examined. 5. To settle the controversy whether notice under Section 80 was requisite or not. it is necessary that the allegations made in the plaint should be examined. It is a document comprising of only 10 paras. In -para 2 thereof the duties and responsibilities of a Sub-Treasury Officer as laid in the Treasury Rules and various orders and Circulars issued by the Accountant-General are outlined. In para 3 it is alleged that the defendant being "in the sole charge of the said Sub-Treasury at the material time" he alone is responsible for the mis­appropriation of the Government money, and that he is bound "to account for this heavy loss of the plaintiff Govern­ment and to compensate the same". It will be noted that it is not stated in this para that the misappropriation had been made by the defendant personally. It is stated in para 4 that the Government learnt about misappropriation in March 1963, and then it found that "the Sub-Treasury Administration at Dharma Nagar was in a complete mess at the material time under the superintendence of the defendant". In para 5 a large number of irregu­larities committed by the defendant in the day to day business of the Sub Treasury are enumerated. They in­clude, inter alia, that the defendant used to transfer huge money to the single lock from the double lock in excess of requirements, that such transfers were not mentioned in the appropriate column of the daily sheet sent to the District Treasury, that the key of the single lock was allowed to be kept in the custody of the Poddar much against the Rules, that the Treasurer's balance sheets used to be signed by the defendant without verify­ing them with the Accountant's daily sheets, that the defendant failed to "cause proper and regular verification of the Sub-Treasury cash balance", that "the Sub-treasurer's balance sheets and the Accountant's cash book and balance sheets were not regularly signed and maintained", and that the defendant "failed to make proper monthly verifi­cation of the assets that were in his charge". In the next para 6 are detailed facts relating to a sealed cover containing Rs. 14.570/- deposited by Shri S. K. Ganguly Circle Officer, with the Sub-Treasury at Dharmanagar, and it is then alleged that the defendant having failed to place that cover in the double lock in the strong room, the amount was mis­appropriated. In the next para 6 are detailed facts relating to a sealed cover containing Rs. 14.570/- deposited by Shri S. K. Ganguly Circle Officer, with the Sub-Treasury at Dharmanagar, and it is then alleged that the defendant having failed to place that cover in the double lock in the strong room, the amount was mis­appropriated. Paras 7 and 8 are most crucial and so I think it appropriate that they should be reproduced in full. They are as under:- "7. While the defendant was in the sole charge of the Sub-Treasury of Dharmanagar in between 7-11-1960 and 12-3-1961, he committed defalcation and misappropriation of Government money from the said Sub-Treasury amounting to Rs. 98,566.23 np. which included the sum of Rs. 14.570/- belonging to Kanchanpur Tehsil Cutchery kept in a sealed bag in the said Sub-Treasury. 8. The defendant was in the sole charge and in possession of the all assets of the Dharmanagar Sub-Treasury at the material time. From what has been stated above, as the plaintiffs have sus­tained the loss of Rs. 98,649.88 N. P., while it was in the sole custody of the defendant, the defendant is under all circumstances bound to compensate the loss thus caused to the plaintiffs". Paras 9 and 10 are only formal showing . when the cause of action arose and in what amount the decree is claimed. In the heading of the plaint, the nature of the suit is stated to be "Suit for recoyery of or compensation for misappropriat­ed Government money valued at| Rs. 98,649.88". 6. The relevant part of Sec­tion 80 enjoins that no suit shall be insti­tuted against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing of the nature mentioned therein has been given. Evi­dently, notice under Section 80 would be necessary in a suit against public officer if the following two conditions are satisfied:- (1) the suit is in respect of any act done by such public officer; and (2) such act purports to have been done by such public officer in his offi­cial capacity. Therefore, we have to determine whe­ther the plaint attributes any "act" to the defendant and whether such act the defendant had purported to do in his official capacity. Therefore, we have to determine whe­ther the plaint attributes any "act" to the defendant and whether such act the defendant had purported to do in his official capacity. According to clause (2) of Section 3 of the General Clauses Act, 1897, the expression "act", when used in reference to a civil wrong, shall extend also to "illegal omissions". And according to the Concise Oxford Dic­tionary, the word "purport" means "be intended to seem" Applying these mean­ings of the words "act" and "purport", the expression "any act purporting to be done by such public officer in his offi­cial capacity" would mean "any act or illegal omission intended to seem to be done or committed by him in his official capacity", The Supreme Court held recently in the case of Amalgamated Electricity Co. v. Municipal Committee. Ajmer AIR 1969 SC 227 , that the expression "act" also includes illegal omissions and as such if the suit does not relate to any "act" or "illegal omission" purporting to be done by a public officer in his official capacity. Section 80 will not have any application. The Supreme Court pointed out that every omission is not an illegal omission and that before an omission can be considered as an illegal omission it must be shown that the official con­cerned had omitted to discharge some official duty imposed on him in public interest. It was observed further that the omission in question must have a positive content in it, or, in other words, the non-discharge of that duty must amount to an illegality. It was held In Samanthala Koti Reddi v. Pothuri Subbiah. AIR 1918 Mad 62 (FB) that an act done by a public officer would "purport" to be an act done in his official capacity not only if it was properly and rightly done by him in such capacity and within his powers but also if it has such a reasonable resemblance (though a false or pretend­ed resemblance) to a proper and right act that ordinary persons could reasonably conclude from the character of the act and from the nature of his official powers and duties that it was done in his official capacity. However, the High Court observed further, if the act done is so outrageous and extraordinary that no reasonable man could detect in it any resemblance to any act which the powers of such an officer could allow him to do on the facts as represented and declared by such officer, his mere allegation that he did the act in his official capacity would not suffice. 7A. In the background of these well settled principles it is difficult to accept the contention of Shri R. Ghosh that the allegation made in para 7 of the plaint that the defendant had "com­mitted defalcation and misappropriation of Government money from the Sub-Treasury amounting to Rs. 98,566.23 np." can appropriately fall within the ex­pression "any act purporting to be done by such public officer in his official capacity" used in Section 80. That con­tention amounts to saying that if put of the currency notes and bullion lying in the chest of the Treasury the Sub-treasurer stuffs his pockets, marches to the house and, in the manner of a philanthropist, distributes the Govern­ment property to his wife and other members of his family, he can still pose that all this constituted an act purport­ing to be done by him in his official capacity. Such contention, for obvious reasons, has nothing to commend itself for judicial acceptance and it is stated only to be rejected. Therefore, no notice under Section 80 would be required res­pecting the allegation of misappropria­tion and defalcation committed personal­ly by the defendant. However, that does not solve the whole matter in con­troversy. The next question that falls for determination is whether the suit is based only on the allegation of misapp­ropriation and defalcation committed by the defendant himself? I think on the plain reading of the plaint the reply to that question must be in the negative. In the heading of the plaint the suit is said to be "for recovery of or compensation for misappropriated Gov­ernment money valued at Rs. 98,649.88 np." In para 3 of the plaint it is alleged that the defendant having been in sole charge of the Sub-Treasury he alone is responsible for the misappropriation of the account for the heavy loss suffered by the Gov­ernment and to compensate for the same. 98,649.88 np." In para 3 of the plaint it is alleged that the defendant having been in sole charge of the Sub-Treasury he alone is responsible for the misappropriation of the account for the heavy loss suffered by the Gov­ernment and to compensate for the same. These allegations do not amount to a personal charge of misappropriation against the defendant but make him res­ponsible for the misappropriation of the Government money and the conse­quent loss suffered by the Government irrespective of the fact who had com­mitted the defalcation. In other words, they clearly mean and imply that the defendant is liable to make good the loss occasioned by his lapses of omission and commission. The nature of such lapses is described in para 5, the salient featu­res of which have already been reproduc­ed above. In para 6, again, it is alleged that the misappropriation of Rs. 14, 570/- deposited by Shri S. K. Ganguly in the Sub-Treasury was the direct con­sequence of the defendant's failure to get that amount firstly entered in the regis­ter of valuables and then in transmitting the cover containing the money to the double lock in the strong room. The allegations in para 8 almost clinch the issue. It is alleged therein that "From what has been stated above" the plaintiffs have suffered a loss of the amount claimed while it was in the sole custody of the defendant and that the defendant is under all circumstances bound to compensate the loss occasioned to the plaintiffs. Shri H. C. Nath tried to get out of the obvious implications of para 8 on the specious plea that they refer only to what is stated in para 7 and he laboured hard to gather support for that plea from the words "From what has been stated above" used in para 8. However, those words by no stretch of reasoning can be interpreted to refer only to what is stated in para 7. They clearly have reference to all what had been outlined in paras 1 to 7 of the plaint. However, those words by no stretch of reasoning can be interpreted to refer only to what is stated in para 7. They clearly have reference to all what had been outlined in paras 1 to 7 of the plaint. And since in para 5 a large number of acts including illegal omissions are attri­buted to the defendant while discharging his official functions as Sub-Treasury Officer, Shri R. Ghosh was right in his submission that the suit cannot be styled as one only for recovery of or compensa­tion for the amount misappropriated by the defendant, and that it actually em­braces the prayer for compensation for the loss suffered by the Government on account of the lapses committed by the defendant during the period he was at the helm of the affairs of the Sub-Treasury, no matter who had pocketed the money found short in the chest of the Treasury. This submission gathers support from the words "the defendant is under all circumstances bound to com­pensate the loss thus caused to the plain­tiffs" used in para 8. Therefore, the suit is clearly based on composite allegations; allegation of misappropriation by the defendant him­self, or, alternatively, his liability to make good the loss suffered by the Gov­ernment for acts of omission and com­mission allegedly committed by the defendant. For the latter cause of ac­tion the plaintiffs, I have no doubt, were bound in law to serve a notice on the defendant under Section 80 before filing the suit, and that having not been done the plaint must be rejected under Rule 11 (d) of Order VII of the Code. 8. This takes me to the considera­tion of the plea of waiver, raised on be­half of the plaintiffs, which prevailed in the trial Court. There appears to be complete unanimity at present between the various High Courts on the point that since notice under Section 80 is meant for the benefit of the defendant, there Is nothing to prevent him from waiving the notice or from being estopp­ed by conduct from pleading the want of notice. The view once expressed by certain High Courts that the Section be­ing mandatory its provisions cannot be waived by the defendant lost ground with the decision of the Privy Council in Vellayan v. Govt. of Marads, AIR 1947 PC 197. The view once expressed by certain High Courts that the Section be­ing mandatory its provisions cannot be waived by the defendant lost ground with the decision of the Privy Council in Vellayan v. Govt. of Marads, AIR 1947 PC 197. It was held in that case that the notice required to be given under Section 80 is for the protection of the authority concerned and so if in a parti­cular case he does not require that pro­tection and says so, he can lawfully waive his right to the notice. The Supreme Court held in Dhian Singh v. Union of India. AIR 1958 SC 274 (at p 282), that if the plea of notice is neither taken in the written statement nor an issue framed in that behalf by the trial Court, that would justify the inference that the objection under Section 80 had been waived. Hence, the proposition that the notice under Section 80 can be waiv­ed is settled beyond dispute and the par­ties' counsel in the present case did not join issue on that point. However, they were in serious conflict on the point whether or not the defendant Jatindra had waived the benefit of the notice under Section 80. For the reasons given in the next following para, I feel satis­fied that the trial Court had gone wrong in holding that the notice should be deemed to have been waived by the defendant. 9. When the application dated 11-7-1966 of the defendant for framing additional issues bearing on Article 300 of the Constitution and Section 80 of the Code came up for consideration before the trial Court on 6-8-1966, the plain­tiffs' counsel did not object to framing of the said two additional issues. As a matter of fact. Order No. 45, dated 6-8-1966, recorded by the trial Court, brings out that the plaintiffs' counsel went to the length of stating at the bar that the points raised in the application of the defendant being legal in nature could be taken up even at the time of hear­ing of the final arguments in the suit. It is thereafter that the Court proceeded to frame the two additional issues. It is thereafter that the Court proceeded to frame the two additional issues. When the case was put up before the Court on 3-1-1967 for hearing arguments on those Issues, a somersault was staged by the plaintiffs' counsel who came forward with the plea that if notice under Sec. 80 was necessary for maintaining the suit against the defendant, that notice should be deemed to have been waived. This stand was clearly opposed to the one taken on 6-8-1966. If the plea of waiver had any validity the plaintiffs' counsel would have strenuously objected to the for­mulation of the two additional issues on 6-8-1966. Therefore, it is not the defen­dant who can be said to have waived the notice under Section 80 but it were the plaintiffs who had waived the objection, if any about the plea based on Sec­tion 80, somewhat belatedly adopted by the defendant. I may hasten to add that in the case of Vallayan, AIR 1947 PC 197 (supra) the Privy Council held that the defendants were under no duty to point out the error of the plaintiffs in filing the suit without giving a notice under Section 80 and that the defendants "might have been negligent in their own interest in not raising the plea at an earlier stage". It was observed further that "negligence cannot give rise to an estop­pel unless there is a duty of care", and that "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". It was held in the case of Wasant Shripat v. G. M. Khandekar, AIR 1949 Nag 25, that delay, however long, would not necessarily by itself be a ground for] holding that the defendant has waived the notice. These two decisions of the Privy Council and Nagpur High Court are authorities for the proposition that mere negligence or delay per se in rais­ing the plea of Section 80 by the defen­dant does not constitute waiver. The word "waive" is defined in the Chambers' Twentieth Century Dictionary in the legal sense as: "to give up voluntarily, as a claim or a contention". Obviously, waiver postulates a voluntary and deli­berate mental act. The word "waive" is defined in the Chambers' Twentieth Century Dictionary in the legal sense as: "to give up voluntarily, as a claim or a contention". Obviously, waiver postulates a voluntary and deli­berate mental act. Non-adoption of the plea of want of notice in the written statement may conceivably be attribut­able to ignorance of law or sheer negli­gence on the part of either defendant 01 his counsel. It would be extremely un­fair in such circumstances to ascribe waiver of notice to the defendant. It follows that the plea of waiver can be sustained only on the basis of evidence, direct or circumstantial, that it had been consciously given up by the defendant. The observations of the Privy Coun­cil in the case of Vellayan, AIR 1947 PC 197, that the defendants were under no duty to the plaintiffs to point out their error in filing a suit without notice under Section 80, that the defendants might have been negligent in their own interest in not raising the plea at an earlier stage, and that negligence cannot give rise to estoppel unless there is a duty of care have great legal importance while adjudicating upon the plea of waiver. Purely legal points, it will be appreciated, can be raised at a late stage in the suit or even in the appellate Court. Therefore, mere delay cannot by itself be considered fatal to plea of notice under Section 80. 10. In fairness to Shri H. C. Nath, the Government Advocate, I must make passing reference to three authori­ties cited by him relevant to the plea of waiver. They are reported as AIR 1964 All. 471 , Gaja v. Dasa Koeri, AIR 1937 Madh B 108, Union of India v. Tej Narain, and AIR 1943 Bom. 160, Erachshaw Y. Secy, of State, In the Allahabad case the State Government, which happened to be one of the defendants in the suit, neither filed written statement nor raised the plea of waiver either in the trial Court or in the High Court. In such circumst­ances, it was held that that Government had waived the plea of notice under Sec­tion 80. The High Court of Madhya Bharat held that, where an objection as to suffi­ciency of notice under S. 80 was raised at a late stage, the defendant should be deemed to have waived his right to the notice. In such circumst­ances, it was held that that Government had waived the plea of notice under Sec­tion 80. The High Court of Madhya Bharat held that, where an objection as to suffi­ciency of notice under S. 80 was raised at a late stage, the defendant should be deemed to have waived his right to the notice. In that case the plea of notice was not taken in the written statement and was put forward for the first time towards the close of the suit which had been pending for over two years. In the background of those circumstances, the trial Court refused the prayer for amend­ing the written statement and the High Court upheld the order of the trial Court. The view taken by the Bombay High Court was that when there is aver­ment in the plaint that notice under Section 80 had been given and that aver­ment is not traversed in the written statement, service of notice may be taken as admitted and leave thereafter, should not be granted to deny what had once been admitted either expressly or by implication. It was further held that an amendment of the written statement raising the plea after five years should not be allowed when the granting of the amendment would have the effect of disentitling the plaintiff from bringing another suit. All the three cases, in my opinion, are distinguishable on facts. The plea relevant to notice under S. 80 was raised by the defendant Jatindra before the case was fixed for recording of evidence and so it cannot be said that the plea was adopted so belatedly as would legitimate­ly justify the conclusion that it had been waived. The Bombay case is distinguish­able from the one on hand on the short ground that in the latter case no notice under S. 80, valid or invalid, had been given nor was there any averment to that effect in the plaint. I may appropriate­ly refer at this stage to the case report­ed in AIR 1925 All 241 (2), Murari Lai v. E. V. David, where it was held that a plea as to want of notice under Sec. 80 is not barred even though it is raised for the first at the date of final hearing. I may appropriate­ly refer at this stage to the case report­ed in AIR 1925 All 241 (2), Murari Lai v. E. V. David, where it was held that a plea as to want of notice under Sec. 80 is not barred even though it is raised for the first at the date of final hearing. In that case the plea of Section 80 was adopted just before the commencement of the trial and the explanation given by the defendant for taking it somewhat belatedly was that certain observations made in another decision of the Allaha­bad High Court had brought to his atten­tion his right to claim such a notice, of which he was till then not cognizant. The High Court held that the failure of the defendant to raise such an objection in the written statement cannot per se be regarded as a waiver even if waiver was otherwise admissible, because the objec­tion was raised practically before the trial had commenced and before any prejudice could have been caused to the plaintiff by the lateness of the stage at which the objection was raised. The facts of our case almost correspond com­pletely to this case of the Allahabad High Court. 11. In view of the above discus­sion of the various authorities cited by the parties' counsel and the relevant facts, I cannot subscribe to the view of the trial Court that the defendant should be deemed to have waived the notice. Therefore, it is not possible to maintain the order of the trial Court. 12. The last point raised by Shri H.C. Nath was that the revi­sion petition against the order of the trial Court is not main­tainable in law. In support of that con­tention he cited the authorities reported as (1885) ILR 11 Cal 6 (PC). Amir Hassan Khan v. Sheo Baksh Singh, AIR 1953 SC 23 Keshardeo Chamria v. Radha Kissen, and 53 Cal WN 458 = (AIR 1949 PC 156). N. S. Venkatagiri v. The Hindu Religious Endowments Board. In reply, Shri Ghosh placed reliance- on AIR 1970 Manipur 34 , Chanambam v. Yumnam. I see no necessity of discussing the principles enunciated in these authorities for, in my opinion, it is plain that the revision petition is maintainable. N. S. Venkatagiri v. The Hindu Religious Endowments Board. In reply, Shri Ghosh placed reliance- on AIR 1970 Manipur 34 , Chanambam v. Yumnam. I see no necessity of discussing the principles enunciated in these authorities for, in my opinion, it is plain that the revision petition is maintainable. It is for the reason that if the plea of waiver is not well founded, as held by me, then the Court will have no .jurisdiction to proceed with the trial of the suit. There fore, it is a case where the trial Court lacks jurisdiction to try the suit and so the revision is very obviously competent. 13. In the result, I allow the revision petition, set aside the order made by the learned trial Court, and reject the plaint under Rule 11 (d) of Order VII of the Code. Taking all the circumstances into consideration, I leave the parties to bear their own costs in both the Courts. Petition allowed.