JUDGMENT : K.B.N. Singh, J. 1. This appeal by the plaintiffs arises out of a suit filed in the representative capacity under ORDER :1 Rule 8 of the Code of Civil Procedure (hereinafter referred to as the Code) for a declaration that the disputed plot no. 210 was a Ghairmazarua Am land and has been wrongly recorded as Ghairmazarua Malik in the record of rights during the last revisional survey. According to the plaintiffs, the villagers were using the same for various purposes and have acquired a right of easement over the same. The plaintiffs also alleged that in collusion with the Circle Officer and the Karamchari, defendant nos. 1 and 2 took settlement of the disputed land, which the State of Bihar (defendant no. 3) had no right to settle. After the settlement, a proceeding under Section 147 of the Code of Criminal Procedure was started, which was decided in favour of the defendants 1 and 2 and, thereafter, the present suit was filed in which the State of Bihar was impleaded as defendant no. 3. Defendants 1 and 2 filed a written statement and contested the suit. Their case was that the land was recorded correctly as Ghairmazarua Malik and the plaintiffs or the public had no right in the same. They also alleged that the suit was not maintainable as no notice under Section 80 of the Code was served on the State of Bihar. Defendant no 3, the State of Bihar, filed no written statement, nor contested the suit. 2. The trial court found that the land was Ghairmazarua Malik and not Ghairmazarua Am land, as alleged by the plaintiffs, and, therefore, the State of Bihar was entitled to settle the same. It also found that no notice under Section 80 of the Code having been served on the State of Bihar, the suit was not maintainable. 3. On appeal by the plaintiffs, the lower appellate court also came to the conclusion that the suit was bad for non-service of notice under Section 80 of the Code and on that score it dismissed the appeal. It did not go into other questions as this point was sufficient to dispose of the appeal. Thereafter the present appeal has been filed. 4. It did not go into other questions as this point was sufficient to dispose of the appeal. Thereafter the present appeal has been filed. 4. The only question which arises in this appeal is whether the plea of non-service under Section 80 of the Code is available to the defendants other than the State. 5. Learned counsel, on behalf of the appellants, has urged that the courts below were in error in holding that the suit was bad for non-service of notice under Section 80 of the Code on the State of Bihar. He urged that the State of Bihar (defendant no. 3), who could alone raise the plea of non-service of notice, did not file any written statement nor did it contest the suit and thus there was waiver of the notice on behalf of the State and the plea of want of notice was not available to the other defendants. There is substance in this submission of the learned counsel. 6. The relevant portion of Section 80 of the Code may usefully be quoted: No suit shall be instituted against the Government........or 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.. Thus, the provision under Section 80 of the Code is against institution of a suit against the Government or a public officer in respect of acts purporting to be done by the public officer in his official capacity. The idea behind the provision being to afford the Government an opportunity to settle up the claim and make amends instead of fighting unnecessary litigation. It is another matter, as is common knowledge, that it has failed to achieve the avowed purpose for which it has been incorporated in the Code. 7. In the instant case, the State of Bihar (defendant no. 3) neither appeared nor contested the claim. A question arises, in such a situation, whether the plea of non-service of notice under Section 80 of the Code was available to the other defendants ( nos. 1 and 2), the settlees from the State of Bihar. 7. In the instant case, the State of Bihar (defendant no. 3) neither appeared nor contested the claim. A question arises, in such a situation, whether the plea of non-service of notice under Section 80 of the Code was available to the other defendants ( nos. 1 and 2), the settlees from the State of Bihar. The provision as to notice being for the advantage of the Government or the public officer concerned, it is obvious that the bar of such notice could be raised only by those for whose benefit this provision has been made and the plea of the bar could very well be waived by those for whose advantage it was provided in the Code. 8. Mr. Gorakh Nath Singh, appearing on behalf of defendants 1 and 2 has, however, urged that the provision as to notice was imperative and it could not be waived. In support of his contention, learned counsel relied on a Bench decision of this court in the case of (1) the State of Bihar V. Jiwan Das Arya (1970 P.L.J.R. 387). It may be stated that, in the instant case, Mr. R.P. Katriar, learned Government pleader, also appeared on behalf of the State and supported the contention raised on behalf of the other defendants. 9. In the decision railed upon by Mr. Gorakh Nath Singh, the plaintiff had filed a suit for declaration of title and for a permanent injunction, restraining the defendants, including the State of Bihar and its officers, from settling a tank. The plaintiff alleged that although a notice under Section 80 of the Code had been served he instituted the suit without waiting for the statutory period of sixty days, as the defendants, i.e., the State of Bihar and its officers, were going to settle the tank before expiry of the statutory period and the State must be deemed to have waived it. The State of Bihar contested the suit and raised the plea of bar of Section 80 of the Code. The trial court and the lower appellate court decreed the suit and also came to the conclusion that the suit was not barred for want of notice under Section 80 of the Code. Thereafter, the State filed a second appeal. The State of Bihar contested the suit and raised the plea of bar of Section 80 of the Code. The trial court and the lower appellate court decreed the suit and also came to the conclusion that the suit was not barred for want of notice under Section 80 of the Code. Thereafter, the State filed a second appeal. Untwalia, J., who delivered the JUDGMENT : of the Bench, observed as follows: The inhibition contained in the section as to the institution of suit against the Government is unqualified. No suit can be instituted against the Government or, as a matter of that, against the State or the Union, until the expiration of two months next after notice in writing has been given to the proper authority. It matters little whether the suit relates to the past action of the Government or is in relation to the threatened action or injury and the suit in the nature of a bill quia limit. But if the suit is to be filed against a public officer, notice is mandatory only when it is in respect of any act purported to be done by such public officer in his official capacity. If the act is not one purporting to be done by the officer in his official capacity, no notice is necessary. Mr. Singh, for the respondents, has placed reliance on the above observation, for arguing that as no suit could be instituted against the State without a notice under Section 80, as the "Inhibition" was "unqualified" and absolute and anybody could bring this to the notice of the court. 10. The observation of his Lordship has to be understood in the context in which it was made. In that case, the State of Bihar contested the suit and pleaded want of due notice under Section 80 of the Code. That decision does not lay down that the State or the public officer, for whose benefit the provision as to notice under Section 80 has been incorporated in the Code, cannot waive it either by not raising the necessary plea even if they had appeared in the suit, or by not filing a written statement and appearing in the suit. On the other hand, his Lordship in Paragraph 9 of the JUDGMENT : has clearly laid down that it could be waived by the Government or the public officer concerned. On the other hand, his Lordship in Paragraph 9 of the JUDGMENT : has clearly laid down that it could be waived by the Government or the public officer concerned. The following observation of his Lordship may usefully be referred to:-- It is no doubt true that notice under Section 80 of the Code is for the benefit of the Government or the public officer, as the case may be, and the right, which the State or the officer has under Section 80 to get such a notice before the institution of the suit is capable of being waived, as held by the Privy Council in Vellayan Chettiar V. The Government of the Province of Madras (A.I.R. 1947 PC 197). But, it is one thing to say that the right can be waived and quite another to say whether in a particular kind of suit notice is not mandatory. The Privy Council decision, in the case of (2) Bagchand Dagdusa Gujrathi V. Secretary of State for India (A.I.R. 1927 PC 176), relied upon by Mr. Singh and also referred to by Untwalia, J. was considered by their Lordships of the Supreme Court in the case of (3) Dhian Singh Sobha Singh V. Union of India (A.I.R. 1958 SC 274). In that case the question that arose for consideration was, whether the plaintiffs were entitled to a decree for the price of the trucks on the date of the decree or the price on the date of the notice, as the market price of the trucks had risen by the time the suit came to be disposed of. In that connection, their Lordships of the Supreme Court observed as follows: It is relevant to note that neither was this point taken by the respondent in the written statement which it filed in answer to the appellants' claim nor was any issue framed in that behalf by the trial court and this may justify the inference that the objection under Section 80 had been waived. This decision was also considered and followed with approval in a later decision of the Supreme Court in the case of (4) Raghunath Das V. The Union of India (A.I.R. 1969 SC 674). 11. This decision was also considered and followed with approval in a later decision of the Supreme Court in the case of (4) Raghunath Das V. The Union of India (A.I.R. 1969 SC 674). 11. In the case of (5) Ramcharan Mahto V. The Custodian of Evacuee Property, Bihar (A.I.R. 1964 Patna 275) one of the questions mooted was that in view of the mandatory nature of the provisions of Section 80 of the Code, there was a legal bar to institution of a suit and the plaint could be rejected under Clause (d) of Rule 11, ORDER :VII, of the Code. Repelling that argument, their Lordships observed as follows: Taking a circumspective view of the matter, I think that Clause (d) of Rule II of ORDER :VII, Civil Procedure Code, will not apply to a case where the bar in relation to Section 80 is established after the parties are heard. That clause is attracted where the suit appears to be barred by any law from the statement in the plaint and not where the bar can be inferred from absence of a statement in the plaint-like the statement required under Section 80. If there is no clear or specific admission in the plaint suggesting that the suit is barred, the rejection of the plaint under Clause (d) is not called for. In many cases where the plaint can be rejected, the courts allow the plaint to be amended instead of being rejected. That clearly indicates that the rejection of plaint even when Clause (d) is applicable, is not mandatory. 12. It is thus apparent that the State of Bihar, not having appeared or filed any written statement, must be deemed to have waived the bar of the notice under Section 80 of the Code. It is true that the State of Bihar has appeared in the second appeal and has tried to support the finding of the lower appellate court and raise the plea of bar of absence of notice under Section 80. Having waived the bar of notice under Section 80 of the Code, both in the lower appellate court and the trial court, the State of Bihar cannot be heard at this second appellate stage to say that the suit was not maintainable for want of notice under Section 80 of the Code. Having waived the bar of notice under Section 80 of the Code, both in the lower appellate court and the trial court, the State of Bihar cannot be heard at this second appellate stage to say that the suit was not maintainable for want of notice under Section 80 of the Code. This view gains support from the decision of this Court in the case of (6) Ruplal Agarwala V. Dhansar Coal Co. and others (A.I.R. 1944 Pat 49). In that case, the defect of absence of notice under Section 80 of the Code was waived by the Secretary of the State. When the case went in appeal before the District Judge and the East India Railway Company did not raise this question in the High Court, although the point was taken in the tried court. This court held that the third party was not competent to raise the question of absence of notice under Section 80 of the Code, when, the Secretary of State had waived it. 13. A similar view has been taken I in a Bench decision of the Bombay High Court in the case of (7) Hirachand Himatlal Marwari V. Kashinath Thakurji Jadhav (A.I.R. 1942 Bom 339), that a party who has himself no right to notice cannot challenge a suit on the ground of want of notice to the party entitled to receive it. 14. In a decision of the Allahabad High Court, in the case of (8) Gaja and others V. Dasa and others (A.I.R. 1964 All 471) also it has been held that it is not open to a third party to urge want of notice against maintainability of the suit and the State Government can waive the defect regarding want of notice by not taking any objection in the written statement filed by it or it can waive it by filing no written statement at all, and I am in respectful agreement with the above view of Gangeshwar Prasad, J. In the result, the appeal is allowed, the JUDGMENT : and decree of the court of appeal below are set aside and the case is remanded to the lower appellate court, as it has disposed of the appeal only on the ground of want of notice and not on merits. The lower appellate court will now dispose of the appeal on merits according to law. Costs will abide the result.