Research › Browse › Judgment

Kerala High Court · body

1971 DIGILAW 85 (KER)

STATE OF KERALA v. K. G. DAMODARAN PILLAI

1971-03-30

P.UNNIKRISHNA KURUP, T.S.KRISHNAMOORTHY IYER

body1971
Judgment :- 1. The second appeal is filed by the defendant who is the State of Kerala. 2. The suit by the plaintiff is for declaration of his title and possession to the plaint schedule property and for an injunction to restrain the defendant from entering into the plaint property and from proceeding with the Land Conservancy Case taken against the plaintiff. The learned Munsiff dismissed the suit while the learned Subordinate Judge decreed it. The second appeal is filed against the judgment and decree of the Subordinate Judge. 3. The main submission on behalf of the defendant was that the plaintiff has not satisfied the requirements of S.80, CPC. The Section reads: "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 has been delivered to or left at the office of (a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government, where it relates to a railway, the General Manager of that railway; (e) in the case of suit against a State Government, a Secretary to that Goverment or the Collector of the District; and in the case of a public officer, 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." The necessity for the issue of notice under S.80, CPC. in the case before us is not disputed. 4. In Para.10 of the plaint the plaintiff alleged that a notice to the Chief Secretary of the defendant was sent by registered post on 4-4-1961. Ext. P5 (1) is the postal receipt evidencing the despatch of the notice to the Chief Secretary. Ext. P5 is the copy of the notice and the original received by the defendant is Ext. D 11. Ext. P5 (1) stows that Ext. D11 was delivered in the Post Office for registration on 4-4-1961. It is seen from Ext. Ext. P5 (1) is the postal receipt evidencing the despatch of the notice to the Chief Secretary. Ext. P5 is the copy of the notice and the original received by the defendant is Ext. D 11. Ext. P5 (1) stows that Ext. D11 was delivered in the Post Office for registration on 4-4-1961. It is seen from Ext. D11, that it was received in the Secretariat of the defendant only on 7 41961. The suit was filed on 7 61961 before the expiry of two months as required by S.80, CPC. The learned Munsiff therefore found that the requisite period of notice was not given and dismissed the suit. The appellate court presumed that Ext. D11 must have been received by the defendant on the 5th or 6th of April, 1961. The appellate judge observed: "In the normal course a registered letter despatched from the Kottarakara Post Office should reach Trivandrum Secretariat on the next day. If not on the 6th. There could not be such a delay to effect delivery only on the 7th. On Ext. D11, the original of the notice the date seal is given as 7 41961 and an initial with such a date also is seen. What is mentioned in S.80 is 'delivered to or left at the office'. It is quite possible that the registered letter might have been delivered at the Secretariat Office either on the 5th or on the 6th." Such a presumption can be drawn in view of S.26 of the Interpretation and General Clauses Act. But it is only a rebuttable presumption. The official seal in Ext. D11 shows that it was received by the defendant only on 7 41961. The presumption under S.26 of the Interpretation and General Clauses Act has been thus rebutted. The plaintiff did not choose to obtain an acknowledgment for the receipt of Ext. D11 by the defendant. In these circumstances, it has not been established that Ext. D11 was delivered in the office of the defendant prior to 7 41961. 5. There was no contention before us that if the date of delivery mentioned in Ext. D11 is correct still S.80of the Civil Procedure Code is satisfied. 6. But it was contended relying on the decision in Nannini Amma v. State (1962) II KLR. D11 was delivered in the office of the defendant prior to 7 41961. 5. There was no contention before us that if the date of delivery mentioned in Ext. D11 is correct still S.80of the Civil Procedure Code is satisfied. 6. But it was contended relying on the decision in Nannini Amma v. State (1962) II KLR. 389 that at the time of the disposal of the suit the period of two months is over and therefore there is no defect in the instituting of the suit. In the above decision Madhavan Nair, J. observed: "As the dismissal of a suit on the ground of premature institution will not bar a second suit after maturity, to dismiss the present suit so as to compel the plaintiff to file a second suit almost immediately would be a meaningless formality tending only to multiplicity of proceedings. The first suit might be allowed to be proceeded with after expiry of the period mentioned in S.80. If before the expiry of the period mentioned in S.80 the Government or the officer intimate the court of its or his readiness to accept the plaint claim, the defendant may be given its or his costs in the suit." The same learned judge has in Narayani Pillai v. Raman Pillai 1968 KLT. 836 at p. 841 observed: "...The State of Madras v. C.P. Agencies (AIR 1960 SC. 1309) where S.80 has been help 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 Goral v. Sudhir Chandra Ghosh (AIR. 1964 SC. 1300) the Supreme Court has cited with approval AL. AR. Vellayan Chettiyarv. Government of Madras (74 Indian Appeal 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.80 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. It indicates that a notice under S.80 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." The above two decisions have been followed by Moidu, J., in Assistant Collector of Central Excise v. Ravi, 1970 KLT. 261. The question considered was with reference to an application for amendment of a written statement by the State to incorporate the plea of want of notice under S.80, CPC. Moidu, J., was of the view, that in view of the inordinate delay in filing the application for amendment of the written statement the State has waived the defence based on S.80, CPC. and therefore the application for amendment cannot be allowed. The said decision cannot therefore help us. 7. We cannot accept the observations of Madhavan Nair, J. as correct. S.80, CPC. is a bar to the institution of a suit before the expiration of the period mentioned therein. It imposes a statutory and unqualified obligation upon the court. The learned judge is right in thinking that S.80, CPC. has nothing to do with the inherent jurisdiction of a court to try the suit. But once S.80 embodies a condition precedent for the institution of a suit against the public officer or the State until that condition is fulfilled it is not open to the plaintiff to institute the suit against the public officer or the Government without complying with that condition. It is true, that the notice contemplated by S.80, CPC. can be waived. That has nothing to do with the question to be decided. If on account of the delay of the court the suit is not disposed of on the day on which it was instituted it does not mean that it has become a properly instituted suit merely because of its pendency. In the case before us the State has raised the plea based on S.80, CPC. and it is therefore not possible to hold that the defendant has waived the notice. As was stated by their Lordships of the Supreme Court in State of Madras v. CP. Agencies AIR. 1960 SC. 1309 that S.80, CPC. In the case before us the State has raised the plea based on S.80, CPC. and it is therefore not possible to hold that the defendant has waived the notice. As was stated by their Lordships of the Supreme Court in State of Madras v. CP. Agencies AIR. 1960 SC. 1309 that S.80, CPC. is express, explicit and mandatory and admits of no implications or exceptions. The terms of the Section are imperative. A suit which does not comply with the provisions of S.80, CPC. cannot be entertained by the court. According to the Section the plaint shall contain a statement that the notice as required by the Section has been delivered or left at the place mentioned in the Section. It was held in Vellayan v. Madras Province AIR. 1947 PC. 197 (74 IA. 223) that since the notice under S.80 CPC. is for the protection of the authority concerned it is open to the authority to waive the notice in a particular case. The Supreme Court in Dhirendra Nath v. Sudhir Chandra AIR. 1964 SC. 1300 following Vellayan v. Madras Province AIR. 1947 PC. 197 (74 IA. 223) took the view that it is open to a judgment-debtor to waive the benefits under S.35 of the Bengal Money Lenders Act. In the course of the judgment their Lordships observed: "A waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction cannot be waived, for cansent cannot give a court jurisdiction where there is none." In view of the above, Madhavan Nair, J. held in Narayani Pillai v. Raman Pillai 1968 KLT. 836 that S.80, CPC. is not a jurisdictional factor and any violation of the said provision cannot affect the jurisdiction of the court to try the suit as it is not dependent on S.80, CPC. as the benefit of it can be waived by the party concerned. We cannot accept the statement of law in Nannini Amma v. State (1952) II KLR. 389 and Narayani Pillai v. Raman Pillai 1968 KLT. 836 as correct. Their Lordships of the Privy Council observed in Vellayan v. Madras Province AIR. 1497 PC. 197 (74 IA. 223). as the benefit of it can be waived by the party concerned. We cannot accept the statement of law in Nannini Amma v. State (1952) II KLR. 389 and Narayani Pillai v. Raman Pillai 1968 KLT. 836 as correct. Their Lordships of the Privy Council observed in Vellayan v. Madras Province AIR. 1497 PC. 197 (74 IA. 223). "There is no inconsistency between the propositions that the provisions of the section (S. 80 CPC.) are mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they are provided." In quoting the above observations with approval, their Lordships of the Supreme Court observed in Dhirendra Nath v. Sudhir Chandra AIR. 1964 SC. 1300. "The Judicial Committee in ALAR. Vellayan Chettiar v. Government of Madras, 74 Ind. App. 223 at p. 228: (AIR. 1947 PC. 197 at p. 199) pointed out that there was no inconsistency between the propositions that the provisions of S.80 of the Code of Civil Procedure were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefit they were provided. In that case the Judicial Committee held it that S.80 of the Code of Civil Procedure was explicit and mandatory; but still it held that could be waived by the authority for whose benefit that was provided." 8. It is thus clear that the right of waiver available to a party under a particular provision will not make the conditions therein only directory and not mandatory. 9. In State of Andrapradesh v. C. V. Suryanarayana AIR. 1965 SC. 11 Shah, J. observed with reference to S.80, CPC. thus: "The section is imperative and must undoubtedly be strictly construed: failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit." 10. S.80, CPC. prescribes conditions to be complied before instituting suits of the nature mentioned [therein. It was not contended for the plaintiff that S.80, CPC. is only directory and not mandatory. 11. In Craies on Statute Law, 6th edition, page 269, the learned author stated: " If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, than the conditions prescribed by the statute are not considered as being indispensable. 11. In Craies on Statute Law, 6th edition, page 269, the learned author stated: " If the object of a statute is not one of general policy, or if the thing which is being done will benefit only a particular person or class of persons, than the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law, Quilibet potest renuntiare juri pro se introducto. As a general rub, the conditions imposed by statutes which 'authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the court. Where a statute deprives a person of a legal remedy, but does not deny him a cause of action, e.g., the Statute of Frauds or Statute of Limitations, courts of justice, whether under the specific rules of procedure or under their general course of practice, treat the right of the defendant to bar the remedy as waived if he does not plead the statute which bars it. 'It is evident,' said Alderson B-, 'that a party who has a benefit given to him by statute may waive it if he "thinks fit.' " 12. The logical result of the view taken in Narayani Pillai v. Raman Pillai 1968 KLT. 836 will be to hold that the plaint itself can be treated as a notice under S.80, CPC. We are therefore of the view, that the decisions in Nannini Amma v. State (1952) II KLR. 389 and Narayani Pillai v. Raman Pillai 1968 KLT. 836 have not been correctly decided. 13. We are of the view that S.80, CPC. prohibited the institution of a suit before the running of the period. We, therefore, hold that the suit is bad for want of compliance with S.80, CPC. We allow the appeal and dismiss the plaintiff's suit. The parties will bear their costs throughout. Allowed.