Judgment D.P.SINHA, J. 1. This second appeal has been preferred against the judgment and decree passed by the District Judge of Santhal Parganas in Title Appeal No. 31 of 1970 dismissing Title Suit No. 5 of 1966 which had been decreed in favour of the appellant by the 3rd 38 of 1968 Additional Subordinate Judge of Deoghar. 2. The appellant, Julal Mandal, was, at the relevant time, employed as a Permanent Way Mistry under the Eastern Railway. On 8-3-1965 the engine of the 71-Up Parcel Express collided with a stationary loaded Dip Lorry which was unloading materials at a place between Shankarpur Station and Mathurapur Halt on the UP line situated within the jurisdiction of A.E.W. Eastern Railway, Madhupur, respondent No. 3. A fact finding Committee was constituted which submitted a report on the basis of which a departmental proceeding was started against the appellant. The proceeding was conducted by the A. E. W. Madhupur (Shri B. R. Sen) who submitted a report to the Divisional Engineer, respondent No. 2, saying that the appellant was responsible for the accident and that he should be dismissed from service. The Divisional Engineer accepted that report and called upon the appellant by his memo. dated 10-12-1965 to show cause why he should not be removed from service and subsequently it was alleged, without giving him reasonable opportunity to show cause, he had dismissed him. 3. Thereupon the appellant instituted the title suit (Title Suit No. 5 of 1966) for setting aside the order of dismissal after a declaration that he was not responsible for the accident as he was not in-charge of the Dip Lorry, the persons in-charge being one Bhaktu, an untrained and unlicenced Mistry. According to him Shri B. R. Sen, the A. E. W., Madhupur had not been properly appointed to hold the inquiry by the Divisional Engineer who was the competent authority to make such appointment and he being himself responsible for the accident on account of his having deputed Bhaktu to drive the Dip Lorry in spite of the fact he was an untrained and unlicenced person, should not have been allowed to hold the inquiry. It was further alleged that after the service of the show cause notice the Divisional Engineer (Respondent No. 2) had not given the appellant reasonable opportunity of preparing his show cause against the proposed punishment and that the petitioner had also learnt that the Divisional Engineer had either already passed the order of dismissal or was about to do so. He, therefore, prayed among other things that the order dated 10-12-1965 by which the Divisional Engineer had held him guilty and liable to be dismissed be declared illegal, void and without jurisdiction. He further prayed by an amendment of the plaint, which was allowed on 9-7-1968, that the order of dismissal, if any, passed on the basis of the said order dated 10-12-1965 be declared to be illegal, void and without jurisdiction and that the appellant continued to be in service and was entitled to get his salary and allowances which he was getting prior to the illegal order of dismissal was given effect to. 4. As to the service of notice under S. 80 of the Code of Civil Procedure, the appellant had said in the plaint that in view of the impending action contemplated to be taken against him by the Divisional Engineer (respondent No. 2) there was hardly any time to serve the notice and, therefore, it should be deemed that the requirement of the notice had been waived. He had further stated that he had sent the notice by registered post on the day he had filed the plaint. 5. The Union of India respondent No. 1, as representing the Eastern Railway through its General Manager, the Divisional Engineer (respondent No. 2) Eastern Railway, Asansole and the A. E. W., Eastern Railway, (respondent No. 3) Madhupur, were impleaded as defendants 1, 2 and 3 respectively. The suit was contested by defendant No. 1 which filed a written statement. In substance, its contentions were that the appellant was responsible for the accident as he was in-charge of the Dip Lorry at the relevant time. Shri B. R. Sen (A. E. W.) being responsible to the Board for reporting all accidents, was the competent person to hold the enquiry. Bhaktu was, no doubt, the driver of the Dip Lorry but he was to act as an assistant to the appellant and the allegation that he was an untrained person was not correct. Shri B. R. Sen (A. E. W.) being responsible to the Board for reporting all accidents, was the competent person to hold the enquiry. Bhaktu was, no doubt, the driver of the Dip Lorry but he was to act as an assistant to the appellant and the allegation that he was an untrained person was not correct. The appellant had been given sufficient opportunity to prepare his show cause and he was himself responsible for not having submitted the same. The Divisional Engineer had duly considered the report of the Enquiry Officer (Mr. Sen) and then passed the order of dismissal. It was further contended that the suit was not entertainable inasmuch as notice as required under S. 80 of the Civil Procedure Code (hereinafter referred to as the Code) had not been served and the statutory period of two months was not allowed to expire before the institution of the suit. 6. The following issues were settled and tried by the learned Additional Subordinate Judge: "(1) Is the suit as framed maintainable ? (2) Has the plaintiff any cause of action ? (3) Is the Court fee paid sufficient? (4) Is the suit barred for non-compliance of S. 80 of the Code of Civil Procedure ? (5) Is the suit hit by the provisions of Specific Relief Act ? (6) Is the suit barred by the principles of estoppel, waiver and acquiescence ? (7) Whether the plaintiff had required authority and license to operate the Dip Lorry on the date in question and whether the plaintiff was incharge of the Dip Lorry at the time and date of the accident ? (8) Whether the plaintiff was responsible for the accident resulting damage to the Dip Lorry or to any other Railway property, if there was any such damage ? (9) Whether the orders in question suspending or removing the plaintiff from service are illegal, void and without jurisdiction ? (10) Whether the plaintiff is entitled to the declaration he has sought for ?" 7. Issue Nos. 3, 5, 6 and issue No. 4 which related to objection with regard to the non-service of notice under S. 80 of the Code were not pressed. 8. The learned Additional Subordinate Judge answered issues Nos. (10) Whether the plaintiff is entitled to the declaration he has sought for ?" 7. Issue Nos. 3, 5, 6 and issue No. 4 which related to objection with regard to the non-service of notice under S. 80 of the Code were not pressed. 8. The learned Additional Subordinate Judge answered issues Nos. 7, 8, 9 and 1, 2, 10 and 11 in favour of the appellant and came to the conclusion that the appellant was neither incharge of the Dip Lorry on the date of the accident nor was he operating it at the time the accident took place and that it was clear beyond doubt that on the date and time of the accident it was Bhaktu who was operating the same and the appellant had nothing to do with it. Accordingly, the learned Additional Subordinate Judge, decreed the suit and declared that the order dated 10-12-1965 of the Divisional Engineer (respondent No. 2) holding the appellant guilty was illegal and void and he further declared "that the plaintiff must be deemed to be in service and/or should be reinstated in service and he is entitled to get his salary, etc. which he was getting on the date the order of suspension was given effect to." 9. That Union of India (respondent No. 1) preferred an appeal which was heard by the District Judge, the only point raised and pressed before the District Judge was that the suit was not entertainable as the statutory notice under S. 80 of the Code had not been served on the Union of India. The District Judge held that the suit was liable to be dismissed on account of non-service of the notice. He, accordingly, set aside the judgment and decree of the Court below. The appellant has, therefore, appealed against the appellate decree. 10. Mr. The District Judge held that the suit was liable to be dismissed on account of non-service of the notice. He, accordingly, set aside the judgment and decree of the Court below. The appellant has, therefore, appealed against the appellate decree. 10. Mr. B. C. Ghose learned counsel appearing on behalf of the appellant assailed the decision of the learned District Judge on the following points:- "(a) Notice under S. 80 of the Code had been sent by the appellant on 10-1-1966 on which date the suit was instituted and a petition for amendment with regard to a new cause of action which had since arisen was filed on 16-4-1968 and allowed on 9-7-1968 long after the expiry of two months from the date of institution of the suit and no objection with regard to the amendment on the ground of non-service of notice was raised on behalf of the respondents as such it should be deemed that the objection with regard to the notice had been impliedly waived. (b) In view of the pleadings as they stood prior to the amendment of the plaint, an issue (issue No. 4) had been raised with regard to the non-service of notice and that issue was given up and not pressed by the respondents which fact amounted to waiving the objection with regard to the non-service of the notice prior to the institution of the suit. Learned counsel submitted that the learned District Judge had failed to appreciate this fact because he did not apply his mind at all to this important and crucial circumstance. He argued that had he considered this point he would have come to the conclusion that the objection with regard to the non-service of notice had been clearly waived by the respondents." 11. On the other hand, Mr. S. C. Ghose, learned counsel appearing on behalf of the respondents contended that this was a case in which the plaint should have been rejected in view of the express and mandatory provisions of S. 80 of the Code, as required by the provisions of R. 11 (d) of O. 7 of the Code. On the other hand, Mr. S. C. Ghose, learned counsel appearing on behalf of the respondents contended that this was a case in which the plaint should have been rejected in view of the express and mandatory provisions of S. 80 of the Code, as required by the provisions of R. 11 (d) of O. 7 of the Code. He further contended that the amendment of the plaint did not seek to introduce any new cause of action; it only sought to make the relief already prayed in the plaint more specific and that at any rate it was merely consequential and the mere fact that no objection to the amendment had been raised by the respondents could be no ground for holding that the respondents had waived the requirement of the notice. As to the contention that the issue with regard to the notice had been given up, the learned counsel submitted that it was not understandable as to how it could have been given up by the respondents, when the plea as to the non-service of notice had been specifically taken in the written statement of respondent No. 1. 12. It is not disputed that the provisions of S. 80 are express, explicit and mandatory and admitted of no implications or exception prior to the coming into force of the Code of Civil Procedure Amendment Act, 1976 (No. 104 of 1976), the provisions of which do not apply to this case. It is also well settled and no controversy has been raised, that the provisions of S. 80 may be legally waived by the authority for whose benefit they are provided. This proposition has not been challenged and, if any, authority is needed a reference may be made to the case Vellayan Chattier V/s. Govt. of the Province of Madras through the Collector of Ramnad at Madurai, AIR 1947 PC 197. This is a decision of the Privy Council and in full supports both the above propositions. There can, therefore, be no doubt that the defendants, for whose benefit the provisions of S. 80 were made, could legally waive the same. 13. The question which now arises for consideration is whether the respondents had waived the requirement of notice. Two contentions had been raised by Mr. B. C. Ghose in this behalf. There can, therefore, be no doubt that the defendants, for whose benefit the provisions of S. 80 were made, could legally waive the same. 13. The question which now arises for consideration is whether the respondents had waived the requirement of notice. Two contentions had been raised by Mr. B. C. Ghose in this behalf. The first contention which was based on the amendment of the plaint does not appear to be sound. According to him the amendment sought in the petition dated 16-4-1968 which had been filed after expiry of two months after the institution of the suit was based on an altogether fresh cause of action and in spite of the fact that it was allowed on 9-7-1968, the respondent did not file any fresh objection with regard to the non-service of notice and as such it should be deemed that they had waived the objection with regard to the notice. I do not think this objection has any substance at all. In the first place the relief sought for by the amendment was only a consequential one based on relief (a) claimed in the plaint. Secondly, even if it be assumed that the amendment gave rise to a fresh cause of action it is not understandable how the requirement of the notice should have been deemed to have been waived only because the amendment was not objected to by the respondent. The obligation to serve the notice under Section 80 regarding the fresh cause of the action, was on the plaintiff. In para 24 of the plaint it had been stated that the plaintiff had reliably learnt that an order of dismissal had already been passed against him and one of the reliefs sought was as follows: "(a) For declaration that the order of Divisional Engineer, Asansole contained in his memo. No. 251TA/65/RB dated 10-12-1965 holding the plaintiff guilty and holding him liable for dismissal was illegal, void and without jurisdiction." The amendment which had been sought for and allowed was for adding the following further relief in the plaint : "For declaration that any order of dismissal passed on the basis of the report of the Enquiry Officer or the order contained in Memo. No. 251/TA/65/RB dated 10-12-1965 is illegal, void and without jurisdiction and that the plaintiff continues to be in service and is entitled to get his salary and allowances which he was getting on the date the illegal order of dismissal was given effect to." 14. The second contention of Mr. B. C. Ghose, however, appears to have sufficient force. In view of the pleadings of the parties a specific issue with regard to the non-service of the notice under S. 80 had been framed by the trial Court and it was issue No. 4. The judgment of the trial Court shows that at the time of hearing this issue was not pressed. This clearly means that the respondents had impliedly waived the requirement of the notice. It is not possible to interpret this attitude on the part of the respondents in any other manner. If that was so, the learned trial Judge was quite justified in proceeding to decide the other issues involved in the case. It may be mentioned that the Union of India, respondent No. 1 in its appeal before the District Judge did not challenge the findings on merit so far as the other issues were concerned. The only issue pressed before the learned District Judge was that the suit should not have been entertained on account of non-service of the notice on the appellant. While the learned District Judge mentioned in his judgment that issue No. 4 relating to non-service had not been pressed by the appellant before the trial Court, he did not consider the question as to whether by not pressing issue No. 4, the Union of India had impliedly waived the provisions relating to the notice. Instead of considering this question, the learned District Judge addressed himself to the question as to whether on account of the fact that the plaintiff had no time in view of the action threatened by the respondent A. E. W. to serve the notice and wait for two months before instituting the suit. Instead of considering this question, the learned District Judge addressed himself to the question as to whether on account of the fact that the plaintiff had no time in view of the action threatened by the respondent A. E. W. to serve the notice and wait for two months before instituting the suit. On the basis of the decision in the case of the State of Bihar V/s. Jiwan Das Arya, AIR 1971 Pat 141 he observed as follows (at p. 849 of BLJR) : (at p. 145 of AIR): "In this case it has been held by the Honble Patna High Court that S. 80, C. P. C. is express, explicit and mandatory and it admits of no implications or exceptions.....It is, however, difficult to accept the view that merely because the threatened or the imminent action is to take place in a period shorter than the requisite period of two months required for giving notice under S. 80 of the Code, the authority concerned waives the protection of S. 80, C. P. C." It has already been pointed out that the learned District Judge has mentioned in his judgment that issue No. 4 had not been pressed by the respondents but he has not considered the question whether the giving up of the issue by the respondents at the trial did or did not amount to waiver of the notice. This was a vital question to be considered. So far as the decision in 1970 B L J R 843 : ( AIR 1971 Pat 141 ) is concerned there is nothing in it which may be said to be against the principle laid down in Vellayan Chattiers case, AIR 1947 PC 197 (supra) that notice under S. 80 is for the benefit of the authority concerned and that the same may be lawfully waived by it. On the other hand, this fact had been noticed therein and accepted as the established legal position. Accordingly, the appeal is allowed and the judgment and decree of the learned District Judge are set aside and those of the trial Court are hereby restored. In the particular circumstances of this case parties are directed to bear their own costs. 15 I agree.