Prem Prasad Khemani v. State of Uttar Pradesh — 1985 DIGILAW 600 (ALL)

JUDGMENT : S.D. AGARWALA, J. 1. This is a civil revision filed u/s 25 of the Provincial Small Causes Courts Act against the judgment dated 19th January, 1985 by which the suit of the revisionist was dismissed by the trial court. The suit had been filed by the revisionist against the Respondents for a decree for possession after ejectment of the Respondents from the disputed premises and for recovery of Rs. 19,800/- by way of arrears of rent and mesne profits and future mesne profits at the rate of Rs. 1,000/- per mensem. The trial court dismissed the suit on the technical ground that since no notice u/s 80 of the CPC had been given the suit is bad for want of such notice. The trial court further held that a combined notice u/s 106 of the Transfer of Property Act and Section 80 CPC cannot be given and as such also the notice in question cannot possibly be construed as a valid notice in the eye of law, determining the tenancy and entitling the revisionist to file a suit against the Respondents. 2. I have heard the learned Counsel for the revisionist and the learned Standing Counsel for the Respondents. In State of U.P. v. N.C. Mukherji 1983 (1) ARC 836, it has been held that the notice u/s 80 CPC can be validly combined with the notice u/s 106 of the Transfer of Property Act. This case fully applies to the present case. In Rama Kant Gupta v. State of U.P. 1983 (2) ARC 158 Hon'ble A.N. Verma, J. again after considering other relevant cases of this Court categorically held that a notice u/s 106 of the Transfer of Property Act can be combined with the notice u/s 80 of the Code of Civil Procedure. I fully agree with the cases mentioned above. In the circumstances, this judgment of the trial court contrary to the view stated above is manifestly erroneous and is liable to be set aside. 3. Learned Standing Counsel has, however, contended that in fact, no notice u/s 80 of the CPC was given at all and as such the suit was rightly dismissed by the court below. A supplementary affidavit had been filed before me annexing a copy of the notice given by the Plaintiff before filing the suit. The contents of the notice are not disputed by the learned standing counsel. A supplementary affidavit had been filed before me annexing a copy of the notice given by the Plaintiff before filing the suit. The contents of the notice are not disputed by the learned standing counsel. The notice is dated 1-12-1980. The suit was filed in the year 1982. Ultimately, therefore, the suit was filed more than two months after giving of the notice. If the notice dated 1-12-1980 is also construed as a notice u/s 80 of the Code of Civil Procedure, then it cannot possibly be held that the suit is bad for want of notice u/s 30 of the Code of Civil Procedure. Section 80 of the CPC lays down that no suit shall be instituted against the Government until the expiration of two months next after notice in writing has been delivered to, or left at the office of the authority concerned. Sub-section (3) of Section 80 of the CPC further provides that no suit instituted against the Government shall be dismissed merely by reason of any error or defect in the notice referred to in Sub-section (1), if in such notice the following requirements are complied with: (a) the name, description and the residence of the Plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left an the office of the appropriate authority specified in Sub-section (1), and (b) the cause of action and the relief claimed by the Plaintiff had been substantially indicated. 4. On a perusal of the notice dated 1-12-1980, it is apparent that the name, description and the residence of the Plaintiff has been clearly given. The description of the Defendants is clear to identify the persons against whom the relief is sought. The last sentence of the notice is very significant which is as follows: In the event of the suit being filed, the facts discussed above shall constitute the cause of action. 5. From this expression it is clear that this notice also conveyed the cause of action for filing of the suit. The last sentence of the notice is very significant which is as follows: In the event of the suit being filed, the facts discussed above shall constitute the cause of action. 5. From this expression it is clear that this notice also conveyed the cause of action for filing of the suit. In view of the above, all the requirements which are required to be given in a notice u/s 80 of the CPC had been given in the notice dated 1 12-1980 and as such it cannot be said that the notice dated 1-12-1980 cannot be construed as a notice u/s 80 of the Code of Civil Procedure. 6. It is also significant to note that the above quoted sentence was not required to be given in a notice which is a notice u/s 106 of the Transfer of Property Act simplicities, this last sentence of the notice has been used with a specific intention of making it a combined notice u/s 106 of the Transfer of Property Act and Section 80 of the Code of Civil Procedure. 7. In Dominion of India Vs. L. Badu Lal, AIR 1962 All 461 this Court had categorically laid down the object of giving a notice u/s 80 of the Code of Civil Procedure. It has been opined as follows: In the instant case, the fact that by giving a second notice the Plaintiff would have suffered no harm because he could await filing his suit for two months from the date of the service of notice on the Defendant was also no ground for holding that the Plaintiff should have served a second notice when there was an amendment of the law. The object of giving notice is perfectly clear; the object is as was pointed out in so many decisions to give the Defendant, who happened to be the Government or some department of Government or some Government officials, an opportunity to know precisely what the case was so that if the circumstances justified the case could be settled out of Court and thereby avoid waste of public time and money. In this connection it would be significant to note that there was no assertion on behalf of the Defendant nor any finding of the court below that the answering Defendant had no knowledge of the suit or that the answering Defendant had no opportunity of settling the dispute, if it so wanted. So that it could not be argued that there was any injustice done to the Defendant by the notice, the validity of which I am inclined to uphold, namely, the notice dated the 18th December, 1947. 8. Considering the object for which Section 80 of the CPC has been enacted, it is clear that the notice in question dated 1-12-1980 fully complies with the provisions of Section 80 of the Code of Civil Procedure. On a reading of the notice nothing remained vague. The entire facts constituting the cause of action was categorically stated. It was further stated that in case default in the payment of rent is made, the suit would be filed. If the Government really wanted to settle the dispute, it had ample opportunity to settle the dispute out side the court as the Plaintiff-revisionist gave more than two years to the Government for settling the matter. 9. In view of the above, I am of the opinion that view taken by the revisional court that the notice dated 1-12-1980 cannot be construed to be a notice u/s 80 of the CPC is a view manifestly erroneous in law and is liable to be set aside. 10. Since I am of the opinion that a valid combined notice was given u/s 106 of the Transfer of Property Act and 80 of the Code of Civil Procedure, the suit was maintainable in law. The judgment dated 19-1-85 passed by the II Additional District Judge, Agra is set aside. The tease is remanded to the court below for decision afresh on the other issues involved in the suit. The suit may be decided expeditiously. The parties are directed to bear their own costs.