JUDGMENT - SURESH H., J.:---Rule, returnable forthwith. Respondents waive service. Heard the Advocates. In this case, the petitioner filed a suit being Suit No. 6669 of 1970 as against the respondent-the State of Maharashtra on 10th September, 1970. Apparently, he filed the said suit without giving any notice under section 80, Code of Civil Procedure (for short C.P.C.) as there was urgency. Soon after filing the suit, the petitioner issued a notice dated 21-9-1970 addressed to the Secretary to the Government of Maharashtra and that notice was served as required under section 80, C.P.C. Thereafter in 1973 the petitioner amended the plaint, in which he stated that he had issued such a notice under section 80, C.P.C. and in the event the Court comes to the conclusion that such a notice was necessary to be given to the defendants before commencement of the suit, the plaintiff would seek permission of the Court to withdraw the suit with liberty to refile the same on the basis of the said notice. That notice was, in fact, annexed to the plaint. 2. The defendants have filed their written statement. They also dealt with this amended paragraph. In the written statement, the only contended that they would not waive service of the notice under section 80, C.P.C. and, therefore, they contended that the suit was not maintainable for want of notice under section 80, C.P.C. 3. In 1981 when the suit came up on board, issues are framed and it is an admitted position that there was no issue relating to want of notice under section 80, C.P.C. and for dismissal of the suit on that ground. The suit remained pending for nearly another ten years. The plaintiff's evidence came to be recorded on 9-10-1990. It appears that at this stage the learned Judge felt that there should be an additional issue, namely, "whether the suit is barred for want of necessary notice under section 80, Code of Civil Procedure?" The plaintiff objected to the framing of such an issue. As soon as that issue was framed, the plaintiff was advised to take out a chamber summons with the prayer that he may be allowed to withdraw the suit with liberty to file a fresh suit on the same subject-matter on the basis of the said notice dated 21-9-1970 and he also asked for certain consequential reliefs. As soon as that issue was framed, the plaintiff was advised to take out a chamber summons with the prayer that he may be allowed to withdraw the suit with liberty to file a fresh suit on the same subject-matter on the basis of the said notice dated 21-9-1970 and he also asked for certain consequential reliefs. It was this chamber summons which was heard at length by the learned Judge, who by his order dated 13-11-1990 dismissed the chamber summons. The present revision is against this order. 4. Prior to the amendment of the Code of Civil Procedure in the year 1976, it was almost a common experience for many of us that where there was a serious injury so imminent that it can only be prevented by an immediate action, the plaintiff would come to the Court and seek interim relief and despite want of notice under section 80, C.P.C., the Court would grant interim relief for a limited period. In the meanwhile, almost as a matter of practice, the plaintiff would issue a notice under section 80, C.P.C. and after the service of the notice and after waiting for the statutory period of sixty days, the plaintiff would make a formal application for withdrawal of such a suit with liberty to file a fresh suit. This was so even with regard to suits against Municipal Corporation where a notice under section 527 of the Bombay Municipal Corporation Act was required to be given before filing a suit against the corporation. I distinctly remember while presiding over the Bombay City Civil Court that very often it had been pointed out to the Municipal Corporation as also to the Government that insistence of dismissal of the suit on such technical defect would only multiply the dockets with no resultant benefit for any one excepting for the legal fraternity. By and large neither the Government nor the Corporation would insist on such a want of defect in the suit on an assumption of implied waiver. 5. In the present case, there is an additional circumstance. The plaintiff amended the plaint. Immediately after issue of the notice, he also annexed a copy of the said notice to the defendants. By and large neither the Government nor the Corporation would insist on such a want of defect in the suit on an assumption of implied waiver. 5. In the present case, there is an additional circumstance. The plaintiff amended the plaint. Immediately after issue of the notice, he also annexed a copy of the said notice to the defendants. He also made it clear that if in spite of this, the Court comes to the conclusion that the suit was not maintainable, he wanted seek permission to withdraw the suit with liberty to file a fresh suit. If the defendants were keen on insistence of dismissal of the suit for want of notice, the defendants ought to have pressed upon the learned Judge to do so as an order of injunction was running against the Government. Apparently, the Government did not feel such a necessity at any time, even at the time when issues were framed in the year 1981. It is significant to note that no such issue was framed in the year 1981. If there was any serious objection on the part of the Government, the Government should have insisted on framing of such an issue. In other words, the plaintiff was lulled into a belief that the Government would not raise this objection at any time, as far as this suit was concerned. It is unfortunate that the learned Judge thought that he should frame such an issue when apparently the defendants had not raised such an issue earlier. But having framed such an issue, the plaintiff had no choice but to withdraw the suit with liberty to file a fresh suit on the same cause of action. But the learned Judge compounded his first mistake by the second when he dismissed the chamber summons. This is nothing but patent injustice to a litigant who after waiting for nearly two decades gets non-suited purely on a technical defect. 6. It is true that want of notice entails dismissal of the suit. But it is not that there is any prohibition against the Government from waiving such an objection. The notice is for the benefit of the Government, and there is no reason why in a given case, the Government cannot waive the notice, if in any case, the Government desires to contest the plaintiff's case. But it is not that there is any prohibition against the Government from waiving such an objection. The notice is for the benefit of the Government, and there is no reason why in a given case, the Government cannot waive the notice, if in any case, the Government desires to contest the plaintiff's case. Of course, there are cases and cases both of the Privy Council and of the Supreme Court to the effect that the provisions of section 80, C.P.C. may be waived. I am equally conscious of the fact that there are certain cases to the contrary. But in the present case, the learned Judge ought to have realised that framing such an issue when the Government proceeded with the suit without raising such an issue, would only result in dismissal of the suit, irrespective of considerations relating to the real dispute between the parties. 7. The learned Judge proceeded to consider that want of notice under section 80 is not a formal defect so as to permit the plaintiff to withdraw the suit with liberty to file a fresh suit. But the learned Judge forgets that under Order 23, Rule 1, sub-rule (3), C.P.C. liberty can be given if the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. In the present case, the very injustice of the suit being dismissed on a technical plea, itself is sufficient ground. I am also not prepared to accept the learned Judge's finding that this is not a formal defect. It is a formal defect, inasmuch as, it is our experience that at no time, at least since last about four or five decades I can say, the Government has over considered the merits of a claim contained in the notice under section 80, C.P.C., the object of the same being to avoid a suit, if possible. It is common experience of every litigant that whenever such a notice is issued under section 80, C.P.C., he only gets an acknowledgment saying that the Government has received such a notice and occasionally stating that the Government is considering such a notice. Beyond that, the Government does nothing. In fact, the Law Commission had recommended deletion of section 80, C.P.C. altogether inasmuch as it serves no purpose. Beyond that, the Government does nothing. In fact, the Law Commission had recommended deletion of section 80, C.P.C. altogether inasmuch as it serves no purpose. Neither it gives any relief to the plaintiff before coming to the Court nor it serves avoidance of a litigation. Therefore, it is all the more necessary to consider that the want of a notice under section 80, C.P.C. is nothing but a formal defect, as it is an empty formality to be performed before filing a suit against Government. 8. In the result, I pass the following order : The impugned order is set aside. I grant the chamber summons. I grant liberty to the plaintiff to withdraw the suit with liberty to file a fresh suit on the same cause of action. The plaintiff to prefer such a plaint on or before 18-12-1990. The plaintiff's Advocate to writ to the defendants' Advocate of his having filed such a suit and he shall forward a copy of the plaint to the defendants Advocate. On receipt of such a communication from the plaintiff's Advocate, the defendants shall waive service of the writ of summons. The defendants shall file their written statement, if any, within two weeks thereafter. On the written statement being filed, the learned Judge, Bombay City Civil Court, shall treat the suit as an expedited suit and shall give precedence over other suits as if the suit is a suit pending from the year 1970. (It means it shall get the priority in the order of seniority in matters which are pending in the Court and it will have its place at the level where 1970 suits are pending.). Parties are at liberty to make a request to the learned Judge that the evidence recorded on 9-10-1990 in the earlier suit shall be treated as part of evidence in this suit. However, liberty to the learned Judge to proceed in such manner a he thinks proper and if he so desires, he may record the evidence afresh in the suit. The status quo as it existed in the earlier suit shall continue till the disposal of the new suit. Rule made absolute accordingly. There will be no order as to costs. Order accordingly. -----