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2000 DIGILAW 1499 (PNJ)

State of Punjab v. Paramjit Singh

2000-12-06

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - With the assistance of the counsel for the parties, I have gone through the impugned judgment dated 31.3.1997. The plaintiff was non- suited by the trial Court mainly on the ground that he did not serve a valid notice under Section 80, CPC. This finding was set aside by the first Appellate Court, for the reasons given in paras 8 to 15 of its judgment, which read as under :- "8. I have heard the learned Counsel for the appellant and the learned Government Pleader for the respondents and record available on the file. 9. The learned Counsel for the appellant has argued that the findings of the learned trial Court on issues 3 and 4 are liable to be set aside because the plaintiff has specifically pleaded in the plaint that he served the defendants with notice under Section 80 CPC before filing the present suit. Para No. 5 of the plaint is to this effect. It is also argued that even the copy of the said notice served upon the defendants-respondent under Section 80 CPC was attached along with the plaint and the postal receipts were also filed. The copy of the notice is Ex.P-2 whereas the postal receipts are Ex.P3 and P4. It is thus argued that from these documents Ex.P2 to Ex.P4 it is evident that the notice under Section 80 CPC was served and the suit was filed after the service of notice. The notice was served on 4.12.1986 and the suit was filed on 27.10.1987. So it cannot be said that the suit is bad for non-service of notice under Section 80 CPC or that the suit is not maintainable in the present form. It is argued that onus of issues 3 and 4 was no the defendants-respondents, but no evidence has been led by the defendants- respondents on both these issues. So the findings of the learned trial Court are erroneous and against the evidence available on the file. 10. On the other hand learned G.P. has argued that the findings of the learned trial Court are legal and valid and are not liable to be set aside. The defendants have denied the service of the notice under Section 80 C.P.C. So the findings of the learned lower court that no notice under Section 80 CPC was served are sustainable. 11. The defendants have denied the service of the notice under Section 80 C.P.C. So the findings of the learned lower court that no notice under Section 80 CPC was served are sustainable. 11. At the very outset it may be said that no cross-examination or cross- appeal was filed by the State challenging the findings of the learned trial Court on issues No. 1. 12. Admittedly the notice under Section 80 CPC was served upon the defendants before filing the present suit. Copy of the notice is Ex.P2 and the postal receipts are Ex.P3 and Ex.P4. The claim of the defendants is that no date of notice was pleaded in the plaint. So the service of notice under Section 80 CPC is denied as is evident from para 2 of the preliminary objection of the written statement. No one has appeared on behalf of the defendant to say that no notice was served upon the defendants before filing the present suit. The receipt registers of the defendants have also not been produced during the evidence to show that no such notice was served upon the defendants. It has not been stated by any body that Ex.P2 was not received by the defendants. The requirement of section 80 CPC is that the notice should contain the address of the defendants and the relief claimed therein and the particulars of the plaintiff. All these conditions are fulfilled as is evident from copy of notice Ex.P2. 13. Moreover, while appearing as PW-1 the plaintiff-appellant has specifically stated that he served notice under Section 80 CPC, copy of which is Ex.P2 and postal receipts are Ex.P3 and P4 but he has not been cross- examined by the defendants on this point. So it is a settled law that if no cross-examination is done of a witness on a particular point of examination-in-chief then it amounts that the other party accepted that point. The authority on the point is reported as 1977 Current Law Journal 259 Harbans Lal v. Bhim Sain etc. 14. So it is a settled law that if no cross-examination is done of a witness on a particular point of examination-in-chief then it amounts that the other party accepted that point. The authority on the point is reported as 1977 Current Law Journal 259 Harbans Lal v. Bhim Sain etc. 14. The learned trial Court has relied upon AIR 1984 S.C. 1043, Bihari Chowdhary v. State of Bihar, but the said authority is not applicable to the facts of the present case because in that case suit was filed before the expiry of period of two months before the service of the notice under Section 80 CPC which is not a case in the present case in hand. The suit has been filed after the expiry of statutory prescribed period of two months. Otherwise also if the trial Court was of the opinion that no notice under Section 80 CPC was served then the suit was not to be dismissed but the plaint was to be returned to the plaintiff for service of notice under Section 80 CPC. The learned trial Court has erred in dismissing the suit on this point. So the finding of the learned trial Court on this issue is not sustainable. 15. I also find no force in the finding of the learned trial Court that the suit is not maintainable in the present form. The plaintiff-appellant has challenged the order of dismissal bearing No. 4365-70/88 dated 28.11.1985 being illegal, null and void by filing suit for declaration. There is no defect in the frame of the suit. In the given circumstances the suit for declaration is maintainable." 2. I have examined the records of the trial court. The plaintiff has placed on record Ex.P-2, a carbon copy of the notice under Section 80, CPC, dated 4.12.1985, wrongly typed as 4.12.986. Exh.P-3 and P-4, are the postal receipts. It is true that there is no registered acknowledgment due from the side of the respondent but presumption of service can always be attached to the due service when the plaintiff has been able to place on record the original postal receipts, Exh.P-3 and P-4. No witness from the Department has come in the witness box to controvert the allegations of the plaintiff. No witness from the Department has come in the witness box to controvert the allegations of the plaintiff. So much so, even the plaintiff had stated, while appeared in the witness box, that he served a notice under Section 80, CPC, before filing the suit. Further, the plaintiff has averred in para 5 of the plaint as under :- "That notice under Section 80 is served on defendant. A copy of the notice with the postal receipts are attached." In reply to para 5, the defendant has simply stated that para 5 of the plaint is vague, incomplete and wrong. The plaintiff has failed to furnish the particulars of the notice. When the plaintiff has placed on record the copy of the notice under Section 80, CPC, supported by two postal receipts, no further proof was required. In the circumstances, I hold that the notice was served upon the defendant before filing the suit, which was instituted in the year 1987. The plaintiff has filed the suit for declaration and he challenged that the order dated 29.11.1985 was illegal; null and void and is not binding upon him. As I have stated above, the suit was instituted in the year 1987. It was within limitation. 3. So far as the merits are concerned, even the trial Court came to the conclusion that the order of dismissal is not legal. Resultantly, I find no merit in this appeal and the same is hereby dismissed. No costs. Appeal dismissed.