( 1 ) THIS is the defendants' appeal from the judgment and decree dated 19th September, 1996 passed by the Civil Judge, Gulbarga in original suit number O. S. No. 47 of 1995. The plaintiff had filed the above mentioned suit for recovery of a sum of Rs. 1,54,692/- against the defendants. ( 2 ) PLAINTIFF claimed himself to be P. W. D. Contractor and he alleged that he had been entrusted with the work of repair and tar work of the Chittapur-Malkhed Road from 10. 15 km to 13. 20 km, on the total costs of Rs. 4,00,827-11 Ps. , accordingly there was an agreement. But he could cany out the part of the work amounting to Rs. 91,176/- and stopped further work as per order and the direction of the Chief Engineers. The plaintiff alleged that the aforesaid amount of Rs. 91,176/- was payable on or before February 1993. Under this amount the material worth Rs. 41,000/-, was allotted by defendant 2, at P. W. D. expenses. So after deduction of Rs. 41,000/-, plaintiff claims to be entitled to the sum of Rs. 50,1767-, payable on or before February 1993. Plaintiff alleged that he made several demands, but of no effect, and therefore plaintiff claimed that he is entitled to interest at the rate of 18% per annum till February 1995 and according to plaintiff the interest that had accrued on the above amount upto the date of suit amounted to Rs. 10,075/ -. Plaintiff further alleged that while accepting the plaintiffs tender the plaintiff-respondent as required had to deposit of Rs. 10,800/-, in the name of defendant 2, in the Bank, under the head called "call deposit" and that amount had to be released and returned by defendant 2, after completion of the work. That amount had to be released at the time of cancellation of work but the same has not been released and not been returned. Plaintiff claimed interest thereon from March 1993, that is from the date of cancellation of the work, till January 1995, to be in a sum of Rs. 3,726/ -. Plaintiff further alleged that plaintiff suffered the damage for the loss of profit at the rate of 10%, amounting to Rs. 30,800/ -. Plaintiff also alleged that plaintiff had dumped materials like metal at K. M. No. 10. 50 to 12-50 amounting to Rs. 41,125/-, apart from the other work. 3,726/ -. Plaintiff further alleged that plaintiff suffered the damage for the loss of profit at the rate of 10%, amounting to Rs. 30,800/ -. Plaintiff also alleged that plaintiff had dumped materials like metal at K. M. No. 10. 50 to 12-50 amounting to Rs. 41,125/-, apart from the other work. But as the defendant has stopped the work and so plaintiff is entitled to claim that amount as damages and in total the plaintiff claimed decree for the sum of Rs. 1,54,692/ -. ( 3 ) THE defendants, in spite of service of the summons of the case and defendants putting their appearance through the District Counsel, did not prefer to file any written statement in the case. Several opportunities were, no doubt granted to defendants and after recording the state- ment of p. W. 1, looking to the material exhibits on record, Trial Court decreed plaintiffs claim for a sum of Rs. 1,23,467/- by way of decree under Order 8, Rule 10 of the CPC. It so appears from record. ( 4 ) FEELING aggrieved from the judgment and decree of the Trial Court, the defendant has come up in appeal. ( 5 ) I have heard the learned Government Advocate Sri Ramaiah, for the appellants and Sri V. S. Sheelavanth, learned Counsel for the respondent. ( 6 ) ON behalf of the appellants, the Government Counsel submitted that the decree passed by the trial Court has been without jurisdiction, as the Trial Court had no jurisdiction to entertain the suit, in view of the fact that no notice under Section 80 of the Code of Civil Procedure was issued or given or served by the plaintiff-respondent on defendants-appellants. Learned government Counsel contended that, even in the plaint there is not the least averment to that effect that notice under Section 80 of the Code of Civil Procedure, as per requirements of the section, has been served. Learned government Counsel contended that, even in the plaint there is not the least averment to that effect that notice under Section 80 of the Code of Civil Procedure, as per requirements of the section, has been served. Learned Government Counsel contended, as such it has to be presumed that no notice has been served on the appellants-defendants, and as Section 80 mandates that no suit shall be instituted against the Government unless and until the notice under Section 80 of the civil Procedure Code has been served on the Secretary to the Government fulfilling the requirements of Section 80 stating therein the cause of action, the name, description and place of residence of the plaintiff and reliefs which plaintiff may claim. Learned Government Counsel contended, it was the duty of the Trial Court itself to have dismissed the suit or at least to have returned the plaint to the plaintiff under Order 7, Rule 11 of the Civil Procedure Code, but the trial Court without applying its mind to this aspect of the matter, proceeded to decree the suit, and as suit could not be instituted without notice under Section 80 and without two months period being allowed to expire, from the date of service of notice the Court did not get jurisdiction by such illegal institution of the suit to grant that decree in favour of the respondent. This contention of the learned Government Counsel has been hotly contested by Sri Sheelavanth. Sri Sheelavanth contended, that though there is no averment in the plaint, but Ex. P-6 is a notice that had been given to the Government and to the defendants and that had been given on 1-9-1994, and was served on 3-9-1994. Learned Counsel contended that in spite of this notice, the defendants-appellants did not care to fulfil the demand of the plaintiff and did not comply with the notice and pay the amount. So notice has been given, Government Counsel is not justified in contending that no notice has been served. ( 7 ) I have applied my mind to these contentions of the learned Counsel for the parties. Section 80 of the Code of Civil Procedure reads as under: "80. So notice has been given, Government Counsel is not justified in contending that no notice has been served. ( 7 ) I have applied my mind to these contentions of the learned Counsel for the parties. Section 80 of the Code of Civil Procedure reads as under: "80. Notice.-- (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government (including the Government of State of Jammu and Kashmir) 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;(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief secretary to that Government or any other officer authorised by that Government in this behalf; (c) in the case of a suit against any other State Government, a Secretary to that Government 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. (2) A suit to obtain an urgent or immediate relief against the Government (including the government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit: provided that the Court shall, if it is satisfied, after hearing the party, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1 ). (3) No suit 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 shall be dismissed merely by reason of any error or defect in the notice referred to in subsection (1), if in such notice.-- (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 at 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". A perusal of Section 80 of the Civil Procedure Code clearly reveals that, as per this section, the mandate of law is that no suit is to be instituted against the Government, Central or State or against public officers with reference to acts purporting to be done by public officer in official capacity until and unless the intending plaintiff has served a notice of two months period in writing or delivered the notice in writing indicating the cause of action, the name, description and place of the plaintiff and the reliefs which the plaintiff intends to claim in the suit and after having served the notice, has awaited for two months and allowed the time of two months to expire. In the present case, notice on which respondent's Counsel places reliance, that is Ex. In the present case, notice on which respondent's Counsel places reliance, that is Ex. P-6, may be a notice of demand for amount, but it cannot be termed to be a notice under Section 80 of the Civil Procedure Code. No doubt, it could be said that when the demand was made by this notice requiring the defendants,. e. , present appellants to pay the amount mentioned in the notice under the facts mentioned therein, a part of cause of action did accrue on the date of service of the notice and when they failed to pay the amount and comply with the notice within the period mentioned in the notice as well the cause of action can be said to have accrued. In view of non-compliance of the provision of Section 80 of the Code the suit could not be filed. It is only after giving and serving the notice under Section 80 of the Civil Procedure Code indicating the cause of action to have accrued, in the sense that the non-compliance of notice of demand, Ex. P-6 amounted refusal to pay the amount and thereby the cause of action accrued to file the suit as well as indicating, name of plaintiff who will file the suit against the defendant,. e. , the plaintiff and his or their name, address and the reliefs that would have been claimed in the suit, the suit could be instituted but after the expiry of two months period from the date of service or delivery of notice under Section 80 of the CPC. This notice Ex. P-6 does not comply with these requirement. This notice, Ex. P-6 is only a notice of demand. Nothing more. The other requirement is that the plaintiff must state in the plaint that notice under Section 80 has been given and served in writing indicating the cause of action, name and description of the plaintiff (to be) in the plaint and the reliefs claimed accordingly. In my opinion, this notice, Ex. P-6 cannot be termed to be a notice under Section 80 of the CPC. The plaintiff also did understand the correct position and so it has not been stated nor a statement has been made in the plaint that two months notice under Section 80 of the CPC in writing has been served on the defendants. P-6 cannot be termed to be a notice under Section 80 of the CPC. The plaintiff also did understand the correct position and so it has not been stated nor a statement has been made in the plaint that two months notice under Section 80 of the CPC in writing has been served on the defendants. In this view of the matter, it appears that there is much substance in the contention of the learned government Counsel Shri Ramaiah that no notice under Section 80 has been served. ( 8 ) IT is well-settled principle of law that under Section 80, as laid down by the Privy Council as well as by their Lordships of the Supreme Court that the notice under Section 80 is a condition precedent to institution of the suit. ( 9 ) IN the case of Bhagchand Dagdusa Gujrathi v Secretary of State for India, their Lordships of the Privy Council laid it down: "to argue, as the appellants did, that the plaintiffs had a right urgently calling for a remedy, while Section 80 is mere procedure, is fallacious, for Section 80 imposes a statutory and unqualified obligation upon the Court". Section 80 is express and mandatory. In that case, the suit was dismissed by the Trial Court on the ground that, no notice under Section 80 of the CPC had been served by the plaintiff and the judgment of the Trial Court was maintained by the High Court dismissing the plaintiffs' suit on account of the fact that the notice was less than two months period. The matter had, again come up before their Lordships before the Privy Council and their Lordships of the Privy Council confirmed the Trial Court's decree dismissing the suit on account of valid notice. ( 10 ) IN the case of Gangappa Gurupadappa Gugwad v Rachawwa and Others, their Lordships laid down as under: "no doubt it would be open to a Court not to decide all issues which may arise on pleadings before it, if it finds that the plaint on face of it is barred by any law. ( 10 ) IN the case of Gangappa Gurupadappa Gugwad v Rachawwa and Others, their Lordships laid down as under: "no doubt it would be open to a Court not to decide all issues which may arise on pleadings before it, if it finds that the plaint on face of it is barred by any law. If for, instance plaintiffs case is against Government and the plaint does not show that the notice under Section 80 of the CPC claiming relief was served in terms of that section, it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude plaintiff from presenting a fresh plaint in respect of same cause of action, but where the plaint on the face of it does not show that any relief envisaged by Section 80 of the Code, is being claimed, it be the duty of the Court to go into all issues which may arise from pleadings including the question as to whether notice under Section 80 was necessary. If the Court decides the various issues raised on the pleadings it is difficult to see why adjudication of the rights of the parties, apart from the question of applicability of Section 80 of the Code and absence of notice thereunder should not operate as res judicata in a subsequent suit". ( 11 ) THE above observations very clearly show, that if there is no allegation in the plaint that a notice under Section 80 of the CPC was 'served and two months have been allowed to expire, then the Trail Court's duty has been emphasised that in such a case the Court has to reject the plaint with a reasoned order and it has not to embark the trial of issues and not to proceed with the decision of suit on merits. In the present case, the decree for recovery of money has been claimed on the basis of the facts therein mentioned to the effect as per offer of and agreement with Government entered into with it the plaintiff-appellant was required to repair the road and after some work having been done thereunder, the plaintiff-respondent was as per order of Government. In the present case, the decree for recovery of money has been claimed on the basis of the facts therein mentioned to the effect as per offer of and agreement with Government entered into with it the plaintiff-appellant was required to repair the road and after some work having been done thereunder, the plaintiff-respondent was as per order of Government. e. , Chief Engineer was required to stop the work in the middle and work contract was cancelled, so on account thereof plaintiff suffer loss and damages which the defendant have not paid in the official capacity as state Government and its officers which amount plaintiff claimed to be entitled from the government for the work done by the Contractor. In view of these facts, in my opinion, as neither two months notice under Section 80 was served nor there is an allegation in the plaint to the effect that plaintiff has served notice under Section 80 of the CPC and that, two months time was allowed to expire from the date of service of that notice under Section 80 and as further Ex. P-6 is not a notice, as required under Section 80 of the CPC, the bar under Section 80 of the CPC against institution of the suit did operate against plaintiff in the matter of institution of the suit the suit was in those circumstances, not entertainable and Court below acted illegally as well in excess of jurisdiction in decreeing such suit which could not undoubtedly be instituted by plaintiff and so could not as well be entertained by the Court. Therefore, without recording any finding on the merits of the claim of the plaintiff one way or the other, in my opinion as suit has been instituted without due compliance of Section 80 and as the suit could not be instituted and could not be entertained, as such decree passed by the Court below decreeing the suit is and has been without jurisdiction, illegal, null and void. ( 12 ) AS I have observed that the suit was neither maintainable nor entertainable without service and delivery of notice under Section 80 of the CPC, the findings recorded by the Trial Court on merits will not operate as res judicata. Thus considered, the Trial Court decree being illegal it has to be set aside and appeal deserves to be allowed and is hereby allowed. Thus considered, the Trial Court decree being illegal it has to be set aside and appeal deserves to be allowed and is hereby allowed. The decree of the Trial Court is hereby set aside and it is directed that the plaint may be returned to the plaintiff-appellant.