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2007 DIGILAW 217 (GAU)

Manindra Ch. Paul v. State of Tripura

2007-03-16

MAIBAM B.K.SINGH

body2007
JUDGMENT Mutum B.K. Singh, J. 1. The judgment and decree dated 4-1-1999 passed by the learned District Judge, West Tripura, Agartala in Money Appeal No. 11/1997 confirming the judgment and decree dated 18-7-1996 of the learned Civil Judge, Sr. Division, Court No. 2, West Tripura, Agartala passed in Money Suit No. 46/1993, has been assailed in this Second Appeal. 2. The appellant herein was the plaintiff in Money Suit No. 46/1993 of the Court of the learned Civil Judge, Sr. Division, Court No. 2, West Tripura, Agartala and the respondents were the defendants in the said suit. 3. Facts leading to this appeal are, in a nutshell, that the appellant as plaintiff instituted a Money Suit before the learned trial Court against the respondents (defendants). Before institution of the suit, the appellant's Advocate served notice upon the respondent No. 2 only. The suit was filed due to nonpayment of repairing charges of an office vehicle belonging to the respondent No. 2, which was repaired on the basis of the work orders issued by the respondent No. 3. The respondent No. 2 contested the suit by filing a written statement alleging, inter alia, that the suit was not maintainable, no cause of action arose, hit by principle of estoppel, waiver and acquiescence, barred by law of limitation and also suffers from non-joinder of necessary parties. The respondent No. 2, however, admitted the fact of placing the work orders for repairing the said office vehicle, receipt of bills submitted by the appellant, service of notice dated 19-6-1993 (Exbt. 1) on him and also admitted that the vehicle was fully repaired and the appellant made demands for payment of the repairing charges. However, no document is on record showing that the respondent No. 2 has been authorised to file written statement on behalf of the respondent Nos. 1 and 3. 4. During the course of trial, the learned trial Court framed the following issues: 1) Is the suit maintainable? 2) Whether the plaintiff executed the work as claimed by him as per work order issued by the defendant No. 2? 3) Whether the plaintiff is entitled to get decree for the amount of Rs. 20,000/- with interest and cost as prayed for? 4) What are the relief/reliefs the parties are entitled to? The learned trial Court decided the Issue No. 1 partly in favour of the appellant and partly against him. 3) Whether the plaintiff is entitled to get decree for the amount of Rs. 20,000/- with interest and cost as prayed for? 4) What are the relief/reliefs the parties are entitled to? The learned trial Court decided the Issue No. 1 partly in favour of the appellant and partly against him. The learned trial Court was of the view that the notice marked Exbt. 1 served upon the respondent No. 2 did not contain the particulars required under Section 80(3) of the Code of Civil Procedure and thus, held the same as not a legal notice as required under Section 80(1) of the Code of Civil Procedure. The learned trial Court, however, held that the suit was not barred by limitation. The Issue No. 2 was decided in favour of the appellant but in view of the finding of the Issue No. 1, Issue Nos. 3 and 4 were decided against the appellant and in the result, dismissed the suit vide judgment and decree dated 18th July, 1996. 5. On appeal, the learned appellate Court, while affirming the decisions of the learned trial Court, held that the notice (Exbt.-1) served upon the respondent No. 2 cannot be regarded as service of notice upon the respondent Nos. 1 and 3 and thus, dismissed the appeal vide judgment dated 4-1-1999. Hence, this appeal. 6. Upon motion hearing, this Court formulated the substantial questions of law as follows: a) Whether the substantial question of law involved herein as to what would be manner of construction of Section 80 of the C.P.C? b) Whether the substantial question of law involved is whether the Section80 of C.P.C. should be read as a whole and given a reasonable interpretation and it should be scrutinized in a pedantic manner and be used as booby-traps? 7. Heard the submission of Mr. P. Roy Barman, learned Counsel appearing for the appellant-plaintiff and Mr. S. Chakraborty, learned Counsel for the State-respondents. 8. That, in my considered view both the substantial questions of law formulated by this Court can be conveniently discussed jointly. For better appreciation of the substantial questions of law, the provision of Section 80 of the Code of Civil Procedure is reproduced here in below: 80. S. Chakraborty, learned Counsel for the State-respondents. 8. That, in my considered view both the substantial questions of law formulated by this Court can be conveniently discussed jointly. For better appreciation of the substantial questions of law, the provision of Section 80 of the Code of Civil Procedure is reproduced here in below: 80. Notice.- (1) Save as otherwise provided in Sub-section (2), no suit shall be instituted against the Government (including the Government of the 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 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 the Government or any other officer authorized 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 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. in the case of a public officer, delivered to him 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 parties, 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 Sub-section (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. 9. That, it is seen that Sub-section (1) of Section 80 of the Code of Civil Procedure is a barring provision restraining from institution of suit against the Government or its public officer unless the conditions provided thereunder are fulfilled. 9. That, it is seen that Sub-section (1) of Section 80 of the Code of Civil Procedure is a barring provision restraining from institution of suit against the Government or its public officer unless the conditions provided thereunder are fulfilled. On the contrary, Sub-section (2) of Section 80 of the Code of Civil Procedure is an exception to Sub-section (1) allowing to institute suit against the Government or its public officer without prior notice, in urgent matters and for immediate relief with the leave of the Court. Sub-section (3) of Section 80 of the Code of Civil Procedure is another barring provision restraining the Court from dismissing the suit merely on account of the error or defect in the notice referred to in Sub-section (1) subject to the fulfillment of certain conditions given thereunder. 10. That, what is the object of service of notice under Section 80 of the Code of Civil Procedure has been discussed exhaustively by a Bench of 3 (three) Judges of the Hon'ble Apex Court in Ghanshyam Dass v. Dominion of India [1984] 3 SCR 229 . The Hon'ble Apex Court observed that the whole object of serving a notice under Section 80 is to give the Government sufficient warning of the case which is going to be instituted against it and that the Government, if it so wished can settle the claim without litigation or afford restitution without recourse to a Court of Law. The Hon'ble Apex Court further observed that though the terms of Section 80 have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner divorced from common sense. The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation. In Shreenath and Anr. v. Rajesh and Ors. [1998] 2 SCR 709, the Hon'ble Apex Court clearly held that Section 80 of the Code of Civil Procedure is a part of procedural law and not substantive law. All the Rules or Procedure are handmaid of justice. The language employed by the draftsmen of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. A procedural law should not, ordinarily, be construed as mandatory. All the Rules or Procedure are handmaid of justice. The language employed by the draftsmen of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. A procedural law should not, ordinarily, be construed as mandatory. Any interpretation, which eludes or frustrates the recipient of Justice, should be avoided. The Hon'ble Apex Court by another Bench of 3 (three) Judges has also discussed the object of giving notice under Section 80 of the Code of Civil Procedure in Salem Advocate Bar Association, Tamil Nadu v. Union of India AIR 2005 SC 3353 . In the said case, the Hon'ble Apex Court observed that the object of giving notice under Section 80 of the Code of Civil Procedure on the Government is for enabling the Government to examine the claim and to send a suitable reply and one of the underlying object is to curtail the litigation. The Hon'ble Apex Court, however, observed that in large number of cases either the notice is not replied or in few cases where reply is sent, it is generally vague and evasive. The result is that the object underlying Section 80 of the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expense and cost to the exchequer as well. There is no accountability in the Government or statutory authorities in violating the spirit and object of Section 80. (Para 40) In Gopesh Chandra Das v. The Chief Secretary to the Government of Assam and Ors. (1989) 2 GLR 377 : AIR 1990 Gau 74 this Court discussed the object of Section 80 of the Code of Civil Procedure Notice and the manner of its interpretation. In the said case, this Court observed as follows: ...The object of the notice contemplated by Section 80 is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised, without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. It must be remembered that Section 80 of the Code is but a part of the Procedure Code passed to provide the regulation, and machinery, by means of which the Court may do Justice between the parties. It is, therefore, merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it.... In Sreenivas Basudev v. Vineet Kumar Kothari this Court observed that the procedural law is not to be a tyrant, but a servant, not on obstruction, but an aid to justice. The Rules of Procedure are made to advance the cause of justice and not to defeat it. Construction of a Rule or Procedure, which promotes Justice and prevents miscarriage has to be preferred. 11. That, from the above decisions of the Hon'ble Apex Court and this Court, it is clear that the object of giving notice under Section 80 of the Code of Civil Procedure is to protect the Government or its instrumentalities from dragging in the Court without prior notice apprising the nature of the claim and also to make endeavour for pre-litigation settlement in order to save time and exchequer in the litigation. From the language employed under Section, 80 of the Code of Civil Procedure, it appears that this Section has not been enacted to defeat the genuine grievance rather it has been made to give early relief to the just claimant by way of settlement. The intention of the legislature for early disposal of the case in which the Government or its public officer is a party may also be seen under Sub-rule (2) of Rule 5B of Order 27 of the Code of Civil Procedure. Under Section 80, C.P.C., the Government or its public officer has been given adequate time for pre-litigation settlement and even after filing a suit, there is a room for early settlement. Under Section 80, C.P.C., the Government or its public officer has been given adequate time for pre-litigation settlement and even after filing a suit, there is a room for early settlement. Sub-rule (2) of Rule 5B of Order 27 , C.P.C. provides that even during the course of proceeding, at any stage, if it appears that there is a reasonable opportunity of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit. to make efforts for such a settlement. 12. That, as stated above, Section 80 of the Code of Civil Procedure is a part of procedural law by means of which the Court may do justice between the parties. Thus, the provision of this Section requires to be interpreted liberally in a reasonable way to advance substantial justice to the public. The whole object of this Section is not to defeat the justice on mere technical ground and by interpreting it in a hyper-technical manner. 13. That, having regard to the decisions laid down by the Hon'ble Apex Court and this High Court and in view of the above discussions, a question of utmost importance arose in the case in hand is whether the service of notices upon the respondent Nos. 1 and 3 under Section 80 of the Code of Civil Procedure can be waived or not in the facts and circumstances of the present case. The respondent No. 2 was the Director of Animal Husbandry Department, Govt. of Tripura, Gurkhabasti, Agartala, who in his written statement has admitted that the vehicle belonging to his Department was repaired by the appellant and also admitted that legal notice dated 19-6-1993 was served on him. The suit was instituted for non-payment of the repairing charges. No specific plea was raised in the written statement regarding the non-service of notice under Section 80 of the Code of Civil Procedure upon the respondent Nos. 1 and 3. The respondent No. 1 has been impleaded as a party in the case in view of the provision of Rule 5A of Order 27 of the Code of Civil Procedure. Respondent No. 3 has also impleaded as a party as the Work Order for repairing of the said office vehicle was placed by him. Though the respondent Nos. The respondent No. 1 has been impleaded as a party in the case in view of the provision of Rule 5A of Order 27 of the Code of Civil Procedure. Respondent No. 3 has also impleaded as a party as the Work Order for repairing of the said office vehicle was placed by him. Though the respondent Nos. 1 and 3 were also parties in the suit but they were, in true sense, not necessary parties rather they were only proper parties. The main grievance of the appellant in the suit was against the respondent No. 2 as he failed to pay the repairing charges of his office vehicle to the appellant. The respondent Nos. 1 and 3 were nothing to do regarding the payment or nonpayment of the amount due against the respondent No. 2. Since the respondent Nos. 1 and 3 were not necessary parties, the non-service of notice upon the respondent Nos. 1 and 3 under Section 80 of the Code of Civil Procedure should not be a ground for dismissal of the suit. In other words, the service of notice upon the respondent Nos. 1 and 3 under Section 80 of the Code of Civil Procedure can be waived as the requirement for service of notice under Section 80 of the Code of Civil Procedure has been substantially complied with when the notice was served upon the necessary party i.e. the respondent No. 2. The non-service of notice upon the respondent Nos. 1 and 3 was nothing to do or affect to the merit of the case. In a number of cases, the Hon'ble Apex Court observed that a notice under Section 80 of the Code of Civil Procedure is for the benefit of the respondents and the same can be waived as it did not go to the root of jurisdiction in true sense of the term (Amar Nath Dogra v. Union of India [1963] 1 SCR 657 ; State of Punjab v. Geeta Iron and Brass Works Ltd. [1978] 1 SCR 746 and Ghanshyam Das v. Dominion of India [1984] 3 SCR 229 . In Bishandayal and Sons v. State of Orisaa and Ors. In Bishandayal and Sons v. State of Orisaa and Ors. (2001) 1 SCC 555 : AIR 2001 SC 544 (Para 16), the Hon'ble Apex Court also held that there can be no dispute to the proposition that a notice under Section 80 of the Code of Civil Procedure can be waived. 14. That, it is also true that in a number of decisions the Hon'ble Apex Court and the different High Courts observed that notice under Section 80 of the Code of Civil Procedure is mandatory and pre condition to the filing of a suit against the Government and its officer, but keeping in mind that the object of giving notice under Section 80 of the Code of Civil Procedure is primarily to settle the matter prior to litigation and not to defeat the just claim of the public, I am of the considered view that if the notice has been given to the concerned necessary party in a proper way as required under Sub-section (1) of Section 80 of the Code of Civil Procedure, the requirement of service of notice upon the other patties like the State Government and others may be waived and on account of such technical defect the suit should not be allowed to defeat. In the present case, the notice marked Exbt.-1, which was served on the respondent No. 2, contained the name, description and the residence of the appellant and also indicated the cause of action and the relief sought for in the suit. Thus, the said notice fulfilled all the conditions required under the law and by service of such notice upon the respondent No. 2, the requirement of service of notice under Section 80 of the Code of Civil Procedure has been substantially complied with. Hence, the dismissal of the suit by the learned Court below for non-service of notice upon other respondents is not maintainable in law and it goes against the advancement of doing justice. 15. In view of the above discussions and observations, I find sufficient grounds for interference with the judgment and order of the learned Court below. Consequently, the impugned judgment dated 4-1-1999 is set aside and the case is remanded to the trial Court to proceed with according to law. In the result, the appeal is allowed. There shall be no order as to costs. Prepare decree accordingly. Send down the Lower Court records.