JUDGMENT A.C. Upadhyay, J. 1. This second appeal is directed against the judgment and decree dated 20.01.2009, passed by the learned Additional District Judge, Court No. 3, Agartala, West Tripura, in Money Appeal No. 01 of 2008, where by and where under, the judgment and decree dated 12.10.2007 passed by the learned Civil Judge (senior Division), West Tripura, Agartala in M.S. No. 43 of 2003, has been affirmed. 2. Heard Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. J. Majumder, learned Counsel appearing for the Appellants. Also heard Mr. D.K. Biswas, learned Counsel appearing for the Respondent. 3. The facts, leading to filing of this appeal, may be stated, in brief, as follows: The Plaintiff-Respondent herein, is a Contractor by profession. She was verbally instructed/requested by the Superintendent of Police, West Tripura, Agartala through the Sub-Divisional Police Officer, Sadar, Agartala, for undertaking some construction/repairing works, for the Camp at 89 Bn. C.R.P.F Head Quarters at Lembucherra, on emergency basis. Accordingly, the Plaintiff-Respondent agreed and executed the entrusted works as per order/instructions of the Sub-Divisional Police Officer, Sadar, Agartala. The work in question was completed in the month of May, 2000 and after completion of the works, the Commandant 89 Bn. CRPF, Lembucherra communicated completion report of the said work to the Superintendent of Police, West Tripura, Agartala. On account of the construction/repairing works so carried out, the Plaintiff-Respondent, spent an amount of Rs. 2,71,137/-. The aforesaid work was carried out by the Plaintiff-Respondent, under the direct supervision of the Sub-Divisional Police Officer, Sadar, Agartala. On completion of the entrusted work followed by submission of the completion report, the Plaintiff-Respondent submitted her bills for payment an amount of Rs. 2,71,137/-. The bills were verified and certified by the Sub-Divisional Police Officer, Sadar, Agartala. All such bills were forwarded to the Superintendent of Police, West Tripura, Agartala for payment. When the Plaintiff-Respondent was waiting to collect the payment of her bills, surprisingly, the Superintendent of Police, West Tripura, Agartala, on 19.09.2002, cancelled the Work Order, without giving the Plaintiff-Respondent, any opportunity of hearing. The Plaintiff-Respondent, being surprised with the said letter, sought for clarification and prayed for withdrawal of the letter dated 19.09.2002, issued by the Superintendent of Police, West Tripura, Agartala, and urged for payment of the bills submitted by her after due verification. The Plaintiff-Respondent, being surprised with the said letter, sought for clarification and prayed for withdrawal of the letter dated 19.09.2002, issued by the Superintendent of Police, West Tripura, Agartala, and urged for payment of the bills submitted by her after due verification. The Respondents gave No. reply to her and thereafter the Plaintiff-Respondent issued a notice under Section 80 of the Code of Civil Procedure through his Advocate. However, even thereafter, there was No. response whatsoever, in respect of the said notice Under Section 80 Code of Civil Procedure issued by the Plaintiff-Respondent. Hence, the Plaintiff brought a suit M.S. No. 43 of 2003, for recovery of her bills amounting to Rs. 2,71,137/- in the trial Court. 4. The Defendants-Appellants contested the suit by filing written statement alleging therein, inter-alia, that the suit is not maintainable in its present form and nature, and the plaint was not properly signed and verified by the Plaintiff-Respondent, and the Plaintiff-Respondent had No cause of action against the Defendants Appellants. The Defendants-Appellants also pleaded that the suit was bad for non-joinder and mis-joinder of parties. The Defendants-Appellants further asserted that the Work Order was rightly cancelled, as the Plaintiff-Respondent had not undertaken the work in due time and some of the works, carried out by the Plaintiff-Respondent, was below standard. 5. On the basis of the pleadings of the parties, the following issues were framed for just decision of the case: 1. Whether the suit is maintainable 2. Whether the Defendants issued work order in favour of the Plaintiff and if the Plaintiff performed the work 3. Whether the Plaintiff is entitled to get decree along with interest and costs claimed in this suit 4. Whether the Plaintiff is entitled to get any other relief/reliefs having regard to the circumstances of the matter 6. The learned Trial Court after due trial, decreed the suit by holding that the Plaintiff-Respondent was entitled to get a sum of Rs. 2,71,137/- from the Defendant-Appellants for the works carried out by the Plaintiff-Respondent. Aggrieved by the said order of the learned trial court, the Defendants-Appellants preferred appeal before the first appellate court. The first appellate court also on careful consideration of the materials on record affirmed the decree passed by the learned trial court. 7. 2,71,137/- from the Defendant-Appellants for the works carried out by the Plaintiff-Respondent. Aggrieved by the said order of the learned trial court, the Defendants-Appellants preferred appeal before the first appellate court. The first appellate court also on careful consideration of the materials on record affirmed the decree passed by the learned trial court. 7. This second appeal is directed against the decree passed by the learned appellate court mainly contending therein that the suit was decreed by the learned courts below ignoring the fact of non-issuance of notice under Section 80 of the Code of Civil Procedure. It is further contended on behalf of the Defendants-Appellants that the decree is bad in law since the State has not been made party in terms of the provision of Section 79 of the Code of Civil Procedure. 8. Learned Counsel for the Appellants contended that the suit against the Officers of the State Government has to be filed by impleading the State Government. Therefore, the suit filed by the Plaintiff-Respondent is bad for non-joinder of necessary party and for violation of the statutory provisions as envisaged under Section 79 of the Code of Civil Procedure. learned Counsel further pointed out that the learned trial court as well as the learned first appellate court ignored the fact of absence of notice under Section 80 of the Code of Civil Procedure and decreed the suit, which is not sustainable in law. learned Counsel for the Appellant further pointed out that the learned appellate court ignored to discuss the issue raised by the Appellant regarding non-compliance of the provision of Section 79 of Code of Civil Procedure 9. In reply to the above contention, the learned Counsel for the Plaintiff-Respondent submitted that the Appellants have taken the plea of lack of notice under Section 80 of the Code of Civil Procedure for the first time in the second appeal. The notice under Section 80 of the Code of Civil Procedure, issued by the Plaintiff-Respondent was duly received by the Director General of Police. The notice under Section 80 of the Code of Civil Procedure, issued by the Plaintiff-Respondent was duly received by the Director General of Police. In the suit filed by the Plaintiff-Respondent effective service of notice has been pleaded in the plaint learned Counsel for the Defendants-Appellants pointed out that neither the Appellant took any specific pleadings in the written statement denying such service of notice under Section 80 of the Code of Civil Procedure nor it was questioned during the proceeding when such notice was duly proved. Therefore, according to the learned Counsel for the Plaintiff-Respondent, the plea of improper service of notice under Section 80 of the Code of Civil Procedure, considered to have been consciously waived by the Appellants-Defendant and the stand taken by the Defendants-Appellants adequately demonstrate that the Defendants-Appellants waived the service of notice under Section 80 of the Code of Civil Procedure. 10. Hon'ble Supreme Court in Provash Chandra Dalui v. Biswanath Banerjee 1989 Supp (1) SCC 487 observed that the essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right to the proper opportunity. Thus, voluntary choice is the essence of waiver for which must have extended an opportunity for a choice between the relinquishment and the conferment of the right in question. 11. Having participated in the original proceedings, it was not now open to the State to raise a fresh issue as to the maintainability of the suit in view of waiving the defect at the earliest point of time. Knowing fully well about non-issue of notice under Section 80 Code of Civil Procedure the Appellant had not raised such a plea in the written statement or additional written statement filed in the suit and, therefore, deemed to have waived the objection. It goes without saying that the question whether in fact, there is waiver or not necessarily depends on the facts of each case, and is liable to be tried by the court, if raised, which, as noted above, is not the case here. 12. The decree against the Appellants in the Courts below reveals the unpleasant unresponsiveness of the administration towards litigative meticulousness. 12. The decree against the Appellants in the Courts below reveals the unpleasant unresponsiveness of the administration towards litigative meticulousness. In the present case, a notice under Section 80 Code of Civil Procedure was sent the Director General of Police. There was No response. A suit was filed and summons taken out to the Director General of Police. Written statement was filed No. plea whatsoever, was taken in this regard. Issues were settled in presence of the learned Counsel for the Appellant No. indication was made by the counsel to frame such issue regarding non-service of notice. 13. A statutory notice for the proposed action under Section 80 Code of Civil Procedure is aimed to alert the State to discuss a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted. When No. objection was raised at the time of filing written statement and at the time of settlement of issues, it can be presumed that the Appellant Defendant consciously and voluntarily waived the requirement of notice under Section 80 Code of Civil Procedure 14. learned Counsel for the Plaintiff-Respondent in reply to the submission advanced by the learned Counsel for the Appellants has relied on the decision of the Hon'ble Supreme Court in the case of State Bank of India v. S.N. Goel, reported in AIR 2008 SCW 4355 (para-9.1), wherein it has been held that the word "substantial" prefixed to "question of law" does not refer to the stakes involved in the case nor intended to refer only to law of general importance, but it refers to impact or effect of the question of law on the decision in the lis between the parties. In S.N. Goel (supra) the Hon'ble Supreme Court further observed that "in the context of Section 100 Code of Civil Procedure any question of law, which effects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having No. bearing in the final outcome will not be a substantial question of law." 15. A question of law which arises incidentally or collaterally, having No. bearing in the final outcome will not be a substantial question of law." 15. learned Counsel for the Plaintiff-Respondent also relied on the decision of the Hon'ble Supreme Court in the case of Hero Vinoth v. M/S, Nani Painters, reported in (2006) 5 SCC 545 (para 24), wherein the Hon'ble Supreme Court observed as follows: An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will therefore, depend on the facts and circumstances of the case whether question of law is a substantial one and involved in the case or not the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. The High court should be satisfied that the case involves a substantial question of law, and not a mere question of law having a material bearing on the decision of the case (that is a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provision of law or settled legal principle emerging from binding precedents, but the Court below has decided the matter either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable but because of decision rendered on a material question violated the settled position of law. 16. In Hero Vinoth (supra) the Hon'ble Supreme Court further observed the general rule is that High court will not interfere with the concurrent findings of the courts below. Nevertheless, it is not an absolute rule. Some of the well recognized exceptions are (1) where the courts below have ignored material evidence or acted on No. evidence (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously, or (iii) the courts have wrongly cast the burden of proof. Nevertheless, it is not an absolute rule. Some of the well recognized exceptions are (1) where the courts below have ignored material evidence or acted on No. evidence (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously, or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on No evidence" it not only refers to cases, where there is a total dearth of evidence, but also refers to any case, where the evidence taken as a whole, is not reasonably capable of supporting the finding. 17. learned Counsel for the Appellants further contended that if not anything else, the plea of non-joinder of necessary party was specifically taken on behalf of the Appellants before the first appellate court. However, the aforesaid plea was not at all discussed and considered by the first appellate court in its judgment. 18. I have bestowed my anxious consideration on the issues raised before this Court by the learned Counsel for the Appellant. Section 79 of the Code of Civil Procedure (hereinafter "Code of Civil Procedure") specifically deals with suits by and against the Government and provides that in suits by and against the Government, the authority to be impleaded as the Plaintiff or the Defendant, would be the Union of India or the Central Government or the State or the State Government. Proviso to Rule 9 of Order 1 provides consequences of non-joinder of necessary party. Rule 1 of Order 27 Code of Civil Procedure deals with suits by or against the Government or by officers in their official capacity. It provides that in any suit by or against the Government, the plaint or the written statement shall be signed by such person as the Government may like by general or special order authorize in that behalf and shall be verified by any person whom the Government may so appoint. 19. In Bal Niketan Nursery School v. Kesari Prasad (1987) 3 SCC 587 : AIR 1987 SC 1970 , Hon'ble Supreme Court held as follows: This Court held that the application for impleadment of a necessary party can be filed at any stage of proceeding provided the Court is satisfied that exceptional circumstances prevailing in the case warrant the impleadment. 17. In view of the above, the State of Andhra Pradesh was a necessary party. 17. In view of the above, the State of Andhra Pradesh was a necessary party. Thus, the second appeal filed by the officials was not maintainable. 18. The High Court decided the appeal without considering this important aspect of the matter. Shri Anoop G. Chaudhari, learned Senior Counsel has submitted that in order to meet the ends of justice, this Court should grant indulgence to the Appellants to file an application for impleadment before this Court, and in case it is not willing to do so, the judgment and order of the High Court be set aside and the case be remanded to the High Court and the Appellants be given an opportunity to file an application for impleadment of the State therein. Shri R. Venkataramani, learned Senior Counsel opposed the suggestion made by Shri Anoop G. Chaudhari. 19. The State of Andhra Pradesh was a party before the trial court as well as before the first appellate court. In such a fact situation and in order to meet the ends of justice, an opportunity should be given to the Appellants to move an application for impleadment of the State of Andhra Pradesh. Such a course is in public interest as the State which also claims to have title over the suit land cannot be deprived of the right to present its case before the Court in case it loses the land. However, it would be desirable that such a course is adopted before the High Court. 20. Article 300 of the Constitution deals with legal proceedings by or against the Union of India or the State and provides that in a suit by or against the Government, the authority to be named as the Plaintiff or the Defendant, as the case may be; in the case of the Central Government, the Union of India and in the case of the State Government, the State, which is suing or is being sued. However, very surprisingly, while deciding the appeal, learned appellate Court did not discuss the issue regarding non-joinder of necessary parties. Apparently, the appellate Court in a hurry to dispose of the appeal failed to exercise appellate jurisdiction vested on him. Thus this appeal deserves to be remitted to the appellate Court for an appropriate decision on the issue discussed above. 21. Apparently, the appellate Court in a hurry to dispose of the appeal failed to exercise appellate jurisdiction vested on him. Thus this appeal deserves to be remitted to the appellate Court for an appropriate decision on the issue discussed above. 21. Accordingly, keeping in view the above discussions, the impugned appellate judgment and decree under challenge is hereby set-aside. The case is remanded back to the learned Additional District Judge, Court No. 3, Agartala, West Tripura, for giving its findings afresh, on the grounds raised before it. Since the case is an old one, it is directed that the learned First Appellate Court, shall make an endeavour to dispose of the case within a period of 6 months from the date fixed for hearing. 22. The parties are permitted to file application for impleadment of the State of Tripura as party Respondent, if so advised, in terms of the decision in Bal Niketan Nursery School v. Kesari Prasad (supra). If such an application is filed, the First Appellate Court shall be at liberty to consider it and do the needful in accordance with law. 23. To avoid delay, parties, through their counsel, are directed to appear before the court of the learned First Appellate Court, on 30.9.2011 to obtain further direction without any need of issuing fresh notice by the First appellate Court. The Registry is directed to send forthwith all the relevant records of the case to the learned First Appellate Court, along with a copy of this judgment, so as to reach the said Court well before the date fixed. 24. Any observation made in this order on the question of non-joinder of necessary parties, shall not influence the First appellate Court, while disposing of the appeals in accordance with law. 25. Having regard to the facts and circumstances of the case, parties are directed to bear their own costs in appeals.