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2019 DIGILAW 24 (ORI)

Madan Mohan Patra v. Collector, Cuttack

2019-01-10

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against confirming judgment in a suit for mandatory injunction directing the defendants 1 and 2 to correct the consolidation map of the suit plot. 2. The case of the plaintiff was that he had purchased an area ad-measuring Ac.0.50 dec. appertaining to plot nos.1801, 1803 and 1804, khata no.431 of mouza Dharina, P.S. Kishannagar from Chanda Bewa by means of a registered sale deed on 13.11.1971. Since then he is in possession of the same. Consolidation operation in the area, wherein the land falls, started. The consolidation R.O.R. was published in his name in the year 1987. At the time of measurement in Demarcation Case No.33 of 1996, it was detected that the purchased area had been correctly recorded in the consolidation R.O.R., but the same had been reduced to Ac.0.03 dec. in the consolidation village map. The area had been included in the adjoining plot nos.1767, 1768 and 1769 belonging to defendant no.3, one Ranga Dei and Prasanna Patra. When they threatened to occupy the suit property, the plaintiff filed T.S.No.44 of 1998. The said suit was set ex parte. Thereafter, he approached the Tahasildar for correction of the consolidation map. As the Tahasildar expressed his inability to correct the map, he filed the present suit after serving notice under Sec.80 CPC seeking the reliefs mentioned supra. 3. The defendants 1 and 2 were set ex parte. The defendant no.3 entered contest and filed written statement pleading inter alia that the suit is hit under Order 2 Rule 2 CPC. Her land has been demarcated and separated by a permanent boundary wall from the land of the plaintiff. The suit land has been recorded in her name in the consolidation R.O.R. and the map is in conformity with her possession. 4. Stemming on the pleadings of the parties, learned trial court struck nine issues. Parties led evidence, both oral and documentary. Learned trial court held that the plaintiff instituted T.S.No.44 of 1998 for the self-same cause of action. The instant suit is hit under Order 2 Rule 2 CPC. Held so, it dismissed the suit. Felt aggrieved, the plaintiff filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the Court of the learned Ad hoc Additional District Judge, FTC I, Cuttack and renumbered as R.F.A.No.141 of 2007. The instant suit is hit under Order 2 Rule 2 CPC. Held so, it dismissed the suit. Felt aggrieved, the plaintiff filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the Court of the learned Ad hoc Additional District Judge, FTC I, Cuttack and renumbered as R.F.A.No.141 of 2007. Learned Appellate Court held that the suit is not hit under Order 2 Rule 2 CPC, but then no notice was served on defendants 1 and 2 under Sec.80 CPC. Held so, it dismissed the appeal. 5. Mr. A.C. Mohapatra, learned Advocate for the appellant submits that before institution of the suit, the plaintiff had issued notice under Sec. 80 CPC to defendants 1 and 2. The acknowledgement receipts of the notice had been marked as Exts.3 and 3/a. The finding of the learned appellate court that no notice had been issued to defendants 1 and 2 is perverse. 6. Per contra, Ms. Samapika Mishra, learned Additional Standing Counsel submits that no notice under Sec.80 CPC was issued to the defendants before institution of the suit. Neither the notice, nor registered postal receipts had been exhibited. The A.D. forms, vide Exts. 3 and 3/a, cannot be said to be sufficient for compliance of notice under Sec. 80 CPC. To buttress the submission, she relies on a decision of this Court in the case of Manmohan Das v. Madhunagar Powerloom Weavers Cooperative Society and others, (1975) 1 CWR 366. 7. Before adverting into the contentions raised by the counsel for both parties, it will be necessary to set out clause (c) of sub-sec.(1) of Sec.80 CPC, which is hub of the issue, is quoted hereunder : "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- xxx xxx xxx (c) In the case of suit against (any other State Government), a Secretary to that Government or the Collector of the district;" 8. The apex Court in the case of the State of Madras v. C.P. Agencies and another, (1960) AIR SC 1309 held that Sec.80 CPC is express, explicit and mandatory and admits of no implications or exceptions. Sec.80 peremptorily requires that no suit shall be filed against the Government or a public officer in respect of anything done in his official capacity until after the expiry of two months from the service of a notice in the manner therein prescribed stating the cause of action, the name, description and place of residence of the plaintiff and the reliefs which he claims. The object of Sec.80 is manifestly to give the Government or the public officer sufficient notice of the case which is proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In order to enable the Government or the public officer to arrive at a decision it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the precise reliefs asked for. 9. In Manmohan Das, this Court held that Sec.80 prescribes that the plaint itself would mention that the notice was served. Service of such notice is mandatory in law and the suit is to fail if no notice has been served. The obligation has been cast on the plaintiff to serve the notice under Sec. 80 and mention that fact in the plaint. Defendants are under no duty to the plaintiff to point out his error in the plaint. A defendant may be negligent in his own interest in not raising the objection at an earlier stage but negligence would not amount to waiver or estoppel unless there is a duty of care. On the aforesaid analysis even if a defendant did not raise the objection in the written statement or in the first appellate court, he can raise the objection at a later stage. Absence of notice touches the root of the matter and affects the jurisdiction of the court unless there is waiver. (Emphasis laid) 10. On the aforesaid analysis even if a defendant did not raise the objection in the written statement or in the first appellate court, he can raise the objection at a later stage. Absence of notice touches the root of the matter and affects the jurisdiction of the court unless there is waiver. (Emphasis laid) 10. The submission that notice under Sec. 80(1) CPC has been delivered to or left at his office against whom the suit had been instituted and the said notice was received by the defendants 1 and 2, is difficult to fathom. Neither the notice nor postal receipts had been marked as exhibits. The acknowledgment due (A.D.) cannot be said to be sufficient compliance of Sec.80(1) CPC in absence of notice. 11. Resultantly, the appeal is dismissed, as the same does not involve any substantial questions of law. There shall be no order as to costs.