Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 1555 (GUJ)

Khodaji Govaji Rajput v. State of Gujarat

2022-11-11

A.P.THAKER

body2022
JUDGMENT : 1. The present Second Appeal under Section 100 of Civil Procedure Code (hereinafter referred to as 'CPC') has been preferred against the judgment and decree dated 28.10.1997 passed by the learned Joint District Judge, Banaskantha, in Regular Civil Appeal No. 20 of 1988 whereby the decree passed by the trial Court in Regular Civil Suit No. 24 of 1978 came to be set-aside and the suit filed by the plaintiff came to be dismissed. 2. The appellant is the original plaintiff and respondents are the original defendants. The parties are referred to in this matter as per the character assigned to them before the learned trial Court. 3. The brief facts of the matter are as under: 3.1 The plaintiff had purchased land bearing Survey No. 175 of village Golgaon from the public auction. The said auction was held by the Special Recovery Officer of the Land Development Bank. The said action was held as the defendant No.2 failed to repay the loan amount to the bank and hence under the provisions of the Gujarat Co-operative Societies Act, the said auction was held by the Special Recovery Officer on 19.12.1972. In the said auction, as the plaintiff being the highest bidder, his proposal was accepted and the sale was sanctioned by the Bank under Section 136 of the Gujarat Co-operative Societies Act and the possession of the land was handed over to the plaintiff by accepting the amount and initially sale certificate was issued by the Bank on 12.2.1973 under Section 138 of the Act. 3.2 The original defendant No.2 thereafter in May, 1974, preferred an Application to the Government alleging that the public auction of his land was fraud and has prayed to set-aside the auction. The Deputy Secretary, Revenue Department vide order dated 12.12.1977, in exercise of its revisional power under Section 211 of the Bombay Land Revenue Code allowed the said application and set-aside the order dated 12.2.1973 of the Special Recovery Officer and remanded the matter for fresh auction. 3.3 Being aggrieved by the said order, the plaintiff had preferred Regular Civil Suit No.24 of 1978 before the Court of learned Civil Judge (Senior Division), Banaskantha @ Palanpur and prayed for permanent injunction of restraining the defendants from disturbing his possession and further prayed to stay permanently the implementation of the order passed by the Deputy Secretary, Revenue Department. 4. 4. The State Government resisted the suit by filing written statement at Exh-28, inter alia, contending that the suit is not maintainable. It has also raised the contention that in absence of statutory notice under Section 80 of CPC, suit is not tenable. It was also contended that if it is proved that the statutory notice was served, the same is illegal and invalid. That the suit is not within the limitation. The State Government has also denied the facts alleged by the plaintiff. It was contended by the State Government that in fact subsequently, it was noticed that malpractice was done in the said public auction regarding certain conditions i.e. compulsory requirements of public notice was not performed and the public auction was fraud and, therefore, the sale by auction was cancelled and order was made for re-auction of the sale of the land. It has contended that the order passed by the Deputy Secretary is legal and valid and prayed for dismissal of the Suit with costs. 5. The heirs of the original private defendants have also filed written statement at Exh-51, inter alia, contending that the suit is not maintainable and the alleged public auction was not performed legally. It is contended that in collusion with the Bank Officers, the alleged auction was held on 19.12.1972 and papers of public auction was got-up and it was fraudulent exercise of the power by the concerned Officer. The private defendants have supported the order of the Deputy Secretary, Revenue Department and prayed for disposal of the suit with costs. 6. On the basis of the pleading of the parties, the trial Court has framed as many as 14 issues, to the following effect, at Exh-29 : "1. Whether plaintiff proves that the suit filed is in his possession since 1973 A.D.? 2. Whether the plaintiff proves that the order No. 55/RD/REV/66-77 dated 12.12.77, passed by the Special Secretary holding that auction held by the special recovery officer is bad in law and directing the recovery of the suit filed, is without jurisdiction? 3. Whether the plaintiff proves that impugned order of the Special Secretary dated 12.12.77 is barred by law of limitation as prescribed u/s. 1555 of the Co-operative Societies Act? 3A. Whether the co-defendant Nos. 1 to 4 prove that the auction made on 19.12.72 is illegal and void? 4. 3. Whether the plaintiff proves that impugned order of the Special Secretary dated 12.12.77 is barred by law of limitation as prescribed u/s. 1555 of the Co-operative Societies Act? 3A. Whether the co-defendant Nos. 1 to 4 prove that the auction made on 19.12.72 is illegal and void? 4. Whether the plaintiff proves that the impugned order of the special secretary dated 12.12.1977 is against the order of nature justice and hence, inflictive, null and void? 5. Whether the plaintiff proves that irreparable loss would be caused to him if the injunction is not granted? 6. Whether the deft. no.1 proves that the suit is barred by limitation? 7. Whether the deft. no.1 proves that this Court has not jurisdiction to entertain the suit? 8. Whether the plaintiff proves that the notice served upon the deft. no.1 is legal and valid? 9. Whether the deft. no.1 proves that the suit is not properly valued? 10. Whether the deft. no.1 proves that the suit in the present form is not maintainable? 11. Whether the deft. no.1 proves that the Court fees paid are insufficient? 12. Whether the deft. no.1 proves that the plaintiff has not supplied the copies of documents required to be in the plaint and produced with D.E. list, if yes, what is its legal effect? 13. Whether the plaintiff is entitled to permanent injunction as prayed in the plaint para-10? 14. What order and decree?" 6.1 After perusal of the oral as well as documentary evidence, ultimately, the trial Court has answered Issue Nos. 1,2, 3, 8 and 13 in affirmative whereas Issue No. 3(a), 6, 7 in negative whereas Issue Nos. 4 and 5 came to be deleted and Issue Nos. 9, 10, 11 and 12 held to be as given-up. Ultimately, the trial Court has decreed the Suit of the plaintiff in toto with costs. 7. Being aggrieved by the said judgment and decree of the trial Court, the State Government has preferred Regular Civil Appeal No. 20 of 1988 before the District Court, Banaskantha @ Palanpur. The first Appellate Court has raised point of determination in Para-7 of the impugned judgment to the following effect : "(1) Whether the appellant proves that the impugned judgment and decree passed by the learned Civil Judge (S.D.) is illegal and perverse? The first Appellate Court has raised point of determination in Para-7 of the impugned judgment to the following effect : "(1) Whether the appellant proves that the impugned judgment and decree passed by the learned Civil Judge (S.D.) is illegal and perverse? (2) Whether the appellant proves that the learned Civil Judge (S.D.) has committed an error in holding that the Order No.55/RD/REV/66-77 dated 12-12-77 passed by the Special Secretary, holding that auction of the land held by the Special Recovery Officer is bad in law and directing the Special Recovery Officer to hold re-auction of the suit filed, is without jurisdiction? (3) Whether the appellant proves that the learned Civil Judge (S.D.) has committed an error regarding the statutory notice under Sec. 80 of C.P. Code that the notice served upon the defendant no.1 is legal and valid? (4) Whether the appellant proves that the learned Civil Judge (S.D.) has committed an error in holding that the respondent no.1 i.e. plaintiff is entitled to permanent injunction as prayed for in para-10 of the plaint? (5) What order?" 8. After hearing both the sides, the first Appellate Court has decided point Nos. 1 to 4 in affirmative and ultimately passed the impugned judgment and decree, allowing the Appeal and setting aside the decree passed by the trial Court and dismissed the suit of the plaintiff. 9. Being aggrieved with the aforesaid judgment and decree of the first Appellate Court, the original plaintiff has preferred the present Second Appeal and has raised various substantial question of law. It appears from the record that this Appeal has been admitted on 26.7.1999 for the following substantial question of law : 1. Whether the learned Appellate Judge is legally right in holding that the RCS No. 24 of 1978 is for the declaration and not for the permanent injunction? 2. Whether the learned Appellate Judge is legally right in holding that the RCS No. 24 of 1978 is for the declaration, specially when no such arguments were advanced by the other side? 3. Whether the learned Appellate Judge is legally right in holding that the statutory notice under Section 80 of CPC is mandatory in background of the prayer made in RCS No. 24 of 1978? 4. 3. Whether the learned Appellate Judge is legally right in holding that the statutory notice under Section 80 of CPC is mandatory in background of the prayer made in RCS No. 24 of 1978? 4. Whether the learned Appellate Judge is legally right in not holding that the service of statutory notice is waived by the government though they have not objected or raised the point of service of statutory notice during the course of the argument before the learned trial Judge? 5. Whether the learned Appellate Judge is legally right in holding that the appellant herein has for the first time raised the issue of waiving the service of statutory notice by the other side though in fact, the other side has for the first time, raised this issue before the Appellate forum? 6. Whether the learned Appellate Judge is legally right in holding that the order passed by the Deputy Secretary, Revenue Department, is within the period of limitation and is just, proper and legal in the eyes of law? 7. Whether the revenue authority have jurisdiction to entertain a dispute which was culminated in the order of Gujarat Revenue Tribunal and placed at Exh-81 or in other words, revenue authority have jurisdiction to decide a dispute which has arisen under the Gujarat Co-operative Societies Act? 10. Heard Mr. Mehul Rathod, learned advocate for the appellant and learned AGP Mr. Aditya Jadeja for the respondent State. None has appeared for the private respondent, though served. 11. Mr. Mehul Rathod, learned advocate for the plaintiff-appellant has vehemently submitted that the plaintiff has purchased the land in question in a public auction, which was held by the Special Recovery Officer of the Bank under the provisions of the Gujarat Co-operative Societies Act, as the private defendant failed to pay the debt of the bank. He has submitted that as the auction was made under the provisions of the Gujarat Cooperative Societies Act and sale certificate was issued by the Bank in favour of the plaintiff, the revenue authority has no power of revision under Section 211 of the Bombay Land Revenue Code to interfere and the proceedings under the Cooperative Societies Act has to be initiated. Mr. Rathod has referred to the various provisions of the Gujarat Cooperative Societies Act especially Sections 116, 122, 134, 136, 138 and 155 thereof. Mr. Rathod has referred to the various provisions of the Gujarat Cooperative Societies Act especially Sections 116, 122, 134, 136, 138 and 155 thereof. He has submitted that under Section 155 of the Gujarat Co-operative Societies Act, the Deputy Secretary has no power to set aside the auction proceedings. He has submitted that only the authorities enumerated under the provisions of the Gujarat Co-operative Societies Act has power to set-aside the public auction. He has submitted that as the action of the Deputy Secretary was dehors his powers, the trial Court has rightly passed the decree in favour of plaintiff. He has also submitted that the question of non-issuance of notice under Section 80 of CPC was not raised by the State Government before the trial Court and it was raised first time before the first Appellate Court. He has submitted that in view of the pleadings of the Government before the trial Court, it would be deemed that the government has waived the point of non-issuance of Notice under Section 80 of the CPC. 11.1 Mr. Mehul Rathod has also submitted that since the action of the Deputy Secretary, Revenue Department to exercise revision power under Section 211 of Bombay Land Revenue Code itself was without authority of law, there was no need of issuance of notice under Section 80 of CPC. He has submitted that the first Appellate Court has committed serious error of facts and law in setting aside the decree passed by the trial Court. He has prayed to allow the present appeal and set aside the impugned judgment of the first Appellate Court and to restore the judgment of the trial Court. In support of his arguments, Mr. Rathod has relied upon the following decisions : 1. Paleti Sivaramakrishaniah v. Executive Engineer, N.C. Canals Sathenapalli and another, reported in AIR 1978 AP 389 ; "18. From all these decisions the following principles emerge. In suits against the Government or against a public officer in discharge of his official duties notice under S. 80 C. P. C. is necessary. Such a notice is mandatory and should be strictly complied with/ Even a mandatory provision can be waived, if it is not concerned in public interest, but in the interest of the party that waives it. Notice under S. 80 C. P.C. is meant for the benefit of the party to whom it is intended. Such a notice is mandatory and should be strictly complied with/ Even a mandatory provision can be waived, if it is not concerned in public interest, but in the interest of the party that waives it. Notice under S. 80 C. P.C. is meant for the benefit of the party to whom it is intended. Notice under S. 80 can be waived by the party for whose benefit it is intended." "20. ......In the present case though a plea was raised in the written statement, no issue was framed. No objection was taken by the second defendant on this score nor any application made for amendment of the issues. The second defendant has not taken this point at the trial of the suit nor was it argued before the trial Court. In these circumstances I am not of the opinion that the second defendant must be deemed to have waived the notice. The suit was contested on merits and a finding has been given by the trail Court that the second defendant by his action is causing wrongful loss to the plaintiff and should therefore be restrained by an injunction. The plea of want of notice does not even appear to have been raised in the grounds of appeal before the Appellate Court, but taken for the first time at time of arguments in the appeal. In these circumstances, I am of the opinion that the second defendant must be deemed to have waived the notice." 2. State of Bihar and another v. Smt. Panchratna Devi and another, reported in AIR 1980 Patna 212: "10. There is no inconsistency in the proposition that the provision under Section 80 of the Code is mandatory and the standing counsel has rightly placed reliance on the case reported in AIR 1966 SC 1068 (supra) but the right may be waived by the party for whose benefit it has been provided. The question is whether in this case, under appeal, the appellants will be deemed to have waived this right. From the facts, as stated above, it appears that the appellants had waived this right as I gather from the conduct of the parties. It is apparent that this issue was not raised in the court below, so much so that this point was not taken even in the memorandum of appeal. From the facts, as stated above, it appears that the appellants had waived this right as I gather from the conduct of the parties. It is apparent that this issue was not raised in the court below, so much so that this point was not taken even in the memorandum of appeal. There are a number of authorities that Section 80 of the Code notice can be waived by the defendant. Reference in this regard may be made to one such decision of the Judicial Committee in the case of Vellayan Chettiar v. Government of the Province of Madras ( AIR 1947 PC 197 ) which has been consistently followed by the various High Courts in India including our own High Court. In the case of Province of Bihar v. Kamakhya Narain Singh ( AIR 1950 Pat 366 ), it was held that it was presumably for a party for whose advantage the provision of notice under Section 80, C.P.C. has been made to waive it." 3. State of Orissa and another v. Bamadeb Panigrahi and another, reported in AIR 1971 Orissa 227: "6. Section 80, C. P. C. is to the following effect:-- "No suit shall be instituted against the Government including 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 - x x xx (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." That a notice under Section 80, C. P. C. is mandatory and the question is no more open to doubt in view of the decision of their Lordships of the Supreme Court in AIR 1966 SC 1068 , Sawai Singhai v. Union of India. Position was always well settled and as early as 1927 their Lordships of the Judicial Committee had also stated so. Position was always well settled and as early as 1927 their Lordships of the Judicial Committee had also stated so. The decision of their Lordships of the Judicial Committee in AIR 1927 PC 176 , Bhagchand Dagdusa v. Secretary of State was approved in the aforesaid Supreme Court decision. But there is also another current of judicial thought which cannot be ignored. Courts have taken the view that the protection available under Section 80, Civil Procedure Code either to the State Government or a public officer can be waived and raising of a plea in the written statement and not joining an issue in the trial Court have been held to be waiver. In this Court there are two decisions directly on the point. In TLR (1959) Cut 258, Basudeb v. Padmanav, G. C. Das, J., held, "When an objection that a suit is not maintainable in the absence of a notice under Section 80 is not raised in the trial Court and no issue is joined on this point and the suit is decreed the plea as to want of notice must be deemed to have been waived and when the plea is taken for the first time in appeal, the appellate Court is not entitled to dismiss the suit on the ground of absence of notice under Section 80." The same view has been reiterated by Barman, T., as he then was, in (1962) 4 O.J.D. 13, Anadi Charan Parida v. Banamali Muduli, considering a similar question which arose with reference to Section 49 of the Madras Court of Wards Act (I of 1902) which has the same language as Section 80, Civil Procedure Code, Viswanath Sastri, J., in AIR 1949 Mad 747, Venkataswami v. Mahalakshmi, held:-- "Waiver is an abandonment of a right and may be express or implied from conduct and to be effectual must be by a person who has full knowledge of the facts. A person who has taken a plea based on the want of notice to which he is entitled, may waive it and allow the action to proceed as though the required notice had been given to him and this can be done so long as the action is pending and has not been finally determined." A Full Bench of the Rajasthan High Court in AIR 1959 Raj. 126 (FB), Rajasthan State v. Girdharilal adopted the self-same view. 126 (FB), Rajasthan State v. Girdharilal adopted the self-same view. They quoted with approval the observations of their Lordships of the Judicial Committee in AIR 1947 PC 197 , Vellayan Chettiar v. Government of the Province of Madras, where it was stated. "There appears to their Lordships to be no reason why the notice required to be given under Section 80 should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required; if in the particular case he does not require that protection and says so, he can lawfully waive his right." In AIR 1958 SC 274 , Dhian Singh v. Union of India, their Lordships stated, "It is relevant to note that neither was this point taken by the respondent in the written statement which it filed in answer to the appellant's claim nor was any issue framed in that behalf by the trial Court and this may justify the inference that the objection under Section 80 had been waived." Mr. Justice Mitra of the Calcutta High Court in AIR 1960 Cal 270 , Lalchand v. Union of India stated, "If the provisions of law were waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or about to be taken upon the footing of waiver. When the litigant had, without mistake induced by the opposite party, taken a particular position in the course of litigation he must act consistently with it, especially, if to allow him to do otherwise would prejudice the opponent. If Mr. Ghosh therefore wanted to rely on the invalidity or insufficiency of the notice under Section 80 of the Code of Civil Procedure it was for him to raise a specific issue on this question." Reliance was placed by Mitra, J., on an earlier decision of their Court in (1907) ILR 34 Cal 257, Manindra Chandra Nandi v. Secretary of State. To the self-same effect there is an authority in (1913) 17 Cal WN 64, Bhola Math Ray v. The Secretary of State for India in Council. In the present case a plea was taken in the written statement, but a suitable issue on this aspect was not raised nor has this point been canvassed in the trial Court. To the self-same effect there is an authority in (1913) 17 Cal WN 64, Bhola Math Ray v. The Secretary of State for India in Council. In the present case a plea was taken in the written statement, but a suitable issue on this aspect was not raised nor has this point been canvassed in the trial Court. Though in the lower appellate court a ground was in the memorandum of appeal on this question it does not seem to have been canvassed, nor is it alleged in this Court that such a point was raised in the lower appellate court and the learned Appellate Judge has omitted to refer to it. In such circumstances and in view of this state of the legal position I think the contention that the suit is bad for notice cannot 'be permitted to be mooted. The telegram notice is Ext. 6. It is certainly not in conformity with the requirement of Section 80, Civil Procedure Code. Besides, the provision in the Code that "the plaint shall contain a statement that such notice has been so delivered or left" does not appear to have been satisfied. If this provision was deemed to be mandatory so that its compliance could not be waived by that category of defendant to whom Section 80, Civil Procedure Code applies, the position must have been different. But in view of the series of decisions referred to above, I do not propose to take a different view. The plea of want of notice cannot be permitted to be raised for the first time in second appeal to the prejudice of the plaintiff who is bound to lose if the plea is now raised and he is non-suited on that technical score." 4. Evergreen Apartment Co-op. Housing Society v. Special Secretary, Revenue Department, Gujarat State, reported in 1991 (1) GLR 113 , the following observation has been made in Para-12: "It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from the legal position that Section 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the Revisional authority has proceeded on a misconception of relevant legal provisions." 5. Dhirendra Nath Gorai and Others v. Sudhir Chandra Ghosh and Others, reported in AIR 1964 SC 1300 ; 6. Rinki Shashikant Gandhi v. Mamlatdar, Vadodara Taluka & Ors, reported in 2012 (2) GLR 1275 12. Per contra, Mr. Aditya Jadeja, learned AGP for the State has vehemently submitted that the impugned order of the first Appellate Court is proper. He has submitted that in absence of Notice under Section 80 of CPC, there would be prejudice to the public interest and, therefore, there cannot be waiver of Notice under Section 80 of CPC by the State Government. While referring to the plaint as well as the observation of the first Appellate Court, Mr. He has submitted that in absence of Notice under Section 80 of CPC, there would be prejudice to the public interest and, therefore, there cannot be waiver of Notice under Section 80 of CPC by the State Government. While referring to the plaint as well as the observation of the first Appellate Court, Mr. Jadeja, learned AGP has submitted that there is no iota of evidence as to issuance of Notice under Section 80 of CPC by the plaintiff to the government. As observed by the first Appellate Court, Mr. Jadeja has also submitted that at the time of issuance of so called sale certificate in favour of the plaintiff, the original private defendant was in possession of the land in question and even after issuance of sale certificate the possession of the land was with the private respondents. He has submitted that, therefore, the impugned order passed by the Deputy Secretary, Revenue Department for re-auction is legal and valid. He has submitted that the State Government has already raised the issue of non-issuance of Notice under Section 80 of CPC and, therefore, there is no question of waiver on the part of the Government. 12.1 Mr. Jadeja, learned AGP has also submitted that in reality, the suit is not based upon ongoing process of auction but it is based upon new cause of action. He has submitted that as the trial Court has not properly appreciated the facts and law in proper perspective, the first Appellate Court has rightly re-appreciated it and has rightly allowed the First Appeal and has dismissed the Suit of the plaintiff. Mr. Jadeja has submitted that the authorities cited by the learned advocate for the plaintiff-appellant are not applicable to the present case. Mr. Jadeja has relied upon the decision in case of Paleti Sivaramakrishaniah v. Executive Engineer, N.C. Canals Sathenapalli and another (Supra), which is relied upon by the learned advocate for the plaintiff-appellant. He has prayed to dismiss the present Appeal by confirming the judgment and decree of the first Appellate Court. 13. In rejoinder, Mr. Rathod learned advocate for the plaintiff-appellant has submitted that even if there is non-issuance of Notice which is irregular, then it can be cured under Section 99 of the CPC and it will not affect the right of the plaintiff. 13. In rejoinder, Mr. Rathod learned advocate for the plaintiff-appellant has submitted that even if there is non-issuance of Notice which is irregular, then it can be cured under Section 99 of the CPC and it will not affect the right of the plaintiff. He has submitted that the first Appellate Court has committed serious error of facts and law and, therefore, the impugned judgment and decree of the first Appellate Court deserves to be set-aside. Mr. Rathod has relied upon the following decisions for this submissions : 1. The State of Bihar v. Raghunandan Singh and another, reported in AIR 1960 Patna 530: "11. Section 80 is intended to afford a protection to all officials, high and low. It protects a public officer in respect of any act purporting to be done by such public officer in his official capacity. Two conditions, however, are clearly necessary, first, he must be a public servant; and, secondly he must purport to act in his official capacity. The plaintiff respondent adds a third requisite, namely, that the act in question is not a future act." "13. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. Section 80 imposes a statutory and unqualified obligation upon the Court. It is true if a suit a commenced by the plaintiff before the law allowed him to sue, he can get no relief in it either by declaration or otherwise. It is unsustainable in limine. This is the correct position in law if the suit is in respect of a past act or an act already completed." "33. The true meaning and the correct interpretation of the words "in respect of any act purporting to be done", occurring in Section 80 of the Code, that they cover only a past act and do not include a future act. Section 80, as such, comes into play only when the suit begun is in respect of past acts, completed, or begun, but incomplete, but it does not apply to future or threatened acts." 2. Chandrasekhar Purushottam Rathi v. State of Maharashtra and another, reported in 2002 (2) Mah.L.J. 181: "16. Section 80, as such, comes into play only when the suit begun is in respect of past acts, completed, or begun, but incomplete, but it does not apply to future or threatened acts." 2. Chandrasekhar Purushottam Rathi v. State of Maharashtra and another, reported in 2002 (2) Mah.L.J. 181: "16. In addition to the above submissions, the learned counsel for the plaintiff-appellant also resorted to the provision of Section 99, Civil Procedure Code, which states: "No decree shall be reversed or subsequently varied, nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit not affecting the merits of the case of the jurisdiction of the Court." 17. The learned counsel for the plaintiff-appellant submitted that the suit was proceeded with by the trial Judge without notice under Section 80, Civil Procedure Code. The defendants did not raise any objection about the want of notice and the decree was passed. He further canvassed that there was a deemed waiver on the part of the defendants, but even if it is taken that there was any error, defect or irregularity in the proceedings, that would not affect the merits of the case or the jurisdiction of the Court and, therefore, the lower Appellate Court ought not to have reversed the decree and remanded the case. The submissions of the learned counsel are worth accepting." 14. Having considered the submissions of both the sides coupled with the record and proceedings of the judgment of both the Courts below and the legal provisions, the answer to the substantial question of law raised in this Appeal, for the reasons given below are as under : Question No.1 In the negative. Question No.2 In the negative. Question No.3 In the negative. Question No.4 In the negative. Question No.5 In the negative. Question No.6 In the negative. Question No.7 In the negative. 15. Since all the substantial question of law raised in this Appeal are interconnected, to avoid repetition of the facts and law, all are discussed together. 16. Question No.2 In the negative. Question No.3 In the negative. Question No.4 In the negative. Question No.5 In the negative. Question No.6 In the negative. Question No.7 In the negative. 15. Since all the substantial question of law raised in this Appeal are interconnected, to avoid repetition of the facts and law, all are discussed together. 16. Having considered the submissions of both the sides coupled with impugned judgment of both the Courts below and the pleadings of the parties and the evidence produced on record, it is crystal clear that there is no dispute regarding the fact that the deceased private defendant was the owner of the land in question and he had obtained loan from the Land Development Bank. It is also admitted fact that on 19.12.1972, the Special Recovery Officer of the Land Development Bank held the public auction of the land in question under Section 134 of the Gujarat Cooperative Societies Act. It also reveals from the record that in the said auction, the plaintiff was the highest bidder and his bid was accepted by the authority. It also reveals from the record that the auction proceedings were approved by the Registrar. The proposal of the plaintiff-appellant was accepted on 12.2.1973. It is also admitted fact that necessary sale certificate was issued in favour of plaintiff way back in 1973. It emerges from the record that in May, 1974 the private deceased defendant had approached the Collector raising objection against the auction proceedings. It is also admitted fact that the Deputy Secretary, Revenue Department (Appeals) in exercise of suo-motu powers under Section 211 of the Bombay Land Revenue Code has reviewed the order of the Bank dated 12.2.1973 and passed the impugned order on 12.12.1977 i.e. after almost 4 years. 17. On perusal of the Record and Proceedings of the trial Court, it clearly appears that the plaintiff has examined himself and has produced certain documents, whereas the defendants' side has not examined anybody. The Government has only produced the documentary evidence, which consist of the impugned order of the Deputy Secretary. The Order of the Special Recovery Officer dated 12.2.1973 is produced at Exh-79. The Government has only produced the documentary evidence, which consist of the impugned order of the Deputy Secretary. The Order of the Special Recovery Officer dated 12.2.1973 is produced at Exh-79. A copy of the show-cause notice issued by the Deputy Secretary, Revenue Department dated 30.7.1977 is produced at Exh-80, impugned order is placed at Exh-81, extract of village Form No.7/12 of the Revenue record of the land in question is produced at Exh-82, letter addressed by the Special Recovery Officer dated 19.8.1974 to the plaintiff is produced at Exh-99 and the letter of the Plaintiff dated 17.8.1974 at Exh-100 and the original papers of proceedings of public auction dated 19.12.1972 is at Exh-101. 18. Now the trial Court has held that considering the nature of the suit and the averments made in the written statement by the State Government wherein alternatively it is contended that if it is proved that Notice under Section 80 of CPC is given, then it is not legal and valid, has also held that the Notice was issued to the Government, as copy thereof is not produced by the Government. In the alternative, it is also observed by the trial Court that considering the facts of the case, no such notice is required to be issued in law. This observation of the trial Court has been set aside by the first Appellate Court observing that in view of the pleadings in Para-15 in the Plaint itself that as the suit is filed for injunction, no Notice is required to be issued to the Government, held that non-issuance of Notice under Section 80 by the Plaintiff is admitted and, therefore, in absence of mandatory Notice under Section 80 of CPC is fatal to the plaintiff and, therefore, there is no question of any waiver on the part of the government. The view of the first Appellate Court is that since the provisions under Section 80 is mandatory one, the suit must fail and accordingly the first Appellate Court has set aside the decree passed by the trail Court in favour of the plaintiff. Thus, the main question is revolving around the provisions under Section 80 of the CPC. At this juncture, it is worthwhile to refer to Section 80 of the CPC, which reads as under : "80. Thus, the main question is revolving around the provisions under Section 80 of the CPC. At this juncture, it is worthwhile to refer to Section 80 of the CPC, which reads as under : "80. Notice.— [(1)] [ Save as otherwise provided in sub-section (2), no suits 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 9 [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 that 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 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 (I); 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 (I), 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.] 19. It is worthwhile to note that the original Section 80 of CPC came to be amended and sub-sections (2) and (3) have been inserted. On perusal of the subsections (2) and (3), it clearly suggest that they are incorporated for relaxation of rigour of Clause-1 of Section 80 so that person may not be deprived of opportunity of obtaining urgent or immediate relief, where such relief is essential and in case of urgency, plaintiff institute Suit for obtaining urgent or immediate relief against government or any Public Officer, without serving any Notice under Section 80 of CPC. In such case, Court shall not grant any relief except after giving to government or public officer, as the case may be, reasonable opportunity of showing cause in respect of the relief sought for in the Suit. Section 80(2) is provided as exception to Section 80(1) in order to enable the person concerned to get immediate order without serving Notice under Section 80(1). In case no urgency, the issuance of notice under Section 80(1) is mandatory and in case of non-compliance, Suit itself cannot be registered and if registered, can be rejected. Further, Section 80(2) does not prescribe any form or manner in which leave has to be granted. Leave need not be by a formal order. It can be impleaded also and could be gathered from what the Court does. Therefore, proceedings with the suit after objection by considering any interim and urgent relief, could be a visible manifestation of an implied leave granted. 19.1 Considering this provision, coupled with the facts of the present case, it appears from the record that with the filing of the plaint, the plaintiff has sought for temporary injunction restraining the defendant from interfering with his possession of the land and initiating any re-auction of the land in question. It appears from the record that same relief has been sought for in the plaint. It is also revealed from the Record and Proceedings of the trial Court that the interim application at Exh-5 has been allowed by the trial Court till the final disposal of the Suit. Admittedly, the reliefs sought for by the plaintiffs in the suit is clearly for permanent injunction, restraining defendants from implementing the impugned order of re-auction and thereby interfering with the possession of the plaintiff. Considering peculiar facts of the present case, it clearly appears that there was an implied leave granted by the Court under Section 80(2) of CPC as temporary injunction pending the suit against the implementation of the impugned order has been passed. Further, considering the challenge against the impugned order on the ground of no authority with the Deputy Secretary, is also one of the grounds to substantiate the plea of the plaintiff that no notice under Section 80 was required in the present case. 20. Now, admittedly, in present case, the Deputy Secretary has exercised suo-motu revision power under Section 211 of Bombay Land Revenue Code. 20. Now, admittedly, in present case, the Deputy Secretary has exercised suo-motu revision power under Section 211 of Bombay Land Revenue Code. Now, admittedly in the present case, the land in question was mortgaged with the Land Development Bank, and as per the provisions contained in Gujarat Cooperative Societies Act, 1961, the entire proceedings of the auction has been carried out and sale certificate has been issued in favour of the plaintiff. Thus, when the original auction proceedings was based upon the provisions of Gujarat Co-operative Societies Act, 1961, then any objection against such public auction of the land and issuance of sale certificate in favour of the auction purchaser, needs to be carried out under the provisions of the Gujarat Co-operative Societies Act, 1961 and the Rules made therein. 20.1 At this juncture, it is worthwhile to refer to the relevant provisions of the Gujarat Co-operative Societies Act. Section 134 deals with the provision regarding sale of mortgaged property, which runs as under : "Section 134. Sale of mortgaged property - (1) Notwithstanding anything contained in the Transfer of Property Act, 1882, the [Land Development Bank] or any person possessing the prescribed qualifications and authorized by the bank in this behalf shall, in case of default in payment of the mortgage money or any part thereof have power, in addition to any other remedy available to the bank to bring the mortgaged property to sale by public auction in the village in which the mortgaged property is situated or at the nearest placed of public resort, without the intervention of the Court. Such sale shall be effected in accordance with the prescribed procedure. Such sale shall be effected in accordance with the prescribed procedure. (2) No power under sub-section (1) shall be exercised unless and until— (a) notice in writing requiring payment of such mortgage money or part thereof has been served upon — (i) the mortgage or each of the mortgagors, (ii) any person who has any interest in or charge upon the property mortgaged,, or in or upon the right to redeem the same so far as is known to the bank, (iii) any surety for the payment of the mortgaged debt or any part thereof, and (iv) any creditor of the mortgagor who has in a suit for administration of his estate obtained a decree or sale of the mortgaged property, and (b) no payment of such mortgaged money or part thereof, has been made till the expiry of three months after service of the notice. (3) If the [Primary Land Development Bank] fails to take action against the mortgagor under section 132, section 133 or under this section, the [State Land Development Bank] may direct it to take appropriate action and where no action is taken by the [Primary Land Development bank], the [State Land Development Bank], may take such action and where the [State Land Development Bank] fails to take action, the Trustee may direct it to take such action and where no action is taken thereupon by the [State Land Development Bank], the Trustee may take such action." 20.2 Section 136 refers to the Confirmation of sale, which runs as under: "136. Confirmation of Sale - (1) On effecting a sale under section 134, the [Primary Land Development Bank] shall in the prescribed manner, submit to the [State Land Development Bank] and the Registrar a report setting forth the manner in which the sale has been effected and the result of the sale, and the [State Land Development Bank] may, the approval of the Registrar, confirm the sale or cancel it. (2) There the sale is effected by the [State Land Development Bank] or the Trustee under section 134, the [State Land Development Bank] or the Trustee, as the case may be, shall in the prescribed manner, submit to the Registrar a report setting forth the manner in which the sale has been effected and result of the sale, and the Registrar may confirm or cancel the sale : Provided that where the Registrar is the Trustee, he shall submit such report to the State Government and the State Government may confirm the sale or cancel it. 20.3 Section 138 deals with Certificate to purchase, delivery of property and title of purchaser, which is as under : "Section 138. (1) Where a sale of mortgaged property has become absolute under section 136 and the sale proceeds have been received in full by the [Land Development Bank], the bank shall grant a certificate to the purchaser in the prescribed from certifying the property sold, the sale price, the date of its ale, the name of the person who at the time of the sale is declared to be the purchaser, and the date on which the sale became absolute; and upon the production of such certificate the Sub-Registrar appointed under the Indian Registration Act, 1908, within the limits of whose jurisdiction the whole or any part of the property specified in such certificate is situated, shall enter the contents of such certificate in his register to immovable property. (2) (a) Where the mortgaged property sold is in the occupancy of the mortgagor, or the some person on his behalf, or some person claiming under a title created by the mortgagor, subsequent to the mortgage in favour of the [State Land Development Bank] or the [land development bank], and a certificate in respect thereof has been granted under sub-section (1) the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property. (b) where the property sold is in the occupancy of a tenant or other person entitled to occupy the same, and a certificate in respect thereof has been granted under sub-section (1) the Court shall, on the application of the purchaser and after notice to such tenant or other person, order the delivery to be made by affixing copy of the certificate of sale in a conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place that the right, title and interest of the mortgagor have been transferred to the purchaser. (3) where any property is sold in the exercise or purported exercise of power of sale under section 134, the title of the purchaser shall not be questioned on the ground that the circumstances required for authorizing the sale had not arisen, or due notice of the sale was not given, or the power of sale was otherwise improperly or irregularly exercised." 20.4 Section 139 deals with regard to provisions of Recovery of loans on certificate by Registrar, which runs as under : "Section 139. (1) Notwithstanding anything contained in Sections 96 and 103 on an application made by a [Land Development Bank] for the recovery of arrears of any sum advanced by it to any of its members and on its furnishing a statement of accounts in respect of the arrears, the Registrar may, after amount stated therein to be due as arrears. (2) A certificate by the Registrar under sub-section (1) shall be final and conclusive as to the arrears due. The Arrears stated to be due therein shall be recoverable according to the law time being in force for the recovery of arrears of land revenue. (3) It shall be lawful for the Collector to take precautionary measures authorized by sections 140 to 144 of the Land Revenue Code, until the arrears due to the [Land Development Bank] together with interest and any incidental charges incurred in the recovery of such arrears, are paid or security for such arrears is furnished to the satisfaction of the Registrar. (4) It shall be competent for the Registrar or a person authorized by him to direct conditional attachment of the property of the mortgagor until the arrears due to the [Land Development Bank] together with interest and any incidental charges incurred in the recovery of such arrears, are paid or security for payment of such arrears is furnished to the satisfaction of the Registrar and the provisions of section 100 shall apply mutatis mutandis to conditional attachment of any property made or to be made under this section. 20.5 On conjoint reading of the aforesaid provisions, it is crystal clear that on the basis of the Certificate of Registrar regarding Recovery, the concerned Bank can appoint any Recovery Officer and public auction of the mortgaged property could be carried out. At the same time, Rules have been made regarding the sale of mortgaged property in the Gujarat Cooperative Societies Rules, 1965, in Chapter-7, the procedure has been prescribed, which included that before the sale is made, there must be proclamation and such proclamation must be published by affixing it in the office of the principal officer of the Cooperative Department in the district and in the taluka office at least 10 days before the date fixed for the sale and also by beat of drum in the village or town where the mortgaged property to be sold is situated on two consecutive days previous to the date of sale and the day of sale, prior to the commencement of sale. The procedure regarding payment of deposit of certain amount at the time of auction as well as final payment of balance money are also be provided therein. It is also provided in Rule 75 therein that Sale Officer on the conclusion of the sale, make a report to the mortgage bank at whose instance the property was brought to sale regarding the results of the sale. As per Rule 77, necessary certificate needs to be issued to the purchaser in the prescribed form. Thus, considering all the aforesaid provisions of the Gujarat Cooperative Societies Act and the Rules made therein, it is crystal clear that the sale of any mortgaged property mortgaged to the Land Development Bank has to be carried out under the provisions of the Gujarat Co-operative Societies Act. 21. Thus, considering all the aforesaid provisions of the Gujarat Cooperative Societies Act and the Rules made therein, it is crystal clear that the sale of any mortgaged property mortgaged to the Land Development Bank has to be carried out under the provisions of the Gujarat Co-operative Societies Act. 21. Now, as per Appeal and Revision provisions, Appeal continue in the Gujarat Co-operative Societies Act, lies to the Gujarat State Cooperative Tribunal. Now, as per Section 155, the power of revision has been vested in the State Government and the Registrar to call for proceedings of subordinate officers and to pass order hereon. The said provision reads as under : "Section 155.- Power of State Government and Registrar to call for proceedings of subordinate officers and to pass order hereon. "The Government and the Registrar may call for examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them, except those referred to in sub-section (9) of section 150, for the purpose of satisfying themselves as to the legality or property of any decision or order passed, and as to the regularity of the proceedings of such officer. If in case, it appears to the State Government, or the Registrar, that any decision or order or proceedings so called for should be modified, annulled or reversed, the State Government or the Registrar, as the case may be, may after giving persons affected thereby an opportunity of being heard pas such order thereon as it or he may deem just." 22. Thus, the provisions regarding the Appeals and revision are made in the Cooperative Societies Act itself, regarding any action taken under the Cooperative Societies Act. Now, admittedly, the impugned order passed by the Deputy Secretary, Revenue Department is not passed under Section 155 of the Gujarat Cooperative Societies Act. Rather, the impugned order is passed under the suo-motu revisional power under Section 211 of the Bombay Land Revenue Code. The exercise of power under Section of Bombay Land Revenue Code itself is in question, as the Cooperative Societies Act contains the specific provisions of revision in relation to the auction taken under the Cooperative Societies Act. The State Government even if has power of revision under Section 211 of BLRC, cannot exercise such power as under Section 211 is a power to be exercised is in relating to the RTS proceedings. The State Government even if has power of revision under Section 211 of BLRC, cannot exercise such power as under Section 211 is a power to be exercised is in relating to the RTS proceedings. When there is specific provisions made in the relevant Act/ Statute governing the subject matter, then the authority having similar power under other statute, cannot exercise its power of revision under another statute. However, for the sake of argument, if it is presumed that the suo-motu power under Section 211 of BLRC is available to the Deputy Secretary for the alleged auction of 1972-73, even in that case it is crystal clear that such power has been exercised after almost 4 years of the original auction. Thus, the exercise of revision power even under Section 211 of BLRC is beyond the reasonable period of limitation and on that ground also the action of the Deputy Secretary, Revenue Department is not sustainable in the eyes of law. 23. Learned advocate for the plaintiff has relied upon Section 99 of the CPC, which reads as under : "Section 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. —No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court : [Provided that nothing in this section shall apply to non-joinder of a necessary party.] Thus, considering the provisions of Section 99 of CPC, it is clear that decree cannot be reversed or substantially varied nor shall be remanded in Appeal on account of any mis-joinder or non-joinder of the parties or cause of action or any error, defect or irregularity in any proceedings in the Suit, not affecting the merits of the case or the jurisdiction of the Court. The submissions of the learned advocate for the plaintiff that if there is defect in notice, it is a mere irregularity and, therefore, on that count also learned first Appellate Court ought not to have set aside the impugned judgment of the trial Court. But this irregularity has to be decided only on the facts of the contents of the Notice, if any, issued. But this irregularity has to be decided only on the facts of the contents of the Notice, if any, issued. Now, admittedly it appears that as per the averment of the plaintiff in the Plain (Para-15), no Notice was issued as Suit is purely based upon permanent injunction. In absence of notice, there is no question of consideration of any defect or irregularity or error in the Notice. Therefore, this submission of the learned advocate for the plaintiff is not acceptable in the facts of the present case. However, as observed earlier, in the present case, the exercise of the power by the Deputy Secretary itself is without jurisdiction, there was no need of issuance of any Notice under Section 80 of the CPC. 24. Now, considering the judgment of both the Courts below, it is crystal clear that the first Appellate Court has not considered the relevant amended provisions of Section 80(2) of CPC and the provisions of the Gujarat Cooperative Societies Act, 1961 and has mechanically observed that exercise of power under Section 211 of BLRC by the Deputy Secretary, Revenue Department was within the limitation period. This observation of the first Appellate Court is not sustainable in the eyes of law. The trial Court has properly considered the point of limitation as well as the point of notice under Section 80 of CPC and has rightly restrained the defendants from implementing the impugned order. 25. Therefore, considering the entire peculiar facts of this case and the evidence on record, this Court is of the considered opinion that the present Appeal deserves to be allowed and the impugned order of the first Appellate Court needs to be set-aside and the judgment and decree of the trial Court needs to be restored. 26. Hence, I pass the following final order in the interest of justice: ORDER The present Second Appeal is hereby allowed. The impugned judgment and order dated 28.10.1997 passed by the learned Joint District Judge, Banaskantha @ Palanpur in Regular Civil Appeal No. 20 of 1998 are hereby quashed and set aside and the impugned judgment and decree dated 29.2.1988 passed by the learned Civil Judge (Senior Division), Banaskantha @ Palanpur in Regular Civil Suit No. 24 of 1978 are hereby restored. Considering the facts and circumstances of the case, the parties are directed to bear their respective costs of this Appeal. Considering the facts and circumstances of the case, the parties are directed to bear their respective costs of this Appeal. Necessary decree to be drawn accordingly in this Second Appeal. Alongwith copy of this judgment and decree, R&P to be sent back to the learned trial Court.