( 1 ) THIS is the defendants' appeal from the judgment and decree dated 19th September, 1996 passed by the Civil Judge, Gulbarga in original suit number O. S. No. 47 of 1995. The plaintiff had filed the above mentioned suit for recovery of a sum of Rs. 1,54,692/- against the defendants.

( 2 ) PLAINTIFF claimed himself to be P. W. D. Contractor and he alleged that he had been entrusted with the work of repair and tar work of the Chittapur-Malkhed Road from 10. 15 km to 13. 20 km, on the total costs of Rs. 4,00,827-11 Ps. , accordingly there was an agreement. But he could cany out the part of the work amounting to Rs. 91,176/- and stopped further work as per order and the direction of the Chief Engineers. The plaintiff alleged that the aforesaid amount of Rs. 91,176/- was payable on or before February 1993. Under this amount the material worth Rs. 41,000/-, was allotted by defendant 2, at P. W. D. expenses. So after deduction of Rs. 41,000/-, plaintiff claims to be entitled to the sum of Rs. 50,1767-, payable on or before February 1993. Plaintiff alleged that he made several demands, but of no effect, and therefore plaintiff claimed that he is entitled to interest at the rate of 18% per annum till February 1995 and according to plaintiff the interest that had accrued on the above amount upto the date of suit amounted to Rs. 10,075/ -. Plaintiff further alleged that while accepting the plaintiffs tender the plaintiff-respondent as required had to deposit of Rs. 10,800/-, in the name of defendant 2, in the Bank, under the head called "call deposit" and that amount had to be released and returned by defendant 2, after completion of the work. That amount had to be released at the time of cancellation of work but the same has not been released and not been returned. Plaintiff claimed interest thereon from March 1993, that is from the date of cancellation of the work, till January 1995, to be in a sum of Rs. 3,726/ -. Plaintiff further alleged that plaintiff suffered the damage for the loss of profit at the rate of 10%, amounting to Rs. 30,800/ -. Plaintiff also alleged that plaintiff had dumped materials like metal at K. M. No. 10. 50 to 12-50 amounting to Rs. 41,125/-, apart from the other work. But as the defendant has stopped the work and so plaintiff is entitled to claim that amount as damages and in total the plaintiff claimed decree for the sum of Rs. 1,54,692/ -.

( 3 ) THE defendants, in spite of service of the summons of the case and defendants putting their appearance through the District Counsel, did not prefer to file any written statement in the case. Several opportunities were, no doubt granted to defendants and after recording the state- ment of p. W. 1, looking to the material exhibits on record, Trial Court decreed plaintiffs claim for a sum of Rs. 1,23,467/- by way of decree under Order 8, Rule 10 of the CPC. It so appears from record.

( 4 ) FEELING aggrieved from the judgment and decree of the Trial Court, the defendant has come up in appeal.

( 5 ) I have heard the learned Government Advocate Sri Ramaiah, for the appellants and Sri V. S. Sheelavanth, learned Counsel for the respondent.

( 6 ) ON behalf of the appellants, the Government Counsel submitted that the decree passed by the trial Court has been without jurisdiction, as the Trial Court had no jurisdiction to entertain the suit, in view of the fact that no notice under Section 80 of the Code of Civil Procedure was issued or given or served by the plaintiff-respondent on defendants-appellants. Learned government Counsel contended that, even in the plaint there is not the least averment to that effect that notice under Section 80 of the Code of Civil Procedure, as per requirements of the section, has been served. Learned Government Counsel contended, as such it has to be presumed that no notice has been served on the appellants-defendants, and as Section 80 mandates that no suit shall be instituted against the Government unless and until the notice under Se

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