Chandrashekhar Purushottam Rathi vs State of Maharashtra & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000 Supreme(Bom) 936

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
S.G. Mahajan, J.
Chandrashekhar Purushottam Rathi.... Appellant.
Versus
State of Maharashtra another.... Respondents.
Appeal from Order No. 71 of 2000, decided on 15/16-12-2000.
Advocates appeared :
V.P. Panpalia, for appellant.
S.S. Doifode, A.G.P., for respondents.

Headnote:CIVIL PROCEDURE CODE, 1908
       Section 80 (1) and (2) - Exemption from prior notice -Where application filed under Section 80(2) for dispensing with the notice, however, the defendant contested the suit on merit, there will be deemed waiver of prior notice under Section 80(1). The appellate court wrongly reversed the decree of the trial court for non compliance of provisions of Section 80. even the defendant did not plead that there was no urgency and never challenged the application for exemption nor any objections were raised in the written statement, therefore, the objections against the application under Section 80(2) stood impliedly waived. [Chandrashekhar Purushottam Rathi Vs State of Maharashtra, 2002 (2) Mh Lj 181 (Bom)].
       Section 80 (1) -Waiver of Notice -Notice under Section 80(1) CPC can be waived and if the notice is waived, plaint cannot be returned for compliance of the notice
       CIVIL PROCEDURE CODE, 1908
       Section 99 and 80(2) -Dispensing with prior notice -Where no order passed by the court on the application under Section 80 (2) and the defendants contested the suit on merit and never raised objection about urgency clause in filing the suit without prior notice, it will amount to waiver of the notice and the suit on merit will nto be affected in view of Section 99 CPC.
       CIVIL PROCEDURE CODE, 1908
       Section 99 and 80(2) -Dispensing with prior notice -Where no order passed by the court on the application under Section 80 (2) and the defendants contested the suit on merit and never raised objection about urgency clause in filing the suit without prior notice, it will amount to waiver of the notice and the suit on merit will nto be affected in view of Section 99 CPC.

Judgement Key Points

Certainly. Based on the legal principles and reasoning in the provided document, the paragraph numbers you should highlight are:

(!) — for the discussion that the absence of a specific order on the application for leave to dispense with notice does not automatically invalidate the proceedings, especially when conduct indicates implied waiver.
(!) — to emphasize that the defendants did not raise any objection or challenge regarding the non-passing of the order on the application, reinforcing the implied waiver.
(!) — for the explanation that the defendants' pleadings did not amount to an explicit or deemed waiver, but their conduct and participation suggest implied waiver.
(!) — to support the point that the conduct of the defendants, participating in proceedings without objection, indicates waiver of the notice requirement.
(!) — to illustrate that procedural irregularities, such as not passing an order, do not necessarily affect the jurisdiction or merits if conduct indicates waiver.
(!) — for the reasoning that procedural irregularities do not affect the case's merits or jurisdiction when there is implied waiver.
(!) — to reinforce that procedural defects, like not issuing notice, do not warrant remand if conduct suggests waiver and the case should be decided on merits.

These paragraphs collectively support your argument that the defendants' conduct amounted to an implied waiver of the notice requirement under Section 80, and that the case should be decided on its merits rather than on procedural technicalities.

JUDGMENT - S.G. MAHAJAN, J.:---Since both the parties in this appeal consented for the final disposal of this case, the matter was fixed for final hearing.

2.The appeal is taken up for final hearing by consent of both the parties.

3.The order impugned in this appeal was passed by the learned 2nd Additional District Judge, Yavatmal, on 13-6-2000 in Regular Civil Appeal No. 192/94 whereby he allowed the said appeal, set aside the judgment and decree in Regular Civil Suit No. 172/92 passed by Civil Judge, Senior Division, Yavatmal, on 30-7-1994 and remanded the matter back to the lower Court, that is to the Court of Civil Judge, Senior Division, Yavatmal, with a direction to return the plaint to the plaintiff, who is the present appellant, for presentation after complying with the provisions of section 80 of the Civil Procedure Code.

4.The Government of Maharashtra through Collector, Yavatmal, issued a demand notice to the plaintiff (present appellant) by making the assessment of his plot as converted from agricultural to industrial use. The stand of the plaintiff was that he was already making the payment in accordance with the assessment for non-agricultural use as per the settlement of the year 1930-31. The contention of the plaintiff thus was that the demand made by the Collector was illegal and was without examining the earlier record. However, the Collector, by the order dated 17-6-1992, confirmed the recovery of the amount, which was mentioned in the aforesaid notice.

5.Aggrieved by the above mentioned order of the Collector confirming the recovery, the plaintiff (present appellant) filed a Civil Suit being Regular Civil Suit No. 172/92 claiming permanent injunction restraining the Collector and the State of Maharashtra from making the recovery of the amount in pursuance of the order dated 17-6-1992. In this suit, the plaintiff also presented an application for the grant of temporary injunction together with an application for leave of the Court under section 80(2), C.P.C. for dispensing with the notice under section 80(1), C.P.C. The application for leave to dispense with the notice under section 80(1), C.P.C. was at Exhibit 5 on the trial Court's record. It was mentioned therein that the said application was being moved due to the urgency in the matter.

6.The notice of temporary injunction application Exhibit 6 was given by the Court to the defendants. However, the notice of leave application Exhibit 5 does not seem to have been issued. On appearance of the defendants, the temporary injunction application was decided by the learned trial Judge, by the order dated 10th February, 1993 passed below Exhibit 6 (It was a common order passed in this suit as well as in some other suits). The temporary injunction restraining the defendants from giving effect to the concerned notices issued by the Collector for the recovery of amount on the basis of non-agricultural assessment was granted in favour of the plaintiff. However, no order granting leave to institute the suit by dispensing with the notice under section 80(1), C.P.C. was passed on Exhibit 5 at any point of time. The learned Civil Judge, Senior Division, Yavatmal, disposed of the suit by the judgment dated 30-7-1994 whereby the suit was decreed for permanent injunction restraining the defendants from executing the order dated 17-6-1992 in respect of the recovery of the amount concerned from the plaintiff. The defendants, i.e. the State of Maharashtra and the Collector, Yavatmal, challenged this judgment and decree vide Regular Civil Appeal No. 192/94, which came up for hearing before the 2nd Additional District Judge, Yavatmal.

7.The learned 2nd Additional District Judge, Yavatmal, reserved the judgment and decree passed by the Civil Judge, Senior Division, Yavatmal, by his judgment and order dated 13-6-2000 passed in Regular Civil Appeal No. 192/94 and remanded the matter back to the trial Court with a direction to return the plaint to the plaintiff for presentation after com

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