Heard.

2. The Appellants are the Plaintiffs in the Suit under Stamp No.1525 and hereinafter shall be referred to as "the Plaintiffs".

3. The Plaint has not been registered for want of notice under section 80 of the Civil Procedure Code against Defendant No.2, and because it is filed beyond the period of limitation, against Defendant No.1.

4. Some undisputed facts may be stated to dispose of the present appeal.

5. The Defendant No.1 had floated a tender. The Plaintiffs had entered into an agreement with Defendant No.2 on behalf of Defendant No.1 for the construction of a School Auditorium for Fr. Agnelo High School under M.P.L.A.D. Scheme. On completion of the work on 30/09/2006 Defendant No.2 issued a certificate of completion dated 03/10/2006. Out of total amount of Rs.24,26,000/-, the Plaintiffs were paid Rs.18,12,000/-. The Plaintiffs by their letter dated 16/12/2008 called upon Defendant No.2 to pay the balance amount of Rs.6,05,000/- within 15 days which had remained unpaid from 30/09/2006. The Plaintiffs claimed that the cause of action arose on 30/09/2006 when all the works were completed and again on 27/04/2009 when the period of two months expired. The suit was filed on 24/10/2009 for recovery of a sum of Rs.9,15,550/- with interest at 18% from Defendant No.1, with costs and advocates fees.

6. Two points arise for my consideration.

7. First, is whether the notice under section 80 of Civil Procedure Code was required to be given to Defendant No.2, the Executive Engineer? The learned trial court has come to the conclusion that notice was required to be given to him as all the acts were performed by him and it is he who was liable to pay for the work carried out by the Plaintiffs and thus issuing notice under section 80 of Civil Procedure Code to Defendant No.2 was certainly in compliance of the said provision.

8. Section 80 of Civil Procedure Code deals with notice and sub-section (1) thereof, inter alia, provides that save as otherwise provided in sub section (2), no suit shall be instituted against the Government or against 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 :-(a) ...... (b) ...... (c) in the case of suit against any other State Government, a Secretary to that Government or the Collector of the district, and, in the case of 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.

9. Admittedly, there is no averment in the Plaint that any notice was served on Defendant No.2 except to say that Defendant No.2 was part and parcel of the department of Defendant No.1. The learned Senior Counsel on behalf of the Plaintiffs has submitted that the Plaintiffs were not claiming any relief against Defendant No.2, as could be seen from the prayer clause, but they had sought recovery of money only from Defendant No.1.

10. Contending that notice was also required to be given to Defendant No.2, he being a Public Officer who had infact entered into the Agreement on behalf of the Government and was otherwise required to pay the amount claimed by the Plaintiff against Defendant No.1, the learned Additional Government Advocate has placed reliance on the case of B.S. Yadava Vs. Prabhudayal (AIR 1992 M.P. 203) wherein the learned Single Judge of that court held that law envisaged that notice under section 80 has to be delivered to the Officer concerned. That was a case where the suit for damages was filed against the State of Madhya Pradesh and the Appellant was the Tahsildar who had demolished the construction.

11. Since the suit was filed by the Plaintiffs against Defendant No.2 in his official capacity, in my opinion, the Defendant No.2 wa