The court may allow an amendment of the plaint to implead the State Government as a party even if a notice under Section 80 of the Code of Civil Procedure has not been served, if the State has waived its right to receive such a notice or if the court is satisfied that substantial justice will be done by allowing the amendment.

S.B.Sinha, J.

1. This Civil revision application arises out of an order dated 30.9.1V85 passed by Sri S. Upadhyay, 3rd Additional Sub-Judge, Bhagaipur in Title Suit No. 128 of 1979 whereby and where under the said learned Court after having held that the State of Bihar is a necessary party proceeded to give an opportunity to the plaintiffs to take effective steps within a reasonable time to add the State of Bihar as defendant in the suit.

2. The facts of the case lie in a very narrow compass.

3. The plaintiffs opposite parties filed the aforementioned suit claiming inter alia the following reliefs:

(a) ft he held and declared that no Wakf was created in respect of holding Nos. 72-72A, 74 and 75 and they cannot be held to be Wakf properties and were never used or dealt as such and the direction of the Government of Bihar contained in letter No. 4976 dated 6.8.1979 is illegal, invalids inoperative and without jurisdiction and the defendants cannot register the said properties as the Wakf properties or forming part of any Wakf relating to holding No. 73.

(b) On the above adjudication, the defendants be permanently restrained from registering Schedule A properties as Wakf properties or forming part of any Wakf in respect of holding No. 73 and in case the Schedule A properties are registered as Wakf properties the same be held illegal and without jurisdiction and the defendants be permanently restrained from acting and dealing with Schedule A properties on the basis of the said illegal registration.

4. In the plaint of the said suit, the plaintiffs asserted that the lands in question are not Wakf properties and as such they have a right to purchase the same. However, according to the defendants the suit properties are Wakf properties in this view of the matter the same could not have been the subject-matter of sale. An application was filed on behalf of the defendants-opposite parties to the effect that the maintainability of the suit be taken up as a preliminary issue.

5. By the impngned order, as stated hereinbefore, the learned court below held that the suit would not be maintainable in absence of the State of Bihar but directed as follows:

However, in the interest of justice, I feel it highly essential to provide an opportunity to the plainiffs to take effective steps within reasonable time, to add the State of Bihar as defendant in the suit.

6. Mr. Thakur Prasad, learned senior counsel appearing on behalf of petitioners has raised a very short question, The learned Counsel submitted that in view of the provision of Sec. 80 of the Code of Civil Procedure the State of Bihar could not have impleaded as a party without a notice under Sec. 80 of the Code of Civil Procedure having been served upon it. Learned Counsel further submitted that the provision of Sec. 80 of the Code of Civil Procedure is absolutely mandatory in character and the same must be complied with before the State of Bihar is impleaded as a party in the suit.

7. In this connection learned Counsel has relied upon a decision of the Supreme Court in Bihari Choudhary V/s. State of Bihar and Ors. reported in -- .

8. Mr. S.C. Ghosh, learned senior Counsel appearing on behalf of the opposite parties, on the other hand, submitted that the plaintiffs, after the aforementioned order was passed, had already issued a notice in terms of Section 80 of the Code of Civil Procedure. The opposite parties in their affidavit have stated as follows:

That after the impugned order dated 30.9.1985 the opposite party served notice under Sec. 80 C.P.C. on the State of Bihar and after the service of notice under Sec. 80 C.P.C. the plaintiff-opposite party filed an application to amend the plaint on 3.10.1985 add State of Bihar as party to the suit.

9. Learned Counsel has further relied upon a decision of the Supreme Court in Ghanshyam Dass and Ors. V/s. Dominon of India reported in.

10. There can not be any doubt that without serving of a notice under Sec. 80 of the Code of Civil Pro