The main legal point established is that the notice under Section 46 of the Bihar Agriculture Produce Markets Act, 1960 must fulfill the requirements of the section, and the suit cannot be dismissed for absence of notice if the requirements are satisfied.

S.N.Jha and B.N.P.Singh JJ.

1. By this petition the Plaintiffappellant seeks review of the judgment and order of this Court dated 19.6.1996 in Miscellaneous Appeal No. 117 of 1985. The Miscellaneous Appeal had arisen from the order of the Munsif, 3rd Court, Patna dated 12.5.84 dismissing Title Suit no. 85/37 of 1981/ 1983 preferred by the petitioner, as not maintainable.

2. The short facts of the case are that the petitioner filed aforementioned suit seeking reference of the dispute to the Arbitrator. The case of the petitioner is that he entered into an agreement with the defendant-opposite party for construction of small shops at New Yarpur in the town of Patna on 8.11.1979. The agreement stipulated completion of work within four months. According to the petitioner he started executing the work in all earnestness, collected materials for the purpose and made other arrangements to complete the work within the stipulated period. However the defendant-opposite party did not hand over possession of the entire worksite nor fixed the alignment for several weeks, thus causing obstruction in the execution of the work. Again, while the work was in progress the opposite party directed the petitioner some time in the second week of February, 1980 to stop construction in pursuance of an order of status quo passed by the Munsif, 3rd Court, Patna in Title Suit no. 23/80 preferred by the Post & Telegraph Department against the opposite party impleading the petitioner too as party to the suit. The petitioner suffered recurring loss due to abrupt stoppage of the work on account of idle labour, theft off materials, maintenance cost, blockage of security money, besides expenses incurred in litigation. The plaintiff in the circumstances submitted claim for Rs. 1,12,121/- on different dates in the year 1980. As the request remained unheeded, finally, pleaders notice was also given to the opposite party but without any result. In these circumstances the suit was filed seeking direction to the opposite party to file the agreement (original of which has been retained by them) and thereupon, refer the dispute detailed in Schedule I of the plaint, to an independent Arbitrator. The opposite party appeared and filed written statement objecting inter alia to the maintainability of the suit on the ground of absence of notice in terms of Section 46 of the Bihar Agriculture Produce Markets Act, 1960 (hereinafter referred to as the Act). The objection found favour of the Court and by order dated 12.5.84 the suit was dismissed as not maintainable.

3. Against the said judgment and order the petitioner preferred Miscellaneous Appeal No. 117/85 in this Court. By the judgment under review the appeal was dismissed. The Court observed that service of notice under Section 46 was not a formality. The Court looked into the notice which had been sent on behalf of the petitioner before instituting the suit and held that notice did not fulfil the requirement of Section 46 of the Act and as such the suit suffered from a vital defect and in the circumstances did not find any error in the judgment and order of the trial court dismissing the suit as not maintainable. It is relevant to mention here that the said order was passed in absence of the Counsel for both the petitioner and the opposite party, upon suo motu perusal of the judgment and order of the court below.

4. Feeling aggrieved by the ex-parte dismissal of the suit, behind his back, the petitioner filed application on 27.6.96 for re-admission of the appeal under Order 41, Rule 19 of the Civil Procedure Code. The said application came up for consideration on 6.12.96, The learned Judges took the view that as the appeal was dismissed on merit, if the petitioner wants recall or modification of the order, he may file review petition. Observing thus the Court declined to pass any order on the application.

5. At this stage we may observe, with due respect to the learned Judges who passed the judgment and order un