( 1 ) APPELLANTS filed a suit for declaration and permanent injunction claiming to be the owners in possession of plot of land measuring 436. 5 sq. yds. comprising khasra No. 52/18/2 with a structure thereon at village Kishangarh, which was free from acquisition proceedings. The suit was filed before this Court first wherein an ex parte interim injunction was also granted. It was later transferred to District Courts at tis Hazari and was assigned to learned ADJ for trial who framed the following preliminary issue for decision first :

"whether the present suit is not maintainable as alleged in para 2 of the preliminary objections in the WS ?"

( 2 ) WHILE examining this issue the whole debate seems to have turned on the non- service of notice under Section 80, CPC.

( 3 ) WHILE appellants (plaintiffs) contended that the suit was maintainable even in the absence of notice under Section 80, they also prayed for grant of leave in the facts and circumstances of the case under Section 80 (2 ). Respondents (defendants) opposed this and trial Court dismissed the suit for want of notice under Sections 80, CPC and 53-B of DD Act and dismissed the suit.

( 4 ) APPELLANTS assail this on twin grounds: first that notice under Section 80 should have been deemed waived after this Court had registered the suit and passed ex parte interim order and secondly, the suit could not have been dismissed without consideration and disposal of appellants application under Section 80 (2 ).

( 5 ) APPELLANTS counsel Mr. Valmiki Mehta referred to and relied upon Supreme Court judgment in Vannattankandy Ibrayi v. Kunhabdulla Hajee, 2001 (1) SCC 564 : (AIR 2003 SC 4453) to show that notice under section 80 was liable to be waived and one calcutta High Court judgment in Janak Raji devi v. Chandrabati Devi, AIR 2002 Cal 11 to suggest that even grant of leave under section 80 (2) could also be presumed in the circumstances of the case as in the present case.

( 6 ) RELEVANT provisions of Section 80, CPC and 53-B, DDA Act read thus :

"80. Notice. (1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government or against a 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. . . . . . . . " " (2) A suit to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1), but the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit. " section 53-B OF PDA ACT "notice to be given of suits (1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode or, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaintiff contains a statement that such notice has been so left or delivered. (2 ). . . . . . . . . . . . . . . . (3) Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the on