Mandatory statutory notice under Section 80 of the Code of Civil Procedure is essential for suits against public officers, and failure to comply renders the suit non-maintainable.

ORDER :

1. This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as, “the Code”).

2. Being aggrieved and dissatisfied by the judgment and decree dated 29.04.2000 passed by the learned Civil Judge (Senior Division), Amreli in Special Civil Suit No.81 of 1996 wherein the suit of plaintiff came to be decreed thus, the appellant is before this Court. The learned trial Court decreed the suit.

3. The brief facts of the present case are that the original plaintiff filed a suit for damages against the appellants-original defendants. Plaintiff is the owner of Survey No. 26 paiki acre 4.10 guntha situated in Village Matanmala, Taluka Dhari, District Amreli and plaintiff had planted 265 mango trees. In a land bearing Survey No. 31, a canal is passing by, which is of the ownership of Shardaben Durlabhbhai. During monsoon, water is passing through this canal. In Survey No.31 total 78 mango trees are planted by wife of respondent No.1. The defendants-appellants had made one "ubhar" on the Nehru because of the said “ubhar”, the land became unfertile and due to running water, the plantation of mango trees were damaged. The plaintiff filed a suit for damages of Rs.6,00,000/- together with 18% interest against defendants-appellants and also asked for a temporary injunction also. Defendants appeared and filed written statement Exh.15.

4. The following issues were framed vide exhibit No 29:-

“1) whether the plaintiff proves that the defendants have constructed the said Ubharo in the land of S. No. 26 and 31 of plaintiff which the defendants have no right to construct it?

2) whether the plaintiff is entitled to get the a damages of Bs. 6, 00, 000/ - from the defendants ?

3) Whether the plaintiff is entitled to get the interest on suit claim, if yes, at what rate ?

4) Whether the defendants prove that the Civil Court has no jurisdiction to hear this suit ?”

5. The plaintiff was examined vide Exh.38. Plaintiff also examined one Gunvantrari Labhshanker Gajyaguru at Exh.43. Defendants examined Parshottambhai Manibhai vide Exh.49.

6. Learned counsel for the appellant submitted that the judgment and decree passed by the learned trial court is erroneous. It is further submitted that prior to filing of the suit, no notice has been given to the appellant.

7. Learned Council for the appellant submitted that the judgment and decree passed by the learned trial Court is erroneous. It is submitted that the suit is filed without giving notice under Section 80 of the Code of Civil Procedure. It is further submitted that no notice under section 270 of the Gujarat Panchayat Act, 1993 was given by the plaintiff before the filing of the suit. It is further submitted that the work of “ubhar” was completed before 1 year of the Institution of the suit. The construction of the “ubhar” was made out of good intention for the development of villages and only for stopping the rainwater from damaging the fields of the villagers. It is submitted that plaintiff has not suffered any loss or damage as alleged. Plaintiff has not proved the quantum of damages. In absence of any proof of damage the Learned trial Court has committed in an error by granting an amount of Rs.2,00,000/- towards damages. Plaintiff 's wife Sharda Ben has also filed a suit for damages bearing Suit No. 82 of 1996. The learned trial Court has presumed 70 trees of mangoes in the field. The learned trial Court has calculated quantum of damages merely on presumption.

8. Learned counsel for the appellants has relied upon Section 270 of the Gujarat Panchayat Act, 1993 (hereinafter referred to as, “the Act”), which is reproduced hereinbelow:-

“70. Bar of action against panchayat etc. and previous notice before institution.

(1) No action shall be brought against any panchayat or any member, officer, servant or agent of a panchayat or any member of a committee of a panchayat acting under its direction, in respect of anything in good faith done under this Act or under any rule or