S.80, CPC. imposes a statutory and unqualified obligation upon the court, and the notice requirement cannot be waived. The section is imperative and must be strictly construed.

1. The second appeal is filed by the defendant who is the State of Kerala.

2. The suit by the plaintiff is for declaration of his title and possession to the plaint schedule property and for an injunction to restrain the defendant from entering into the plaint property and from proceeding with the Land Conservancy Case taken against the plaintiff. The learned Munsiff dismissed the suit while the learned Subordinate Judge decreed it. The second appeal is filed against the judgment and decree of the Subordinate Judge.

3. The main submission on behalf of the defendant was that the plaintiff has not satisfied the requirements of S.80, CPC. The Section reads:

"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 of (a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government, where it relates to a railway, the General Manager of that railway;

(e) in the case of suit against a State Government, a Secretary to that Goverment or the Collector of the District;

and in the case of a 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."

The necessity for the issue of notice under S.80, CPC. in the case before us is not disputed.

4. In Para.10 of the plaint the plaintiff alleged that a notice to the Chief Secretary of the defendant was sent by registered post on 4-4-1961. Ext. P5 (1) is the postal receipt evidencing the despatch of the notice to the Chief Secretary. Ext. P5 is the copy of the notice and the original received by the defendant is Ext. D 11. Ext. P5 (1) stows that Ext. D11 was delivered in the Post Office for registration on 4-4-1961. It is seen from Ext. D11, that it was received in the Secretariat of the defendant only on 7 41961. The suit was filed on 7 61961 before the expiry of two months as required by S.80, CPC. The learned Munsiff therefore found that the requisite period of notice was not given and dismissed the suit. The appellate court presumed that Ext. D11 must have been received by the defendant on the 5th or 6th of April, 1961. The appellate judge observed:

"In the normal course a registered letter despatched from the Kottarakara Post Office should reach Trivandrum Secretariat on the next day. If not on the 6th. There could not be such a delay to effect delivery only on the 7th. On Ext. D11, the original of the notice the date seal is given as 7 41961 and an initial with such a date also is seen. What is mentioned in S.80 is 'delivered to or left at the office'. It is quite possible that the registered letter might have been delivered at the Secretariat Office either on the 5th or on the 6th." Such a presumption can be drawn in view of S.26 of the Interpretation and General Clauses Act. But it is only a rebuttable presumption. The official seal in Ext. D11 shows that it was received by the defendant only on 7 41961. The presumption under S.26 of the Interpretation and General Clauses Act has been thus rebutted. The plaintiff did not choose to obtain an acknowledgment for the receipt of Ext. D11 by the defendant. In these circumstances, it has not been established that Ext. D11 was delivered in the office of the defendant prior to 7 41961.

5. There was no contention before us that if the date of delivery mentioned in Ext. D11 is correct still S.80of the Civil Procedure Code is satisfied.

6. But it was contended relying on the decision in Nannini Amma v. State (1962) II KLR. 389 that at the time of the disposal of the suit the period of two months is over