Challenging the orders in I.A.Nos.2011, 2012 and 2013/2013 in O.S.No.334/2012, dated 04.10.2013, of the Munsiff's Court, Mavelikkara, the petitioner/plaintiff came up with this petition under Article 227 of the Constitution of India.

2. All these three applications were dismissed under the premise that there is non compliance of the mandate under Section 80 of Code of Civil Procedure and the suit was dismissed in entirety as against all the defendants. Admittedly, first defendant being a private person will not come under the purview of either Section 80 or Section 79 of Code of Civil Procedure. The requirement under Section 80 C.P.C. being precautionary in nature, a pedantic approach should be avoided. It is neither intended to defeat nor to delay any valuable right. The section is not intended to defeat or adjourn the grant of any relief or in agitating any dispute permissible under Section 9 C.P.C. against any private person. The embargo under Section 80 C.P.C would be available only to the Central Government, the State Government or to a Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity. It has no application in the matter of a suit instituted against a private person. If a suit is found to be bad under Section 80 C.P.C., it would operate only against such Public Officer, the State Government or the Central Government, as the case may be. It is neither permissible nor advisable to dismiss the whole suit which was filed both against private persons and the persons who would come under the purview of Section 80 C.P.C. (Central Government, State Government or a Public Officer in his official capacity). The suit instituted as against private persons cannot be dismissed under Section 80 C.P.C. even if the cause of action against such persons and the person who would come under the purview of Section 80 C.P.C. is one and the same. In such situations, the court is expected to proceed with the suit in so far as it is against the private persons, subject to the question of maintainability of the suit on any other grounds available.

3. The object of Section 80 C.P.C. was discussed and settled by the Apex Court in Raghunath Das v. Union of India [1969 KHC 736, AIR 1969 SC 674] as under :

“8. The object of the notice contemplated by that section is to give to the concerned Governments and Public Officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice.”

4. In the instant case, the suit was instituted both against the State Government and private persons. The Lower Court dismissed the whole suit under the premise that there is non compliance of the requirement under Section 80 C.P.C. as against some of the defendants. The dismissal of the suit in entirety as against all the defendants inclusive of first defendant who would not come under the purview of Section 80 C.P.C. due to non compliance of the mandate under that Section is impermissible. The Lower Court ought to have proceeded with the suit as against the first defendant who would not come under the purview of mandate under Section 80 C.P.C. irrespective of whether the suit was based on the same cause of action or different cause of action.

5. The learned counsel for the petitioner inter alia submitted that in the earlier suit leave under Section 80(2) C.P.C. was obtained, but subsequently it was withdrawn with the leave of court due to change in the legal position by way of amendment to the Kerala Survey and Boundaries Act, 1961, and a fresh suit was instituted. It was contended that it is really