Survey binding on party not served notice.

In view of the finding of the lower appellate Court refusing to rely upon the evidence of D. W. 6, that he affixed the notice to survey number 321 on the outer door of the shop, the lower appellate Court was justified in coming to the conclusion that the appellant did not have notice of the survey as contemplated in section 9(ii) of the Madras Survey and Boundaries Act. The question then arises as to whether such a survey without notice to the party concerned, when it is adverse to him, is binding on him, if he has not brought a suit to set aside the survey within three years as contemplated in section 14 of the Act. The expression in section 13 is "when the survey of any land or boundary which has been notified under section 5 has been completed in accordance with the orders passed under sections 9, 10 or 11 etc., etc." The question is, whether there has been a completion of the survey in accordance with the orders passed under section 9, if no notice of the survey has been given to the party concerned. ‘The learned Judge held that the words "in accordance with the orders" cannot be said to be synonymous with "in accordance with the provisions laid down." I am unable to agree. When a Statute says that an order should be passed under section so and so, it contemplates the fulfilment of all the necessary formalities which have to be completed under the section. Here the non-observance of the giving of a notice to the party would make the order passed not one correctly passed under the section. If the officer passes an order without complying with the requisites of the section, it cannot be said that it is an order passed under the section. I am therefore inclined to hold that the appellant is not bound to file a suit within three years to set aside the order of the Survey Officer because he had no notice of the survey.

The next point is whether the learned Judge is right in holding that the decision of the District Judge of Ramnad in Appeal No. 182 of 1944 is not binding on the parties. That appeal arose out of a suit for a similar relief and in the trial Court, the present plaintiff, was given a decree. In the Court of appeal, it was contended before the learned District Judge that the suit should have been dismissed because the requisite notice under section 80 of the Civil Procedure Code had not been given. In the alternative, it was contended that liberty may be given to the plaintiff to file a fresh suit after complying with the provisions of section 80 of the Civil Procedure Code. The relevant portions of the learned District Judge’s judgment are as follows:

"If at all the lower Court felt that the plaintiff was entitled to some indulgence, it ought to have merely given him the liberty to file a fresh suit on the same cause of action after giving notice under section 80, Civil Procedure Code, to the Government.

The learned District Judge accepted the second alternative and held as follows:

"I also give the plaintiff liberty to file a fresh suit on the same cause of action against both the defendants after giving the necessary notice under section 80, Civil Procedure Code, to Government."

When a party to an appeal has induced the Court to pass an order on a certain representation made to the Court, that party cannot later on be heard to say that the order passed by the Court on his request is illegal. It seems to me that if the learned District Judge of his own accord had dismissed the suit and given the plaintiff liberty to file a fresh suit, then his order would have been illegal under Order XXIII, rule 1, which definitely states that the leave to file a fresh suit can be given only when the suit is allowed to be withdrawn, on account of the fact that the suit is bad for some formal defect. But here, it was at the instance of the respondents that the District Judge on that occasion granted the plaintiff permission to file a fresh suit after dismissing his suit. If a request like that had not been made at the instanc