The mandatory nature of Section 80 of the Civil Procedure Code and its applicability to suits involving the Provincial Government.

Happell, J.

1. These eleven revision petitions arise out of eleven suits brought by Sri Sri Sri Vikrama Deo Varma Maharajulungaru, Maharaja of Jeypore and Zamindar of Madgole, under Section 14 of the Madras Survey and Boundaries Act. In all these suits the Province of Madras represented by the District Collector of Vizagapatam was the first defendant and the first defendant is the petitioner in each of these eleven revision petitions. The petitioners contended in all the suits that at any rate as against them the suit should be dismissed in limine for the reason that the two months notice of suit as required by Section 80 of the Civil Procedure Code had not been served on them. The learned District Munsiff tried this question as a preliminary issue and found that all the suits were maintainable as against the Provincial Government. There were really two questions decided by the learned District Munsiff. The first was whether in the circumstances of the case the two months notice was required at all under Section 80 of the Code, and the second whether, if notice in accordance with the provisions of that section was necessary, the two months notice had, in fact, been given. In three of the suits notice was served on the 15th of June, 1938, and the suits were instituted on the 15th of August, 1938. In five of the suits notice was served on the 15th of August, 1938 and the suits were instituted on the 15th of October of the same year. In two of the suits notice was served on the 15th of January, 1939 and the suits were instituted on the 15th of March, 1939. In one suit notice was served on the 15th of September, 1939 and the suit was instituted on the 15th of November, 1939.

2. These petitions have been filed under the provisions of Section 115 of the Civil 1 Procedure Code and it has been argued for the respondent that they are not maintainable for the reason that no question of jurisdiction is involved. It is plain, however, that if in fact notice had to be given as required by Section 80 of the Code and if notice was not given in accordance with the provisions of that section the Court had no jurisdiction to entertain the suit as against the Provincial Government. It is true that the lower Court has found that notice was not necessary under Section 80 and that, even if it was necessary, notice was in fact given in accordance with the provisions of that section. The question however in my opinion does not cease to be a question of jurisdiction merely because the lower Court had decided wrongly questions which if decided rightly would have left it without jurisdiction to entertain the suits. In my judgment, therefore, the petitions are maintainable.

3. The learned District Munsiff was of opinion that notice was not necessary under Section 80 of the Civil Procedure Code for three reasons, firstly, because this was what he called a statutory suit to which Section 80 of the Code did not apply; secondly, because the suit was in the nature of an appeal and again to such a suit the provisions of Section 80 of the Code would not apply, and thirdly because, Government not being a necessary party to the suit, the two months notice under Section 80 of the Code had not to be given. In my opinion the reasons given by the learned District Munsiff for the conclusion which he has reached cannot be supported either on principle or on authority. On the face of it there would appear to be no reason why the Government should not receive the two months notice required by Section 80 of the Code in the case of a suit brought under Section 14 of the Survey and Boundaries Act just as in the case of any other suit. It is true that in Collector of Bombay v. Kamalavahooji AIR1934Bom162 , it. was held that Section 80 of the Civil Procedure Code would not apply to a suit on account of land revenue brought under the Bombay City Land Revenue Act. Section 14 of that Act however specifically provided that the decision of the Collector in the matter of the l