There are two questions for determination, firstly whether the notice of suit given by the first appellant complied with the requirements of section 80 of the Code of Civil Procedure; assuming that the said notice was defective then the second question arises namely whether the Respondents have waived their right to question the said notice, or are estopped by their conduct from alleging that the notice is defective; also do the terms of section 80 permit waiver.

As to the first question the notice in the present proceedings was given by only one out of the two original Plaintiffs, although there is a reference in the notice to“plaintiffs” in the plural. Prior to the decision of the Board in Bhagchand Dagadusa v. Secretary of State for India1, there have been decisions of the Courts in India that a notice given by only one out of two plaintiffs would be a sufficient compliance with the section.

(Counsel was requested by the Board not to refer to any authorities on this point prior to the decision in 54 I.A.). In Appa Rao v. Secretary of State for India2, it was held that a notice by one out of two plaintiffs would not be a good notice under section 80; this was upheld on appeal (A.I.R. 1935 Madras 389.)

As to the second question it is submitted that on the facts of this case there has been waiver by the Government. Their original written statement contains no mention of any objection as to lack of a valid notice, and all proceedings in the District Munsiff’s Court were carried out on the basis that a proper notice had been issued. It was only three years later when the suit was transferred to the Court of the Subordinate Judge, that objection to the validity of the notice was taken at a time when a fresh suit would have been barred by limitation. It is also submitted that the Respondents are now estopped by their conduct in pleading the want of a proper notice. As to the question whether section 80 permits the Government to waive its rights to a proper notice, the Courts in India have not agreed, some of the High Courts have held that on the true interpretation of the Board’s decision in 54 I.A. there can be no waiver or estoppel.

Reference was made to Sarkar v. Radharani Dassya3; Ramnarain v. Ram Kishnn4; Marina Ammayi v. The Secretary of State for India5; Hirachand Himatlal Marwari v. Kashinath Thakurfi6; Ginwala v. Secretary of State7; Gaekwar of Baroda State Railway v. Habib-ul-Haq8.

Sir Thomas Strangman, K.C., and M.R. Jayakar for the Respondents.

The present suit was not Instituted until presentation of the plaint to the proper Court in this case, the Court of the Subordinate Judge. As soon as that was done an objection as to lack of valid notice was taken by the Respondents. There was nothing here in the nature of waiver, nor could there be waiver. Section 80 is mandatory and explicit and cannot be whittled away by hardship caused to the aggrieved party, through the operation of limitation. In any case it appears that in the present case the Appellants could have been in time by giving a fresh notice. (Refers to section 14 of the Indian Limitation Act.)

As to the cases cited by the Appellants, in the Calcutta case the objection was taken two years later and it is common to all the cases cited that there was only one proceeding and not two as in the present case.

It is submitted on the authority of the Privy Council decisions in Bhagchand Dagadusa v. Secretary of State for India1and Gaekwar of Baroda State Railway v. Habib-ul-Haq2no question of waiver or estoppel can arise where a notice is defective.

Khambatta K.C., replied.

Their Lordship’s Judgment was delivered by

Lord Simonds.-This appeal, which is brought from a judgment and decree of the High Court of Judicature at Madras3, reversing a decree of the Subordinate Judge of Devakottai, raises a question of some importance upon section 80 of the Code of Civil Procedure.

The suit in which the appeal is brought was instituted by two plaintiffs, Al. Ar. Vellayan Chettiar a