The requirement of notice under Section 80, C. P. C. can be waived by the State Government or a public officer, and such waiver can be implied from conduct.

JUDGMENT :- The defendants - the State of Orissa and the District Forest Officer, Berhampur Division are in appeal against a confirming judgment of the learned Additional Subordinate Judge, Berhampur.

2. The plaintiff instituted the suit for directing defendants 1 and 2 to allow him to work as a lessee in certain forest areas as detailed for a period of nine months more. Alternately he claimed relief of damages. The ex-intermediary of Mandasa, defendant No. 3, was admittedly the owner of the disputed forest till under the Orissa Estates Abolition Act the forest areas vested in the State. Before vesting defendant No. 3 had entered into an agreement with the plaintiff as a result of which the disputed forest was leased out to the plaintiff for a period of 18 months beginning from 1-12-1961 for the collection of timber, bamboo and other minor forest products.

Timber transit permits are necessary for working out the forest by a lessee and such permits are to be issued by the State Government and its officers. As per the agreement defendant No. 8 was to obtain necessary timber transit permits from the Government and make them over to the plaintiff as lessee. There was a litigation going on in the Supreme Court between defendant No. 3 and the State of Orissa regarding the forest and ultimately they entered into a compromise as a result of which the State Government took over the forest with effect from 1-4-1962. They entered into an agreement (Ext. 2) with the plaintiff recognising his right as a lessee of the said forest. The 18 months' period with effect from 1-12-1961 was to lapse on 31-5-1963.

Even though the State of Orissa entered into the agreement with the plaintiff and recognised his right as a lessee, timber transit permits were not issued to the plaintiff until 21-8-1962. Thus from 1-12-1961 till 21-8-1962 for a period of about 9 months the plaintiff could not work the forest. The authorised officers of the State of Orissa impressed upon the plaintiff that if he paid the balance of the lease money necessary extension would be obtained. Accordingly the plaintiff deposited all the arrears, but ultimately no extension was granted. As the lease expired, the plaintiff could not make necessary use of the lease. He has thus lost. In these circumstances he came to court asking for a decree for mandatory injunction restraining the defendants to hold public auction as notified on 10-2-1964 of the forest areas and to allow the plaintiff to continue to exercise the right of a lessee for a period of nine months more or alternatively for appropriate relief of damages.

3. Defendant No. 3 did not contest the suit. Defendants 1 and 2 in a joint written statement contended that though there was delay of 9 months in issuing the timber transit permits the plaintiff had not been prevented from collecting and storing forest materials during the previous 9 months, and there was contributory negligence on the part of the plaintiff in not having done so. Thus he was neither entitled to the extension of the lease period nor any damages.

4. The original agreement is not on record. It had been taken away by the Tahsildar, Parlakimedi. He had granted a receipt to the plaintiff in token of having taken away the original lease deed. That has been marked as Ext. 1. The subsequent agreement is marked as Ext. 2 which has been entered into between the plaintiff and the State of Orissa. The courts below have taken the view that the plaintiff is entitled to an extension of 9 month's period on the basis that there was delay in issuing of the timber transit permits as a result of which the plaintiff has not been able to work the forest areas as he could have if such permits had been granted in time.

5. Admittedly no notice as required under Section 80, C. P. C. had been given in this case. In paragraph 11 of the plaint it was stated,

"That the plaintiff has also sent a telegram notice under Section 80, C. P. C. to the 1st and 2nd defendants on 7-2-1964 though strictl