Notice under Section 80(1) C.P.C. is imperative when a new cause of action is introduced through an amendment, and failure to comply with this requirement will entail dismissal of the suit.

JUDGMENT :

Dr. A.K. Rath, J. - In this petition under Article 227 of the Constitution of India, challenge is made to the order dated 22.9.2008 passed by the learned Civil Judge (Jr.Division), Anandapur in C.S.No.43 of 2006. By the said order, the learned trial court rejected the application of the plaintiffs to amend the plaint under Order 6, Rule 17 C.P.C. to implead the State of Odisha as defendant on the ground inter alia that prior notice under Section 80(1) C.P.C. has not been issued to the State of Odisha.

2. The petitioners as plaintiffs instituted a suit for permanent injunction impleading the opposite parties as defendants in the court of the learned Civil Judge (Jr.Division), Anandapur, which is registered as C.S.No.43 of 2006. During pendency of the suit, the plaintiffs filed an application for amendment of the plaint. In the proposed amendment no.1, the plaintiffs sought to incorporate the fact of amalgamation of certain areas of the suit plot in another plot belonging to the Government. In the proposed amendment no.2, the plaintiffs sought to introduce the new prayer for declaration of right, title and interest in respect of the property, which stood recorded in the name of Government and in the proposed amendment no.3, the plaintiffs sought to implead the State of Odisha represented by the Collector, Keonjhar as defendant no.9. The application for amendment was objected to by the defendants. By order dated 22.9.2008, the learned trial court rejected the application holding that prior notice under Section 80(1) C.P.C. has not been issued to the State of Odisha.

3. Heard Mr.Soumya Mishra, learned Advocate for the petitioners and Mr. D.P. Mohanty, learned Advocate for the opposite parties.

4. Mr.Mishra, learned Advocate for the petitioners submitted that the land appertaining to plot no.302 under khata no.7 area Ac.0.23 decimals of mouza of Habaleswar was recorded in the name of Ananta Sahoo in the hal settlement record of right published in the year 1975. He sold the same to the plaintiffs by means of registered sale deed no.1132 dated 9.7.2002 for a valid consideration and, thereafter delivered possession. The plaintiffs had also purchased the adjoining plot i.e. plot no. 303 and thereafter mutated the land in their names. He submitted that during pendency of the suit, the plaintiffs deputed a private Amin for demarcation of the suit land. It was brought to their notice from the demarcation report that though R.O.R. revealed the names of the plaintiffs in respect of the entire suit land measuring an area Ac.0.23 decimals, in the map the suit land had been wrongly amalgamated in the adjoining plot no.336, which stands in the name of State Government. Thus, the application for amendment was filed. Criticising the order passed by the learned trial court, he further submitted that the application for amendment qua impletion of State of Odisha as defendant no.9 could not have been rejected for non-compliance of notice under Section 80(1) C.P.C. as it is available to the plaintiffs to file application for waiver of the notice by resorting to the provision of Section 80(2) C.P.C. at the time of presentation of the amended plaint. He further submitted that in an application for amendment, the Court has to consider as to whether the proposed amendment is required for determining the real questions in controversy between the parties and if the same will change the nature and character of the suit, thereby, prejudicing the interests of the adversary. But then, in the instant case, the learned trial court has taken into consideration the irrelevant factors, which are not germane for consideration of the application for amendment, and as such the learned trial court has acted in exercise of its jurisdiction illegally and with material irregularity. He further submitted that the learned trial court travelled beyond its jurisdiction in considering the merits of the case while adjudicating upon the application for amendment. He furth