The essential requirements of a notice under Section 80 C.P.C should be reasonably construed, and any incidental defects or errors may be ignored if the notice contains all necessary information and is served in a timely manner.

Alok Singh, J.

1. Plaintiffs-petitioners have invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated 20.11.2009 passed by Civil Judge (Jr. Divn.) Gurgaon whereby suit of the plaintiff was directed to be dismissed for want of proper notice under Section 80 C.P.C.

2. The brief facts of the present case are that present plaintiffs-petitioners filed suit for declaration alongwith relief of permanent injunction before the learned trial Court against the State, officials of the State as well as against defendant No. 3 private party impleading other private persons as proforma defendants. The main relief sought in the plaint is against defendant No. 2 i.e. Haryana Town and Country Planning through its Director and against defendants No. 1 and 3. In paragraph No. 10 of the plaint plaintiffs petitioners have stated that plaintiff through its counsel Sh. Arun Sharma sent a legal notice and brought all the facts in front of defendants No. 1 and 2 but the defendants failed to take any action thereon. Plaintiffs have also annexed copy of the notice dated 16.4.2009.

3. Before the learned trial Court written statement was filed by defendant No. 2, however, defendant No. 2 has not taken any plea pertaining to Section 80 C.P.C, nor defendant No. 2 put any challenge about validity and service of the notice as stated in paragraph No. 10 of the plaint. However, private defendant i.e. defendant No. 3 has moved an application before the trial Court stating that alleged notice dated 16.4.2009 is not a valid notice and in the notice only 15 days time was given to the State Government and its officers while as per Section 80(1) a notice should be clear cut minimum 60 days notice. On the application of defendant No. 3 (private defendant) impugned order was passed by learned trial Court thereby dismissing the suit for want of proper notice under Section 80 C.P.C. observing in the order that as per Section 80(1) 60 days notice is required to be served while notice dated 16.4.2009 is of 15 days notice.

4. I have heard learned counsel for the parties and perused the record.

5. Learned counsel for the petitioners-plaintiffs vehemently argued that first of all on the application of the private defendants learned trial Court ought to not have passed order since no notice under Section 80 is required to be served on the private defendants. Learned counsel for the petitioners-plaintiffs further stated that state and its officers i.e. other defendants have not taken any plea in the written statement about the validity and service of the notice under Section 80 C.P.C, hence, their right to agitate the validity of the notice under Section 80 C.P.C. stands waived. It is further contended by learned counsel for the petitioner that in view of Sub Section 3 of Section 80 any formal defect in the notice does not result in the dismissal of the suit if notice is clear in its terms and was validly served on the defendants and if suit was filed after 2 months from the service of the notice. As per learned counsel for the petitioners, notice dated 16.4.2009 was served on the defendants on 23.4.2009 while suit was filed on 21.7.2009 after more than two months.

6. Mr. Gaurav Dhir, DAG Haryana stated that although plea regarding Section 80 C.P.C. was not taken in the written statement, however, since plea of Section 80 C.P.C. is legal plea which can be taken at any stage, Mr. Dhir has placed reliance on the judgment of the Apex Court in the matter of The State ofA.P. v. Gundugola Venkata Suryanarayana Garu, 1 1965 AIR (SC) page 11.

7. Learned counsel appearing for respondent No. 3 argued that if notice is not a 60 days notice and if notice is vague then it would result in dismissal of the suit. He further stated that defendants No. 3 has only drawn the attention of the trial Court on the legal aspect, hence, learned trial Court was well within its jurisdiction while allowing the application of defendant No. 3 and dis