JUDGMENT :- This is a defendant's first appeal from an order of remand.

2. The plaintiff respondents were employed by the defendant-appellant in various capacities. On September 30, 1967 an order was passed terminating their services. The plaintiff-respondents filed a suit on November 11, 1967, for a permanent injunction restraining the defendant-appellant from giving effect to the order, dated September 30, 1967. They also prayed for a temporary injunction. On December 4, 1967, an objection was filed on behalf of the defendant-appellant. It was said that the plaint ought to be rejected under Order VII, Rule 11 of the Code of Civil Procedure, because no notice under Section 80 of the Code of Civil Procedure was sent or served on the defendant-appellant and such a notice was absolutely mandatory. The learned Civil Judge of Gorakhpur upheld the objection and dismissed the suit (he really ought to have rejected the plaint under Order VII, Rule 11 of the Code of Civil Procedure). In paragraph 17 of the plaint, it was pleaded that the purpose of the suit would be defeated if two month's notice were given under Section 80 of the Code of Civil Procedure and that, therefore, 'it must be deemed that the defendants had waived the protection and advantages of notice under Section 80 of the Code of Civil Procedure'. The plaintiffs-respondents filed an appeal which was heard by the learned District Judge of Gorakhpur. He held that there ought to have been an issue on the plea raised in paragraph 17 of the plaint, namely, whether the notice had been waived or not. Having come to this conclusion the learned District Judge remanded the case for a fresh trial.

3. The learned District Judge relied upon Vellayan Chettiar v. Govt. of the Province of Madras, AIR 1947 PC 197. This decision is not applicable to the facts of the present case. Their Lordships of the Privy Council held that the notice under Section 80 of the Code of Civil Procedure, could be waived. This means actual waiver in fact and not a waiver based upon a presumption The plea in paragraph 17 of the plaint is clear. There is no allegation that the notice was actually waived. The plea related to some kind of supposed or presumed waiver.

4. Formerly, there was a conflict of opinion amongst the various High Courts on the question whether the provisions of Section 80 of the Code of Civil Procedure were attracted in the case of suits for permanent injunction. That conflict was resolved by the Privy Council as far back as the year 1927 in Bhagchand Dagdusa Gujarathi v. Secy, of State for India, AIR 1927 PC 176. It was held that the provisions of Section 80

of the Code of Civil Procedure were "express, explicit and mandatory" and that they admitted of no implication or exceptions. It was laid down that notice under Section 80 of the Code of Civil Procedure was necessary even in suit for permanent injunction. In Sawai Singhai Nirmal Chand v. Union of India, AIR 1966 SC 1068, relying upon the Privy Council decision mentioned above, their Lordships of the Supreme Court held that Section 80 of the Code of Civil Procedure applied to suits where injunction was claimed. Reference may also be made to Smt. Abida Begam v. Rent Control and Eviction Officer, Lucknow, AIR 1959 All 675 and State of Bihar v. Kamaksha Prasad Sharma, AIR 1962 Pat 303. Before the Privy Council in Bhagchand Dagdusa Gujarathi's case, AIR 1927 PC 176 (supra), it was argued that the plaintiffs had a right urgently calling for a remedy and waiting for the period of notice under Section 80 of the Code of Civil Procedure to expire, would cause serious and irreparable damage. Their Lordships pointed out that it is not permissible to read as if Section 80 ran "No suit other than a suit in which an injunction is claimed.", or as if it ran "no suit shall be instituted except when serious or irreparable damage might be occasioned to the plaintiff, if not prevented by the previous grant of an injunction". It was pointed out that to read a

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