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IN THE HIGH COURT OF ALLAHABAD
B.L. Yadav, J.
Smt. Raj Kumari – Appellant
Versus
Board of Revenue and Others – Respondents
Civil Miscellaneous Writ Petition No. 2683 of 1977
Decided On : 28-09-1984
UP ZA and LR ACT - SECTION 209 - NOTICE UNDER SECTION 80 CPC - WAIVER BY STATE GOVERNMENT - EFFECT ON SUIT MAINTAINABILITY:
Fact of the Case:
Plaintiff filed a suit under Section 209 of the UP ZA and LR Act for ejectment of Defendants from the disputed land. The State Government was made a party and filed a written statement raising the objection of want of notice under Section 80 CPC. However, the State did not lead any evidence or contest the suit further. The trial court decreed the suit in favor of the Plaintiff. On appeal, the appellate court dismissed the suit on the ground that notice under Section 80 CPC was mandatory and its absence rendered the suit defective.
Finding of the Court:
The court held that the State Government had waived the requirement of notice under Section 80 CPC by not leading any evidence or contesting the suit further after filing the written statement. The court relied on several precedents establishing that the party for whose benefit a notice is prescribed can waive it, and that such waiver binds the rest of the parties.
Issues: 1. Whether the State Government's failure to press the issue of want of notice under Section 80 CPC constituted a waiver of the requirement? 2. Whether the appellate court erred in dismissing the suit solely on the ground of absence of notice under Section 80 CPC, despite the State Government's waiver?
Ratio Decidendi: 1. The court held that the State Government's failure to press the issue of want of notice under Section 80 CPC and its subsequent inaction in not leading evidence or contesting the suit further amounted to a waiver of the requirement. 2. The court reasoned that the purpose of Section 80 CPC is to provide notice to the State Government or public authority concerned, allowing them to consider the claim and decide whether to accept or resist it. However, in this case, no relief was claimed against the State Government, and its interest was not involved. Therefore, the court held that the appellate court erred in dismissing the suit solely on the ground of absence of notice under Section 80 CPC.
Final Decision: The court allowed the petition, quashed the appellate court's judgment, and upheld the trial court's decree in favor of the Plaintiff.
B.L. Yadav, J.
By this petition under Article 226 of the Constitution, the Petitioner has prayed for a writ of certiorari quashing the order dated 10-3-1977 passed by the Board of Revenue in a suit u/s 209 of the UP ZA and LR Act (hereinafter referred to as the Act) filed by the Petitioner alongwith Om Prakash for ejectment of Respondents Nos. 4 and 5 from plot Nos. 11/6/4 area about 23 bighas situate in village Pandri Jagir, Pargana Richa, Tahsil Baheri, district Bareilly. The suit was filed by making allegations that Plaintiff purchased the land from Hari Raj Singh by sale deed dated 22-6-1966 and came in possession over the land and continued in possession peacefully, but the Respondents Nos. 4 and 5 i.e. Defendants Nos. 1 and 2 took possession otherwise than in accordance with law and against the consent of the Petitioner in 1375-F. The relief for damages was also claimed. The Respondents Nos. 4 and 5 contested the suit alleging that the Plaintiffs were not bhumidhars and the sale deed was illegal and the land was not identifiable on the spot and that the Defendants were not trespassers, rather they have acquired sirdari rights. It may also be stated that the Defendants did not take any objection about the validity of the notice u/s 80, Code of Civil Procedure.
2. The State Government, however, filed a separate statement denying the Plaintiffs claim and also took an objection that notice u/s 80, CPC was not given to or served on the State and that the suit was not maintainable.
3. The trial court framed issue No. 1 on the ground whether Plaintiff had served notice on the State and in case notice has not been served what is its effect. This issue was, however, replied to the effect that although the State Government has filed the written statement but it did not contest the matter further and hence the validity of the notice u/s 80, CPC does not have any effect on the case. The suit was on merits decreed by the judgment and order dated 29-9-1972.
4. The Respondents Nos. 4 and S preferred a first appeal which was dismissed as regards the other points, but it was held that notice u/s 80, CPC was mandatory and on account of the absence of the notice he suit was defective and liable to be dismissed under Order VII, Rule 11-D of the Code of Civil Procedure. In this view of the matter the appeal was allowed and the suit of the Petitioner was dismissed. The second appeal filed by the Petitioner also failed. It is against the judgment of the Board of Revenue dated 10-3-1977 and of the Additional Commissioner dated 18-6-1973 that the present petition has been filed.
5. Sri N.S. Singhal appearing for the Petitioner has urged that even though the State of U.P. was made a party and has filed written statement making objection that no notice was served on the State, but the State did not lead any evidence in support of the plea taken in the written statement. As regards want of notice u/s 80, CPC it was decided by the trial court on issue No. 1 that the State did not contest the suit after filing written statement, hence the want of proper notice u/s 80, CPC cannot be taken by the Respondents Nos. 4 and 5 particularly when the State of U.P. has been made a party to the petition, but it has chosen not to contest the petition The learned Counsel further urged that even though the provision of delivering notice and serving the same on the State as; contemplated by Section 80, CPC may be mandatory, but the State has chosen not to lead any evidence and absented after filing the written statement, hence it has waived the notice u/s 80, CPC and that objection cannot be taken by the Respondents Nos. 4 and 5. He relied upon Nirjhin Kumar v. Gram Samuj 1980 RD 164 a Single Judge decision of this Court where it has been held that where The State of U.P. did not take the plea about want of notice before the trial court and the suit was decreed ex-parte against the State of U.P. and no appeal was filed by the State before the lower appellate co
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