The requirement of giving notice under a statutory provision can be waived by the defendant, and if the objection to the sufficiency of notice is not taken in the written statement, it would be deemed to have been waived.

( 1 ) THE short question which is raised in this petition preferred under Section 115 of the Code of Civil Procedure be noticed as under :a suit was filed by the respondents in this petition against the present petitioner. The suit was filed for recovery of a sum of Rs. 3,46,471. 06p. This was on the ground that certain goods transported by the aforementioned defendant/petitioner did not reach the destination.

( 2 ) NOTICE was served on the present petitioner. A written statement was filed. This was done on 27-2-1981. Later on, an application was filed under Order 6 Rule 17. In this application, a new plea was sought to be taken. This plea was to the effect that as notice was not given u/s. 10 of the Carriers Act of 1865, therefore, the suit is not maintainable. This application has been dismissed on the ground of delay. It is against the above order, the present revision petition has been preferred.

( 3 ) I am of the opinion that no case for interference has been made in this revision petition. This is because the plea sought to be raised is highly belated. Apart from this, if objection is not taken to the non-giving of a notice then this objection would be deemed to have been waived. The fact that the notice can be waived would be apparent from the various decisions which are being noticed hereinafter.

( 4 ) IN Vellayan v. Madras Province, AIR 1947 PC 197 vis-a-vis the requirement of Section 80 and the question whether it can be waived or not the observations were made to the effect that the notice required to be given u/s. 80 is for the protection of the authority concerned and if an authority does not require that protection and does not take a plea then that notice would be deemed to have been waived. The aforementioned decision given by the Privy Council was noticed by a Full Bench of Bombay High Court reported as Vasant Ambadas v. Bombay Municipality, AIR 1981 Bom 394. The Full Bench considered the decision given by the Supreme Court of India reported as Dhirendra Nath v. Sudhir Chandra, AIR 1964 SC 1300 also. In para 8 following observations were made :"we have, therefore, no hesitation in holding that the construction placed by the learned Advocate for the defendants on paragraph 10 of the said Division Bench judgment in Ebrahimbhai's case (AIR 1975 Bom 13) is clearly incorrect and contrary to the clear and unambiguous observations in earlier paragraphs 1 and 9 of the said judgment. In our opinion, the true legal position in this behalf is that no suit can be instituted without service of the notice if such service of the notice is required statutorily as a condition precedent. The giving of the notice is a condition precedent to the exercise of jurisdiction. But, this being a mere procedural requirement, the same does not go to the root of jurisdiction in a true sense of the term. The same is capable of being waived by the defendants and on such waiver, the Court gets jurisdiction to entertain and try the suit. The plea of waiver can always be tried by the civil Court. In fact, it is not suggested who else can try. The question whether, in fact, there is waiver or not would necessarily depend on facts of each case, and is liable to be tried by the same Court if raised. "

( 5 ) THERE is a direct authority of this Court reported as Union of India v. Tej Narain, AIR 1957 MB 108. In para 5 of the judgment, it was observed that where an objection to sufficiency of notice under Section 80 was raised at a late stage (delay of over two years), the defendant should be deemed to have waived his right to notice under Section 80 of Code of Civil Procedure, 1908. Reliance on earlier view expressed by the Nagpur High Court reported as Wasant Shripat v. G. M. Khandekar, AIR 1949 Nag 25 and the Bombay High Court reported as Erach Shaw Hormusji v. Secy. of State, AIR 1943 Bom 160.

( 6 ) IN view of the aforementioned decisions of this Court and the decision of the Privy Council and the Bombay High Court which are to the