Judgement

Appeal (No. 11 of 1946) from a judgment and decree of the High Court (March 23, 1944) reversing a judgment and decree of the Subordinate Judge of Devakottai (July 16, 1942).

The following facts are taken from the judgment of the Judicial Committee The suit in which the appeal was brought was instituted by two plaintiffs, Al. Ar. Vellayan Chettiar and Rao Bahadur,

O.A.P.R.M. Arunachalam Chettiar, against the respondents, the Government of the Province of Madras and the Municipal Council of Karaikudi, claiming to have set aside the decision of the Appellate Survey Officer in regard to certain land in Karaikudi village by declaring that such land belonged to them, with other appropriate relief. The first plaintiff died while this appeal was pending and was represented by the third appellant, Al. Ar. Kalairaja.

The decision of the Appellate Survey Officer having been given on January 19, 1935, notice was on June 30, 1936, given on behalf of the first plaintiff only to the Collector of Madura claiming that that decision was erroneous and that the erection of certain structures and certain work done by the second respondent were unlawful, and threatening that unless amends were made within two months a suit would be filed against both respondents. It was not seriously contended that that notice was given on behalf of anyone except the first plaintiff, though it contained a single reference to proprietors (in the plural) of the village.

Section 80 of the Code of Civil Procedure is, so far as is material, as follows " No suit shall be instituted against the Crown....until the expiration of two months next after 14 notice in writing has been delivered to or left at the office of . . . (c) in the case of a suit against a Provincial Government, a Secretary to that Government or the Collector of the District, and....delivered to him or left at his office, stating the cause of action, the name, description and place " of residence of the plaintiff and the relief which he claims; " and the plaint shall contain a statement that such notice has " been so delivered or left."

Notice having been given on behalf of the first plaintiff only, on September 13, 1936, both plaintiffs filed a suit in the Court of the District Munsif of Devakottai against both the respondents claiming the relief already stated. In that suit the respondents put in written statements on February 3, 1937, but no exception was taken to the notice. Objection was, however, taken to the jurisdiction of the Munsif in view of the value of the subject-matter of the suit and, after inquiry had been made that objection prevailed. Accordingly on November 30, 1938, the plaint was returned to the plaintiffs under Or. VII.,

r. 10, for presentation to the Court of the Subordinate Judge of Devakottai.

Nearly ten months later, on September 13, 1939, the plaintiffs presented the plaint in the present suit in the said court claiming the relief already mentioned. The plaint contained the following averments " 12.—(a) Though the first plaintiff alone "was a party to the survey proceedings inasmuch as plaintiffs 1 and 2 are the landholders and proprietors of the Karaikudi village, this suit is filed by both of them. 13.....notices of suit were given to both the defendants on June 30, " 1936, and were served in their offices on July 2, 1936.” Both the respondents filed written statements on March 23, 1940, and each pleaded that " the suit notice alleged is not in accordance with law and the suit is, therefore, not maintainable." On April 6, 1940, a number of issues were settled, only one of which was material to this appeal, namely "9. Whether proper notice of suit has been given." On November 12, 1940, two further issues were framed as follows " 9.—(a) Whether the defendants have waived their right to a "proper notice of suit? 9.—(b) Whether defendants are "estopped from contending that no proper notice of suit was given to them? " Those issues were all decided in favour of the plain