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1947 Supreme(SC) 42
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SIMONDS, LORD UTHWATT AND SIR JOHN BEAUMONT.
AL. AK. VELLAYAN CHETTIAR (DECD.) - Appellant
Versus
GOVERNMENT OF THE PROVINCE OF MADRAS, THROUGH THE COLLECTOR OF RAMNAD AT MADURA, - Respondents
On Appeal from the High Court at Madras.
Decided On : July 2. 1947
Solicitors for appellants:Douglas Grant & Dold. Solicitor for respondents: The Solicitor, India Office.
Section 80 of the Code of Civil Procedure is mandatory, requiring identity between the notifier and the plaintiff. While the government may waive this right, failure to object to defective notice in a suit brought before a court lacking jurisdiction does not constitute waiver or estoppel.
Headnote:(A) Code of Civil Procedure, 1908 - Section 80 - Notice to be given before instituting a suit against the Government - Mandatory nature of the provision - Requirement of identity between the person issuing the notice and the person bringing the suit - Notice given by only one of two plaintiffs is insufficient to maintain a suit by both.
(B) Waiver and Estoppel - Right to notice under Section 80 is for the protection of the authority concerned - Such right can be lawfully waived by the authority - Negligence in not raising a plea of defective notice in a proceeding brought before a court lacking jurisdiction does not amount to waiver or estoppel in a subsequent suit brought before the proper court.
Facts of the case:
A suit was instituted by two plaintiffs against a provincial government and a municipal council. Notice required under the procedural law was served by only one of the plaintiffs. The suit was initially filed in a court that lacked jurisdiction, where the defendants did not object to the validity of the notice. After the plaint was returned and presented to the proper court, the defendants pleaded that the suit was not maintainable due to the lack of proper notice.
Findings of Court:
The notice was defective as it failed to satisfy the requirement of identity between the notifier and all plaintiffs. Although the right to notice is waivable, no express or implied waiver was established. The defendants' failure to raise the objection in the first instance was due to the suit being wrongly brought in a court without jurisdiction and does not constitute estoppel.
Issues: Whether notice given by one of two plaintiffs complies with the mandatory requirements of Section 80 of the Code of Civil Procedure; whether the right to such notice can be waived; and whether the defendants' conduct in prior proceedings amounted to waiver or estoppel.
Ratio Decidendi: Section 80 of the Code of Civil Procedure is express, explicit, and mandatory. It requires that the person issuing the notice must be the same as the person bringing the suit. While the authority for whose benefit the notice is provided may waive this right, negligence in not raising the plea in a suit brought before a court lacking jurisdiction does not create an estoppel, as there was no duty of care to point out the plaintiffs' error.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- notice requirements
- waiver and estoppel
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civil procedure
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
