1. This reference to the Full Bench arises out of a suit instituted by the plaintiff on 1st July, 1970 in the Bombay City Civil Court. The plaintiff instituted Suit (No. 4816 of 1970) against the Bombay Municipal Corporation. The suit is for a declaration that the notice of the Corporation, defendant No. 1, under Section 351 of the Act dated 29th March, 19(59 was illegal, void, bad in law and unenforceable. The suit is also for an injunction restraining respondent No. 1 from enforcing the said notice dated 29th March, 1969. At a later stage, the landlords of the suit premises also were impleaded as defendants at their request. Defendant No. 1 filed its written statement on 14th August, 1970. In paragraph 1 of the written statement, defendant No. 1 raised a plea that the suit is bad for want of statutory notice under Section 527 of the Bombay Municipal Corporation Act, 1888, (hereinafter referred to as 'the Act'). In spite this plea being raised in paragraph 1, defendant No. 1 waived the said objection saying that: 'However, in order to avoid delay these defendants are advised to waive the objection as regards the want of a statutory notice'. Interim injunction was granted in due course.
2. The suit appears to have come up for direction before the learned Principal Judge on 4th February. 1981. The learned Principal Judge thought that it was a clear case where the plaint was liable to be rejected for want of jurisdiction as previous statutory notice required under Section 527 of the Act was not served by the plaintiff on defendant No. 1. In support of this view of his, the learned Principal Judge relied on a judgment of this Court dated 7th April, 1975 in A. O. No, 92 of 1975 (decided by Shah, J.). The learned Principal Judge also relied on paragraph 1 of the written statement to hold that such an objection is raised by defendant No. 1. In accordance with this view, the learned Principal Judge rejected the plaint under Order 7, Rule 11 of the Code of Civil Procedure and vacated the injunction granted earlier on 1st July, 1970.
3. The plaintiff preferred an appeal against the said order of the learned Principal Judge being First Appeal No. 170 of 1981. When the matter came up before the learned single Judge of this Court (Sawant J.) for admission, respondent No. 1 Corporation also appeared to oppose the admission of the said appeal. The appellant relied on waiver of the objection as to want of statutory notice under Section 527 of the Act recorded by the defendant No. 1 in paragraph 1 of the written statement itself. The learned Advocate for the respondent No. 1 contended that the Court could have no jurisdiction even to consider the Question of waiver where the suit is found to have been instituted without serving notice as contemplated under Section 527 of the Act. In support of this contention, the learned Advocate for respondent No. 1 relied on a Division Bench judgment of this Court in the case of Ebrahimbhai v. State, : AIR1975Bom13 . The learned single Judge thought that certain observations in the said judgment are capable of conflicting interpretations. Hence he referred the matter to Full Bench by his order dated 6th March. 1981.
4. Mr. Shah, the learned Advocate for the appellant, contends that notwithstanding the objection as to want of notice required under Section 527 of the Act being raised by respondent No. 1, respondent No. 1 has expressly waived the said objection. Mr, Shah, therefore, contends that it was not competent for the learned principal Judge reject the plaint on the ground of want of compliance with Section 527 of the Act. It is true that the order of the learned Principal Judge does not give any indication if his attention was drawn to this part of paragraph 1 of the written statement. The part of the written statement relied on by Mr. Shah and quoted by us above clearly operates as a waiver. Indeed, the waiver is express and unambiguous and, in our opinion, does not admit of any doubt or controversy. Mr. Shah relied on several judgments of the Supreme Court. Privy Council and this Court in Ebrahimbhai's case itself in support of his contention that objection for want of service of a statutory notice can always be waived and the Court has to take notice of it and proceed to try the suit on merits, if objection to jurisdiction is found to have been so waived. He submits that there is nothing in the judgment of Ebrahimbhai's case to suggest that the question whether such an objection is waived or not cannot be entertained and tried by the civil court before whom the suit is instituted and even after such waiver the court still ceases to have jurisdiction to entertain the suit and decide the same on merits. This contention of Mr. Shah appears to us to be well founded.
5. Mr. Dalai, the learned Advocate, for respondent No. 1, relied on paragraph 10 of the judgment in Ebrahimbhai's case. : AIR1975Bom13 to suggest that, on suit being found to havebeen instituted without complying with the statutory notice, the plea of waiver cannot be entertained. Now, it is true that, read, in isolation a few observations in paragraph 10 can give rise to some such impression. It was a suit against Government and was instituted before the expiry of the period of the statutory notice of two months required under Section 80 of the Code of Civil Procedure. Paragraph 10 opens with an observation that the question of waiver in that case does not arise 'In the true sense of the term'. The only basis of the plea was the objection to premature filing of the suit before the expiry of the two months' period, was raised in the written statement, filed after ten months of the service of summons on the defendants. This point was discussed exhaustively in paragraphs 7 to 9 earlier and was overruled relying on the Supreme Court and Privy Council cases. The words 'in the true sense of the term' must be understood in this context.
6. Mr. Dalai, however, strongly relied on the following passage in this paragraph at page 20:
'......There does not seem to be anypower of jurisdiction in the Court to entertain such a suit. To that extent, the matter clearly relates to the jurisdiction of the Court to entertain the suit, and in such a case the question of waiver either by the State Government or by the public officer cannot arise.'
As observed earlier, those observations may support Mr. Dalai if read in isolation. But the very fact that the learned Judges exhaustively dealt with this point of waiver and rejected on merits in paragraphs 7 and 9 militates against their having so intended to hold. But earlier observations in paragraph 8 are unambiguous. They observed as follows:
'......There is no doubt that eventhough the provisions of Section 80 are mandatory, the provisions are made for the benefit of the party, namely, the State or the public officer, as the case may be and in a given case it is open to the party for whose benefit the provision has been made to waive the compliance with the requirements of such a provision.'
Reference to a passage from 'Craies on Statute Law'. 6th Edition. page 269 and the judgment of the Supreme Court inDhirendra Nath V. Sudhir Chandra, : 6SCR1001 and later reference to the judgment of the Privy Council in Velleyan Chettiar v. Government of the Province of Madras AIR 1947 PC 197 are clear and unambiguous indications of what the learned Judge intended to lay down.
7. The following passage from the judgment of the Supreme Court in Dhirendra Nath's case can be said to be conclusive of the controversy (at p. 1304):
'The Judicial Committee in AIR 1947 PC 197 pointed out that there was no inconsistency between the propositions that the provisions of Section 80 of the Code of Civil Procedure were mandatory and must be enforced by the court and that they might be waived by the authority for whose benefit they were provided. In that case the Judicial Committee held that Section 80 of the Code of Civil Procedure was explicit and mandatory; but still it held that it could be waived by the authority for whose benefit that was provided.'
8. We have, therefore, no hesitationin holding that the construction placedby the learned Advocate for the defendants on paragraph 10 of the said Division Bench judgment in Ebrahimbhai'scase : AIR1975Bom13 is clearly incorrect and contrary to the clear andunambiguous observations in earlierparagraphs 8 and 9 of the said judgment.In our opinion, the true legal positionin this behalf is that no suit can be instituted without service of the notice ifsuch service of the noticeis required statutorily as a condition precedent. The giving of thenotice is a condition precedent to theexercise of jurisdiction. But, this beinga mere procedural requirement, the samedoes not go to the root of jurisdiction ina true sense of the term. The same iscapable of being waived by the defendants and on such waiver, the Court getsjurisdiction to entertain and try the suit.The plea of waiver can always be triedby the civil court. In fact, it is not suggested who else can try. The questionwhether, in fact, there is waiver or notwould necessarily depend on facts ofeach case, and is liable to be tried by thesame Court if raised.
9. There is hardly anything more to deride in the First Appeal in the present case, once it is held that respondentNo. 1 can waive its objection as to the want of notice under Section 527 of the Act. We have emoted above a passage from paragraph 1 of the written statement, and, in our opinion, it clearly operates as waiver as to the objection for want of service of notice under Section 527 of the Act. The Court thus gets jurisdiction to entertain and try the suit, the objection as to the want of notice being thus waived by respondent No. 1. The rejection of the plaint, therefore, by the learned Principal Judge appears to us to be incorrect.
10. We accordingly allow the appeal, set aside the impugned order of the learned Principal Judge and remand the case back to the Bombay City Civil Court for disposal according to law, Costs, Costs in the cause.
11. Appeal allowed.