1. This is a revision petition present ed by the plaintiff in O. S. No. 128/55 on the file of the District Munsif's Court, Nandyal, against an order of that court dated 14-9-1959 rejecting an application by the plaintiff for Permission to withdraw the suit with liberty to institute a fresh suit in respect of the subject matter of the suit.
2. The facts relevant for purposes of this revision are these : The plaintiff is a Government employee working as the Commissioner of Nandyal Municipality According to the Service Register, his date of birth is 20-7-1903 and he would be superannuated on the completion of 55 years. While so, he had instituted a suit in the Court of the District Munsif, Nandyal, on 14-6-1958 for a declaration that his correct date of birth was 20-12-1906 and that an alteration should be made to that effect in the Service Register and also prayed for an injunction against the State of Andhra Pradesh to restrain it from enforcing his retirement in accordance with his date of birth as now shown, in the Service Register.
2a. It would appear that it was discovered later that the State of Andhra Pradesh was not served with proper notice, in terms enacted under Section 80 of the Civil Procedure Code, wherefore the plaintiff applied to the court for permission to withdraw from the suit with liberty to file a fresh suit. He alleged that the suit was liable to fail for a formal defect.
3. The District Munsif dismissed that application observing that it was a fatal defect and not a formal one and that the petitioner shall be precluded from filing a fresh suit on the same cause of action. It is the correctness of this finding that is canvassed before me.
4. It is conceded before me that the plaintiff has not complied with the requirements of notice as enacted under Section 80, C. P. C. It is also conceded that it is fatal to the institution of the suit.
5. The law is settled on this question thus: 'Section 80 C. P. C. is express, explicit and mandatory, and it admits of no implications or exceptions.' Vide Bhagchand v. Secy. of State, AIR 1927 PC 176 at p. 184. Vide also Govt. of Madras v. Vellayan Chettiar, 1944-2 Mad LJ 65 : (AIR 1944 Mad 544).
6. In the present case, the non-compliance consisted in the suit having been instituted before the expiration of two months next after notice to writing had been delivered to the respondent. This would lead us on the question as to the action to he taken in respect of such a suit which is instituted.
7. The Privy Council in the aforecited case has observed thus at page 185:
'The consequence is that the appellants' present position in regard to the taxes imposed on them is as if their action had never been brought. It was unsustainable in limine. They commenced their suit before the law allowed them to sue and can get no relief in it either by declaration or Otherwise.'
8. These observations admit of no ambiguity that a suit, which was instituted without proper compliance of the requirements of notice as enacted under Section 80 C. P. C. was unsustainable and as such a suit must be deemed to have not been instituted at all.
9. The question of application of Order XXIII C. P. C. to such a suit cannot, therefore, be acceded to. That provision must necessarily relate to a pruperly instituted suit and a formal detect occurring therein.
10. It would, therefore, appear that the Plaint in such a suit should have been rejected under Order VII Rule 11 C. P. C.
11. Mr. Bhujanga Rao has brought to my notice certain decisions which have taken that view and rejected the plaint. In Venkata Rangiah v. Secy. of State, ILR 54 Mad 416: (AIR 1931 Mad 175), Sundaram Chetty J. affirmed the orders of the lower court rejecting the plaints on the ground that notice under Section 80 C. P. C. was not given to the defendant. That decision was affirmed in Letters Patent Appeal by a Division Bench of its decision in Venkata Rangiah Apparao Bahadur v. Secy. of State, AIR 1935 Mad 389.
It would appear that this view is in conformity with the view taken by a Division Bench of the Calcutta High Court in Jagadish Chandra v. Debendra Prasad, ILR 58 Cal 850 : (AIR 1931 Cal 503). That court observed that it was the duty of the Court to scrutinize this aspect of the notice which was a pre-requisite to the institution of the suit. The Division Bench of the Calcutta High Court had referred with approval to a Division Bench decision of the Allahabad High Court in Bachchu Singh v. Secy. of State, ILR 25 All 187.
12. It would appear that the ruling referred to still hold the field and the rejection of the plaint is the proper order to make when it is discovered that there was non-compliance with the mandatory provision enacted under Section 80 C. P. C. with regard to the notice to be issued.
13. I would, therefore, consider that thetrial court might properly reject the plaint underOrder 7 Rule 11 C. P. C. This is the only order that couldbe made in this Revision. Ordered accordingly.No costs.