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Bommadevara Venkata Narasimharao Naidu Bahadur Garu and ors. Vs. State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 136 of 1969
Judge
Reported inAIR1972AP130
ActsCode of Civil Procedure (CPC), 1908 - Sections 80
AppellantBommadevara Venkata Narasimharao Naidu Bahadur Garu and ors.
RespondentState of Andhra Pradesh and anr.
Appellant AdvocateT. Ananta Babu and ;I. Venkatanarayana, Advs.
Respondent AdvocateGovernment Pleader and ;C. Padmanabha Reddi, Adv.
Excerpt:
.....- discrepancies observed in notice under section 80 and plaint regarding survey numbers and relief - relief claimed in suit was only for permanent injunction while relief for possession claimed in notice - no variation found in substance of claim between notice and plaint - plaintiffs were in possession of entire area through tenants and wanted relief for permanent injunction - relief of possession contained in notice have been inartistically drafted - necessary information contained in registered notice - government could consider claim of plaintiff - held, there was no vital difference between notice and plaint which entails dismissal of suit. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao..........the revenue divisional officer, vijayawada put up portions of the lanks for auction. but in the suit the plaintiffs asked only for the relief of permanent injunction restraining the government or its subordinates from interfering in any manner with the plaintiff's or their tenants' peaceful possession of the lands. the plaint also refers to the fact that the entire lanks is covered by r. s. nos. 442 and 445. the action of the government in attempting to auction portions of the lanka land as set out in the notice is also relied upon as the cause of action in the plaint. the court below held that in view of the discrepancies in the notice and the plaint regarding survey numbers and the relief, the requirements of section 80 have not been satisfied.according to the learned subordinates.....
Judgment:

1. This appeal is filed by the plaintiffs against a judgment of the learned Subordinate Judge at Vijayawada dismissing the suit O. S. 96 of 1966. The suit was for a permanent injunction restraining the first defendant, the State of Andhra Pradesh and its Subordinates from interfering in any manner with the peaceful possession of the plaintiffs or their tenants. The learned Subordinate Judge found on issue No. 12 that the statutory notice under Section 80 of the Code of Civil Procedure is defective and dismissed the suit on that sole ground without recording findings on the other issues. The plaintiffs filed the above appeal against the said judgment.

2. The only point that arises for consideration in this appeal is whether the notice issued by the plaintiffs under Section 80, Civil P. C. is bad. Prior to the suit, the plaintiffs issued a notice Ex A. 1 dated 17-4-1964 to the District Collector. Machilipatnam representing the State of Andhra Pradesh. The substance of the notice is that a Lanka called Zillella Dibba Padmara Pachika originally belonged to the estate of the plaintiffs. Due to alluvial action of the river Krishna, there was an accretion to the lanka which grew in its size from nearly 37 acres to 300 acres. The plaintiffs are entitled to the entire area of the lanka. The said lankas were held to be their private lands by the High Court. The plaintiffs have been in possession by leasing out the same to tenants. While so the officials of the Government began to interfere with the plaintiff's enjoyment by putting up to sale about 100 acres in R. S. No. 445 which is in the possession of the plaintiff's tenants. The entire lanka is comprised in R. S. Nos. 442 and 445.

The plaintiff's therefore called upon the Government to withdraw all their claims in the lanka in R. S. No. 442 and 445 in North Valluru Village limits and delivery possession of about 100 acres which are leased out to the Yadava Sangham by the Government and also claimed profits for three years. The plaintiffs accordingly stated that they desired to sue for a declaration and for recovery of possession and profits. The cause of action for the suit has also been stated by giving certain dates on which the Revenue Divisional Officer, Vijayawada put up portions of the lanks for auction. But in the suit the plaintiffs asked only for the relief of permanent injunction restraining the Government or its subordinates from interfering in any manner with the plaintiff's or their tenants' peaceful possession of the lands. The plaint also refers to the fact that the entire lanks is covered by R. S. Nos. 442 and 445. The action of the Government in attempting to auction portions of the lanka land as set out in the notice is also relied upon as the cause of action in the plaint. The court below held that in view of the discrepancies in the notice and the plaint regarding survey numbers and the relief, the requirements of Section 80 have not been satisfied.

According to the learned Subordinates Judge. the relief claimed in the suit was only for a permanent injunction while a relief for possession was claimed in the notice. The notice as well as the plaint refer to both the survey numbers as covering the entire area of 300 acres of the lanks land. The question is whether under these circumstances, the suit is liable to be thrown out on the ground that there is a variation between the statutory notice under Section 80, Civil P. C. is not based upon any Crown prerogative but the reason is that the Government would be reasonable in settling the claim out of court without the necessity of the aggrieved party going to a court of law. But unfortunately the practice has grown up on the part of the Government not even to consider the notice but merely to issue a reply in a standard form that 'the theatened suit is awaited.' As a matter of practice, the provisions as to notice are being relied upon by the Government as a weapon of technically to stifle a suit on the ground that some requirement or the other of Section 80. Civil P. C. has not been complied with. As I have already pointed out, this is certainly not the object of the legislature when Section 80, Civil P. C. was enacted. It is therefore high time that such a provisions is deleted from the statute book.

3. As pointed out by the Supreme Court in Dhian Singh v. Union of India, : [1958]1SCR781 'though the terms of Section 80 are to be strictly complied with, it does not mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. A little common sense must be imported in the notices under Section 80.' In State of Andhra Pradesh v. G. V. Suryanarayana, : [1964]4SCR945 it was held by the Supreme Court that 'if on a reasonable reading but not so as to make undue assumptions in plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or errors may be ignored.' In the latest case in B. R. Sinha v. State of M. P. : [1969]3SCR955 where a notice was issued by A. the suit filed by A and his grandsons is held to be perfectly valid. The scope of Section 80 has been explained by the Supreme Court as follows:-----

'But the notice (under Section 80, Civil P. C.) must be reasonably construed. Any unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim. In considering whether the provisions of the statute are complied with, the court must take into account the following matters in each case (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity. (3) whether a notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and (4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaintiff contains a statement that such a notice has been so delivered or left.'

4. Applying the above tests to the instant case, I find that there is no variation in the substance of the claim between the notice and the plaint. The notice and the plaint contain allegations to the effect that the plaintiffs were in possession of the entire area through their tenants and hence wanted the relief of permanent injunction in the suit. These allegations are also contained in the notice but it was specifically pointed out therein that with respect to a small area of 100 acres certain proceedings by way of auction were taken up by the Revenue Divisional Officer and that the Government has to withdraw these proceedings. There is no mention in the registered notice that the plaintiffs were out of possession with respect to any party of the lanks.

The relief of possession contained in the notice appears to have been inartistically drafted. There is however no doubt that the plaint and the notice should have been drafted in a more careful manner and that is not the reason why the plaintiffs should suffer. All the necessary information is contained in the registered notice and there is every opportunity for the Government to consider the claim of the plaintiffs. I am therefore satisfied that there is no such vital difference between the notice and the plaint which entails the dismissal of the suit.

5. As the court below has not recorded findings on the other issues which it ought to have done. the suit is remanded to the court below for disposal of the all the other issues. I therefore set aside the judgment of the lower court and allow this appeal with costs against the Government. The court-fee paid on this appeal will be refunded to the appellant.

6. Appeal dismissed.


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