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Narayan Chandra Bhanja Birabar Jagadev Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 344 of 1969
Judge
Reported inAIR1974Ori152; 39(1973)CLT764
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80
AppellantNarayan Chandra Bhanja Birabar Jagadev
RespondentState of Orissa
Appellant AdvocateB.K. Pal, Adv.
Respondent AdvocateAddl. Govt. Adv.
DispositionAppeal dismissed
Cases ReferredAmar Nath Dosra v. Union of India
Excerpt:
.....glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - failure to serve notice complying with the requirements of the statute will entail dismissal of the suit......there is no enumeration of the land in the notice. this notice refers to a draft plaint appended to it which it is stated to be treated as notice under section 80, civil p. c. that draft plaint, however, has not been proved as a part of this notice. it is not possible to treat the present plaint in suit as the draft plaint referred to in ex. 2. no evidence has been brought to my notice showing that ithe suit plaint is identical with the draft plaint referred to in ex. 2. in view of all the omissions of material particulars, which are required by section 80, civil p. c. to be stated, from the notice it cannot be treated as a valid notice and the resultant conclusion is that the suit is bound to be dismissed. in view of this conclusion it is unnecessary to go into the merit of the other.....
Judgment:

S.K. Ray, J.

1. The plaintiff is the appellant having lost his suit in both the Courts below.

2. The suit was for a declaration that the entries in respect of the suit properties in Anabadi Khata Nos. 479, 480 in Gar Haladia and No. 967 in mouza Kuaput are null and void and for correction of the record of rights by recording the plaintiff as sthitiban raivat in respect of the same.

3. At the time of hearing of this Second Appeal Mr. Patnaik. Additional Government Advocate for the State raised a plea of non-maintainability of the suit on the ground that Section 80, Civil P. C. has not been complied with, namely, the plaint did not contain a statement that a notice under Section 80, Civil P. C. has been served. Thereupon, Mr. Pal filed an application for amendment of the plaint by inserting a clause stating that notice under Section 80, Civil P. C. against the defendant acting through its officer has been issued and delivered to the defendant as prescribed under Section 80. Civil P. C. After hearing ob-jection, this amendment was allowed and the State was reauired to file additional written statement. The additional written statement was filed in the Court and thereafter the Second Appeal was again taken up for hearing.

4. Mr. Patnaik Additional Government Advocate again takes the plea that infirmity of non-compliance of Section 80, Civil P. C. in that the notice is insufficient and is wanting in the material particulars required to be stated therein, despite the amendment of the plaint, still continues and accordingly the suit shall be dismissed.

5. Section 80, Civil P. C. has been held to be mandatory provision of law. The Privy Council in the case of Bhagchand Dagdusa v. Secy. of State, 54 Ind App 338 = (AIR 1927 PC 176) laid down that the terms of Section 80 should be strictly complied with. That, however, does not mean that the terms of the notice should be scrutinised in pedantic manner or in a manner completely divorced from common sense. Dhain Singh v. Union of India, AIR 1958 SC 274. Dealing with this Section of Civil P. C. the Supreme Court has laid in another case Beohar Rajendra Sinha v. State of Madhya Pradesh, AIR 1969 SC 1256 :

'Section 80 Is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit. But the notice 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 but 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 plaint contains a statement that such a notice has been so delivered or left. In construing the notice the Court Cannot ignore the object of the legislature, viz. to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position. If on a reasonable reading of the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or irregularities should be ignored.' The object of notice contemplated by Section 80, Civil P. C. is to give to the concerned Government and public officers opportunity to reconsider the legal position and to make amendment or to settle the claim, if so advised without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the Public Officer should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of ius-tice. The provisions in Section 80 are not intended to be used as boobytraps against ignorant and illiterate persons. Raghunath Das v. Union of India, AIR 1969 SC 674. This case has further laid down that- 'Section 80, Civil P. C. requires among other things, that the notice must state the name, description and place of residence of plaintiff.'

In the case of Amar Nath Dosra v. Union of India, AIR 1963 SC 424 it has been laid down that,

'It is, no doubt, true that a notice under Section 80 is not a pleading and need not be a copy of the plaint and that no particular or technical form is prescribed for such a notice, still having regard to the object for which Section 80 has been enacted, the details which it contains should be sufficient to inform the party on whom it is served of the nature and basis of the claim and the relief sought. Admitting that a notice has to be interpreted not pedantically but in the light of common sense without one being hypercritical about the language still the question to be considered is whether in the notice there is substantial information conveyed on the basis of which the recipient of the notice could consider the claim of the would-be plaintiff and avert the suit.'

6. Keeping these principles in maind let me proceed to consider the notice under Section 80, Civil P. C. The notice is extracted below :

' Notice

To

The Collector. Puri,

Sir,

I propose to file a suit in the Court of the Munsif, Khurda for correction of the Record of rights since some of my lands have been wrongly entered as Ana-badi Khata under the State Government in the last settlement papers. The list of the properties is indicated in the proposed plaint attached herewith, to be filed, for your perusal and application. The draft plaint may be treated as notice Binder Section 80, Civil P. C. to you. Sd. Damodar Naik.

Advocate.'

This is a notice by one Damodar Naik, Advocate to the Collector, Puri. The name, description and residence of the plaintiff do not appear in this notice. The cause of action does not appear to have been set out in the notice. There is no enumeration of the land in the notice. This notice refers to a draft plaint appended to it which it is stated to be treated as notice under Section 80, Civil P. C. That draft plaint, however, has not been proved as a part of this notice. It is not possible to treat the present plaint in suit as the draft plaint referred to in Ex. 2. No evidence has been brought to my notice showing that Ithe suit plaint is identical with the draft plaint referred to in Ex. 2. In view of all the omissions of material particulars, Which are required by Section 80, Civil P. C. to be stated, from the notice it cannot be treated as a valid notice and the resultant conclusion is that the suit is bound to be dismissed. In view of this conclusion it is unnecessary to go into the merit of the other points in the case.

7. In the result, the appeal fails and is dismissed. But there would be no order for costs of this Court.


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