Hardayal Hardy, J.
(1) This civil revision arises out of an order made by a subordinate Judge dismissing the petitioners' application for amendment of the written statement filed by them. A similar point also arises in three other civil revisions viz. C.R. No. 57 of 1968, C.R. No. 58 of 1968 and C. R. No. 59 of 1968. New Delhi Municipal Committee is the common petitioners in all the four petitions while petitioner No. 2 in each case is a sub-inspector employed in the department of enforcement or health by the said Committee. The respondent in all the four cases is the same and so is the question raised therein. This order will thereforee dispose of all the four petitions.
(2) The common question is that the plea of want of notice under Section 49 of the Punjab Municipal Act, 1911 was not raised on behalf of the petitioners in the original written statement filed on their behalf but it was raised after a lapse of about 15 months in the amended written statement for which leave of the court was sought under Order 6 rule 17 Civil Procedure Code.
(3) The learned subordinate Judge relying upon a decision of the Supreme Court in Dhian Singh Sobha Singh and another v. Union of India : 1SCR781 and a decision of Nagpur High Court in Secretary of State v. Sheoramijee Hanumantrao AIR 1952 Nag. 213 dismissed the application holding that the objection must be deemed to have been waived. Learned Judge also held that if the amendment was allowed after a lapse of 15 months and on the strength of that objection the suit was held to be non-maintainable for want of a notice, then the plaintiff respondent would be seriously prejudiced because in that case of a fresh suit filed by him after service of notice would be barred by time.
(4) The facts are more or less the same. The respondent who was prosecuted by the petitioners was acquitted in all the four cases. He filed four suits for recovery of damages for malicious prosecution. The suits were being contested by the petitioners, issues were framed but neither in the written statement nor in the issues the defense of want of statutory notice under Section 49 of the Punjab Municipal Act was taken by the petitioners. It was after a delay of over 15 months that the petitioners applied for amendment of their written statement and sought to raise the plea of notice. The application was contested by the respondent and was disallowed on the ground that the plea of bar to the maintainability of action should be deemed to have been waived.
(5) At the hearing of the petition, learned counsel for the petitioners stated that in Suit Nos. 191 and 192 of 1966 which have given rise to Civil Revision Nos. 56 and 57 of 1968 the respondent was acquitted on 11.3.1965. The suits were instituted on 9.3.1966m both these oases. Summons were issued to the petitioners for 12.4.66. If the petitioners had raised the plea of want of notice and the suit had been dismissed on that ground the respondent would not have been able to file a fresh suit for a claim for recovery of damages on account of malicious prosecution for such a suit could only be filed within one year from the date of the order of acquittal. Even if one month's notice as required by Section 49 of the Punjab Municipal Act, 1911 had been served, the suit would have been still out of time on 12.4.66. The question of the petitioners having waived any notice thereforee did not arise in these two cases.
(6) As regards suit Nos. 193 and 194 of 1966 which have given rise to Civil Revisions Nos. 59 and 58 of 1968, the position is slightly differrent. The order of acquittal in these two cases was made on 20.10.1965 and thereforee even when the original written statement was filed on 28.5.1966 in which an objection as to notice was taken and these two suits were dismissed on that ground the respondent would still have had time to file a fresh suit and as such the question of the respondent being prejudiced would not have arisen. The question of limitation would however arise in these two cases because an application for amendment of the written statement was made on 30.9.1967 by which date fresh suits would have been obviously barred by time.
(7) The petitioners' counsel argued that waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right; estoppel is a rule of evidence. The generally accepted connotation of waiver is that there must be an intentional relinquishment or abandonment of a known existing legal right or conduct. Reliance for this proposition was placed on a decision of the Privy Council in Dawson's Bank Limited v. Nippon Menkan Kabushikikaisha and the observations of S.K. Das J. in Basheshar Nath v. Commissioner ofIncome-tax, Delhi and Rajasthan and another : 35ITR190(SC) . It was argued that if the suits were barred by time even when the first written statement was filed by the petitioners there could be no question of waiver because the respondent was not giving up any known legal rights. Two of his suits viz. suit Nos. 191 and 192 were barred by time then as they were barred later. In either event, the respondent did not lose any legal rights by an omission on the part of the petitioners. The result would have been the same whether the defense of want of notice was taken earlier or later.
(8) Mr. Vats also referred to another decision of the Privy Council in Vellayan Cheltiar and others v. The Government of the Province of Madras and another AIR 1947 Pc 197 What had happened in that case was that a suit to which Section 80 Civil Procedure Code applied was first instituted in a wrong court and the defendant took no exception to the notice but was content to object to the institution of the suit on the ground of want of jurisdiction. Subsequently the suit was instituted in the proper court and the defendant took the defense that no proper notice was given. The plaintiff pleaded that he was stopped from doing so but it was held that it was not so. He was under no duty to the plaintiff to point out his error. The defendant could be negligent in his own interest in not raising the plea at an early stage but negligence cannot give rise to an estoppel unless there is a duty of care.
(9) Mr. Vats also referred to a Bench decision of Patna High Court in Ramcharan Mahto and others v. Custodian of Evacuee Property, Bihar and another : AIR1964Pat275 . In that case a suit was instituted against the Custodian of Evacuee Property and the Custodian after filing the written statement in December 1957, objected to the valuation of the suit and after the valuation was increased by the Court, the Custodian asked for and obtained permission in August 1959, subject to payment of costs, to amend the written statement to raise a new plea of non-maintainability of the suit due to non service of notice as required by Section 80 Civil Procedure Code. It was held that the long delay between the filing of the written statement in December 1957 and the prayer for its amendment in August 1959, after making the plaintiff pay a large sum of money by way of deficit courtfee, was not sufficient to establish that the Custodian waived his right to notice under Section 80 Civil Procedure Code. There is a distinction between that case and the present case. In the case of Ramcharan Mahto(6) the plaintiff's action was not barred by limitation when the plea was subsequently raised. The decision thereforee is not on all fours with the present case.
(10) The significance of Ramcharan Mahto'(6) case however lies in this. Two of the authorities on which the respondents counsel relies were considered and discussed in this case, namely, Puma Chandra Sarkar v. Radharani Dassaya and others : AIR1931Cal175 and Ramnarain Prasad v. Ram Kishun Prasad AIR 1934 Patn 354 Both these cases were dissented from. In Puma Chandra Sarkar v. Radharani Dassaya and others(7), it was said that the plea of bar under Section 80 Civil Procedure Code must be taken at the earliest of possible opportunity and if it is raised at a very late stage when the plaintiff would be precluded by the law of limitation from bringing a further suit the defendant must be deemed to have waived the privilege of notice. The suit was against a receiver for accounts without giving any notice under Section 80 Civil Procedure Code The suit was dismissed by the subordinate judge and the appeal against the decision was brought to the High Court. The judgment shows that the suit was dismissed not merely on the ground of delay in raising the bar of notice under Section 80 Civil Procedure Code . but also on the ground of doubt entertained by the learned Judges about the receiver being a public officer within the definition given in the Code of Civil Procedure. Secondly in that case the plea was not at all raised till the hearing of the suit. In the case before me the plea has been taken before the evidence has commenced in the trial court. The decision thereforee does not help the argument of the respondent's counsel.
(11) In Ramnarain Prasad v. Ram Kishun Prasad(8) the bar under Section 80 C.P.C. was not raised till the suit came up to the High Court in second appeal before a Single Judge. The plea of bar was raised more than two years had elapsed from the cause of action and the suit had reached the stage of second appeal before the High Court. By then the plaintiffs further suit had become barred by limitation. The plea of want of notice was thereforee held to be waived.
(12) Counsel for the respondent also relied on two decisions of Nagpur and Madhya Pradesh High Court on which the subordinate Judge has relied. He also relied on another decision of Patna High Court in Chandu Modi and others v. State of Bihar : AIR1961Pat298 and submitted that if the application for amendment of the plaint was not made in good faith the High Court would not interfere in revision with the discretion exercised by the trial Court.
(13) Mr. R.L. Aggarwal, also referred to an earlier decision by me in Nahan Foundary Limited v. M/s. Ram Kishan Kulwant Rai 1970 Dli 545) where I had stated that if the application for amendment of the plaint is malafide and is prompted by the desire to deprive the defendant of the rights that have already accrued to him the prayer should not be granted.
(14) Mr. Radhe Lal also referred to a decision of the Supreme Court in Pandurang Dhoni Chougule v. Marut Hari Jadhav : 1SCR102 and submitted that while exercising jurisdiction under Section 115 Civil Procedure Code it is not competent for the High Court to correct errors of fact however gross, they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself.
(15) A perusal of the judgment of the learned subordinate Judge shows that it is largely based on the ground of waiver. The question of want of good faith or the malafide nature of the written statement has not been considered and discussed by the learned subordinate Judge The authorities in the case of Chandu Modi & others (9) decided by Patna High Court or in the case of Nahan Foundary Ltd.(10)decided by me are thereforee not entirely on the point. There might have been want of care or negligence on the part of the petitioners for not having put forth that defense of want of notice in the original written statement, but it cannot be said that their subsequent written statement was not made in good faith or was malafide. I have already said that the position in the other two cases viz. Suit Nos. 193 and 194 is slightly different, for in those cases if the original written statement had been filed in which an objection as to notice was taken, there would have been time for the plaintiff to .have filed fresh suits after serving the petitioners with a notice. But the question of want of notice goes to the root of the matter. It affects the jurisdiction of the Court. In I.A. No. 965 of 1968 in Suit No. 350 of 1966 : Goodwill India Ltd., and another v. Union of India and Others, (12) decided on 14.8.1968, I had stated that it was the duty of the court to reject the plaint if it found that a notice under Section 80 Civil Procedure Code was not served by the plaintiff. As the facts in the present cases are different it would not be necessary for me to go to that length but I do maintain that Section 80 is express, implicit, and mandatory and it admits of no implications or exceptions. It imposes statutory and unqualified obligation on the Court. The moment the respondent brought suits against the New Delhi Municipal Committee and officers serving under it in respect of any act purported to have been done by them in their official capacity and there was no averment of a notice of one month having been served on them by the respondent in the plaint, it became the duty of the Court to have looked into the matter and to have rejected the plaint.
(16) I have also said that there was no question of waiver in these cases. The learned subordinate Judge thereforee approached the case from a wholly erroneous principle. It was said by the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others : 1SCR595 that it is no doubt true that courts would as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that was required in the interest of justice. As the amendment prayed for by the petitioners went to the root of the matter, the trial Court erred in disallowing the application for amendment.
(17) The result of this decision is that the order of the trial Court is set aside. The amendment prayed for by the petitioners is allowed. The files of the four cases should be sent to the Senior Subordinate Judge Delhi who should assign them to the proper court for further proceedings. There will however be no order as to costs.