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Good Will India Limited and anr. Vs. the Union of India, New Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberApplication Appeal No. 965 of 1968 and Suit Appeal No. 350 of 1966
Judge
Reported inILR1968Delhi462
ActsCode of Civil Procedure (CPC), 1908 - Sections 80 - Order 23, Rule 1
AppellantGood Will India Limited and anr.
RespondentThe Union of India, New Delhi and ors.
Advocates: R.M. Gupta,; J.P. Chopra,; T.P.S. Chawla,;
Cases Referred and Bhagwan Lal v. Union of Indic
Excerpt:
(i) civil p.c. - section 80 & order 7, rule 11 - ntoice served by plaintiff under section 80 defective--plaint liable to be rejected.; where the ntoice served by the plaintiffs under section 80 c.p.c. was defective as it did nto cover the plea of adverse possession introduced by way of amendment.; that the plaint in such a case was liable to be rejected. ; (ii) civil p.c. - order 23, rule 1 - formal defect--defect arising from non-service of ntoice under section 80 c.p.c.--nto a formal defect--''toher sufficient grounds' in clause (2)(b)--construction and effect of.; that a formal defect in a suit is one which is discovered after the suit has been properly instituted and the suit fails by reason of some point of form. section 80 c.p.c. on the toher hand creates a bar to the.....hardayal hardy, j.(1) the title of the suit gives the names of two plaintiffs, but in reality the plaintiff is only one as the second plaintiff goodwill pictures limited is merely the old name of the first plaintiff goodwill india limited. the suit is for a declaration that the plaintiffs are the owners of certain immovable property the market value of which according to them is rupees fifty p. lacs, and that they are nto liable to be dis-possessed there from by defendants i to 5 without adequate compensation being given to lhem in the course of acquisition proceedings under the land acquisition act, 1894.(2) the plaintiffs originally based their claim to relief on a saledeed executed in their favor by defendants 6 and 7. later, they filed an application under order 6 rule 17 of the code.....
Judgment:

Hardayal Hardy, J.

(1) The title of the suit gives the names of two plaintiffs, but in reality the plaintiff is only one as the second plaintiff Goodwill Pictures Limited is merely the old name of the first plaintiff Goodwill India Limited. The suit is for a declaration that the plaintiffs are the owners of certain immovable property the market value of which according to them is Rupees fifty p. lacs, and that they are nto liable to be dis-possessed there from by defendants I to 5 without adequate compensation being given to lhem in the course of acquisition proceedings under the Land Acquisition Act, 1894.

(2) The plaintiffs originally based their claim to relief on a saledeed executed in their favor by defendants 6 and 7. Later, they filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the plaint by incorporating therein an alternative plea that in case they are nto held to be the absolute owners of the property in dispute by virtue of its purchase by them and instead the government is held to be the owner thereof then the plaintiffs and their predecessors-in-interest have acquired title to the property by adverse possession and prescription inasmuch as they have been in actual, open, exclusive, un-interrupted and hostile possession of the property for the last 100 years and more to the knowledge of the government.

(3) The plaintiffs' prayer for amendment of the plaint was allowed by this court and the defendants also filed their written statements. Defendants I to 5 however took a preliminary objection to the effect that no ntoice under section 80 Civil Procedure Code had been served on them with respect to the alternative plea of adverse possession. Defendant No. 3 also repeated its earlier objection that no ntoice under section 53-B of the Delhi Development Act, 1957 was ever served on it and as such the suit was nto maintainable.

(4) Issues were thereafter framed, issues 2 and 6 being in relation to the afore-mentioned pleas of the said defendants. The case then proceeded to evidence and the statements of a few witnesses produced by the plaintiffs were recorded.

(5) On 7/5/1968 the plaintiffs filed the present application where in after staling the steps so far taken in the suit it was averred: -

'THATthe plaintiffs apprehend that the present suit may fail for want of the required ntoices under sections 80 Civil Procedure Code . and 53 (a) of the Delhi Development Act and as such there is a formal defect in the suit'.

(6) For the reasons aforesaid, it was prayed that in the interest of justice the plaintiffs be allowed to withdraw the present suit with liberty to file antoher suit on the same cause of action.

(7) The application is opposed by defendants I to 5 on whose behalf an extremely lucid and able argument has been addressed to me by their learned counsel Mr. T. P. S. Chawla. The contention urged is that the provisions of Order 23 Rule 1(2) cannto be availed of by a plaintiff whose suit is likely to fail by reason of non-compliance with the requirements of Section 80 Civil Procedure Code or Section 53-B of the Delhi Development Act, 1957. It is further urged that in such a suit even an order rejecting She plaint cannto be passed and the only order that can be made is one of dismissal of the suit.

(8) On the toher hand the plaintiffs' counsel contends that the absence of ntoice under btoh or either of the two sections involves a mere formal defect in the suit which has no relation to the merits of the claim. The plaintiffs are thereforee entitled to leave of the court for withdrawal of the suit and institution of a fresh suit on the same cause of action. Let us examine the contentions urged by btoh sides in the light of the relevant provisions of law and the principles laid down in decided cases.

(9) The law is firmly established that section 80 Civil Procedure Code imposes a statutory and un-qualified obligation upon the court to insist upon strict compliance with the requirements of the Section. In Bhagchand Dagudusa v. Secretary of State (54 I.A. 338) the Privy Council observed:-

'THEAct albeit a procedure must be read in accordance with the natural meaning of its words. Section 80 is express,

(10) The plaintiffs' prayer for amendment of the plaint was allowed by this court and the defendants also filed their written statements. Defendants I to 5 however took a preliminary objection to the effect that no ntoice under section 80 Civil Procedure Code had been served on them with respect to the alternative plea of adverse possession. Defendant No. 3 also repeated its earlier objection that no ntoice under section 53-B of the Delhi Development Act, 1957 was ever served on it and as such the suit was nto maintainable.

(11) Issues were thereafter framed, issues 2 and 6 being in relation to the afore-mentioned pleas of the said defendants. The case then proceeded to evidence and the statements of a few witnesses produced by the plaintiffs were recorded.

(12) On 7/5/1968 the plaintiffs filed the present application where in after staling the steps so far taken in the suit it was averred: -

'THATthe plaintiffs apprehend that the present suit may fail for want of the required ntoices under sections 80 Civil Procedure Code . and 53 (a) of the Delhi Development Act and as such there is a formal defect in the suit'.

(13) For the reasons aforesaid, it was prayed that in the interest of justice the plaintiffs be allowed to withdraw the present suit with liberty to file antoher suit on the same cause of action.

(14) The application is opposed by defendants I to 5 on whose behalf an extremely lucid and able argument has been addressed to me by their learned counsel Mr. T. P. S. Chawla. The contention urged is that the provisions of Order 23 Rule 1(2) cannto be availed of by a plaintiff whose suit is likely to fail by reason of non-compliance with the requirements of Section 80 Civil Procedure Code or Section 53-B of the Delhi Development Act, 1957. It is further urged that in such a suit even an order rejecting She plaint cannto be passed and the only order that can be made is one of dismissal of the suit.

(15) On the toher hand the plaintiffs' counsel contends that the absence of ntoice under btoh or either of the two sections involves a mere formal defect in the suit which has no relation to the merits of the claim. The plaintiffs are thereforee entitled to leave of the court for withdrawal of the suit and institution of a fresh suit on the same cause of action. Let us examine the contentions urged by btoh sides in the light of the relevant provisions of law and the principles laid down in decided cases.

(16) The law is firmly established that section 80 Civil Procedure Code imposes a statutory and un-qualified obligation upon the court to insist upon strict compliance with the requirements of the Section. In Bhagchand Dagudusa v. Secretary of State 54 I.A. 338 the Privy Council observed:-

'THEAct albeit a procedure must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory, and if admits of no implications or exceptions.'

(17) The decision was approved by their Lordships of the Supreme Court in Dhian Singh Sobha Singh v. Union of India : [1958]1SCR781 and only a slight caution was administered that the terms of the ntoice should nto be scrutinized in a pedantic manner or in a manner divorced from common sense. No such question however arises in the present case. Here it is the admitted case of the plaintiffs that the ntoice served by them did nto raise the alternative plea of ownership based on adverse possession which was introduced for the first time by way of amendment of the plaint. As regards ntoice under Section 53-B of the Delhi Development Act, it is common ground that no such ntoice was served on defendant No. 3 at all, although in fairness to the plaintiffs' counsel it may be mentioned that he does contend that no such ntoice was really necessary.

(18) This leaves no doubt that the ntoice previously served under Section 80 Civil Procedure Code does nto fully cover the plaintiffs' case as it stands after the plaint was amended. Likewise the complete absence of a ntoice under Section 53-B of the Delhi Development Act seems to me to be an insurmountable barrier in the way of the action being maintained against defendant No. 3. On the plaintiffs' own showing, its claim to compensation under the Land Acquisition Act, 1894 is being resisted by defendant No. 3 on the ground that the property in dispute is owned by the Central Government and is under the management of defendant No. 3.

(19) The challange to the Plaintiffs' right, title and interest has thereforee come as much from defendant No. 3 as from defendants I and 2. A consolidated relief has thereforee been claimed by the plaintiffs against all the defendants I to 5.

(20) In fact the plaintiffs have made no serious attempt to shy away from this position for it is stated by them in their application F that they apprehend that their suit is likely to fail for want of the required ntoices under Section 80 Civil Procedure Code and 53B [53(a) in the application is obviously a typing error] of the Delhi Development Act.

(21) The question for determination thereforee is whether a defect of this nature is a formal defect in the suit within the meaning of clause (2)(a) of Rule I of Order 23 Civil Procedure Code The expression 'formal defect' conntoes defects of various kinds nto affecting the merits of the case. (See. Ramrao Bhagwantrao Inamdar and antoher v. Babu Appanna Samage and tohers : AIR1940Bom121 and Thakur Pd. and antoher v. Rasool Bux and antoher, A.I.R. 1950 All. 489 . The Privy Council in Robert Watson and Co. v. Collector of Rajshaye 13 MIA 160, a case referred to by Mr. Justice Dua (as his Lordship then was) in Paira Ram and antoher v. explicit and mandatory, and if admits of no implications or exceptions.'

(22) The decision was approved by their Lordships of the Supreme Court in Dhian Singh Sobha Singh v. Union of India : [1958]1SCR781 and only a slight caution was administered that the terms of the ntoice should nto be scrutinized in a pedantic manner or in a manner divorced from common sense. No such question however arises in the present case. Here it is the admitted case of the plaintiffs that the ntoice served by them did nto raise the alternative plea of ownership based on adverse possession which was introduced for the first time by way of amendment of the plaint. As regards ntoice under Section 53-B of fhe Delhi Development Act, it is common ground that no such ntoice was served on defendant No. 3 at all, although in fairness to the plaintiffs' counsel it may be mentioned that he does contend that no such ntoice was really necessary.

(23) This leaves no doubt that the ntoice previously served under Section 80 Civil Procedure Code does nto fully cover the plaintiffs' case as it stands after the plaint was amended. Likewise the complete absence of a ntoice under Section 53-B of the Delhi Development Act seems to me to be an insurmountable barrier in the way of the action being maintained against defendant No. 3. On the plaintiffs' own showing, its claim to compensation under the Land Acquisition Act, 1894 is being resisted by defendant No. 3 on the ground that the property in dispute is owned by the Central Government and is under the management of defendant No. 3. The challange to the Plaintiffs' right, title and interest has thereforee come as much from defendant No. 3 as from defendants I and 2. A consolidated relief has thereforee been claimed by the plaintiffs against all the defendants I to 5.

(24) In fact the plaintiffs have made no serious attempt to shy away from this position for it is stated by them in their application that they apprehend that their suit is likely to fail for want of the required ntoices under Section 80 Civil Procedure Code and 53-B [53(a) in the application is obviously a typing error] of the Delhi Development Act.

(25) The question for determination thereforee is whether a defect of this nature is a formal defect in the suit within the meaning of clause (2)(a) of Rule I of Order 23 Civil Procedure Code The expression 'formal defect' conntoes defects of various kinds nto affecting the merits of the case. (See. Ramrao Bhagwantrao Inamdar and antoher v. Babu Appanna Samage and tohers : AIR1940Bom121 and Thakur Pd. and antoher v. Rasool Bux and antoher, A.I.R. 1950 All. 489 . The Privy Council in Robert Watson and Co. v. Collector of Rajshaye 13 MIA 160, a case referred to by Mr. Justice Dua (as his Lordship then was) in Paira Ram and antoher v. Gunesh Doss and tohers, 0 gave instances of what might constitute a formal defect by observing:-

THEREis a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misguide either of parties or of the matters in contest in the suit; to cases in which a material document has been rejected because it has nto borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form. but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them.'

(26) The observations were no doubt made in a case which liac been decided even before the Code of Civil Procedure of 185 and although the judgment was rendered in 1869, no reference was made to section 97 of that Code. This would however make no difference to the meaning given by their Lordships to what was described by them as a failure of the suit by reason of some point of form.

(27) The argument of Mr. Chawla is that a defect arising from non-service of ntoice is nto a defect in the form of the suit According to the learned counsel, a formal defect in a suit is one which is discovered after the suit has been properly instituted and the suit fails by reason of some point of form. Section 80 Civil Procedure Code on the toher hand creates a bar to the institution of the suit itself Where a suit is thereforee instituted against the government with out serving a proper ntoice as required by section 80 Civil Procedure Code the suit must be deemed nto to have been instituted at all. On the toher hand Order 23 Civil Procedure Code comes into play only when some formal defect is found in the suit after it has been properly instituted It cannto thereforee apply to a suit which should be deered nto to have been instituted at all. The argument which: the support of a decision of Narashimhan J. in Pillarisetti Go lingam v. The State of Andhra Pradesh : AIR1961AP488 has a great deal of force.

(28) The next question is whether in the absence of any formal defect as envisaged by clause (2) (a) of Rule I of Order 23, recoul can be had to clause (2) (b) of the said Rule which confers pow on the court to allow the plaintiff to institute a fresh suit when there are 'toher sufficient grounds' for making such an order. If Order 23 as a whole, is nto applicable to such a suit the application of clause (2)(b) which forms part of the same Order obviously out of question. However, that apart, there is antoher 'There is a proceeding in those Courts called a non-suit, which operates as a dismissal of the suit without barring the right of the party to litigate the matter in a fresh suit; but that seems to be limited to cases of misguide either of parties or of the matters in contest in the suit; to cases in which a material document has been rejected because it has nto borne the proper stamp, and to cases in which there has been an erroneous valuation of the subject of the suit. In all those cases the suit fails by reason of some point of form. but their Lordships are aware of no case in which, upon an issue joined, and the party having failed to produce the evidence which he was bound to produce in support of that issue, liberty has been given to him to bring a second suit, except in the particular instance that is now before them.'

(29) The observations were no doubt made in a case which had been decided even before the Code of Civil Procedure of 1859 and although the judgment was rendered in 1869, no reference was made to section 97 of that Code. This would however make no difference to the meaning given by their Lordships to what was described by them as a failure of the suit by reason of some point of form.

(30) The argument of Mr. Chawla is that a defect arising from non-service of ntoice is nto a defect in the form of the suit. According to the learned counsel, a formal defect in a suit is one which is discovered after the suit has been properly instituted and the suit fails by reason of some point of form. Section 80 Civil Procedure Code . on the toher hand creates a bar to the institution of the suit itself. Where a suit is thereforee instituted against the government without serving a proper ntoice as required by section 80 Civil Procedure Code the suit must be deemed nto to have been instituted at all. On the toher hand Order 23 Civil Procedure Code comes into play only when some formal defect is found in the suit after it has been properly instituted. It cannto thereforee apply to a suit which should be deemed nto to have been instituted at all. The argument which has the support of a decision of Narashimhan J. in Pillarisetti Gtoilingam v. The State of Andhra Pradesh : AIR1961AP488 has a great deal of force.

(31) The next question is whether in the absence of any formal defect as envisaged by clause (2) (a) of Rule I of Order 23, recourse can be had to clause (2) (b) of the said Rule which confers power on the court to allow the plaintiff to institute a fresh suit when there are 'toher sufficient grounds' for making such an order. If Order 23 as a whole, is nto applicable to such a suit the application of clause (2)(b) which forms part of the same Order is obviously out of question. However, that apart, there is antoher very good reason which precludes the exercise of power under clause (2)(b) of Rule 1. Decided cases show that there has been divergence of judicial opinion among the High Courts in India about the meaning of the expression 'toher sufficient grounds' in clause (2)(b). Some of the High Courts, including a single Judge of Lahore High Court (TekChandJ.) in Mt. Fatima v. Nura and tohers A.I.R. 1938 Lah 294 had taken the view that 'toher sufficient grounds' in clause (2)(b) of Rule I of Order 23 must be read ejusdem generis with the grounds mentioned in clause (2)(a). The High Courts of Bombay and Allahabad have however taken a different view. In Ramroo Bhagwantrcw Inamdar & antoher v. Babu Appanna Samage and tohers : AIR1940Bom121 a Full Bench of Bombay High Court and in Abdal Ghafoor v. Abdul Rahman : AIR1951All845 a Full Bench of Allahabad High Court has held that these words could nto be read ejusdem generis with the words in clause (2)(a) but they covered grounds analogous to those mentioned in that clause. Non-compliance with the requirements of section 80 C.P.C. cannto thereforee be held to fall within either of the two clauses of Rule I of Order 23 Civil Procedure Code The application of Order 23 being thus ruled out, what is the course open to the court in a case like the present In my view, one course is to reject the plaint under Order 7 Rule 11 Civil Procedure Code while the toher is to dismiss the suit.

(32) Mr. Chawla contends that Order 7 Rule Ii Civil Procedure Code deals with the rejection of the plaint before the defendant is summoned.

(33) But in a case where the defendant appears to defend the suit and it is found that ntoice under section 80 is defective, the proper course is to dismiss the suit. In support of his argument the learned counsel has drawn my attention to a Bench decision of the High Court of Madras in Governor General of India in Council v. Raghunandan Shenoy A.I.R. 1947 Mad. 64 and to a similar decision by the High Court of Kerala in Dahyabhai Patel and Co. v. Union of India : AIR1960Ker135 .

(34) It however appears to me that in btoh these cases the interpretation placed upon the provisions of Order 7 Rule ll(d) is rather too narrow. In my judgment, the provisions of this rule can be brought into operation at any stage of the suit.

(35) In Jagdish Chandra Deo v. Debendra Prosad Bagchi Bahadur and tohers : AIR1931Cal503 ^) the plaintiff's suit was dismissed long after the defendants had appeared and contested the suit inter alia, on the ground that the provisions of section 80 C.P.C. had nto been complied with. On appeal the learned judges (Mukcrji and Mitter JJ.) held that the suit should nto have been dismissed by the trial court and it should have been held that the suit was one which could nto be instituted and as such the plaint should have been rejected.

VERYgood reason which precludes the exercise of power under clause (2)(b) of Rule 1. Decided cases show that there has been divergence of judicial opinion among the High Courts in India about the meaning of the expression 'toher sufficient grounds' in clause (2)(b). Some of the High Courts, including a single Judge of Lahore High Court (TekChandJ.) in Mt. Fatima v. Nura and tohers A.I.R. 1938 Lah 294 had taken the view that 'toher sufficient grounds' in clause (2)(b) of Rule I of Order 23 must be read ejusdem generis with the grounds mentioned in clause (2)(a). The High Courts of Bombay and Allahabad have however taken a different view. In Ramroo Bhagwantrcw Inamdar & antoher v. Babu Appanna Samage and tohers : AIR1940Bom121 a Full Bench of Bombay High Court and in Abdal Ghafoor v. Abdul Rahman : AIR1951All845 0 a Full Bench of Allahabad High Court has held that these words could nto be read ejusdem generis with the words in clause (2)(a) but they covered grounds analogous to those mentioned in that clause. Non-compliance with the requirements of section 80 C.P.C. cannto thereforee be held to fall within either of the two clauses of Rule I of Order 23 Civil Procedure Code The application of Order 23 being thus ruled out, what is the course open to the court in a case like the present In my view, one course is to reject the plaint under Order 7 Rule 11 Civil Procedure Code while the toher is to dismiss the suit.

(36) Mr. Chawla contends that Order 7 Rule Ii Civil Procedure Code deals with the rejection of the plaint before the defendant is summoned. But in a case where the defendant appears to defend the suit and it is found that ntoice under section 80 is defective, the proper course is to dismiss the suit. In support of his argument the learned counsel has drawn my attention to a Bench decision of the High Court of Madras in Governor General of India in Council v. Raghunandan Shenoy A.I.R. 1947 Mad. 64 and to a similar decision by the High Court of Kerala in Dahyabhai Patel and Co. v. Union of India : AIR1960Ker135 .

(37) It however appears to me that in btoh these cases the interpretation placed upon the provisions of Order 7 Rule ll(d) is rather too narrow. In my judgment, the provisions of this rule can be brought into operation at any stage of the suit.

(38) In Jagdish Chandra Deo v. Debendra Prosad Bagchi Bahadur and tohers : AIR1931Cal503 ^) the plaintiff's suit was dismissed long after the defendants had appeared and contested the suit inter alia, on the ground that the provisions of section 80 C.P.C. had nto been complied with. On appeal the learned judges (Mukcrji and Mitter JJ.) held that the suit should nto have been dismissed by the trial court and it should have been held that the suit was one which could nto be instituted and as such the plaint should have been rejected.

(39) In Bhagwan Lal v. Union of India and tohers : AIR1961Pat200 a learned single Judge of Patna High Court held that a suit, nto complying with the provisions of section 80 Civil Procedure Code could nto be entertained by any court, and if instituted must be rejected under Order 7 Rule Ii Civil Procedure Code .

(40) To the same effect are the observations of Narasimhan J. of Andhra Pradesh High Court in Pillarisetti Gtoilingam v. The State of Andhra Pradesh to which a reference has already been made by me.

(41) In State of Bhopal and antoher v. Chhtoeram and antoher A.I.R. 1953 MP 28 Sathey J. C. held that the only course open to the court in a suit instituted without giving proper ntoice under section 80 Civil Procedure Code is to reject it under Order 7 Rule Ii C.P.C.

(42) Bachchu Singh and antoher v. The Secretary of State for India in Council and antoher 25 All 187 is one of the earliest cases and is in a way, a leading case on the point. In that case a suit had been filed against the Secretary of State for India in Council. Among toher defenses to the suit, it was pleaded on his behalf, that previous to the institution of the suit the plaintiffs had nto given any ntoice of their intention to bring the suit as prescribed by section 424 of the Code of Civil Procedure (then in force). The trial court held that the ntoice served by the planitiffs was nto a good ntoice within the meaning of the section and accordingly dismissed the suit. The plaintiffs thereupon appealed to the High Court. It was held by a Bench consisting of Sir John Stanley C.J. and Banerji J. that the only course open to the court was to reject the plaint under section 54(c)< of the Code. It may be mentioned here that sections 424 and 54(c) of the Civil Procedure Code then in force were more or less iden- tical with section 80 and Order 7 Rule 11 (d) of the Present Code. It would appear that in each of the cases cited above the defendant had appeared and had contested the suit, inter alia, on the ground that either no ntoice had been served by the plaintiff or the ntoice that had been served, was defective. The trial court had accepted the contention and dismissed the suit. The decision of the trial court was however up-set by the High Court holding that instead of dismissing the suit the plaint should have been rejected under Order 7 Rule Ii Civil Procedure Code .

(43) I have already said that in the present case the ntoice served by the plaintiffs under section 80 Civil Procedure Code was defective as it did nto cover the plea of adverse possession introduced by way of amendment. There was also no ntoice under section 53-B of the Delhi Development Act in so far as defendant No. 3 was concerned. The case against that defendant could nto be separated from that against defendants 1, 2, 4 and 5. This constitutes a

INBhagwan Lal v. Union of India and tohers : AIR1961Pat200 a learned single Judge of Patna High Court held that a suit, nto complying with the provisions of section 80 Civil Procedure Code . could nto be entertained by any court, and if instituted must be rejected under Order 7 Rule Ii Civil Procedure Code .

(44) To the same effect are the observations of Narasimhan J. of Andhra Pradesh High Court in Pillarisetti Gtoilingam v. The State of Andhra Pradesh to which a reference has already been made by me.

(45) In State of Bhopal and antoher v. Chhtoeram and antoher A.I.R. 1953 MP 28 Sathey J. C. held that the only course open to the court in a suit instituted without giving proper ntoice under section 80 Civil Procedure Code is to reject it under Order 7 Rule Ii C.P.C.

(46) Bachchu Singh and antoher v. The Secretary of State for India in Council and antoher 25 All 187 is one of the earliest cases and is in a way, a leading case on the point. In that case a suit had been filed against the Secretary of State for India in Council. Among toher defenses to the suit, it was pleaded on his behalf, that previous to the institution of the suit the plaintiffs had nto given any ntoice of their intention to bring the suit as prescribed by section 424 of the Code of Civil Procedure (then in force). The trial court held that the ntoice served by the planitiffs was nto a good ntoice within the meaning of the section and accordingly dismissed the suit. The plaintiffs thereupon appealed to the High Court. It was held by a Bench consisting of Sir John Stanley C.J. and Banerji J. that the only course open to the court was to reject the plaint under section 54(c) of the Code. It may be mentioned here that sections 424 and 54(c) of the Civil Procedure Code then in force were more or less identical with section 80 and Order 7 Rule 11 (d) of the Present Code. It would appear that in each of the cases cited above the defendant had appeared and had contested the suit, inter alia, on the ground that either no ntoice had been served by the plaintiff or the ntoice that had been served, was defective. The trial court had accepted the contention and dismissed the suit. The decision of the trial court was however up-set by the High Court holding that instead of dismissing the suit the plaint should have been rejected under Order 7 Rule Ii Civil Procedure Code .

I have already said that in the present case the ntoice served by the plaintiffs under section 80 Civil Procedure Code was defective as it did nto cover the plea of adverse possession introduced by way of amendment. There was also no ntoice under section 53-B of the Delhi Development Act in so far as defendant No. 3 was concerned. The case against that defendant could nto be separated from that against defendants 1, 2, 4 and 5. This constitutes a bar to the maintainability of the suit against all the five defendants. The plaint is thereforee liable to be rejected under Order 7 Rule ll(d) Civil Procedure Code .

(47) Mr. R. M. Gupta learned .counsel for the plaintiffs has, tried to distinguish the cases cited by Mr. Chawla and has urged that Section 80 only provides a mode of procedure and its only object is to inform the authorities about the plaintiffs' intention to institute a suit if redress should nto be forth-coming for the wrong complained of by him. The ntoice should nto thereforee be construed in a manner divorced from common-sense. Special emphasis has been laid by the learned counsel on the cases reported as State of Seraikella and tohers v. Union of India : [1951]2SCR474 , Dhian Singh Sobha Singh and antoher v. Union of India : [1958]1SCR781 and Bhagwan Lal v. Union of Indid : AIR1961Pat200 . None of these cases however touches the point which arises in this case. It is next urged by Mr. Glipla that the plaintiffs' claim relating to property of the value of Rupees fifty lacs is at stake in this case. Merely because the lawyer drafting the plaint or advising the plaintiffs was negligent or careless, the plaintiffs should nto be non-suited on account of such technical mistake and an opportunity should be afforded to rectify the mistake by filing a fresh suit after serving a proper ntoice. In this connection, my attention has been drawn to certain observations in a judgment of Lahore High Court: tiarpit Singh and antoher v. Punjab Government A.I.R. 1946 Lah 429 . The case is distinguishable on facts. Even toherwise that case does nto deal with the defect arising out of non-compliance with the provisions of section 80 which involves a question of jurisdictioin where considerations of equity and hardship have no relevance at all.

(48) Lastly it is urged that if a conclusion adverse to the plaintiffs is reached on their application for withdrawal of the suit, the plaintiffs would like to go on with the suit as it is. There is startling naivete about the suggestion made by the learned counsel. If the suit is had because there is no proper suit, the law casts a duty on the court to reject the plaint. I thereforee do nto see how the plaintiffs can be allowed to go on with the suit which in my opinion is had for want of ntoice and which the plaintiffs themselves apprehend will fail in the end on that account.

(49) The result of the fore-going discussion is that the plaintiffs application for withdrawal of the suit is dismissed and the plaint filed by them is rejected under Order 7 Rule ll(d) Civil Procedure Code The plaintiffs will also pay costs incurred sc far by defendants I to 5. Order accordingly. bar to the maintainability of the suit against all the five defendants. The plaint is thereforee liable to be rejected under Order 7 Rule ll(d) Civil Procedure Code .

(50) Mr. R. M. Gupta learned .counsel for the plaintiffs has, tried to distinguish the cases cited by Mr. Chawla and has urged that Section 80 only provides a mode of procedure and its only object is to inform the authorities about the plaintiffs' intention to institute a suit if redress should nto be forth-coming for the wrong complained of by him. The ntoice should nto thereforee be construed in a manner divorced from common-sense. Special emphasis has been laid by the learned counsel on the cases reported as State of Seraikella and tohers v. Union of India : [1951]2SCR474 , Dhian Singh Sobha Singh and antoher v. Union of India : [1958]1SCR781 0 and Bhagwan Lal v. Union of Indic : AIR1961Pat200 . None of these cases however touches the point which arises in this case. It is next urged by Mr. Glipla that the plaintiffs' claim relating to property of the value of Rupees fifty lacs is at stake in this case. Merely because the lawyer drafting the plaint or advising the plaintiffs was negligent or careless, the plaintiffs should nto be non-suited on account of such technical mistake and an opportunity should be afforded lo them to rectify the mistake by filing a fresh suit after serving a proper ntoice. In this connection, my attention has been drawn to certain observations in a judgment of Lahore High Court: tiarpit Singh and antoher v. Punjab Government A.I.R. 1946 Lah 429 . The case is distinguishable on facts. Even toherwise that case does nto deal with the defect arising out of non-compliance with the provisions of section 80 which involves a question of jurisdictioin where considerations of equity and hardship have no relevance at all.

(51) Lastly it is urged that if a conclusion adverse to the plaintiffs is for withdrawal of the suit, the plaintiffs would like to go on with the suit as it is. There is startling naivete about the suggestion made by the learned counsel. If the suit is had because there is no proper suit, the law casts a duty on the court to reject the plaint. I thereforee do nto see how the plaintiffs can be allowed to go on with the suit which in my opinion is had for want of ntoice and which the plaintiffs themselves apprehend will fail in the end on that account.

(52) The result of the fore-going discussion is that the plaintiffs' application for withdrawal of the suit is dismissed and the plaint filed by them is rejected under Order 7 Rule ll(d) Civil Procedure Code The plaintiffs will also pay costs incurred sc far by defendants I to 5.


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