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Kanakku Karthiayani Pillai Narayani Pillai and ors. Vs. Neelacanta Pillai Raman Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1301 of 1964
Judge
Reported inAIR1969Ker280
ActsTravancore Revenue Recovery Act, 1068 ME - Sections 50; Constitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 80 - Order 1, Rule 10 - Order 21, Rule 63; Evidence Act, 1872 - Sections 115 and 116
AppellantKanakku Karthiayani Pillai Narayani Pillai and ors.
RespondentNeelacanta Pillai Raman Pillai and anr.
Appellant Advocate M. Krishnan Nair, Adv.
Respondent Advocate K. Kuttikrishna Menon and A.P. Chandrasekharan, Advs. for Respondent No. 1 and Govt. Pleader for Respondent No. 2
DispositionAppeal dismissed
Cases ReferredManindra Chandra Nandi v. Secretary of State
Excerpt:
.....in view. is a jurisdictional fact and if that had not been satisfied before the institution of the suit the suit cannot be heard at all and cited state of madras v. and section 11 of the suits valuation act if objection is not taken before settlement of issues for trial -and its want would make the decision, at the worst, only voidable in an appeal but unchallengeable in collateral proceedings. hemanta kumari debi, (1904) ilr 31 cal 159 which appears to me to be clearly distinguishable. but it was clearly incompetent to the second defendant to raise the question. in the events which have happened, we are clearly of opinion that in this case notice was waived on behalf of the secretary of state, and that the question could not have been raised by the 2nd defendant. 10. in the result, both..........thenbe doubted that the proceeding to set aside the revenue sale is not a continuation of the sale proceedings but a collateral independent proceedings. here the proceeding to set aside the sale was instituted five years after the confirmation of the sale and two years after delivery of the property to the purchaser. it must be held to have been instituted only on the day the application was made to the collector to set aside the sale and governed by the law and conditions of that day. admittedly before that date the 2nd defendant the auction-purchaser had assigned the property in moieties to the plaintiff and cheriyan. it appears that cheriyan got himself impleaded in the proceedings. plaintiff was not made a party to the proceedings throughout its course. the setting aside of a.....
Judgment:

M. Madhavan Nair, J.

1. Appeal by the 1st defendant, continued by her legal representative.

2. The facts are thus: S. No. 529/5 and 11 of Nedumpana village belonged to the 1st defendant. It was sold for arrears of land revenue on 21st Karkatakam 1116 (1941) and purchased by the 2nd defendant who was also put in possession by the revenue authority. Ext. P2 is the relative sale certificate, and Ext. P3 the delivery report dated 3rd Kanni 1119 (1943). On 19th Kanni 1119 (1943) the 2nd defendant sold the western half ofthe property to the plaintiff as per Ext. P1 and the eastern half to one Cheriyan by another deed. In 1121 (1946) the 1st defendant applied to the Collector to set aside the revenue sale. Though the Collector dismissed it, the Board of Revenue in revision allowed it and set aside the sale in 1950. The 2nd defendant and Cheriyan were alone made parties to the proceedings: the plaintiff was not made a party to the proceedings either before the Collector or before the Board of Revenue and was not therefore heard in the matter. The 2nd defendant took the matter in further appeal before the Government, also without making the plaintiff a party, but it was dismissed.

Thereupon the 1st defendant moved the Collector to put her in possession of the property. Getting scent of it the plaintiff issued a notice under Section 80 C. P. C. to the Chief Secretary to the Government on July 30, 1957 and instituted this suit the very next day. The 1st defendant resisted the suit on merits and the State challenged the maintainability of the suit for want of sufficient notice under Section 80, C. P. C. The Munsif, Quilon, dismissed the suit holding it to be not maintainable for want of sufficient notice under Section 80, and adding that the plaintiff was not a necessary party to the proceedings to set aside the revenue sale and is not entitled to claim adverse possession for any period before date of Government's final order on the application to set aside the sale.

On appeal the Additional District Judge, Quilon, held that notice under Section 80 C. P. C. having been issued by the plaintiff to the State the suit cannot be dismissed as not maintainable after 5 years of its institution on the technical plea that on the date of institution it was premature, and that the order of the Board of Revenue would not bind the plaintiff who was no party thereto and decreed the suit and issued an injunction restraining the 1st defendant from dispossessing the plaintiff from his moiety of the property. Hence this second appeal.

3. Two questions emerge for decision: firstly, whether the Revenue Board's order would bind the plaintiff who was no party thereto; and secondly, whether the 1st defendant can claim a non-suit for lack of the statutory notice to the Government.

4. In Ganpat Rai Hiralal v. Aggarwal Chamber of Commerce; AIR 1952 SC 409 an 'amendment petition' under Section 152 C. P. C. is held not to be continuation of the suit but in the nature of an independent proceeding governed by the law prevailing on its date and not by the law on date of suit It cannot thenbe doubted that the proceeding to set aside the revenue sale is not a continuation of the sale proceedings but a collateral independent proceedings. Here the proceeding to set aside the sale was instituted five years after the confirmation of the sale and two years after delivery of the property to the purchaser. It must be held to have been instituted only on the day the application was made to the Collector to set aside the sale and governed by the law and conditions of that day. Admittedly before that date the 2nd defendant the auction-purchaser had assigned the property in moieties to the plaintiff and Cheriyan. It appears that Cheriyan got himself impleaded in the proceedings. Plaintiff was not made a party to the proceedings throughout its course. The setting aside of a revenue sale affects rights of parties, and Section 33A of the Revenue Recovery Act (Travancore Act I of 1068) requires specific grounds to be made out therefor. It cannot then be doubted that a proceeding to set aside a revenue sale is a quasi-judicial proceeding. It is an elementary principle of natural justice, expressed in the maxim; 'Audi alteram partem', applicable not only to judicial proceedings but to quasi-judicial proceedings like the one concerned here, and even to an 'administrative order which involved civil consequences', that an order or decision cannot be rendered against a person who was not given an opportunity to be heard in the matter. It does not matter whether the revenue sale was defective and therefore voidable under the Revenue Recovery Act. 'It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded.' Ningawwa v. Ryrappa Shiddappa Hirekarabar, AIR 1968 SC 956. Admittedly, long before the 1st defendant moved for setting aside the revenue sale, the plaintiff had purchased the western half of the property from the auction purchaser and that is a valid transaction, even if the revenue sale was voidable, unless it be proved that the plaintiff was aware of the voidability of the revenue sale when he made the purchase which is not the case here. The setting aside of the revenue sale after the property has vested in him under a lawful title, without notice to him, was not warranted in law or equity.

5. Reiving on Section 50 of the Act, which read:

'The Diwan (now Board of Revenue) may for sufficient reason, revise any orders passed or proceedings taken, by aDivision Peishkar (Collector), Tahsildar or Proverthicar (Village Officer) under: the provisions of this Regulation...

Provided that no order shall be passed under this Section without previous notice to the party to be affected by such order.'

Counsel contended that notice on a motion, to set aside the sale or on a motion before the Board of Revenue to revise an order refusing to set aside a sale need be given only to a party to the proceeding and as the plaintiff was no party to the proceedings which led to the revenue sale he was not entitled to the notice of the motion. My attention is invited by counsel to Eravi Pillai Krishna Pillai v. Maluk Mohammed Sahul Hameed. 1953 Ker LT 802 = (AIR 1953 Trav-Co. 494) (FB) where the expression 'parties' in Section 51 of the Revenue Recovery Act has been construed to refer only to parties to the proceedings against whom arrears of revenue were claimed. That section reads;

'Nothing in this Act shall be held to prevent parties, deeming themselves aggrieved by any decision or order passed or proceedings taken, or purporting to be passed or taken under this Act, for arrears due or alleged to be due from such parties from suing the Government in, the Civil Courts.'

The expression 'arrears due or alleged to be due from such parties' in the Section gives the indication as to the meaning of the word 'parties' in that section; and therefore it is clear that in the context of that section the word 'parties' meant only the persons from whom land revenue was claimed in the proceedings. Section 51, as its wording clearly purports, is to remove any doubt on right of suit against the Government to parties aggrieved by proceedings under the Revenue Recovery Act, and it makes clear that the statutory proceedings under the Act will not debar parties from agitating their grievances in a Civil Court. The context of Section 50 is far different. It empowers certain authorities to exercise revisional jurisdiction in proceedings under the Act and in doing so it commands that no order shall be passed in such revision without previous notice to the party to be affected by such order. It does not relate to institution of a proceeding to set aside a revenue sale, but relates only to a far later stage of proceedings before superior authorities sitting in revision of decisions already made by the original authority. The expression 'party' in the context must mean party to the proceeding in which the revision arises. With any stretch of imagination, the provisions of Section 50 cannot be construed to cure a defect of non-joinder of parties to the original proceedings -- here the proceeding to set aside thesale -- which defect is continued in the revision proceedings also.

6. Words in language do not, like symbols in mathematics, carry the same precise meaning in every context. 'It is well settled that the words of a statute, When there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used and the object to be 'attained.' Workmen of Dimakuchi Tea Estate v. Management, AIR 1958 SC 353, at p. 356. Even in an Act, the same expression may have different meanings according to the context in which it occurs. Thus, for example, in Shamrao Vishnu Parulekar v. District Magistrate, Thana AIR 1957 SC 23, the expression the grounds on which the order has been made'' has been held to have different meanings in Section 3 (3) and Section 7 (1) of the Preventive Detention Act, 1950. Venkataraman Ayyar J. delivering the judgment of a Constitution Bench of the Supreme Court, observed:

'The question is whether what the District Magistrate did was sufficient compliance with the requirements of Section 3 (3), and that will depend upon the interpretation to be put upon the words 'grounds on which the order has been made' occurring in that section. Construing these words in their natural and ordinary sense, they would include any information or material on which the order was based ....

The authority making the order under Section 3 (2) is accordingly required to report the fact of the order forthwith to the State along with the grounds therefor, and if the State does not approve of the order within twelve days, it is automatically to lapse. These provisions are intended to regulate the course of business between the State Government and the authorities subordinate to it exercising its power under statutory delegation; and their scope is altogether different from that of Section 7 which deals with the right of the detenue as against the State Government and its subordinate authorities. Section 3 (3) requires the authority to communicate the grounds of its order to the State Government, so that the latter might satisfy itself whether detention should be approved. Section 7 requires the statement of grounds to be sent to the detenue, so that he might make a representation against the order. The purpose of the two sections is so different that it cannot be presumed that the expression 'the grounds on which theorder has been made' is used in Section 3 (3) in the same sense which it bears in Section 7'.

Here, the application to set aside the sale was made nearly two years after confirmation of the sale and delivery of the property to the auction-purchaser, whereas under Section 33-A such motion has to be made within 30 days of the sale and before its confirmation. An assignee from the auction-purchaser cannot expect a reversal of the confirmation of the sale years after the event, without notice to him. Justice requires that even if such belated revision is allowed in law it cannot be made without notice to the person affected thereby. In the context of Section 50 which, it is argued, permits such revisions the word 'party' must necessarily connote a person who would be affected by the order that may be made in such revision. Sister Mary Alosious v. Madhavan Pillai Kumara Pillai, 1956 Ker LT 697 = (AIR 1957 Trav-Co. 116) (FB) assumes without discussion, that the word 'party' in Section 50 meant so. Really, the defect of non-joinder of necessary parties in this case did not arise at the stage of revision; it arose at the very commencement of the proceedings to set aside the revenue sale and continued unmitigated even at the revisional stage. If the transferee was a necessary party at the original stage, he will continue to be necessary party at the revision also.

I accept the finding of the Court below that the order of the Board of Revenue cancelling the sale is invalid and cannot affect the plaintiff's rights.

7. Counsel for appellant next contended that a notice under Section 80 C. P. C. is a condition precedent to the institution of a suit against the government and that having not been done in this case the suit is not maintainable. This is not a case in which no notice under Section 80 C. P. C. has at all been issued. The plaintiff has issued a notice under Section 80 C. P. C. to the government on July 30, 1957. The defect lies only in the premature institution of the suit on July 31, 1957, without waiting for the expiry of two months period prescribed by the section. Even before the State filed its written statement in the case, the two months' period had expired and therefor the prematurity in the institution of the suit has ceased. The State has no case that it has been prejudiced by the insufficiency of the notice period.

8. Counsel for appellant contends that the issuance of a valid notice under Section 80 C. P. C. is a jurisdictional fact and if that had not been satisfied before the institution of the suit the suit cannot be heard at all and cited State of Madras v. C. P. Agencies, AIR 1960 SC 1309 where Section 80 has been held to be mandatory and admitting no exception so that 'no suit shall be filed against the Government ... until after the expiry oftwo months from the service of a notice in the manner therein prescribed,' But in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, AIR 1964 SC 1300 the Supreme Court has cited with approval AL. AR. Vellayan Chettiar v. Government of Madras, 74 Ind App. 223 at p. 228 = (AIR 1947 PC 197 at p. 199) where the Privy Council held the provisions of Section 80 C. P. C., though mandatory, waivable by the authority for whose benefit they were provided. It indicates that a notice under Section 80 C. P. C. cannot be a jurisdictional condition. The Supreme Court has not said that a notice under Section 80 C. P. C. is a condition of jurisdiction of the Court to hear the suit. When it is said that such notice might be waived by the Government it becomes obvious that the inherent jurisdiction of the Court is not dependent on it.

The expression 'jurisdiction' is used indifferent senses. In the sense of inherent jurisdiction, it is a virtue of the Court and is not dependent on the consent or dissent of parties, and its lack would make orders and decisions ultra vires, null and void and therefore challengeable even in collateral proceedings. On the other hand, in the sense of pecuniary jurisdiction or territorial jurisdiction which sets the limits of exercise of the powers of a Court it is waivable by the parties -- such waiver will be presumed conclusively under Section 21 C. P. C. and Section 11 of the Suits Valuation Act if objection is not taken before settlement of issues for trial -- and its want would make the decision, at the worst, only voidable in an appeal but unchallengeable in collateral proceedings. I have held in Nani Amma Nandini Aroma v. State of Kerala, AIR 1963 Ker 114 that 'Section 80 C. P. C. is not a provision of public policy but one for the benefit of particular parties who are competent to waive or disregard it. The indication is then clear that the requirements of the notice and expiry of a particular period thereafter are not jurisdictional facts, for jurisdiction cannot be dependent on the consent or waiver of a party.' Nothing has been urged now to persuade me to adopt a different view here.

9. In the present case, though the State in its written statement raised an objection to the maintainability of the suit for want of sufficient notice to it under Section 80 C. P. C., it has not challenged the decision of the Additional District Judge repelling that objection. Counsel for appellant urges that as an objection to the maintainability of the suit, it is open to any party in the suit to urge it. I do not feel persuaded by this argument. It is an elementary rule in judicial proceedings that nobody can pleadjus tertii as a defence. As pointed out by the Supreme Court the object of Section 80 C. P. C. is only to give the government notice of the suit proposed to be brought against it so that it may decide for itself whether the claim of the plaintiff should be accepted or resisted. (AIR 1960 SC 1309). The benefit of the Section 80 is only to the government and its officers, and not to private parties. It cannot then be availed of by a private party who is made a defendant to the suit along with the State.

In Hirachand Himatlal Marwari v. Kashinath Thakurji Jadhav, AIR 1942 Bom 339 Macklin J., with concurrence of Broomfield J., has observed:

'It is open to the party protected by Section 80 to waive his rights, and his waiver binds the rest of the parties. But only he can waive notice, and if that is so it is difficult to see any logical basis for the position that a party who has himself no right to notice can challenge a suit on the ground of want of notice to the only party entitled to receive it. We think therefore that this ground of attack is not open to defendant 3; ....'

This decision has been cited with approval in Gaja v. Dasa Koeri, AIR 1964 All 471 as holding 'a party who has himself no right to notice cannot challenge a suit on the ground of want of notice.'

In Raghubans Sahai v. Ful Kumari (1905) ILR 32 Cal 1130 the first contention of the appellant was 'that the Secretary of State is a necessary party to the suit and as the notice mentioned in Section 424 of the Civil Procedure Code was not served upon him in time, the suit has been improperly instituted and ought to be dismissed.' Mr. Justice Asutosh Mookerjee, with concurrence of Mr. Justice Harington observed:

'As regards the first contention advanced on behalf of the appellant, reliance is placed upon the decision of this Court in the case of Gobinda Chandra Saha v. Hemanta Kumari Debi, (1904) ILR 31 Cal 159 which appears to me to be clearly distinguishable. That case is an authority for the proposition that in a suit to set aside a sale effected under the provisions of the Public Demands Recovery Act, 1895, the Secretary of State for India in Council is a necessary party. In the case before me, the Secretary of State was joined as a party; the only objection is that the notice required by Section 424 of the Civil Procedure Code, was not served upon him two months before the institution of the suit. This objection in my opinion ought not to prevail for two reasons. In the first place, this objection can be taken only by the Secretary of State for whose benefit the notice is intended; but althoughthe objection was taken on his behalf in the Court of first instance and was overruled, the objection has not been pressed by him in this Court; indeed, although the point was decided against the Secretary of State by the first Court, no appeal was preferred by him, and though he was a party respondent to this appeal, he has not chosen to enter appearance. In the second place, there is no substance in this objection. Section 424 of the Civil Procedure Code, requires that the notice must state the cause of action and the relief claimed by the plaintiff. In the present case, however, no relief is claimed by the plaintiff on the ground of fraud against the Secretary of State; no fraud is charged against him, and consequently there can be no cause of action against him based on the ground of fraud. Under these circumstances it would be impossible to serve a notice fulfilling the requirements of Section 424. This view receives some support from the case of Shahebzadee Shahunshah Begum v. Fergusson, (1881) ILR 7 Cal 499 where Cunningham J. held that the intention of Section 424 is to give to Government as represented by the Secretary of State and to the servants of Government in the discharge of their public duties, the same protection as English Statutes confer on many public officers and bodies, namely that when it is alleged that they have committed an illegality in the discharge of their duties they shall have time and an opportunity of making amends before the matter is brought into Court. This is also in accordance with the decision of the Allahabad High Court in the case of Muhammad Saddiq Ahmad v. Pannalal, (1904) ILR 26 All 220. The first objection therefore taken by the appellant on the ground that the notice under Section 424 of the Civil Procedure Code, was not served in time on the Secretary of State must be overruled,'

In Bhola Nath Roy v. Secretary of State for India, (1913) ILR 40 Cal 503 the first defendant to the suit was the Secretary of State for India in Council. In his written statement he urged that the notice under Section 80 of the Code of Civil Procedure served by the plaintiffs was not sufficient, proper and in accordance with law. On the 2nd May 1910 the Court framed 7 issues, which did not include an issue upon the question of the legality, validity and sufficiency of the notice under Section 80. The suit came for trial on the 13th January 1911, after certain interlocutory proceedings. On that date the 2nd defendant prayed that a new issue might be raised; and upon that an additional issue on the legality, validity and sufficiency of the notice under Section 80 was raised. The Court of first instance decreed thesuit in favour of plaintiffs. On appeal by the defendants the District Judge held the notice not valid and reversed the decree and returned the plaint to the plaintiffs. On further appeal by plaintiffs, a Bench of the Calcutta High Court presided by Sir Asutosh Mookcrjee and Beachcroft JJ. held;

'..... .although, in the first paragraphof the written statement of the Secretary of State for India in Council, an objection was taken to the validity of the notice, no issue was raised upon the point. We must assume that the issues were framed in the presence of the parties or their representatives. At any rate, they had notice of the date when the issues would be settled by the Court, and it was incumbent upon them to be represented on the occasion. But even if it be assumed that the issues were framed in the absence of the Government Pleader, it is plain that he might have taken exception to the issues as framed and asked the Court to frame an additional issue. No objection, however, was taken by him at any stage of the trial in the Court of first instance. It was the second defendant who prayed, just before the trial began, that an additional issue might be raised upon the question of the validity of the notice. But it was clearly incompetent to the second defendant to raise the question. As was pointed out by this Court in Manindra Chandra Nandi v. Secretary of State for India (1907) 5 Cal LJ 148, it is competent for the Secretary to State to waive the notice, and he may be estopped by his conduct from pleading the want of notice at a late stage of the trial. In the events which have happened, we are clearly of opinion that in this case notice was waived on behalf of the Secretary of State, and that the question could not have been raised by the 2nd defendant. The second ground,' therefore, must prevail.

The result is that this appeal is allowed, the decree of the District Judge set aside and the case remanded to him in order that the appeal may be heard on the merits.'

Parallel arc the facts in this case. The State had taken exception to the maintainability of the suit for want of two months' notice under Section 80 C. P. C. but the Additional District Judge has overruled it. Although the State is a party to this appeal it has not objected to that finding. It must then be deemed to have waived its objection to the maintainability of the suit for insufficiency of Section 80 notice. It is not open to the appellant to take the string and urge the contention as the benefit of the section is available only to the State and its officers and to none other. To allow the appellant to urge a defence that the Stateonly could have taken, is to allow a party to fight the case of another which would offend the principle tabooing defence of jus tertii. I hold that the defect of notice under Section 80 C. P. C. cannot be urged by the appellant in this case.

10. In the result, both the grounds urged in this second appeal fail. This appeal is accordingly dismissed. But in the circumstances of this case, I make no order as to costs here.


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