Jagat Narayan, J.
1. These are two appeals against the judgment and decree passed by the learned Civil Judge, Jaipur, on 22-12-1952.
2. Girdhari Lal instituted a suit on 2-2-1950, out of which these appeals have arisen. The allegations were that the Public Works Department of the then Jaipur State invited tenders for the construction of a hospital at Jhunjhunu, and the tenders submitted by Girdhari Lal were formally accepted on 4-2-1947 (Ex. 2). It is alleged that the term of the agreement was that the construction should becompleted within one year of the date of the commencement of the work.
The date of the commencement was mentioned. to be 12-4-1946, when the Executive Engineer asked Girdhari Lal to take the work in hand at an early date. It was alleged that Girdhari Lal collected materials and labour for starting the work, but whenever he started the work, he was told by the officers of the P. W. D. of the former Jaipur State not to start construction, and a letter in writing was given to him on 25-6-1946, Ex. D. 1, that he should not start work, as the design had been changed.
The plaintiff waited for a sufficiently long time, and wrote to the Government on 1-7-1948, that he should be permitted to start construction or, in case it had been decided not to have the hospital built, the plaintitf should be so informed, and the Government should pay damages to the tune of Rs. 15,200/- for breach of contract.
It was alleged in para 8 of the plaint that the petitioner gave notice under Section 80 of the Code of Civil Procedure to the Jaipur Government on 11-12-1948, through the Chief Secretary of the Mahakma Khas, claiming Rs. 15,200/- as damages for breach of the contract. It was .said that the Secretary to the Government, Ministry of Public Works, Jaipur, wrote on 19-3-1949, denying the liability. It was alleged that the Rajasthan Government was the successor Government of the former Jaipur State, and the liability of the former Jaipur State devolved under the law on the Rajasthan Government, and, therefore, the present suit was instituted for the recovery of Rs. 15,200/- against the Government of Rajasthan.
3. The Government of Rajasthan took various pleas. It was pleaded that no completed contract had been concluded, and that there was no breach of contract, and that the plaintiff had not suffered any damages.
4. The learned Civil Judge came to the conclusion that there was a breach of the contract, and allowed Rs. 5000/- by way of damages by judgment dated 22-12-1952. The State has filed appeal No. 15 of 1953, against the said decree. Girdhari Lal also filed an appeal, which is No. 16 of 1953, claiming that Ms entire claim for Rs. 15,200/- should have been decreed.
5. The learned Deputy Government Advocate urged that the notice given by the plaintiff to the former Jaipur State was of no avail in the present suit, which was filed against the Rajasthan State,
6. The Division Bench, which heard the case, has referred the following question by an observation that the view taken in Maujiram Khayaliram v. Union of India, 1956 Raj LAV 542 required to be reconsidered:
'Whether the notice dated 11-12-1948, served by the plaintiff Girdhari Lal on the Chief Secretary, Mahakma Khas, State of Jaipur, claiming damages for breach of contract entered into between the former Jaipur State and Girdhari Lal is a sufficient compliance with the provisions of Section 80 of the Indian Code of Civil Procedure as adapted in Rajasthan by Ordinance No. V of 1950, in respect of a suit instituted by Girdhari Lal for recovery of damages for breach of the aforesaid contract on 2-2-1950. against the Government of Rajasthan, i.e. the State of Rajasthan?'
7. When the rase came up for hearing before this Full Bench, learned counsel for the respondent contended that even if the notice be assumed to bb invalid so far as the Rajasthan Stale was concerned, the objection could not be raised at the appellate stage, and must be deemed to have been waived in the circumstances of the present case. After hearing learned counsel for the parties, we are of opinion that in the circumstances of this case, the objection as to want of notice to the Government of Rajasthan. must be deemed to have been waived.
8. There was some conflict of opinion amongthe High Courts in India as to whether the objection. as to want of notice or invalidity of notice under Section 80 could be waived, but the controversy has been set at rest by a decision of the Privy Council in Vellayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197. It was observed:
'There appears to their Lordships to be no reason why the notice required to be given under Section 80, should, not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required: if in the particular case Re docs not require that protection and says so, he can lawfully waive his right.'
9. As to what acts of the defendant were necessary to constitute a waiver, the observations of their Lordships of the Supreme Court in Dhian Singh Sobha Singh v. Union of India AIR 1958 SC 274 at p. 282 are pertinent:
'It is relevant to note that neither was this point taken by the respondent in the written statement which it filed in answer to the appellants claim not was any issue framed in that behalf by the Trial Court and this may justify the inference that the objection under Section 80 had been waived.'
10. In the present case, the plea as to want of notice or the insufficiency of notice which was given to the then Government of Jaipur was not raised by the defendant State of Rajasthan, and no issue was framed on this question. The contention on behalf of the Rajasthan State that the notice given by the plaintiff to the then State of Jaipur was not sufficient compliance with Section 80 in the present suit, which was instituted against the State of Rajasthan, was taken for the first time En appeal. We are of opinion that it is not open to the Rajasthan State to raise that plea now, which on the authorities mentioned above, must be deemed to have been waived, It is, therefore, not necessary to consider whether 1956 Raj LW 542 had been correctly decided.
11. The case is accordingly returned to the Division Bench with our opinion as mentioned above.