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Sree Raja Venkata Rangiah Appa Rao Bahadur and anr. Vs. the Secretary of State for India in Council Represented by the Collector of Kistna and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1931Mad175; (1930)59MLJ923
AppellantSree Raja Venkata Rangiah Appa Rao Bahadur and anr.
RespondentThe Secretary of State for India in Council Represented by the Collector of Kistna and ors.
Cases ReferredBhagchand Dagadusa v. Secretary of State
Excerpt:
- - the plaint seeks for a declaration of the right set forth therein in favour of both the plaintiffs and the suit is clearly framed in such a manner as to make it one in which the reliefs mentioned therein are sought for on behalf of both the plaintiffs. ) it seems to me that the dictum so clearly laid down by the privy council will have to be followed in deciding a question of this kind. ). it was contended in that case, that even if the non-compliance with section 80 defeated the action as against the secretary of state, it could be proceeded with as against the other defendant. not only has the suit been throughout a joint proceeding against the officials concerned, for the purpose of getting a joint declaration that the government notification was bad as the foundation of..........therefrom. both the courts below have rejected the plaints in these cases under order 7, rule 11, civil procedure code, on the ground that the notice under section 80, civil procedure code, was not given to the 1st defendant in the manner required by that section. the only question now arising for consideration is, whether the view taken by the courts below is correct.2. the village in which the suit inams are situate belonged to the 1st plaintiff. it' is admitted in the plaint that the 1st plaintiff has sold the suit village to the 2nd plaintiff and under the contract of sale the 2nd defendant has been put in possession of the village also. the plaint seeks for a declaration of the right set forth therein in favour of both the plaintiffs and the suit is clearly framed in such a manner.....
Judgment:

Sundaram Chetty, J.

1. These three are connected appeals arising out of three suits brought by the plaintiffs (appellants) against the Secretary of State for India in Council as the 1st defendant and some other defendants in possession of the suit lands, in order to establish the plaintiffs' right to resume the suit inams and for a declaration that the 1st defendant had no right to enfranchise these inams and also for the recovery of possession of these lands ejecting the other defendant's therefrom. Both the Courts below have rejected the plaints in these cases under Order 7, Rule 11, Civil Procedure Code, on the ground that the notice under Section 80, Civil Procedure Code, was not given to the 1st defendant in the manner required by that section. The only question now arising for consideration is, whether the view taken by the Courts below is correct.

2. The village in which the suit inams are situate belonged to the 1st plaintiff. It' is admitted in the plaint that the 1st plaintiff has sold the suit village to the 2nd plaintiff and under the contract of sale the 2nd defendant has been put in possession of the village also. The plaint seeks for a declaration of the right set forth therein in favour of both the plaintiffs and the suit is clearly framed in such a manner as to make it one in which the reliefs mentioned therein are sought for on behalf of both the plaintiffs. Ex. I, which is dated the 22nd of July, 1921, is the notice sent by the 1st plaintiff alone to the Government under Section 80, Civil Procedure Code. The question is, whether the present suit brought by two plaintiffs in the manner above set forth is maintainable when the notice' required by Section 80, Civil Procedure Code, was given by the 1st plaintiff alone; in other words, whether such a notice can be deemed' to be a sufficient compliance with the requisites of Section 80. That section lays down that no suit shall be instituted against the Secretary of State for India in Council, unless two months before the institution of that suit a notice in writing was given stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims. There should also be an averment in the plaint that such a notice was delivered or left as stated in the aforesaid section. As regards the provisions in. Section 80 being strict and mandatory or not, it would appear there was some difference of opinion expressed in some of the rulings relating to this section. In some decisions, a strict view was taken, but, in other cases, a liberal construction was placed upon this section and any defect or irregularity was condoned if it was found to be immaterial or unsubstantial. My attention was drawn to those decisions, but in view of the latest pronouncement by their Lordships of the Privy Council in the case Bhagchand Dagadusa v. Secretary of State for India (1927) L.R. 54 IndAp 338 : I.L.R. 51 B. 725 : 53 M.L.J. 81 (P.C.) it seems to me that the dictum so clearly laid down by the Privy Council will have to be followed in deciding a question of this kind. At page 747, their Lordships have observed thus :

The Act, albcit a Procedure Code, must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and man datory, and it admits of no implications or exceptions.

3. Later on, their Lordships further state thus :

To argue, as the appellants did that the plaintiffs had a right urgently calling for a remedy, while Section 80 is mere procedure, is fallacious, for Section 80 imposes a statutory and unqualified obligation upon the Court.

4. In view of such a clear pronouncement, it is no longer open to argue that the Courts can make exceptions or qualifications to the explicit terms of Section 80 on account of considerations of hardship and absence of prejudice or detriment to the interests of the Government. If the requisites of Section 80 should be literally complied with, I must say that the giving of notice about the suit claim by one plaintiff would not be a strict compliance with the mandatory provisions of Section 80, when the suit is actually filed by two plaintiffs, though one of them happens to be the person that gave the notice. There should be identity of the person who 'issued the notice with the person that brings the suit. In this view, it has been held that a suit brought by a legal representative of a deceased man and a son brought by a transferee would offend against Section 80, Civil Procedure Code, if the notice required by that section was given by the deceased man or by the transferor. Vide Bachchu Singh v. The Secretary of State for India in Council I.L.R. (1902) A. 187 and Mahadev v. Secretary of State : AIR1930Bom367 . As the dictum of the Privy Council indicates that it is no longer left to the discretion of the Court to hold in favour of the maintainability of a suit in spite of non-compliance with some of the requisites of the section, I have to find against the maintainability of the present suits on the ground that the notice as required by Section 80, Civil Procedure Code, was not given.

5. It is argued by the learned Advocate for the appellants that even if a strict interpretation of Section 80 is made, the plaint, as a whole, should not be rejected, but only so far as the 2nd plaintiff is concerned. If it is a case of rejection of the plaint owing to non-compliance with Section 80, it is not clear how there can be a partial rejection of the plaint in respect of a portion of the claim or as regards some of the parties. A similar question was considered by the Allahabad High Court in the case reported in Raghubans Puri v. Jyofis Swarupa I.L.R. (1907) A. 325. Referring to Section 54 of the old Civil Procedure Code, the learned Judges state that that section only provides for the rejection of a plaint in the event of any matters specified in that section not being complied with and it does not justify the rejection of any particular portion of a plaint. Section 54 now corresponds to Order 7, Rule 11, Civil Procedure Code. The plain meaning of that rule seems to be that if any of the defect's mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. It does not imply any reservation in the matter of the rejection of the plaint. Non-compliance with the requisites of Section 80, Civil Procedure Code, was taken to be a ground covered by Clause (d) of Rule 11 above referred to. Even if it should be taken that that clause does not strictly apply to the present cases, I must hold that the suits are liable to dismissal on account of non-compliance with Section 80, Civil Procedure Code.

6. It is urged on behalf of the appellants that if it should be taken that the suits have to be dismissed, then, so far as the defendants other than the 1st defendant are concerned, the suits may be allowed to be proceeded with. There is real difficulty in acceding to this argument advanced on the appellants' side. If these suits should stand dismissed as against the 1st defendant, it means that the Government's right to resume these inam lands stands unaffected and the plaintiffs have no right as against the Government to resume the same. That being so, their claim to recover possession of these lands from the other defendants should fall to the ground, for the simple reason that they have no right to resume these inams. In this connection I may also refer to an observation made by the Privy Council in the said Bhagchand Dagadusa v. Secretary of State for India (1927) L.R. 54 IndAp 338 : I.L.R. 51 B. 725 : 53 M.L.J. 81 (P.C.). It was contended in that case, that even if the non-compliance with Section 80 defeated the action as against the Secretary of State, it could be proceeded with as against the other defendant. To meet this argument, their Lordships have observed thus:

Not only has the suit been throughout a joint proceeding against the officials concerned, for the purpose of getting a joint declaration that the Government Notification was bad as the foundation of everything subsequently done, but, without the presence of the Secretary of State before the Court, the Notification could not be assailed, and, if it stands as valid, the Collector's own action could not be successfully impugned.

7. Similarly, in the present case, if the claim put forward by the plaintiffs against the 1st defendant fails, it cannot succeed against the other defendants. However, the above observation in that ruling was sought to be distinguished on the ground that in that case there was a necessity of giving notice under Section 80 even in respect of the 2nd defendant; and, in the present case, there was no necessity to issue any such notice to the other defendants. But I do not think the observation of their Lordships as to the non-maintainability of the action against the 2nd defendant depended on this circumstance, namely, the necessity of a notice even to the 2nd defendant.

8. The defect pointed out above being fatal to the maintainability of the suits, either the suits are liable to dismissal or the plaints are liable to rejection, In either view, the order of the Lower Appellate Court seems to be correct. I, therefore, dismiss these second appeals with cost's.


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