Govinda Menon, J.
1. In view of the finding of the lower appellate Court refusing to rely upon the evidence of D. W. 6 that he affixed the notice to survey number 321 on the outer door of the shop, the lower appellate Court was justified in coming to the conclusion that the appellant did not have notice of the survey as contemplated in Section 9 (ii), Madras Survey and Boundaries Act. , The question then arises asto whether such a survey without notice tothe party concerned, when it is adverse to him,is binding on him, if he has not brought asuit to set aside the survey within three yearsas contemplated in Section 14 of the Act. The expression in Section 13 is .'when the survey of any land or boundarywhich has been notified under Section 5 has beencompleted in accordance with the orderspassed under Sections 9, 10 or 11 etc., etc.'The question is, whether there has been acompletion of the survey in accordance withthe orders passed under Section 9, if no notice ofthe survey has been given to the party concerned. The learned Judge held that thewords 'in accordance with the orders' cannotbe said to be synonymous with 'in accordancewith the provisions laid down'. I am unableto agree. When a Statute says that an ordershould be passed under section so and so, itcontemplates the fulfilment of all the necessary formalities which have to be completedunder tho section. Here the non-observance ofthe giving of a notice to the party would make(he order passed not one correctly passedunder the section. If the officer passes anorder without complying with the requisitesof the section, it cannot be said that it is anorder passed under the section. I am, therefore, inclined to hold that the appellant is nothound to file a suit within three years to setaside the order of the Survey Officer becausehe had no notice of the survey.
2. The next point is whether the learned Judge is right in holding that the decision o the District Judge of Ramnad in App. No. 182 of 1944 is not binding on the parties. That appeal arose out of a suit for a similar relief and in the trial Court, the present plaintiff was given a decree. In the Court of appeal, it was contended before the learned District Judge that the suit should have been dismissed because the requisite notice under Section 80, Civil P. C. had not been given. In the alternative, it was contended that liberty may be given to the plaintiff to file a fresh suit after comply-ing with the provisions of Section 80, Civil P. C. The relevant portions of the learned District Judge's judgment are as follows:
'If at all the lower Court felt that the plaintiff was entitled to some indulgence, it ought to have merely given him the liberty to file a fresh suit on the same cause of action after giving notice under Section 80, Civil P. C. to the Government.' The learned District Judge accepted the second alternative and held as follows: 'I also give the plaintiff liberty to file a fresh suit on the same cause of action against both the defendants after giving the necessary notice under Section 80, Civil P. C., to Government.'
When a party to an appeal has induced the Court to pass an order on a certain representation made to the Court, tha.t party cannot later on be heard to say that the order passed by the Court on his request is illegal. It seems to me that if the learned District Judge of his own accord had dismissed the suit and given the plaintiff liberty to file a fresh suit, then his order would have been illegal under Order 23, R. 1 which definitely states that the leave to file a fresh suit can be given only when the suit is allowed to bo withdrawn, on account of the fact that the suit is bad for some formal defect. But here, it was at the instance of the respondents that the District Judge on that occasion granted the plaintiff permission to file a fresh suit after dismissing his suit. If a request like that had not been made at the instance of the Government, probably the District Judge would have permitted the plaintiff herein to withdraw the suit with permission to file a fresh suit and in that case nothing could have been said against the propriety of the order made by the District Judge on that occasion. The Government, like any other party, cannot be allowed to approbate and reprobate. I feel constrained to hold that the Government cannot now be heard to say that the present suit is not sustainable because of the provisions of Order 23 Rule 1, Civil P. C. In this view, it is unnecessary for me to discuss the decisions relied upon by the learned Subordinate Judge as well as those cited before me by Mr. Srinivasan for the respondents that it is not open to a Court when a suit is dismissed to grant leave to file a fresh suit. That is perfectly sound law against which nothing could be said but none of those decisions go to the extent of saying that if a defendant requests the Court to dismiss a suit and grant permission to the plaintiff to file a fresh suit and when such a fresh suit is filed, he can turn round and say that the Court which granted him permission should not have done so. Both the points on which the learned Subordinate Judge has found against the plaintiff, thus failing and the lower appellate Court having found title in the plaintiff, the plaintiff's suit ought to be decreed.
3. I, therefore, set aside the decision of thelower appellate Court and restore that of theDistrict Munsif with costs throughout. (Noleave).