Skip to content


Bodi Venkataswami and ors. Vs. Adada Mahalakshmi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1949)1MLJ602
AppellantBodi Venkataswami and ors.
RespondentAdada Mahalakshmi and anr.
Cases Referred(Vellayan Chettiar v. Government of
Excerpt:
- - such waiver on the part of the person principally concerned affects the other parties as well......he relied on the decisions of this court interpreting the analogous provisions of section 80, civil procedure code, namely, tne government of the province of madras v. vellayan chettiar (1944) 2 m.l.j. 65 and chidambaram chettiar v. municipal council, karaikudi and the province of madras a.s. no. 126 of 1941 (unreported). in the former case it was held by leach, c.j. and shahabuddin, j., that section 80, civil procedure code, was express, explicit and mandatory and admitted of no exceptions. if the notice required by that section was not given, the court had no jurisdiction to try the suit. in the latter case it was held by leach, c.j. and lakshmana rao, j., following the decision in madhav rao anand rao v. the collector of kolaba (1890) 6 bom. printed judgments, p. 386 that the.....
Judgment:

Viswanatha Sastri, J.

1. Defendants I to 4 have preferred this second appeal from the appellate decree of the District Judge of Vizagapatam declaring the title of the plaintiff and granting her an injunction in respect of a plot of land of the extent of about 12 cents and a palmyra hedge situate therein in the village of Jannavaram in the Vizianagaram zamindari. The litigation which concerns property of a trifling value has had a long and sinuous course coming, as it does, for the fifth time for adjudication by a judicial tribunal. The melwaram in the land vests in the Zamindar of Vizianagaram within the limits of whose estate the property is situate. The Court of Wards had been in management of the Vizianagaram Zamindari during the period with which we are concerned in this case. The District Munsif who first tried the suit dismissed it on 26th October, 1943, on the ground that the plaintiff had not proved her title to the plot in question or her possession of it within 12 years of suit. The plaintiff appealed to the Subordinate Judge of Vizagapatam who, instead of deciding the question of disputed title between the plaintiff and defendants 1 to 4 each of whom claimed only a kudiwaram interest in the land, held quite unnecessarily, that the presence of the Court of Wards in charge of the Vizianagaram zamindari before the Court was necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the suit and remanded the suit to the District Munsif for disposal after making the Court of Wards a party. The judgment of the Subordinate Judge was delivered on 2nd August, 1944 and the unfortunate plaintiff was obliged to apply and did apply to make the Court of Wards a party defendant to the suit. The application was ordered on 18th September, 1944 and the Court of Wards was impleaded as the fifth defendant. Then started fresh trouble for the plaintiff. The Court of Wards promptly filed a written statement that it was not a necessary party to the suit and that the suit itself was not maintainable in law as the statutory notice of two months had not been given to it as required by Section 49(1) of the Madras Court of Wards Act (I of 1902). At the fresh hearing after remand certain documents including the Survey and Settlement Register of the village of Jannavaram were filed and a fresh issue was framed as to the maintainability of the suit without the notice required by Section 49 of Madras Act I of 1902. The District Munsiff found in favour of the plaintiff's title and granted the declaration and injunction sought by her. Defendants I to 4 preferred an appeal to the District Court of Vizagapatam which affirmed the decision of the District Munsiff. Hence this second appeal.

2. Two questions were argued by Mr. E. Venkatesam, the learned Counsel for the appellants. First he contended that the suit should have been dismissed for want of the notice required by Section 49 of the Madras Court of Wards Act. He contended that two months' previous notice was a condition precedent to the maintainability of the suit and the Court had no jurisdiction to entertain or decide the suit without such notice. He contended that the plaintiff in the present case should have given the Court of Wards two months' notice, waited for the expiry of the two months and then applied to the trial Court for impleading the Court of Wards as a party. The same contention was urged beford the learned District Judge who held that, though-the Court of Wards through its advocate waived all objections on the ground of want of notice, there could be no waiver of the statutory notice of two months which was a peremptory and fundamental pre-requisite of every suit against the Court of Wards. He relied on the decisions of this Court interpreting the analogous provisions of Section 80, Civil Procedure Code, namely, Tne Government of the Province of Madras v. Vellayan Chettiar (1944) 2 M.L.J. 65 and Chidambaram Chettiar v. Municipal Council, Karaikudi and the Province of Madras A.S. No. 126 of 1941 (unreported). In the former case it was held by Leach, C.J. and Shahabuddin, J., that Section 80, Civil Procedure Code, was express, explicit and mandatory and admitted of no exceptions. If the notice required by that section was not given, the Court had no jurisdiction to try the suit. In the latter case it was held by Leach, C.J. and Lakshmana Rao, J., following the decision in Madhav Rao Anand Rao v. The Collector of Kolaba (1890) 6 Bom. Printed Judgments, p. 386 that the giving of notice under Section 80, Civil Procedure Code, was necessary even when the Provincial Government was added as a party to a suit already instituted pursuant to an order of Court directing the addition of the Government as a party. The District Judge, though he purported to follow the above decisions, nevertheless held that the prior order of the Subordinate Judge directing the Court of Wards to be added as a party to the suit operated as res judicata and the objection to the maintainability of the suit for want of the statutory notice was no longer available to the defendants after the order of remand. I confess my inability to understand this reasoning of the District Judge. I consider, however, that the learned District Judge went wrong on the question of waiver and that the decisions of this Court relied upon by him have been superseded by a recent pronouncement of the Judicial Committee.

3. No doubt the Privy Council held in Bhagchand Dagadusa v. Secretary of State for India (1927) 53 M.L.J 81 : I.L.R. 51 Bom. 725 (P.C.), that Section 80 of the Civil Procedure Code was express, explicit and mandatory and admitted of no implications or exceptions. In spite of this emphatic statement of the effect of this section, it is permissible to look at its object and purpose. It is to give to the Government or the Public Officer concerned, an opportunity to re-consider his position and to make amends or settle the claim, if so advised, without litigation and waste of public money, see Secretary of State for India in Council v. Perumal Pillai (1900) 11 M.L.J. 117 : I.L.R. 24 Mad. 279, and Secretary of State for India v. Gulam Rasul I.L.R. (1916) 40 Bom. 392. This being the object of the statutory requirement as to two months' notice, it was held by the Courts in this country that the notice under Section 80 might be waived by the defendant concerned, Bholanath Roy v. Secretary of State for India I.L.R. (1912) Cal. 503, Gangadas Sil v. Secretary of State for India in Council (1916) 20 C.W.N. 636, and that the defendant might be estopped from pleading want of notice if in any particular case the facts were sufficient to sustain a plea of estoppel, Manindra-Chandra Nandi v. Secretary of State I.L.R. (1907) Cal. 257. After the decision in Bhagchand Dagadusa v. Secretary of State for India (1927) 53 M.L.J. 81 : I.L.R. 51 Bom.725 (P.C.) a very strict view began to be taken by this Court of the provisions of Section 80, Civil Procedure Code, see Apparao v. Secretary of State for India in Council : AIR1931Mad175 . It was held in Marina Ammayi v. Secretary of State for India in Council : (1941)1MLJ328 that it was not open to the Collector to waive the plea of want of notice under Section 80, Civil Procedure Code and reliance was placed for this conclusion on Bhagchand Dagadusa v. Secretary of State for India (1927) 53 M.L.J. 81 : I.L.R. 51 Bom. 725 (P.C) and Gaekwar of Baroda State Railway v.. Hafiz Habib U Haq (1938) 2 M.L.J. 11 : L.R. 65 IndAp 182 : L.R. 1938 All. 601 (P.C). This view was again affirmed by this Court in The Government of the Province of Madras v. Vellayan Chettiar (1944) 2 M.L.J. 65. In the case last cited the Subordinate-Judge of Devakottai held (a) that the notice issued by the plaintiff was substantially in compliance with the requirements of Section 80, Civil Procedure Code; (b) that even if that were not the case, the Provincial Government had waived the right to question the notice; and (c) that in any event the Government was estopped by its conduct from pleading that the notice was defective. This Court (Leach, C.J. and Shahabuddin, J.) reversed the judgment of the Subordinate Judge on all the three points and held inter alia that there could be no question of waiver or estoppel as it was a matter affecting the jurisdiction of the Court to try the action.. Reliance was placed on the decision of Venkatararnana Rao, J., in Marina Ammayi v. Secretary of State for India in Council : (1941)1MLJ328 and two decisions of the Judicial Committee already referred to. The other High Courts, however, held notwithstanding the two decisions of the Judicial Committee aforesaid, that it was open to the Government or a public officer to waive the notice required by Section 80, Civil Procedure Code, and that in a proper case there could be an estoppel by conduct against pleading the want of notice as a bar to the suit. See Hirachand Himatlal v. Kasinath Thakurji : AIR1942Bom339 , Erashshaw Hormasji v. Secretary of State I.L.R. 1943 Bom. 186, Purnachandra Sarkar v. Radharani Dasya : AIR1931Cal175 , Ramanarain v. Ramkishan : AIR1934Pat354 and Charuchandra v. Snigdhendu Prosad : AIR1948Cal150 . But the learned Judges of this Court who decided the case in Government of the Province of Madras v. Vellayan Chettiar (1944) 2 M.L.J. 65, dissented from the decisions of the other High Courts on the ground that the learned Judges who decided those cases had paid no sufficient regard to the wording of Section 80, Civil Procedure Code and to its interpretation. by the Judicial Committee in Bhagchand Dagadusa v. Secretary of State for India (1927) 53 M.L.J. 81 : I.L.R. 51 Bom. 725 (P.C)

4. The appeal to the Privy Council was from the decision of this Court in Government of the Province of Madras v. Vellayan Chettiar (1944) 2 M.L.J. 65, and the case squarely raised the question whether the view of this High Court or the contrary view of the other High Courts on the points of waiver and estoppel was correct. The report of the argument before the Judicial Committee shows that all the relevant cases on the topic were cited before the Board. Lord Simonds who delivered the judgment of the Hoard distinguished the prior decision of the Board delivered by Lord Sumner in. Bhagchand Dagadusa v. Secretary of State for India (1927) 53 M.L.J. 81 : I.L.R. 51 Bom 725 (P.C.) in this way:

In the case Bhagchand Dagadusa v. Secretary of State for India (1927) 53 M.L.J. 81 : I.L.R. 51 Bom 725 (P.C.), to which reference has already been made, no question of waiver arose. The observations of Lord Sumner in delivering the opinion of the Board were directed solely to the construction of the section and cannot, in their Lordships' opinion, be regarded as deciding that it is not competent for the authority for whose benefit the right to notice is provided, to waive that right. There is no inconsistency between the propositions that the provisions of the section are mandatory and must be enforced by the Court, and that they may be waived by the authority for whose benefit they are provided.' (Vellayan Chettiar v. Government of the Province of Madras (1947) 2 M.L.J. 208 : L.R. 74 IndAp 223 : I.L.R. 1948 Mad. 214 (P.C.))

Later in the course of the judgment their Lordships dealt with the question of estoppel and found that there can be no basis for that plea on the facts of the particular case. It may now fee taken as established that a plea of the want of notice required by Section 80, Civil Procedure Code, or a plea that the notice issued under Section 80 does not conform to the requirements of that section, may be waived by the Government or public officer entitled to such notice.

5. The contrary view taken by the Madras High Court is no longer law. I have discussed the matter at some length as it was argued by the learned Counsel for the appellants that a decision on these points was unnecessary in the view the Judicial Committee took of the form and contents of the notice issued under Section 80, Civil Procedure Code. I consider that their Lordships of the Judicial Committee deliberately corrected what they felt was an erroneous view taken by this Court differing from the other High Courts and even if their pronouncement was obiter it is far too clear and explicit to be ignored by this Court.

6. I therefore consider that it was quite competent to the Court of Wards to waive the notice required to be given by Section 49 of the Madras Court of Wards Act, even assuming that the meaning and scope of the section is the same as that of Section 80, Civil Procedure Code. There is no substance in the contention of the appellants that there cannot be a waiver after objection as to the want of notice had been raised in the written statement filed by the Court of Wards. This argument. entirely overlooks the nature of a plea of waiver. Waiver is an abandonment of a right and may be express or implied from conduct and to be effectual must be by a person who has full knowledge of the facts. A person who has taken a plea based on the want of notice to which he is entitled, may waive it and allow the action to proceed as though the required notice had beer given to him and this can be done so long as the action is pending and has not been finally determined.

7. I may, however, observe that the language of Section 80, Civil Procedure Code and the language of Section 49 of the Madras Court of Wards Act are by no means similar though, under both provisions, two months' notice is required to be given. The present suit is not one relating to the person or property of the ward. The melwaram right of the ward is not in question and will not be affected by the result of the decision in this suit. The contest is between two rival claimants to the kudiwaram interest and the Court of Wards is really a mere spectator of this litigation. Further, I hold that the plea as regards the want of statutory notice is only available to the Court of Wards which is entitled to such notice and not to the other defendants after the Court of Wards itself waived the objection. Such waiver on the part of the person principally concerned affects the other parties as well.

8. Lastly Mr. Venkatasam argued that the Courts below have come to an incorrect conclusion on the question of title to the property. The evidence in support of the plaintiff's title and possession within 12 years is both oral and documentary and has been accepted and relied upon by the Courts below. The documentary evidence consists of Ex. P-8, the survey and settlement register, Ex. P-I, a receipt for payment of tree tax in respect of the palmyra trees on the land, Ex. P-2, the challan for payment of Nazarana to the Zamin estate and Ex. P-3,the patta. I am unable to hold that the finding of the lower Courts based as it is on relevant evidence is contrary to law or vitiated by any serious misapprehension of the effect of the documentary evidence.

9. The result is that the second appeal is dismissed with costs of the first respondent only. No leave.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //