1. These eleven revision petitions arise out of eleven suits brought by Sri Sri Sri Vikrama Deo Varma Maharajulungaru, Maharaja of Jeypore and Zamindar of Madgole, under Section 14 of the Madras Survey and Boundaries Act. In all these suits the Province of Madras represented by the District Collector of Vizagapatam was the first defendant and the first defendant is the petitioner in each of these eleven revision petitions. The petitioners contended in all the suits that at any rate as against them the suit should be dismissed in limine for the reason that the two months' notice of suit as required by Section 80 of the Civil Procedure Code had not been served on them. The learned District Munsiff tried this question as a preliminary issue and found that all the suits were maintainable as against the Provincial Government. There were really two questions decided by the learned District Munsiff. The first was whether in the circumstances of the case the two months' notice was required at all under Section 80 of the Code, and the second whether, if notice in accordance with the provisions of that section was necessary, the two months' notice had, in fact, been given. In three of the suits notice was served on the 15th of June, 1938, and the suits were instituted on the 15th of August, 1938. In five of the suits notice was served on the 15th of August, 1938 and the suits were instituted on the 15th of October of the same year. In two of the suits notice was served on the 15th of January, 1939 and the suits were instituted on the 15th of March, 1939. In one suit notice was served on the 15th of September, 1939 and the suit was instituted on the 15th of November, 1939.
2. These petitions have been filed under the provisions of Section 115 of the Civil 1 Procedure Code and it has been argued for the respondent that they are not maintainable for the reason that no question of jurisdiction is involved. It is plain, however, that if in fact notice had to be given as required by Section 80 of the Code and if notice was not given in accordance with the provisions of that section the Court had no jurisdiction to entertain the suit as against the Provincial Government. It is true that the lower Court has found that notice was not necessary under Section 80 and that, even if it was necessary, notice was in fact given in accordance with the provisions of that section. The question however in my opinion does not cease to be a question of jurisdiction merely because the lower Court had decided wrongly questions which if decided rightly would have left it without jurisdiction to entertain the suits. In my judgment, therefore, the petitions are maintainable.
3. The learned District Munsiff was of opinion that notice was not necessary under Section 80 of the Civil Procedure Code for three reasons, firstly, because this was what he called a statutory suit to which Section 80 of the Code did not apply; secondly, because the suit was in the nature of an appeal and again to such a suit the provisions of Section 80 of the Code would not apply, and thirdly because, Government not being a necessary party to the suit, the two months' notice under Section 80 of the Code had not to be given. In my opinion the reasons given by the learned District Munsiff for the conclusion which he has reached cannot be supported either on principle or on authority. On the face of it there would appear to be no reason why the Government should not receive the two months' notice required by Section 80 of the Code in the case of a suit brought under Section 14 of the Survey and Boundaries Act just as in the case of any other suit. It is true that in Collector of Bombay v. Kamalavahooji : AIR1934Bom162 , it. was held that Section 80 of the Civil Procedure Code would not apply to a suit on account of land revenue brought under the Bombay City Land Revenue Act. Section 14 of that Act however specifically provided that the decision of the Collector in the matter of the levy of the assessment of land revenue should be final unless/a suit was brought within thirty days of the communication of the Collector's decision. The Bombay City Land Revenue Act was prior in date to Section 80 of the Civil Procedure Code and the case was decided on the well-established principle that where there is a conflict between a special Act and a general Act the provisions of the special Act prevail. Section 14 of the Survey and Boundaries. Act provides for limitation a period of three years but makes no specific provision with respect to the period between the service of notice and the institution of the suit. The decision in the 1934 Bombay case, therefore, has no application to a case filed under Section 14 of the Survey and Boundaries Act and there is nothing in that Act which will render the provisions of Section 80 of the Civil Procedure Code inapplicable to a suit brought under it.
4. With regard to the second point the provisions of Section 49 (1) of the Court of Wards Act in regard to notice to minors are analogous to the provisions of Section 80 of the Civil Procedure Code in regard to notice of suit to Government and it has been held by a Bench of this Court in Rajah of Ramnad v. Subramaniam Chettiar I.L.R. (1928) Mad. 465 that a suit to set aside an order on a claim petition brought under Order 21, Rule 63 of the Civil Procedure Code against a minor will not be bad for want of notice under Section 49 (1) of the Madras Court of Wards Act for the reason that the suit should be deemed to be a continuation of the proceedings in respect of the claim petition. It has however been pointed out. in decisions of Venkatasubba Rao, J. (Rangaswami Goundan v. Ramanathan (1931) 67 M.L.J. 426) and of Varadachariar, J. (Zemindar of Sivaganga v. Muthayyan Chettiar 1936) 43 L.W. 535 that a suit brought against the Government under Section 14 of the Survey and Boundaries Act is distinguishable from a suit brought under Order 21, Rule 63, since a suit under Section 14 of the Survey and Boundaries Act cannot be regarded as being a suit in the nature of an appeal. With respect I find myself in agreement with the opinions expressed m these two cases.
5. The third point, namely, that a notice under Section 80 of the Civil Procedure Code need not be served unless the Government is a necessary party appears to be contrary to the plain words of Section 80 of the Code and to be devoid of all support or authority. On the contrary, it was held in Secretary of State for India in Council v. Amarnath I.L.R. (1935) Pat. 353, that even if Government was made a pro forma defendant notice was none the less necessary under the provisions of Section 80 of the Code. Section 80 of the Code provides that,
No suit shall be instituted against the Crown . . . . . . until the expiration of two months next after notice in writing has been served.
It has been laid down by the Judicial Committee in Bhagchand Dagadusa v. Secretary of State for India (1927) 53 M.L.J. 81 : I.L.R. Bom. 725, that the provisions of Section 80 are ' express, explicit and mandatory ' and, in my opinion, there are no grounds for holding that in these suits brought under Section 14 of the Madras Survey and Boundaries Act to which the plaintiff chose to make the Provincial Government a party two months' notice as required by Section 80 of the Civil Procedure Code was not necessary in order that the suit should be maintained against the Provincial Government. It should be observed that although the lower Court has proceeded on the footing that the Government was not a necessary party the Government itself has not conceded this position.
6. There remains to be considered the question whether the notice actually given complied with the provisions of Section 80 of the Code. The learned District Munsiff thought that it did because of the provisions of Section 10 of the General Clauses Act. Section 10 of the General Clauses Act clearly has no application since Section 80 of the Civil Procedure Code does not direct that any act or proceeding should be done or taken in any Court or office on a certain day or within a prescribed period. The question whether the day on which notice was actually served should be excluded in calculating the period of two months provided in Section 80 has been considered by Venkataramana Rao, J., in Marina Ammay v. Secretary of State : AIR1941Mad557 . The learned judge . reviewed in his judgment the English authorities that bore on the question and concluded that the day on which notice was served must be excluded. In the course of his judgment Venkataramana Rao, J., quoted the observations of Baron Alderson at page 236,
Where there is given to a party a certain space of time to do some act, which space of time is included between two other acts to be done by another person, both the days of doing those acts ought to be excluded, in order to ensure to him the whole of that space of time.
It should be noted that the words used in Section 80 of the Civil Procedure Code are ' two months next after notice in writing has been served.' It seems to me that the decision of Venkataramana Rao, J., with which I respectfully agree, is in accordance with the words used and with the accepted practice in the construction of provisions regarding the periods of time given for performing certain acts. It follows, therefore, that the provisions of Section 80 of the Civil Procedure Code were not complied with in respect of the service of notice in the eleven suits out of which these revision petitions arise.
7. The result must, therefore, be that the revision petitions are allowed with costs and that the suits will stand dismissed as against the Provincial Government also with costs.