Pandrang Row, J.
1. These are appeals from the preliminary and the final decree in O.S. No. 58 of 1929 on the file of the subordinate Judge of Vellore. The suit was for sale of the plaint properties in satisfaction of two mortgages that had been executed by defendants 1 and 2 and the undivided deceased father of defendant 3. Defendants 4 to 6 were imp leaded as persons claiming to be puisne mortgagees of one or other of the mortgaged properties. The only contesting defendant was defendant 7 the Secretary of State for India in Council, who had some of the properties mortgaged in his favour under the provisions of the Land Improvement Loans Act. Defendant 7 not only claimed priority in respect of his mortgage, but also contended that the suit should be dismissed summarily, as no notice of the suit was given to him prior to suit as required by law. For some reason or other, this objection to the maintainability of the suit was not made the subject-matter of a separate issue and the judgment of the learned Subordinate Judge is silent on this point. The same point has been repeated in the grounds of appeal by the Secretary of State. Before dealing with this point it is necessary to consider and decide the other point argued in this appeal. The learned Subordinate Judge held, following the decision reported in Sankaran Nambudripad v. Ramaswami Aiyer (1919) 6 A.I.R. Mad 590 that the mortgage Under the Land Improvement Loans Act could not be given priority in respect of lands other than those for whose benefit the loan was granted and he found that in this particular case there was no evidence to show that the loan had been granted for the benefit of the mortgaged properties concerned.
2. It has been argued before us by the Government pleader that the decision in Sankaran Nambudripad v. Ramaswami Aiyer (1919) 6 A.I.R. Mad 590 should be reconsidered, but he has not been able to give any reasonwhy that decision should be reconsidered. No other authority has been quoted which is to the contrary, and on principle there is no justification for giving priority in respect of a mortgage of properties which are not intended to be benefited by the loan granted Under the Land Improvement Loans Act. We are not therefore prepared to dissent from the principle laid down in Sankaran Nambudripad v. Ramaswami Aiyer (1919) 6 A.I.R. Mad 590. Then on the question of fact whether the properties concerned in this suit in which the Secretary of State is interested are lands for the benefit of which the loan was granted, there is no evidence in support of the case put forward by the Secretary of State. It is in fact conceded that, as the evidence stands, no other finding than that arrived at by the learned Subordinate Judge is possible. An attempt was therefore made to get additional evidence admitted in appeal on this point. An application for the purpose of admitting such evidence in appeal was made in 1937 though the appeal was one filed in 1931. The long delay in making, this application has not been explained. So far as Clause (1)(b), Rule 27, Order 41, Civil P.C. is concerned, there is no justification for admitting additional evidence. To admit additional evidence under this clause in this case would only be to permit the Secretary of State to fill a lacuna in his case, a lacuna which is undoubtedly due to the negligence of his legal adviser who conducted the trial in the Court below. So far as Clause (1)(a), Rule 27 is concerned it has not been made out that the additional evidence was really tendered on behalf of the Secretary of State when evidence was let in on his behalf in the Court below. We are therefore unable to find any sufficient reason to allow additional evidence to be adduced in appeal in this case. The application for reception of additional evidence in appeal must therefore be dismissed with costs.
3. The only point that remains is whether the suit is maintainable in the absence of a notice Under Section 80, Civil P.C. That section clearly provides that notice should be given and that the plaint should state that notice has been given. In this case the plaint does not contain any such statement, and it is not contended before us that any notice was actually given, and that the omission to make mention of the notice in the plaint was due to oversight. This is therefore a case in which no notice whatever was given to the Secretary of State as required by Section 80, Civil P.C. As observed by their Lordships of the Judicial Committee in Bhagchand Dagadusa v. Secy. of State Section 80, Civil P.C. applies to all forms of suit, whatever the relief sought. They further observe (at p. 747) that 'Section 80 is express, explicit and mandatory and it admits of no implications or exceptions.' They further observe that the suit which was before them was one which on account of non-compliance with Section 80, Civil P.C. was unsustainable in limine. The case before us also is exactly a case of the same kind; for, the plaint does not even mention that notice was given to the Secretary of State of the suit claim.
4. It is however argued before us on behalf of the plaintiffs-respondents that the point as regards notice must be deemed to have been waived in the Court below on behalf of the Secretary of State. This inference is sought to be drawn from the mere omission to frame an issue and to put in an application asking for an issue on the point. We do not think that in the circumstances of the case such an inference can be fairly drawn. The omission seems to have been on a par with the omission to adduce evidence which was obviously necessary and which was ready to hand, such as the order of the Director of Industries which was necessary to support the case put forward on behalf of the Secretary of State, which was nevertheless not tendered in evidence till perhaps it was too late. In any case, negligence is more likely to have been the cause of the omission to frame an issue on the point of want of notice and the omission to make any application regarding it. This negligence does not seem to have been confined to the Government Pleader appearing in the trial Court but seems to have extended to the learned Subordinate Judge himself who neglected his plain duty in the matter. It was his-duty to see that a plaint which did not satisfy the provisions of law was not allowed to proceed further so far as the Secretary of State was concerned. The suit should have been dismissed by him on this ground alone in limine against defendant 7. We are unable to accept the contention that there was any waiver in this case. The suit was throughout resisted by the Secretary of State and it is impossible to believe that there would have been any deliberate waiver on his behalf of a defence which was sufficient to non-suit the plaintiff. Waiver being out of the question, the non-maintainability of the suit as against defendant 7 is patent. The suit should; have been dismissed in limine so far as defendant 7, that is the appellant in this appeal, was concerned, on the ground that the suit is prohibited by the provisions of Section 80, Civil P.C. The appeals are therefore allowed and the suit is dismissed as against defendant 7 with costs in Appeal No. 464 of 1931 (which is the main appeal from the preliminary decree in the case) in this Court and in the Court below.