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Abdul Wahab and ors. Vs. Secretary of State for India in Council and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.235
AppellantAbdul Wahab and ors.
RespondentSecretary of State for India in Council and ors.
Excerpt:
civil procedure code (act xiv of 1882), section 424 - notice--defective--suit against secretary of state, maintainability of. - .....on the defendant no. 1. in the notice the plaintiffs admitted the principle of distribution of the collector to be quite correct, but said that the map drawn was not correct, inasmuch as instead of drawing the boundary lines at right angles to their jote land, they were drawn so as to include obtuse angles, so the notice appears to be defective and the suit must fail on that ground.2. the lower appellate court, no doubt, has not come to any finding upon this point, apparently because the plaintiffs did not argue the point before it. but we think the subordinate judge is right in holding that the notice is defective, and upon such a notice the suit cannot be maintained the suit must, therefore, fail on that ground. the appeal is accordingly dismissed with costs.
Judgment:

1. We think that the suit of the plaintiffs-appellants must fail on the ground that the notice given under Section 424 of the Code of Civil Procedure was not a proper notice. The question of notice was raised in the sixth issue in the case and the Subordinate Judge's decision on that issue runs as follows:

The case set up in the plaint is altogether different from the case stated in the notice, Exhibit 13, served on the defendant No. 1. In the notice the plaintiffs admitted the principle of distribution of the Collector to be quite correct, but said that the map drawn was not correct, inasmuch as instead of drawing the boundary lines at right angles to their jote land, they were drawn so as to include obtuse angles, so the notice appears to be defective and the suit must fail on that ground.

2. The lower Appellate Court, no doubt, has not come to any finding upon this point, apparently because the plaintiffs did not argue the point before it. But we think the Subordinate Judge is right in holding that the notice is defective, and upon such a notice the suit cannot be maintained The suit must, therefore, fail on that ground. The appeal is accordingly dismissed with costs.


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