Mookerjee and Beachcroft, JJ.
1. This is an appeal on behalf of the plaintiffs in a suit for declaration of title to land and for recovery of possession and mesne profits. There were three defendants in the action; the first was the Secretary of State for India in Council; the second was the Maharajah of Cossimbazar and the third was Jyoti Prosad Singh. The suit was commenced on the 17th December, 1909. The written statement on behalf of the Secretary of State was filed on the 12th April, 1910. In the first paragraph of this written statement, it was urged that notice under Section 80 of the Code of Civil Procedure of 1908 was not sufficient, proper and in accordance with law. The written statement of the second defendant, filed on the same date, dealt with the merits of the case. The third defendant filed his written statement a week later and supported the claim of the plaintiffs. On the 2nd May, 1910, the Court framed seven issues, which did not include an issue upon the question of the legality, validity and sufficiency of the notice under Section 80. On the 25th June, 1910, the plaintiffs prayed for a local investigation. This application was granted and a Commissioner was appointed. The Commissioner submitted his report on the 8th December, 1910. The Court thereupon directed that the parties should file their objection, if any, within one week from that date. The suit came for trial on the 13th January, 1911. On that date, the second defendant filed a supplementary written statement with the leave of the Court. He also prayed that three new issues might be raised. One of these proposed new issues related to the validity of the notice served under Section 80 upon the Secretary of State for India in Council. The Court held that of the three new issues proposed, two were covered by the issues previously raised; but that an additional issue must be raised upon the question of the legality, validity and sufficiency of the notice under Section 80. An additional issue to that effect was accordingly raised. The suit was then tried out on the merits, and decreed in favour of the plaintiffs The defendants appealed to the District Judge and urged that the suit ought to fail, as there was no proper service of notice under Section 80 of the Code of Civil Procedure. The District Judge held that as there were 63 plaintiffs and notice had been given by only two of them the notice could not be deemed valid. In this view, the District Judge reversed the decree of the Court of first instance and returned the plaint to the plaintiffs. The plaintiffs have now appealed to this Court and con tended, first, that the notice was proper and sufficient; and, secondly, that a notice under Section 80 had been waived by the Secretary of State for India in Council.
2. In support of the first ground, it has been urged, upon the authority of the decision in The Secretary of State for India v. Perumal Pillai 1900) I.L.R. 24 Mad. 279 that a notice by two out of several persons who institute a suit is sufficient for the purpose of Section 80 of the Code of 1908. In our opinion, this contention is not well founded. Section 80 provides as follows: 'No suit shall be instituted against the Secretary of State for India in Council until the expiration of two months next after notice in writing has been delivered to or left at the office of a Secretary to the Local Government or the Collector of the District, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.' The language used by the legislature is perfectly plain. No doubt, Section 80 does not require that a notice there under shall be signed by all the plaintiffs; but it is essential, that the notice should state the names, descriptions and places of residence of all the plaintiffs. Li the case before us, the names, descriptions and places of residence of two out of sixty-three plaintiffs were given; this was obviously insufficient. It has been urged that, as stated, in The Secretary of State for India v. Perumal Pillai (1900) I.L.R. 24 Mad. 279 the object of Section. 80 is to give the defendant an opportunity of settling the claim, if so advised, without litigation, or, as observed by this Court in the case of Manindra Chandra Nandi v. The Secretary of State for India (1907) 5 C. L. J. 148 the object of the notice is to enable the Secretary of State to have an opportunity to investigate the alleged cause of complaint and to make amends, if he thought lit, before lie was impleaded in the suit. This object would be completely frustrated if it was maintained that a notice which contained the names, descriptions and places of residence of some only of the plaintiffs in the suit was sufficient. The Secretary of State cannot very well be expected, to speculate, or ascertain by enquiry, who the possible plaintiffs might be. We cannot hold, in view of the express provision of Section 80, that the notice in this case, which gave the names of two out of sixty-three plaintiffs, fulfilled the requirements of the statute. The first ground, therefore, fails.
3. In so far as the second ground is concerned, it is clearly well founded and must succeed. As we have already observed, although, in the first paragraph of the written statement of the Secretary of State for India in Council, an objection was taken to the validity of the notice, no issue was raised upon the point. We must assume that the issues were framed in the presence of the parties or their representatives. At any rate, they had notice of the date when the issues would be settled by the Court, and it was incumbent upon them to be represented on the occasion. But even if it be assumed that the issues were framed in the absence of the Government Pleader, it is plain that lie might have taken exception to the issues as framed and asked the Court to frame an additional issue. No objection, however, was taken by him at any stage of the trial in the Court of first instance. It was-the second defendant who prayed, just before the trial began, that an additional issue might be raised upon the question of the validity of the notice. But it was clearly incompetent to the second defendant to raise the question. As was pointed out by this Court in Manindra Chandra Nandi v. The Secretary of State for India (1907) 5 C. L. J. 148 it is competent to the Secretary of State to waive the notice, and he may be estopped by his conduct from pleading the want of notice at a late stage of the trial. In the events which have happened, we are clearly of opinion that in this case notice was waived on behalf of the Secretary of State, and that the question could not have been raised by the second defendant. The second ground, therefore, must prevail.
4. The result is that this appeal is allowed, the decree of the District Judge set aside and the case remanded to him in order that the appeal may be heard on the merits. The appellants are entitled to their costs in this Court. Under Section 18 of the Court-fees Act we direct that the amount of Court fees paid on the memorandum of appeal be returned to the appellants. The plaint, which was returned by order of the District Judge to the plaintiffs, will be received and sent down to the Court below.