BIHARICHOWDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The short question that arises for consideration in this appeal by special leave concerns the true scope and application of Section 80 of the CiviI Procedure Code.

(2.) 'The appellants herein are the plaintiffs in a suit instituted in the Munsiff's Court, Bihar Sharif, seeking the reliefs of declaration of title and delivery of possession with mesne profits in respect of the properties described in the plaint. The State of Bihar - the 1st, respondent herein - is the main defendant in the suit. Prior to the institution of the suit, the plaintiffs had issued a notice to the 1st respondent - State- under Section 80 C. P. C. on 18-2-1969 and Exhibit 2 is a copy of the said notice. However, without waiting for the statutory period of two months, the plaintiffs instituted the suit on 2-4-1969. In the written statment filed on behalf of the State of Bihar, it was contended, inter alia, that the suit was not maintainable for want of proper notice under Section 80 C. P. C. This contention was upheld by the trial Court which also recorded findings against the plaintiffs on the remaining issues concerning the title to the property and their entitlement to reliefs of declarations and delivery of possession. The first appellate Court to which the matter was carried in appeal by the plaintiffs dismissed the appeal on the ground that the plaintiffs' suit was not maintainable inasmuch as due notice under Section 80 C. P. C. had not been given. A second appeal preferred by the appellants to the High Court at Patna did not meet with any success and it was dismissed in limine. Hence this appeal by the plaintiffs.

(3.) We are concerned in this case with S. 80 C. P. C as it stood prior to its amendment, by Act 104 of 1976 (Even under the amended provision, the position remains unaltered insofar as a suit of this nature is concerned). We shall extract the Section as it stood at the material time: