(1.) THIS is a defendant's first appeal from an order of remand.
(2.) THE plaintiff respondents were employed by the defendant-appellant in various capacities. On September 30, 1967 an order was passed terminating their services. The plaintiff-respondents filed a suit on November 11, 1967, for a per manent injunction restraining the defen dant-appellant from giving effect to the order, dated September 30, 1967. They also prayed for a temporary injunction. On December 4, 1967, an objection was filed on behalf of the defendant-appel lant. It was said that the plaint ought to be rejected under Order VII, Rule 11 of the Code of Civil Procedure, because no notice under Section 80 of the Code of Civil Procedure was sent or served on the defendant-appellant and such a notice was absolutely mandatory. The learned Civil Judge of Gorakhpur up held the objection and dismissed the suit (he really ought to have rejected the plaint under Order VII, Rule 11 of the Code of Civil Procedure). In paragraph 17 of the plaint, it was pleaded that the purpose of the suit would be defeated ii two month's notice were given under Section 80 of the Code of Civil Proce dure and that, therefore, 'it must be deemed that the defendants had waived the protection and advantages of notice under Section 80 of the Code of Civil Procedure'. The plaintiffs-respondents filed an appeal which was heard by the learned District Judge of Gorakhpur. He held that there ought to have been an issue on the plea raised in paragraph 17 of the plaint, namely, whether the notice had been waived or not. Having come to this conclusion the learned District Judge remanded the case for a fresh trial.
(3.) FORMERLY , there was a conflict of opinion amongst the various High Courts on the question whether the pro visions of Section 80 of the_ Code of Civil Procedure were attracted in the case of suits for permanent injunction. That conflict was resolved by the Privy Coun cil as far back as the year 1927 in Bhag chand Dagdusa Gujarathi v. Secy, of State for India, AIR 1927 PC 176. It was held that the provisions of Section 80 of the Code of Civil Procedure were "ex press, explicit and mandatory" and that they admitted of no implication or ex ceptions. It was laid down that notice under Section 80 of the Code of Civil Procedure was necessary even in suit for permanent injunction. In Sawai Singhai Nirmal Chand v. Union of India, AIR 1966 SC 1068, relying upon the Privy Council decision mentioned above, their Lordships of the Supreme Court held that Section 80 of the Code of Civil Procedure applied to suits where injunc tion was claimed. Reference may also be made to Smt. Abida Begam v. Rent Control and Eviction Officer, Lucknow, AIR 1959 All 675 and State of Bihar v. Kamaksha Prasad Sharma, AIR 1962 Pat 303. Before the Privy Council in Bhag-chand Dagdusa Gujarathi's case, AIR 1927 PC 176 (supra), it was argued that the plaintiffs had a right urgently calling for a remedy and waiting for the period of notice under Section 80 of the Code of Civil Procedure to expire, would cause serious and irreparable damage. Their Lordships pointed out that it is not per missible to read as if Section 80 ran