PREM PRASAD KHEMANI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS is a civil revision filed under Section 25 of the Provincial Small Causes Courts Act against the judgment dated 19th January, 1985 by which the suit of the revisionist was dismissed by the trial court. The suit had been filed by the revisionist against the Respondents for a decree for possession after ejectment of the Respondents from the disputed premises and for recovery of Rs. 19,800/ - by way of arrears of rent and mesne profits and future mesne profits at the rate of Rs. 1,000/ - per mensem. The trial court dismissed the suit on the technical ground that since no notice under Section 80 of the Code of Civil Procedure had been given the suit is bad for want of such notice. The trial court further held that a combined notice under Section 106 of the Transfer of Property Act and Section 80 Civil Procedure Code cannot be given and as such also the notice in question cannot possibly be construed as a valid notice in the eye of law, determining the tenancy and entitling the revisionist to file a suit against the Respondents.

(2.) I have heard the learned Counsel for the revisionist and the learned Standing Counsel for the Respondents. In State of U.P. v. N.C. Mukherji, 1983 (1) ARC 836, it has been held that the notice under Section 80 Civil Procedure Code can be validly combined with the notice under Section 106 of the Transfer of Property Act. This case fully applies to the present case. In Rama Kant Gupta v. State of U.P., 1983 (2) ARC 158 Hon'ble A.N. Verma, J. again after considering other relevant cases of this Court categorically held that a notice under Section 106 of the Transfer of Property Act can be combined with the notice under Section 80 of the Code of Civil Procedure. I fully agree with the cases mentioned above. In the circumstances, this judgment of the trial court contrary to the view stated above is manifestly erroneous and is liable to be set aside. Learned Standing Counsel has, however, contended that in fact, no notice under Section 80 of the Code of Civil Procedure was given at all and as such the suit was rightly dismissed by the court below. A supplementary affidavit had been filed before me annexing a copy of the notice given by the Plaintiff before filing the suit. The contents of the notice are not disputed by the learned standing counsel. The notice is dated 1 -12 -1980. The suit was filed in the year 1982. Ultimately, therefore, the suit was filed more than two months after giving of the notice. If the notice dated 1 -12 -1980 is also construed as a notice under Section 80 of the Code of Civil Procedure, then it cannot possibly be held that the suit is bad for want of notice under Section 30 of the Code of Civil Procedure. Section 80 of the Code of Civil Procedure lays down that no suit shall be instituted against the Government until the expiration of two months next after notice in writing has been delivered to, or left at the office of the authority concerned. Sub -section (3) of Section 80 of the Code of Civil Procedure further provides that no suit instituted against the Government shall be dismissed merely by reason of any error or defect in the notice referred to in Sub -section (1), if in such notice the following requirements are complied with:

(3.) ON a perusal of the notice dated 1 -12 -1980, it is apparent that the name, description and the residence of the Plaintiff has been clearly given. The description of the Defendants is clear to identify the persons against whom the relief is sought. The last sentence of the notice is very significant which is as follows: