ERACHSHAW HORMUSJI GINWALA Vs. SECRETARY OF STATE

JUDGEMENT

(1.) THIS is a revisional application by the plaintiff against an order granting the application made by the defendant, the Secretary of State for India in Council, for amendment of the written statement by adding the plea that the suit was barred under Section 80 of the Civil Procedure Code for want of a proper and adequate notice and that it was not properly valued for pleaders fees.

(2.) THE suit was brought for a declaration that the defendant was not entitled to recover from the plaintiff the amounts which were paid from time to time as tagavi loans to certain persons from whom the plaintiff held an ijara. It was averred in the plaint, among other things, that a notice had been given by the plaintiff to the Secretary of State for India in Council on July 12, 1935, as required by Section 80 of the Civil Procedure Code. THE suit was filed on February 18, 1936, the written statement was filed on October 9, 1936, and although a large number of points were taken, there was no plea that the suit was bad on the ground that the notice given was insufficient or invalid under Section 80 of the Civil Procedure Code. Issues were framed on February 18, 1937, and there was naturally no issue about the notice. When the suit was fixed for hearing for the first time on December 3, 1941, the Assistant Government Pleader applied for leave to amend the written statement by adding the plea that the plaintiff's suit was barred under Section 80 for want of a proper and adequate notice and that the plaint was not properly stamped for pleaders fees. THE defects alleged were that the description of the plaintiff's cause of action and the reliefs sought were not mentioned and that there was no averment in the plaint regarding the delivery of the notice. THE plaintiff objected to the grant of the application on the same day and asked for time for replying to it. THE learned Judge, however, was of the opinion that the contentions sought to be added by the defendant were all legal contentions and there was no element of surprise in them. According to him the plaintiff was not materially prejudiced by the grant of the application and he therefore allowed the application on the same day, and added two more issues to those already framed. Those issues were whether the suit was barred for want of an adequate and proper notice under Section 80 of the Civil Procedure Code as. contended by the defendant, and what should be the value of the suit for the purposes of pleaders' fees.

(3.) THERE are some reported decisions subsequent to Bhagchand's case which may be noted here. In Purna Chandra Sarkar v. Radharani Dassya (1930) 53 C.L.J. 31 and in Ramnarain v. Ram Kishun [1934] A.I.R. Pat. 354 no notice was given at all under Section 80, and still it was held that it was open to the Court to infer that the defendant by his conduct had waived the notice. It may be said that those decisions would not be good law after the decision in Bhagchand's case which makes the giving of the notice mandatory in all cases. It is not necessary for the purpose of the present case to go into that question because notice has been given and the suit is filed two months thereafter, but it may be noted that Bhagchand's case is distinguished in the Patna case even on those facts. The Allahabad High Court has held in Murari Lal v. E. v. David (1924) I.L.R. 47 All. 291 that two months' notice under Section 80 was a necessary condition precedent to the filing of a suit against Government or a public officer, and that the right to such a notice cannot be considered as waived if the receiver does not take objection to the absence of the notice till a late stage of the proceedings. In that case no notice was at all given by the plaintiff, and it was held that the defendant's failure to raise the objection in the written statement cannot per se be regarded as a waiver even if a waiver were otherwise admissible, because the objection was raised practically before the trial had commenced and before any prejudice could have been caused to the plaintiffs by the lateness of the stage at which the objection was raised. Thus even though no plea was taken in the written statement, the amendment was allowed on the ground that it did not cause prejudice to the plaintiff.