STATE OF M P Vs. FAKIR MOHAMMAD

JUDGEMENT

(1.) HAVING heard learned Counsel for the parties and having perused the record of the case, I am inclined to allow this appeal, as in my opinion, the question involved in this appeal stands answered and settled by Their Lordships of Supreme Court in a decision rendered in the case of Smt. Sooraj and Ors. v. S. D. O. , Rehli and Ors. , reported in AIR 1995 SC 872. This issue is decided in favour of the appellant and against the respondent thereby resulting in dismissal of suit filed by the respondent.

(2.) THIS appeal is preferred by the defendant under Section 100 of CPC as a Second Appeal against the judgment and decree, dated 19-12-1983, passed by learned IIIrd Additional District Judge, Ujjain in C. A. No. 27-A of 1981, which in turn arises out of Civil Suit No. 67-A of 1976, decided by Civil Judge, Class II, Tarana on 30-4-1981. It was admitted for final hearing on the following substantial questions of law:-

(3.) IN view of the limited controversy and the nature of the question of law, referred supra, it would appear that the plaintiff filed a suit under the provisions of M. P. Ceiling on Agricultural Holdings Act without serving notice under Section 80 to the State of M. P. , i. e. , defendant herein. The suit was decreed by the Trial Court. The matter was then taken to the First Appellate Court in an appeal against the order of the Trial Court by the defendant State. Before the Appellate Court, it was contended that since the plaintiff did not serve any notice under Section 80, CPC to the State Government prior to filing of the suit, nor even thereafter, the suit was liable to be dismissed, as not maintainable. It is this contention which did not find favour to the First Appellate Court, it dismissed the appeal and upheld the decree passed by the Trial Court and decreed the suit preferred by the plaintiff. It is against this judgment/decree, the defendant has come before this Court in second appeal which as stated supra, was admitted for final hearing on the aforementioned substantial question of law.