BABULAL CHAUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against the judgment of 11th Additional District Judge, Gaya dated 31st January, 1994 passed in Title Appeal No. 28 of 1991/8 of 1992.

(2.) THE facts giving rise to this appeal, in brief, are that the aforesaid title suit was filed by Bihari Sahu and others who are respondents 2nd set of this -appeal. The suit was dismissed after full hearing on all issues. Subsequently, first appeal was filed by the plaintiff -respondents and, in this appeal, the Additional District Judge, by his impugned judgment, set aside the judgment of the trial Court and directed that the plaint be returned to the plaintiff -appellants (here respondents) for filing it afresh after due service on notice under Sec. 80, C.P.C. upon the State of Bihar which was also a defendant of the title suit concerned.

(3.) BEFORE me, it was submitted that the plea of non -service of notice was neither raised nor decided by the trial Court. In the first appeal before the Additional District Judge, the plaintiff -respondents themselves raised the plea of non -service of notice and so the appellate Court was wrong in his approach by setting aside the judgment of the lower Court and giving an opportunity to the plaintiff to file a fresh suit. When the plaintiff had waived the plea of notice, it was wrong on the part of the appellate Court to raise this issue and give the plaintiff an opportunity to file a fresh suit after complying with the mandatory provisions of Sec. 80, C.P.C. The learned lawyer for the appellants relied on a judgment reported in 1984 BLJ 466. However, in the aforesaid reported judgment, the principle of law enunciated is that no suit is maintainable against any State Government or its officials, unless notice under Sec. 80, C.P.C. was served two months prior to the institution of the suit. There can be no dispute regarding this principle of law and it is this very principle which the first appellate Court has applied. The learned lawyer for the appellants relied on another judgment . In this reported judgment, it was held that when a suit is decided on the issue relating to the notice under Sec. 80, C.P.C. as also other material issues, the decision of the trial Court on all issues shall operate as res judicata for any subsequent suit, even though the suit was to maintainable for non -service of notice under Sec. 80, C.P.C This decision is also not applicable in the facts of the present case because the first appeal was continuation of the same suit and it was not a subsequent suit where decision on all issues handed down by the trial Court would operate as res judicata. The 3rd judgment referred to by the appellants lawyer was the judgment reported in 1980 BCJ 317. In this judgment, it was decided that it was for the defendant of the suit to raise and plead the issue of non -service of notice under Sec. 80, C.P.C. Once this plea was waived by the defendant, he was estopped from raising the said issue in appeal. So the principle decided in this judgment is also not applicable to the present case because normally it is the defendant who has to make an objection to the maintainability of the suit on the ground of non -service of notice under Section 80, C.P.C. The plaintiff is neither bound to raise the issue nor he will gain anything by raising this issue. So waiver or no waiver, the plaintiffs making or raising an issue of this sort is immaterial in a particular suit. In the instant case, the suit was decided by the trial Court on all the material issues and the issue relating to the notice under Sec. 80, C.P.C. was neither raised by the defendant of the suit nor any issue was framed by the trial Court. However, it was admitted before me by the appellants lawyer that in the written statement, there was the plea of non -maintainability of the suit for want of notice under Sec. 80, C.P.C. In such a circumstance, it was for the trial Court to frame on issue and if this issue would have been waived by the defendant -appellants, that would have been a different matter and in that case, the suit could have been held to be maintainable on account of this waiver by the defendant. But this having not been done, the appellate Court was not debarred from raising this issue, even though at the instance of the plaintiff, and decide the same. The appellate Court has done the same thing and the appellate Court has further omitted the decision on other material issues which the trial Court had decided. So the decision of the trial Court on material issues of the suit remained inconolusive in the first appeal and so it has not become final. The first appellate Court has rather allowed the plaintiff to file a fresh suit after service of notice. The question simply is whether the appellate Court committed any illegality by giving the plaintiff an opportunity to file a fresh suit. I do not think the appellate Court committed such an illegality because Sec. 80, C.P.C. does provide for giving opportunity to the plaintiff to file a fresh suit. In the interest of justice, the appellate Court was justified in affording an opportunity to the plaintiff to file a fresh suit, without deciding any other material issues.