Discuss “Notice” u/s 80 of the Civil Procedure Code.

Question: Discuss “Notice” u/s 80 of the Civil Procedure Code. [B. J. 2011, UPCJ 2018 J.K. J 2001]

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Answer

Giving of notice

As provided under Section 80 of the Code of Civil Procedure, no suits shall be instituted against the Government, including the Government of the State of Jammu and Kashmir, or against a public officer in respect of any by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of

a. In the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;

b. In the case of a suit against the Central Government where it relates to the railway, the General Manager of that railway;

bb. In the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorized by that Government on this behalf,

c. In the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district, and in the case of a public officer, delivered to him or left at his office.

In Prem Lata Nahata v. Chandi Prasad Sikaria (2007) 2 SCC 551, the Supreme Court held that if a situation is not covered by Section 82(2), it is provided in Section 80 (1) that “no suit shall be instituted… substantially indicated“. This is, therefore, a bar to the institution of the suit and that is why courts have taken a view that in a case where a notice under Section 90. C.P.C. is mandatory, if the averments in the plaint indicate the absence of notice, the plaint is liable to be rejected.

Object of notice

In Ladu Ram and others v. State of Rajasthan and others (D.B. Civil Writ Petition No. 13537 of 2012), a reference was made to A Supreme Court of India case wherein it was relied on “the object of the notice contemplated by Section 80 of the C.P.C. 1908 is to give to the concerned Governments and Public Officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intent behind that Section is that public money and time should not be wasted on unnecessary litigation.”.

Contents of notice

A notice served under Section 80 of the Code must contain the following particulars

1. The cause of action; and
2. The relief which he claims. The plaint shall contain a statement that such notice has been so delivered or left.

When notice to be given

In terms of Section 80(1) of the Code, two months’ time must be given before the institution of the suit. Only on the expiration of the said period, a suit can be filed. It is a mandatory provision.

Wherein the suit was filed before the expiration of two months of the prescribed period, was held that such suit is liable to be rejected. The object of notice. To give the opportunity to the concerned Government or Officer to it make settlement of disputed matter before the institution of the suit in the Court of law.

In State of A.P. v. Pioneer Builders 2006 (65) ALR 630(SC), the Supreme Court held that the purpose of notice under Section 80 is to give the Government sufficient betide of the suit which is proposed to be filed against it so that it may consider the decision and decide for itself whether the claim could be accepted or not.

Purpose of notice

The purpose of the notice contemplated by Section 80 of the Code is to give the concerned Governments and public officers the opportunity to reconsider the legal position and to make amends and settle the claim if so advised without litigation, the Legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and public officers should be great reasonable opportunity to examine the claim made against them, lest they should be drawn into avoidable litigation.

The purpose of the law is the advancement of justice. The provisions of Section 80 are not intended to be used as body traps against ignorant and illiterate Mere inartistic drafting is no defect if notice contained necessary persons, information.

In B.R. Sinha v. State of M.P. AIR 1969 SC 1256, where a notice was issued by ‘A’, the suit filed by ‘A’ and his grandson is held to be perfectly valid. The scope of Section 80 has been But the notice under Section 80 of the Code must be reasonably constructed Any important error or defect cannot be permitted to be treated as an excuse for defeating a just claim. In considering whether the provisions of the statute are complied with, the Court must take into account the following matters in each case

1. Whether the name, description, and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice, explained by the Supreme Court as follows
2. Whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity;
3. Whether notice in writing has been delivered or left at the office of the appropriate authority mentioned in the Section; and
4. Whether the suit is instituted after the expiration of two months next after notice has been served and the plaint contains a statement that such a notice has been so delivered or left.

Where there is no variation in the substance of the claim between the notice and the plaint but the relief appears to have been inartistically drafted, the notice is valid as all the necessary information is contained in the registered notice, and there is every opportunity for the Government to consider the claim of the plaintiff. There is no vital difference between the notice and the plaint which entails the dismissal of the suit

Waiver of notice, when can be?

Where no averment was made in the written statement of the defendants that the suit was not maintainable on the ground that no notice under Section 80 of the Code of Civil Procedure, 1908, had been served on them prior to the institution of the suit, no issue was, therefore, framed by the trial Court in that behalf.

No application for amendment of the written statement was made for incorporating the plea at any stage of the suit. In the particular circumstances, it must, therefore, be held that the defendant had waived the objection with regard to the maintainability of the suit for want of notice.

Where the State Government, knowing the facts of the case has not taken the plea of validity of the notice in the written statement nor the Government Counsel has raised the point during the arguments, it is clear that the State Government has deliberately waived the plea regarding the validity of the notice.” Where in the written statement the question of notice under Section 80 was not at all raised, a suit filed without notice held maintainable.

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