M/S Siddharth Kapoor Infrastructure Pvt. Ltd. vs Smt. Nagma Bi

1 CR-192-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
st
ON THE 1 OF JULY, 2026
CIVIL REVISION No. 192 of 2021
M/S SIDDHARTH KAPOOR INFRASTRUCTURE PVT. LTD.
Versus
SMT. NAGMA BI AND OTHERS
Appearance:
Ayush Gupta - Advocate for the petitioner.
Aditya Choubry Ga appearing on behalf of Advocate General.
ORDER
The present revision has been filed challenging the orders passed by
the trial court dated 07.11.2020 & 11.01.2021. By the first order, the trial
court has accepted the plaint without ensuring compliance under Section 80
CPC and by the second order the application of the petitioner-defendant
under Order 7 Rule 11 CPC seeking rejection of plaint has been rejected.
2. The counsel for the petitioner has contended that the application
for rejection of plaint ought to have been allowed by the Trial Court and the
Trial Court has erred in not allowing the application under Order 7 Rule 11
CPC, and committed error of law.
3. It is argued that in the suit apart from the private parties, the
Tahsildar and Collector have been impleaded as defendants No. 3 and 4 and
notice has not been issued to the Tehsildar, but has been issued only to the
Collector and therefore, for want of compliance of Section 80 CPC to
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Signed by: ARVIND KUMAR
MISHRA
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2 CR-192-2021
defendant No. 3 i.e. Tehsildar, the suit is not maintainable.

4. By elaborating the assertions, the learned counsel for the
petitioner has contended that as per Section 80 CPC, notice is required to be
issued whenever a suit is instituted against the Government or against a
Public Officer in respect of any act purporting to be done by such Public
Officer in his official capacity, at least two months prior to date of institution
of the suit and since Tahsildar is a Public Officer, therefore the notice under
Section 80 CPC which has been given only to the Collector does not
properly satisfy compliance of Section 80 CPC. It is argued that even if the
benefit of Section 80(2) CPC is to be sought even then a proper notice is a
primary requirement and hence the party even if it is instituting suit prior to
expiry of two months from date of notice, is bound to first issue a proper
notice under Section 80 CPC.
5. It is further contended that the ingredients of notice are laid
down in Section 80 (1) CPC itself which requires the notice to be delivered
to the Public Officer or left at his office stating the cause of action, name,
description and place of residence of plaintiff and the relief which he claims
and the plaint contains statement that such notice has been so delivered.
6. Heard.
7. In the present case, the litigation is between private parties and
the State of Madhya Pradesh has been impleaded only because it is a suit
regarding agricultural land and Tahsildar has been impleaded only because
some statutory functions in relation to the inter-se disputes between private
parties have been carried out by the Tehsildar. Otherwise, the State or its
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MISHRA
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3 CR-192-2021
gunctioneries have no interest in the lis.

8. The basic purpose of notice under Section 80 CPC is to grant
opportunity to the public officers to reconsider the legal position and to settle
the disputes, if so advised, without forcing the parties into litigation. The
legislative intent is only to save public money and time on unnecessary
litigation so that the State authorities can examine the reasonable claims to
avoid being drawn into unnecessary litigation. The purpose is advancement
of cause of justice and not as a weapon against ignorant and rustic litigants.
9. It is pertinent to note here that the person bringing the application
under Order 7 Rule 11 CPC was not the public officer or the State
Government, but a private litigant. As already discussed above, since the
purpose of Section 80 CPC is to enable the public officers to examine the
claims of private parties to avoid any avoidable litigation, therefore, the
objection for non-compliance of Section 80 or insufficient compliance of
Section 80 can only be taken by the public officer or the State Authority and
not by the private litigant. In Gaja Vs. Dasa Koeri AIR 1964 Allahabad 471 ,
the High Court of Allahabad held as under :-
8. Closely linked with the question of waiver is the question whether the bar of
Sec. 80 can be pleaded by a party other than those to whom notice is required
to be given. The answer to the latter question follows, in my opinion, as a
corollary from the answer to the former. If notice can be and has been waived
by the authority concerned the natural conclusion appears to be that it is not
open to any other party to the suit to urge want of notice against the
maintainability of the suit. In Rup Lal Agarwala v. Dkansar Coal Co. [A.I.R.
1933 Patna 49.] it was observed that:“A third party is not competent to raise
the question of notice when the Secretary of State has waived it.” In Hira
Chand Himat Lal Marwari v. Kashinath Thakurji Jadhav [A.I.R. 1942 Bom.
339.] it was similarly ob served that:“A party who has himself no right to
notice cannot challenge a suit on the ground of want of notice to the only party
entitled to receive it.” I may also refer to the case of Bodi
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4 CR-192-2021
Venkataswami v. Adada Mahalaxmi [A.I.R. 1949 Madras 747.] , which dealt
with Sec. 49 of the Madras Court of Wards Act requiring two months' notice
for the institution of a suit against the Court of Wards. It was held there
that:“The plea as regards the want of statutory notice is only available to the
Court of Wards which is entitled to such notice and not to the other defendants
after the Court of Wards itself waived the objection and further that such
waiver on the part of the person principally concerned affects the other parties
as well.” If the authority for whose benefit Sec. 80 has been enacted does not
claim the benefit it is not for other persons to press into service the provisions
of that section for defeating a suit. This result, as I have said above, follows
from the position that the objection as to notice is capable of being waived.
11. In Raj Kumari v. Board of Revenue, 1984 SCC OnLine All 664, the
Allahabad High Court again considered the entire law and held that the party
for whose benefit, notice is to be issued, can waive it and waiver may be
inferred in absence of objection. It was held as under :-

6. I have considered the arguments advanced by the counsel for either
side. In District Board, Banaras v. Churhu Rai (AIR 1956 All 680)
(supra), a Division Bench of this Court has held that it is always open to
a defendant for whose benefit notice prescribed by law to waive it and as
such if a plea in regard to the want of notice was not pressed in the trial
Court nor the same was raised in the first or second appeal, it would be
deemed that the same has been waived. Similar view has been taken
in Ishtiyaq Husain v. Zafrul Islam (AIR 1969 All 161) (supra) where
Hon'ble S.K. Verma, J., as he then was, held that no doubt S. 80, C.P.C.
is mandatory and notice has to be issued and served on the State before
filing a suit, but this plea can be waived also. Similar is the view
expressed in Hira Chand Himmat Lal v. Kashi Nath Thakurji, AIR 1942
Bom 339, where a Division Bench of the Bombay High Court held that a
party in whose favour S. 80, C.P.C., prescribed notice to be given, can
waive his right to the same. Similar is the view taken in Dhian Singh
Shobha Singh v. Union of India (supra) where the Supreme Court held
that no doubt S. 80, C.P.C., has to be strictly complied with but
nevertheless notice should not be scrutinized in a pedantic manner
completely divorced from common sense. In that case the controversy
was that in the notice under S. 80, C.P.C., only a sum of Rs. 3,500/- was
claimed, but later on it was found that the plaintiff was entitled to more
than the sum of Rs. 3,500/-. The High Court did not accept the claim of
the plaintiff on the ground that he did not claim any amount more than
Rs. 3,500/-. In that reference the Supreme Court held that the approach
of the High Court was erroneous. It was further held in Chandu Lal
Vadilal v. Government of Bombay, AIR 1943 Bom 138 that one must
construe S. 80, C.P.C., with some regard to common sense and with the
object to which it appears to have been based. Further it has been held
in Gaja v. Das Koery (AIR 1964 All 471) (supra) by Hon'ble Ganeshwar
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5 CR-192-2021
Prasad, J. that it is open to the authority concerned for whose genefit the
notice has been issued to waive it also. The natural conclusion is that it is
not open to other party (i.e., respondents 4 and 5 in the instant case) to
urge the want of notice against maintainability of the suit. It is the
authority for whose benefit S. 80 has been enacted can raise an objection
about want of notice and press the same. Similar view has been taken by
Hon'ble Katju, J., in Banarsi Rai v. D. Ahir, 1964 All LJ 239. In Julal
Mandal v. Union of India, AIR 1978 Patna 42, it was held in similar
circumstances that if an issue was framed by the trial court about the
effect of want of notice under S. 80, C.P.C., and the issue was not
pressed by the Government, it means that the Government has waived
the right to press the same and it was a clear case of waiver and no other
private party can press the said issue in respect of want of notice.
Similarly in AIR 1947 PC 197, it has been held that the provision of S.
80, C.P.C., are mandatory no doubt, but it does not mean that the notice
meant for the benefit of the authorities cannot be waived by the said
authorities. In the instant case the State of U.P. has filed a written
statement and an issue was also framed on the point but it did not press
the issue and the suit was decreed even against the State of U.P. The
State did not file first or second appeal, hence it is clear that the State has
waived the plea of notice under S. 80, C.P.C. It is not open to
respondents 4 and 5 to raise that plea as no prejudice has been caused to
them.

10. Even in those cases where there is no waiver, then also, the
plaint cannot be mechanically rejected. In Gangappa Gurupadappa Gugwad
v. Rachawwa, (1970) 3 SCC 716, the Supreme Court has held that where a
relief is claimed by the plaintiff against the State Government, in that event
the delivering of notice is mandatory and in case it has not been done the
plaint can be rejected for want of notice, but where no relief has been
claimed against the State, the plaint cannot be rejected for want of notice and
in that case it would be the duty of the Court to go into all the issues which
may arise on the pleadings including the question as to whether notice under
S. 80, C.P.C., was necessary. It was held as under :-
10. No doubt it would be open to a court not to decide all the issues which may
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6 CR-192-2021
arise on the pleadings before it if it finds that the plaint on the face of it is
barred by any law. If for instance the plaintiff's cause of action is against a
Government and the plaint does not show that notice under Section 80 of the
Code of Civil Procedure claiming relief was served in terms of the said section,
it would be the duty of the court to reject the plaint recording an order to that
effect with reasons for the order. In such a case the court should not embark
upon a trial of all the issues involved and such rejection would not preclude the
plaintiff from presenting a fresh plaint in respect of the same cause of action.
But, where the plaint on the face of it does not show that any relief envisaged
by Section 80 of the Code is being claimed, it would be the duty of the court to
go into all the issues which may arise on the pleadings including the question
as to whether notice under Section 80 was necessary. If the court decides the
various issues raised on the pleadings, it is difficult to see why the adjudication
of the rights of the parties, apart from the question as to the applicability of
Section 80 of the Code and absence of notice thereunder should not operate as
res judicata in a subsequent suit where the identical questions arise for
determination between the same parties.

11. It is further held by Hon’ble Apex Court in Bishandayal and
Sons v. State of Orissa, (2001) 1 SCC 555 that notice under Section 80 CPC
can be waived by the authority concerned. It was held as under :-
15. The next question for consideration is whether the amendment suit was not
maintainable for want of notice under Section 80 of the Code of Civil
Procedure. In this behalf the appellants have relied upon the cases of Amar
Nath Dogra v. Union of India [AIR 1963 SC 424 : (1963) 1 SCR 657] , State of
Punjab v. Geeta Iron & Brass Works Ltd. [(1978) 1 SCC 68 : (1978) 1 SCR
746] , Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46] and Vasant
Ambadas Pandit v. Bombay Municipal Corpn. [AIR 1981 Bom 394 : 1981
Mah LJ 706 : 1981 Bom CR 793 (FB)] In these cases it has been held that a
notice under Section 80 CPC or equivalent notices under Section 527 of the
Bombay Municipal Corporation Act are for the benefit of the respondents and
the same can be waived as they do not go to the root of jurisdiction in the true
sense of the term.
12. Therefore, in the considered opinion of this court, even the
application filed by the petitioner under Order 7 Rule 11 is itself was not
maintainable and such an application could have been considered only if it
had been filed by the State Government or any of the public officers.
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7 CR-192-2021
13. So far as the issue raised that the notice was issued only to the

Collector and not to the Tehsildar separately is concerned, as per Section 80
of CPC the following has been provided.
“80. Notice.—
[(1)] [ Save as otherwise provided in sub-section (2), 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 act
purporting to be done by such public 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
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 in 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, stating
the cause of action, the name, description and place of residence of the
plaintiff and the relief which he claims; and the plaint shall contain a statement
that such notice has been so delivered or left.
[(2) A suit to obtain an urgent or immediate relief against the Government
(including the Government of the State of Jammu and Kashmir) or any public
officer in respect of any act purporting to be done by such public officer in his
official capacity, may be instituted, with the leave of the Court, without serving
any notice as required by sub-section (1); but the Court shall not grant relief in
the suit, whether interim or otherwise, except after giving to the Government or
public officer, as the case may be, a reasonable opportunity of showing cause
in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that no
urgent or immediate relief need be granted in the suit, return the plaint for
presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in
respect of any act purporting to be done by such public officer in his official
capacity shall be dismissed merely by reason of any error or defect in the notice
referred to in sub-section (1), if in such notice—
(a) the name, description and the residence of the plaintiff had been so given as
to enable the appropriate authority or the public officer to identify the person
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8 CR-192-2021
serving the notice and such notice had been delivered or left at the office of the
appropriate authority specified in sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been
substantially indicated.]”

14. As per Section 80 (1)(c), in case of suit against State
Government, the notice is to be issued to the Collector of the District. It has
been held by Hon’ble Apex Court in the case reported in Ghulam Rasool v.
State of J & K, AIR 1983 SC 1188 that notice to the Collector being issued,
but being not separately issued to a public officer is not a defect and the
notice issued to Collector is sufficient compliance of Section 80(1) CPC.
Therefore, this objection of the petitioner also must fail.
15. Consequently, no error can be found in the order passed by the
trial court. The revision fails and is dismissed.
(VIVEK JAIN)
JUDGE
MISHRA

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MISHRA
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