Vijay Shrivastava vs Smt. Subratan @ Shabra Bee

1 CR-54-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
th
ON THE 6 OF JULY, 2026
CIVIL REVISION No. 54 of 2024
VIJAY SHRIVASTAVA
Versus
SMT. SUBRATAN @ SHABRA BEE AND OTHERS
Appearance:
Shri Harshvardhan Soni- Advocate for applicant.
Shri Afshan Ahmad- Advocate for the respondents.
ORDER
The present revision has been filed by defendant No. 4 of the suit
being aggrieved by the order passed by the trial court dated 12.12.2023
whereby the trial court has rejected the application of the petitioner-
defendant for rejection of plaint under Order 7 Rule 11 CPC and further the
order dated 18.01.2023 whereby the application for review of the said order
has been rejected by the trial Court.
2. It is vehemently contended by the counsel for the applicant that
the trial court has gravely erred in rejecting the said application for rejection
of plaint, though the suit was clearly barred by law of limitation inasmuch as
the State Authorities are party to the suit and no notice in terms of Section 80
CPC has been issued to the State and for want of compliance of Section 80
CPC, and no leave under Section 80(2) CPC having been sought, the suit
was not maintainable and therefore the plaint has to be rejected, but the
trial court has erred in not rejecting the plaint.
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 09-07-2026
12:33:48

2 CR-54-2024
3. It is argued that relief sought in the plaint is not only against

private persons but also against the State Authorities because prayer for
injunction has been sought which applies against the State Authorities also.
Hence a proper notice under Section 80 CPC was initial requirement and in
absence of the notice under Section 80 CPC the trial court ought to have
rejected the plaint.
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 and some other defendants are Public Officers
of the State, therefore the notice under Section 80 CPC was mandatory. 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 argued that the suit is not formal suit as against the State and
even though there may not be any interest in the land of the State
Government but since the petitioner wants a consequential action to be
undertaken out by the State Government authorities, therefore the notice
under Section 80 CPC in proper manner was required to be issued.
6. Heard.
7. Upon perusal of the plaint assertions, it is seen that the dispute is
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 09-07-2026
12:33:48

3 CR-54-2024
basically between the plaintiff and the private person/ Cooperative Society

who are impleaded as defendants No. 4 and 5. The State Authorities are
defendant No. 1 to 4 and the allegations in the plaint against the State
Authorities are that at the instigation of, and on complaints of defendant no.
4, the State Authorities are threatening demolition of construction of the
plaintiff. Nothing has been mentioned in the plaint whether there is an
inherent dispute between the plaintiff and the State, but the only allegations
against the State Authorities is that the State Authorities reach to the spot as
and when the defendant no. 4 makes a complaint to the State Authorities.
Apart from that there is no allegation against the State Authorities and no
relief of title has been sought against the State Authorities. The allegations
are against the defendant No. 4 which is the present applicant in this
revision.
8. In the present case, the litigation is between private parties and
the functioneries of the State of Madhya Pradesh have been impleaded only
because they sometimes act on complaints of the defendant No.4.
9. 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.
10. However, since the issues have been raised before this court,
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 09-07-2026
12:33:48

4 CR-54-2024
they have to be considered by this court. 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
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
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 09-07-2026
12:33:48

5 CR-54-2024
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 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.
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 09-07-2026
12:33:48

6 CR-54-2024
12. 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
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.
13. 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
Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 09-07-2026
12:33:48

7 CR-54-2024
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.

14. Such waiver can be inferred even from non-appearance of the
party and non-filing of written statement. In the present case, public officer
defendants have already been proceeded ex-parte by the trial court after
service and it is clear that these defendants have no interest in outcome of the
suit and they have consciously decided to remain ex-parte despite the State
having all the facilities of defending the suit against the State. Therefore, it is
to be inferred that the State and public officers have waived the notice under
Section 80 CPC.
15. 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.
16. Consequently, no error can be found in the order passed by the
trial court, the revision fails and is dismissed.
(VIVEK JAIN)
JUDGE
MISHRA

Signature Not Verified
Signed by: ARVIND KUMAR
MISHRA
Signing time: 09-07-2026
12:33:48