abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 254 OF 1996 The Ajara Urban Co-operative Bank Ltd., Ajara, Dist. Kolhapur .. Appellant V/s The State of Maharashtra & Ors. .. Respondents Mrs.S.A. Mudbidri for the appellant. CORAM : D.G. KARNIK, J. DATE : 1ST OCTOBER 2008 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT : 1. Heard learned counsel for the appellant. 2. This appeal is directed against the judgment and order dated 22nd March 1995 passed by the 5th Additional District Judge, Kolhapur allowing the appeal of the respondent - State of Maharashtra and thereby dismissing the suit for possession filed by the appellant. 3. The respondents - State of Maharashtra and its - 2 - forest department are tenants in possession of four rooms out of the property bearing city survey no.1868 of village Ajara, District Kolhapur (for short "the suit premises") belonging to the appellant. 4. The suit premises are situated in an area to which the provisions of Bombay Rent Control Act, 1947 were not applicable and the relationship between the parties is governed by the provisions of Transfer of Property Act. 5. The respondents were in arrears of rent. Therefore, by a notice to quit dated 8th July 1985 (Exhibit 18) the appellant terminated the tenancy of the respondents by the end of 31st July 1985 and called upon the respondents to deliver possession of the suit premises by the end of July 1985. The respondents neither replied nor complied with the notice. The appellant therefore filed a suit, bearing Regular Civil Suit No.1060 of 1985, for possession of the suit premises in the Court of Civil Judge, Senior Division, Kolhapur. The trial court held that the respondents were in arrears of rent and their tenancy was validly terminated by a notice to quit and therefore the appellant was entitled to a decree of possession. Aggrieved by the decision, the respondents filed an - 3 - appeal bearing Regular Civil Appeal No.263 of 1994, in the Court of District Judge, Kolhapur. The District Court allowed the appeal holding that the notice under section 80 of the Code of Civil Procedure (for short "the Code") was not issued prior to the institution of the suit and therefore the suit was not maintainable and liable to be dismissed. That judgment is impugned in this appeal. 6. By an order dated 12th October 1996, the appeal was admitted as to ground no.5 which was stated to contain a substantial question of law. Since the ground no.5 is in the narrative form, after hearing the learned counsel for the appellant, I have framed following substantial questions of law which arise in this appeal. (A) Whether the notice dated 8th July 1985 (Exhibit 18) could be treated as a composite notice under section 106 of the Transfer of Property Act as well as section 80 of the Code of Civil Procedure? (B) Whether the appellant proved that the respondents have waived the notice under section 80 of the Code of Civil Procedure? - 4 - 7. Learned counsel for the appellant submitted that the notice dated 8th July 1985 should have been treated as a composite notice under section 106 of the Transfer of Property Act as well as under section 80 of the Code. As the suit was filed more than two months after of the issuance of the notice, the lower appellate court should have treated the said notice dated 8th July 1985 as a valid notice also under section 80 of the Code. In the alternative, she submitted that the notice under section 80 of the Code is capable of being waived and was waived by the respondents and the lower appellate court should have held that the notice under section 80 of the Code was waived by the respondents and therefore ought to have decreed the suit. 8. Section 80 of the Code says that no suit shall be instituted against the government or against a public officer in respect of any act purported to be done by such public officer in his official capacity until the expiration of two months next after the notice in writing has been delivered or left at the office of the government or such public officer 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. Bare perusal of sub-section - 5 - (1) of section 80 of the Code would show that the plaintiff is required among other things to state the cause of action in the notice under section 80 of the Code. Obviously, therefore, the notice under section 80 of the Code is required to be issued after the cause of action has arisen. 9. In my view, in the present case, the notice has not been issued after the accrual of the cause of action. Admittedly, the respondents were tenants in the suit premises. The suit against the respondents could not have been filed until their tenancy was terminated in accordance with section 106 of the Transfer of Property Act. Termination of tenancy under section 106 of the Transfer of Property Act was the cause of action for filing a suit for possession. This is because the suit for possession could not have been filed unless tenancy of the respondents was validly terminated. Tenancy of the respondents was terminated by the end of 31st July 1985 by the notice dated 8th July 1985. Therefore, the notice under section 80 of the Code could have been issued only after 31st July 1985. It cannot be said that notice dated 8th July 1985 was a composite notice. It could not be a notice under section 80 of the Code because on the date when the said notice was issued the appellant had no cause of action for filing - 6 - the suit which arose only on 31st July 1985 on termination of the tenancy. 10. Relying upon a decision of the Full Bench of this Court in Vasant Ambadas Pandit v. Bombay Municipal Corporation & Ors. - AIR 1981 Bombay 394, learned counsel for the appellant submitted that the notice under section 80 of the Code could be waived. That was a case wherein the Full Bench was required to consider whether a notice under section 527 of the Bombay Municipal Corporation Act could be waived. The provisions of section 527 of the Bombay Municipal Corporation Act and section 80 of the Code of Civil Procedure are not pari materia. That decision is no authority for the proposition that the notice under section 80 of the Code can be waived. I would, however, assume in favour of the appellant that a notice under section 80 of the Code is capable of being waived because, in my view, even if so presumed, no finding can be recorded about waiver of the notice as the appellant has not pleaded nor proved that the notice was waived by the respondents. Waiver is an intentional act on the part of a person to give up certain rights conferred upon him. For that purpose, there must be proper pleadings of waiver and waiver must be proved as any other fact. In the absence of any pleading on the part - 7 - of the appellant about the waiver, it cannot be held, that too for the first time in a second appeal, that the notice under section 80 of the Code was waived by the respondents. No such issue was ever raised in the trial court or in the lower appellate court. In the circumstances, the contention of the appellant that the notice under section 80 of the Code was waived by the respondents also cannot be accepted. 11. For these reasons, there is no merit in the appeal which is hereby dismissed. (D.G. KARNIK, J.)