IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.25 of 2005 Girija Shankar Upadhayaya, son of late Ram Niwas Upadhayaya, Resident of Mauja village: Persurampur, P.S. Barahara, District Bhojpur …….Plaintiff-Appellant-Appellant Versus 1.The State of Bihar through Secretary, Chief Secretary, Govt. of Bihar. 2. The Home Secretary-cum-Home Commissioner, Govt. of Bihar 3. The Director General-cum-Inspector General of Police,Bihar,Patna 4. The Deputy Inspector General of Military Police, Southtern Range, Ranchi. 5. The Commandant, B.M.P. 11, Jamshedpur, Distt. Singhbhum, ……Defendant-Respdondents-Respondents. ------- For the Appellant : Mr. Md. Ataul Haque, Advocate For the Respondents: None. -------- 04/ 21.11.2008 Heard learned counsel for the appellant. This second appeal has been filed by the plaintiff-appellant- appellant challenging the judgments and decree of the learned courts below. The matter arises out of Title Suit No.53 of 2000, which was filed by the appellant for declaration that the order of his dismissal dated 12.11.1979 was illegal, ultra vires and without jurisdiction and he should be deemed to be in service as constable in the Bihar Military Police-11. The aforesaid suit was dismissed on contest by the learned Munsif-II, Ara, vide judgment and decree dated 27.09.2002, which was challenged by the plaintiff in Title Appeal No.50 of 2002. The said title appeal was also dismissed by the learned Additional District Judge-Fast Track Court-II, Ara, Bhojpur, vide judgment and decree dated 02.11.2004, whereafter, the instant second appeal has been filed. From the averments made by learned counsel for the - 2 - appellant as well as the materials on record including the impugned judgments and decree, it transpires that the appellant challenged the said order of his dismissal before the appellate authority under the Statute and after losing from there, he filed a writ petition bearing C.W.J.C. No. 229 of 1997 before the High Court and after full consideration of every aspect of the matter, the High Court rejected his claim raised in the aforesaid writ petition. Hence, there was no occasion left for the learned courts below to decide the matter afresh. The learned courts below also found that although a copy of notice under section 80 of the Code of Civil Procedure (hereinafter referred to as `the Code’ for the sake of brevity ) sent by the plaintiff had been produced, but it did not disclose as to whom it was sent nor any postal receipt was produced to show that it was sent to the authorities concerned, namely, defendants no.1 to 5 nor even any petition for exemption from sending such a notice was filed in the trial court. Hence, the plaintiff has miserably failed to prove service of notice under section 80 of the Code and on that ground also, the suit was not maintainable. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in the instant second appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code. MPS/ ( S. N. Hussain, J. )