HIGH COURT OP CHHATTISGARH. BILASPUR Civil Revisioa No. 71^2009 PBTITOWBR Deifendaat No. 1 RESPONDEN're Plaiatiffs Smt Urmila Devi, wife of Bihari Lal Gupta, aged 43 years, resident of Beohari., Tehsil Beohari, Distt. Shahdol (xMP) Versi&s 1, Rooplal son of Beer aad othersaged 60 years 2. Raialal son ofBeer, aged 40 years Both by caste -Baiga, residents of Domh^ra, Post Singrauli, Tehsil Bharatpur,, Distt. Koriya (CG 3, Golla, son of SIiri Tuniya, Caste Baiga, resident of Doxahara, Tehsil Bharatpur, Distrcit FCoriya (CG) 4. Manager, Zila Shahkari Bhuini Vikas Baak Maryadit, Anibikapur, District Surguja (CG) 5. Sales Officer, Zlla Shahkad Bhzimi Vikas Baak Maiyadit, Braiich Jaiiakpur, District Konya (CG) 6. Assistaiit Registi'ar, Co-operative Societies, Ambikapur, District Surguja(CG) 7. State ofC.G. through the CoUector, Koriya (CG) ^- V/' Sushri SIiarmila Siiighai, Ad^ocate, for the petitk>ner. Shri A,S, KachMawalia, Dy, Advocate General, for fhe State, SB: HON»BLESHRI JUSTICB N.K. AGARWAL ORALORDBR (23-7-2009) Heanl on admission, 2. The iastant revision is preferred agaio.st fhe onler dated 13- 3-2009 passed m Civil Suit No. 39A/2009 by the Ist Civil Judge Class II, Jaaakpur, Distt. Korea whereby aiid whereuuder, the appMcaiit's objectioii ofwant ofiiotice uuder Sectioii 80 of C. P. C, to ..^ 0.. State and pubUc officers has been rejected on fhe ground fh.at no notice is required as fhe respondent No. 7 / State is a formal party. 3. Sushri Siaghai would submit fhat apart from. fhe respondent No. 7, respondents No. 4 to 6 are also public sen?raiits and before ftluig auy suit agamst them a notice under Section 80 of C.P.C. is a preconclition, having not issued the sasiie, fhe suit filed is Mable to be dismissed aiid fherefore, the order passed by fhe tdal Court suffers frora jurisdictional error which is apparent on the face of the record. 4. Section 80 ofC.P.C. readsas under:- "80. Neticc.' {(l)]Save as other^wise provided in sub-sec^tion (2), no suit shall be instituted against ihe Govemment (induding Govermnent of Staie of Jmmnu and Kashmir) or against a public officer in respeci ofany act purporting to be done by such public offic^r in his official azpadty^ until the expiration of tiuo rnonths next. after noiioe in writing has been deliveredto, or left atthe office of- (a) in ihe case o/ a suii agaijwt the Ceniral Govermnent, except where i1 relates to a railway, a Secretary to that Govemment; fb) in the case of a suit against the Centrai Goveinment where it relates io a raihoay, the General Manager of that railway; (bb) in ihe case of a suit agaifist the Govefnment of the State of Jwmnu wul Kcssfumr^ ihe Chief Secretary to that Government or any other officer authorised by that Govemment inthis behalf; (c) in the case of a suit against any Stale Govemment, a Secreiary to that Govemment or the Collector of the disirict; and, in the case of a public officer^ delivered to him or lefi at his office, siating the cause of action, the name, descriptionand plac^ of residence of the plcdntiff and the relief which he claimjs; and the plaini shall contain a staiement that such notioe HCLS been so delivered or left. (2) A suit to obtain an urgent or immediate relief aganzst the Govefrunent finduding the Cjovetnment ofState ofJmnmu and Kcisivnir) or any pubtic offiwr in respect of any act purporting to be done by such pubUc officer in his offidal capadty, rnay be instituied, imth the leave of the Court without seruing any notice as required by sub"section (1); but the Court shallnot grant relief in the suit whether interim or otherwise, except after giving to the Govemment or public ^officer, as the case mny be, a reasonable opportunity of shozmng causein respect ofthe reliefprayedfor in ihe suit: /9 Provided that the Court shnU, ifii is satisfied^ ap.er hearingthe parties, that no urgent or immediate relief need be grantedin the suit retum the plaint for presentation to ii after complying with the requirement ofsub-section(l). (3) No suit instituted against the Govejnment or against a public offioer in respect ofcsny act purporting to be done by such public offlcer in his offidal capacity shall be dismissed rnerely by reason ofany error or defect in the notice refefred to in sub'section (1), ifin suchnotice- (a) the name, description and ihe residence of ihe plcdniiff had been so given as to enable the appropriate authoriiy or the pubic officar to identify the person serving the notice and such noiice had beendelivered or leftat the office ofthe appropriate authority spedfied in sub-section (1), and (b) the cause of action and the relief claimed by the plmntiff }zad been subsianiially indicated,)) 5. A bare perusal of fhis provision would reveal fhat fhe notice caa be lawfully waived by the parties for whose benefit it has been provided, aad therefore, the only party for whose benefit it has been provided can challenge fhe question ofwant ofnotice under Section 80 of C.P.C. The revisioner not beiag fhe public senraiit cannot defend fhe suit on fhe ground of waat of fhe uotice under Section 80 of C.P.C, aad fherefore fhe applicaat cannot be said to be a person aggrieved. 6. The Division Bench of Bombay High Conrt ia case of Heera Chasad Himatlal Marwari-v- Kaslaiaath Tliakiirji Jadhav reported ia AIR (29)1942 Bonibay 339 observed as under:- "It is open to the party protected by Section 80 to waive his rights to a notice and his waiver binds the rest ofthe parties, Bui only he can waive rwtice andaparty who has himselfno righito notice cannot chaHenge asuii on theground ofwant of notice io the only party eniiiled to receive itff 7. The Single Bench of Kerala High Court in case of Kaaa&ku Karthiayaaai Pillai Narayaai P21!ai aad otlaers -v- Neelacaata Pillai Ramaa Pillai and aaother reported m AIR 1969 KERALA 280pbserved iii para 9 as under:- ^9- ........ I do not feel persuaded by ihis argument It is an elementary rule injudtdal proceedings ihai nobody can plead ji^s tertif as a defence. As pointed out by the Supreme Court the object of Section 80 C P.C is only to give ihe govermnent notice of the suit proposed to be broughi against it so thai ii raay decide for iiself wheiher ihe claim of the plainiiff should be accepted or resisted. The benefii of the Seciion 80 is only io the govemment and its officers^ ami not to private pariies. It cannot then be availed of by a privaie party who is made a defendani to the suit along -with ihe Siaie^ 8. The Siiigle Beiich of AIIahabad High Coiirt io. case of Hiisaiis Abbas Hiisaiii -v- Zafriil aisd otfaers reported m AIR 1969 AUaliabad 161 placmg rellaace upon the judgnient of Boinbay High Court in. Chaiid (supra) held that tlie only pai^ who i.s protected by Section 80 can. challeuge a suit on flie groiuid ofwaat ofnotice. A private party who has himself no right to notice canixot defeiid fhe suit on the ground ofwant ofiiotice iiiider Section 80 ofC.P.C. to fhe goveminent officisls. 9. Therefore, lookio.g to the facts mid cii'cuinstaiices oftlie case aiid tlie dicta of different High Courts, to which I ain m. respectfal agreeiiient, I have no hesitatioii to hold that ftie appUcaiit beiiig private party has no right to defend fhe suit on the ground ofvv7ant of notice inider Sectioii 80 of C.P.C. to aay public servant who is also a party to the suit The revision has no m.erit and- fhe sanie deserves to be dism.issed summarily at inotion stage. 10. No order as to costs. Sd/- N. K. Agarwal judge