If State Doesn't Question Suit Maintainability For Lack Of Notice U/S 80 CPC In Written Statement, It Can't Do So At Appellate Stage: Orissa HC

The Orissa High Court has reiterated that the State and its agencies cannot challenge the maintainability of a suit, for the first time at the stage of appeal, on the ground that no prior notice as prescribed under Section 80 of the Code of Civil Procedure was issued to them before instituting the suit.Clarifying the position of law, the Single Bench of Justice Ananda Chandra Behera observed–“…if the defendants do not raise any objection about the same in their written statement challenging the maintainability of the suit of the plaintiff on the ground of non-issuance of notice under Section 80(1) of the C.P.C., 1908 and if no issue is framed on the said point, then, it will be deemed as per law that, defendant or defendants have waived their right on such point.”Factual BackgroundThe respondent, being a registered construction company, had entered into an agreement with the appellants i.e. the State and the Executive Engineer. As per the agreement, the respondent-company was required to construct a bridge over the river Vansadhara near Gunupur in the district of Rayagada within a period of 36 months starting from 25.01.1985.Due to non-completion of the construction works within the stipulated period for some unforeseen natural calamities, the time period for completion was extended by the appellants in two phases up to 30.06.1992. During such period, the respondent-company incurred a huge amount of expenses on construction materials and labour wages. Though the appellants cleared some of the initial running-bills, but later on they did not clear the bills. Rather they unilaterally cancelled the agreement with the respondent-company and intimated it that they shall adjust its security deposit towards part of their losses for the delay in construction.Being aggrieved, the respondent-company filed a civil suit praying for declaring the rescission/cancellation of its contract by the appellants as invalid and illegal and that it is entitled to get refund of its security deposit. After hearing both the sides, the Civil Court passed judgment and decree in favour of the respondent-company, which was also confirmed by the first appellate Court. Therefore, the appellants brought the matter to the High Court by way of this second appeal.Court's ObservationsThe Court admitted the second appeal upon framing two substantial questions of law. Firstly, whether in absence of any pleading in the plaint that notice under Section 80 of the CPC was served on the defendant (present appellants), the suit was maintainable and secondly, whether in the facts and circumstances of the case, it can be deemed that the appellants waived their claim to receive a notice under Section 80, CPC.To answer the aforesaid questions, the Court perused the pleadings of the parties and the judgments and decrees of the trial Court as well as the first appellate Court which revealed that no notice under Section 80(1), CPC was served upon the appellants by the respondent-company before filing the suit. Further, no cause was also assigned as to the reason behind such non-service of statutory notice.Justice Behera underlined that the appellants did not raise any objection challenging the maintainability of the suit of the respondent-company in the trial Court on the ground of non-service of notice under Section 80(1) of the CPC prior to filing of the suit. Also, no pleading or evidence or argument was raised by the appellants before the trial Court challenging the maintainability of the suit.Against such backdrop, the Court highlighted the objective behind the provision of serving of notice under Section 80(1) and observed –“The main object/purpose of issuance of notice under Section 80(1) of the C.P.C., 1908 by the plaintiff to the State/Government and its officer prior to the institution of suit is only to give the concerned Government or officer an opportunity to reconsider the legal position and to settle the claim raised by the plaintiff, if so advised, without moving for the litigation in order to enable the State and its officer to be responsive to the notice of the plaintiff for the avoidance of a fight in the suit or litigation with the plaintiff or plaintiffs.”It further held that the though the provision of issuance of notice under Section 80(1) of the CPC is mandatory, but the same can be waived by the defendant and if once the defendant waives the requirement of notice under the said provision without raising any objection in the written statement, the plaintiff cannot be non-suited on the ground of non-service of statutory notice prior to the institution of the suit.“So, if the issuance of notice under Section 80(1) of the C.P.C. before filing of the suit is waived by the defendant or defendants without raising any objection about the same in the written statement, then in that case, there is no impediment for the court to entertain the suit of the plaintiff without notice under Section 80(1) of the C.P.C., 1908,” it added.The Court placed ...

If State Doesn't Question Suit Maintainability For Lack Of Notice U/S 80 CPC In Written Statement, It Can't Do So At Appellate Stage: Orissa HC

Jyoti Prakash Dutta

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