Sec.80 CPC notice does not have to state the section under which it is made so long as the ingredients of sub- section (3) of section 80 are met. - for filing writ /writ appeal ,no sec.80 notice is required.
The Code of Civil Procedure (Amendment) Act , 1976 the existing Section 80 was renumbered as Section 80(1) and sub- sections (2) and (3) were inserted with effect from 1-2-1977.
Sub-section (2) carved out an exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months' notice has been served on such Government or public officer.
The provision mitigates the rigours of sub- section (1) and empowers the Court to allow a person to institute a suit without serving any notice under sub-section (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer.
But, the Court cannot grant relief under the sub-section unless a reasonable opportunity is given to the Government or public officer to show cause in
respect of the relief prayed for.
The proviso to the said sub-section enjoins that in case the Court is of the opinion that no urgent and immediate relief should be granted, it shall return the plaint for presentation to it after complying with the requirements of sub-section (1).
Sub-section (3), though not relevant for the present case, seeks to
bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1).
On a perusal of the notice dated 14.01.2000, it is clear that this is a legal notice sent by a lawyer of the appellant to the authorities concerned.
It is not disputed that it was by registered A.D. and served upon the authorities.
There is also no dispute that the cause of action is sufficiently set out in the said notice, which is the illegality of the partial termination of the contract on 16.12.1999.
There is no doubt, whatsoever, that more than two months have elapsed from the date of this notice, after which the Suit has been filed .
In fact, the Suit was filed long after, on 12.09.2002. Quite apart from this, on 29.01.2000 also, the letter of the appellant made it clear to the Divisional Engineer that not only is the partial termination bad in law but that the payments due for work would have to be made.
It is clear, therefore, that there is sufficient compliance with the provisions of Section 80 CPC as has been introduced by the Amendment Act introducing section 80(3)
into the Statute book.
This is for the reason that a notice does not have to state the section under which it is made so long as the ingredients of sub- section (3) of section 80 are met.
It is admitted that there was no need for any legal notice before filing the Writ Appeal .
The notice, therefore, that was sent on 14.01.2000, was only under Section 80 CPC in the event the Writ Appeal failed and a Suit would have to be filed.
We are, therefore, of the view that the learned Additional District Judge's judgment was correct. In this view of the matter, we set aside the impugned judgment of the High Court and remit the matter to the High Court to dispose of the two appeals on merits. Further, considering this is a Suit of the year 2002, we request the High Court to take up these appeals and dispose of the same at the earliest.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4495-4496 OF 2019
(Arising out of SLP (C)Nos. 30945-30946 of 2015)
Y. SAVARIMUTHU Appellant(s)
VERSUS
STATE OF TAMIL NADU & ORS. Respondent(s)
J U D G M E N T
R. F. NARIMAN, J.
Leave granted.
The present appeals relate to whether a notice under
Section 80 of the Code of Civil Procedure (CPC) has been
given to the State of Tamil Nadu in terms of the Section or
in substantial compliance thereof .
The appellant is a Government Contractor who has
executed various works in the National Highways, P.W.D. and
Electricity Board. On 15.10.1997, the appellant and
respondent No.2 entered into an agreement for strengthening
the existing two-lane pavement of NH7 from a particular
kilometer point from Madurai to Kanyakumari. As per the
agreement, the work ought to have been completed in 18
months. The site was handed over to the appellant on
20.10.1997, but, in the course of the progress of work, the
appellant stated that due to delay caused by the
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CIVIL APPEAL NOS.4495-4496 OF 2019
respondents, he was not able to progress and complete the
work in time. The immediate reason why the appellant had to
knock at the doors of the High Court was an order dated
16.12.1999 passed by the Superintending Engineer partially
terminating the contract on the ground that the plaintiff-
appellant has not shown sufficient progress in the execution
of the said work. The plaintiff-appellant first filed a
Writ Petition before the Madras High Court, which, by a
judgment dated 24.12.1999, rejected the Writ Petition,
stating that an adequate alternative remedy existed in terms
of filing of a Civil Suit. This was appealed against by the
appellant, which appeal substantially met the same fate by
the order dated 10.07.2000, by which the Writ Appeal was
dismissed, and it was stated that an adequate alternative
remedy existed by way of arbitration.
In between the learned Single Judge�s judgment and the
Division Bench judgment dismissing the Writ Appeal, the
appellant sent a legal notice dated 14.01.2000 in which the
appellant made it clear that he had completed the work to
the extent of Rs.1,25,00,000/- in spite of delay in
approving the pre-level work and fitness of the plant. He
also mentioned that the original period of 18 months was
extended up to 30.03.2000 for the reason that there was
delay on the part of the Department. Despite this, an order
of 16.12.1999 was made even before the said extension came
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CIVIL APPEAL NOS.4495-4496 OF 2019
to an end, by which the contract was partially terminated.
It was for this reason that he stated that it was necessary
for him to have gone to the High Court by way of a Writ
Petition. It is further stated that the Writ Petition was
dismissed on 24.12.1999 and that the appellant had decided
to file a Writ Appeal against the said order. Despite this,
however, the appellant made it clear that the part-
termination, even before the expiry of the extended time, is
arbitrary and equally arbitrary is the fresh tender that had
been called for without issuing any notice to the appellant
for which he would take �appropriate legal actions� as
available in law, holding the State liable for all costs and
consequences. This legal notice was followed by two other
letters, one dated 25.01.2000, and the other dated
29.01.2000. The letter dated 29.01.2000 went on to state
that he is challenging the partial termination of the
contract and enclosing a list of payments due for the work,
which, at that point of time, amounted to a sum of Rs.88.06
lakhs.
Since the Writ Appeal had also been dismissed and
since the remedy of arbitration could not be availed of as
claims of above Rs.2 lakhs were not arbitrable, but ought to
be decided in a Civil Suit, the appellant filed O.S. No.
2/2002 on 12.09.2002 in the Court of the Special Judge at
Virudhunagar. After setting out the fact that the partial
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CIVIL APPEAL NOS.4495-4496 OF 2019
termination was bad in law, the appellant prayed for a
declaration that the partial termination order dated
16.12.1999 is illegal and void and that a sum of Rs.3.30
crores with interest of 15 per cent per annum be granted to
him as these were the amounts owing to him by the State.
The learned Additional District Judge by his judgment
dated 29.06.2007 found that there was substantial compliance
of section 80 CPC, given the fact that the notice dated
14.01.2000 was clearly sent to the three authorities in
question and served on them. Further, the cause of action
and reliefs claimed were also substantially set out both in
the notice as well as in the letter dated 29.01.2000 already
referred to hereinabove.
After citing case law, the learned Additional District
Judge found that there was a substantial compliance with the
provisions of section 80 CPC. On merits, ultimately, the
appellant was awarded a sum of Rs.87,01,200/- together with
interest at the rate of 6 per cent per annum.
Being dissatisfied with the judgment of the learned
Additional District Judge, both the appellant as well as the
State filed appeals. These appeals were disposed of by the
High Court in which the High Court found that the provision
of Section 80 CPC was mandatory and that �full particulars�
as mentioned by the said provision was not given in the so-
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CIVIL APPEAL NOS.4495-4496 OF 2019
called notice s that were sent under section 80, and,
therefore, allowed the appeal of the State on the
preliminary ground itself and stated that the Suit as filed
would not be maintainable as it was filed without complying
with the provisions of section 80 CPC.
Learned counsel appearing on behalf of the appellant
has submitted, based on the legal notice together with the
letters sent by the appellant, that substantial compliance
with section 80 CPC has been made in the present case as was
correctly found by the learned Additional District Judge.
The High Court went in error in not adverting to substantial
compliance of Section 80 but acted as if section 80 was a
rigid provision which, like the Laws of the Medes and
Persians, could not be bent at all. He cited certain
judgments to show that, by the 1976 amendment to the Code of
Civil Procedure, section 80(3) was added making it clear
that so long as the State was put on notice and properly
served, and so long as the cause of action and the prayer in
the Suit was substantially communicated, this must be held
to be sufficient compliance with the provision.
On the other hand, learned counsel appearing on behalf
of the State has argued before us that it is clear that
there was no notice at all issued under Section 80 CPC for
the reason that none of the three notices/letters relied
upon by the appellant had stated that they were under
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CIVIL APPEAL NOS.4495-4496 OF 2019
Section 80 CPC. He has also argued that these notices were
issued prior to the disposal of the Writ Appeal which was
still pending, as a result of which, the object of giving a
notice, that is for the Government to settle the claim,
could not have taken place as it is well-known that the
Government can never settle claims which are sub-judice . He
has also argued that none of the notices were issued after
the Writ Appeal was dismissed, which alone could have
qualified as notices, if at all, before filing the present
Suit. He has also buttressed his submissions with reference
to certain decisions of this Court.
Section 80 CPC is set out as follows:
�80.Notice.-
(1) Save as otherwise provided in sub-section (2), no
suits shall be instituted against the
Government(including the Government of the State of
Jammu & Kashmir) or against a public officer in respect
of any act purporting to be done by such officer in his
official capacity, until the expiration of two months
next after notice in writing has been delivered to, or
left at the office of-
(a) in the case of a suit against the Central
Government, except where it relates to a railway, a
Secretary to that Government;
(b) in the case of a suit against the Central Government
where it relates to railway, the General Manager of that
railway;
(bb) in the case of a suit against the Government of the
State of Jammu and Kashmir the Chief Secretary to that
Government or any other officer authorised by that
Government in this behalf;
(c) in the case of a suit against any other State
Government, a Secretary to that Government or the
Collector of the district;
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CIVIL APPEAL NOS.4495-4496 OF 2019
and, in the case of a public officer, delivered to him
or left at this office, 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.�
(2) A suit to obtain an urgent or immediate relief
agianst the Government (including the Government of the
State of Jammu & Kashmir) or any public officer in
respect of any act purporting to be done by such public
officer in his official capacity, may be instituted,
with the leave of the Court, without serving any notice
as required by sub-section (1); but the Court shall not
grant relief in the suit, whether interim or otherwise,
except after giving to the Government or public officer,
as the caes may be, a resaonable opportunity of showing
cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after
heairng the parties, that no urgent or immediate relief
need be granted in the suit, return the plaint for
presentation to it after complying with the requirements
of sub-section (1).
(3) No suit instituted agianst the Government or against
a public officer in respect of any act purporting to be
done by such public officer in his official capacity
shall be dismissed merely by reason of any error or
defect in the notice referred to in sub-section (1), if
in such notice-
(a) the name, description and the residence of the
plaintiff had been so given as to enable the appropriate
authority or the public officer to identify the person
serving the notice and such notice had been delivered or
left at the office of the appropriate authority
specified in sub-section (1), and
(b) the cause of action and the relief claimed by the
plaintiff had been substantially indicated.�
Even at a time when Section 80(3) was not available,
this Court in Dhian Singh Sobha Singh & Another v. Union of
India, (1958) SCR 781 made it clear that Section 80, which
must be strictly complied with, cannot be construed in a
7
CIVIL APPEAL NOS.4495-4496 OF 2019
pedantic manner completely divorced from common sense.
�We are constrained to observe that the
approach of the High Court to this question was not
well founded. The Privy Council no doubt laid down
in Bhagchand Dagadusa v. Secretary of State [(1927)
L.R.54 I.A. 338] that the terms of this section
should be strictly complied with. That does not
however mean that the terms of the notice should be
scrutinized in a pedantic manner or in a manner
completely divorced from common sense. As was stated
by Pollock C. B. in Jones v. Nicholls [(1844) 13
M.&W. 361, 363; 153 E.R. 149, 150] "We must import a
little common sense into notices of this kind."
Beaumont C.J. also observed in Chandu Lal Vadilal v.
Government of Bombay [I.L.R. [1943] Bom.128] : "One
must construe section 80 with some regard to common
sense and to the object with which it appears to
have been passed..........." If the terms of the
notice in question be scrutinized in this manner it
is abundantly clear that the relief claimed by the
appellant was the re-delivery of the said two trucks
or in the alternative payment of Rs.3,500 being the
value thereof. The value which was placed by the
appellants on the trucks was the then value
according to them - a value as on August 1, 1942,
the date on which the delivery of the trucks ought
to have been given by the respondent to the
appellants. The appellants could only have demanded
that sum as on the date of that notice. They could
not sensibly enough have demanded any other sum. If
the respondent had complied with the terms of that
notice then and there and re-delivered the trucks to
the appellant, nothing further needed to be done. If
on the other hand instead of re-delivering the
trucks it paid to the appellant the value thereof
then also it need not have paid anything more than
Rs.3,500 to the appellant, on that alternative. If,
however, the respondent failed and neglected to
comply with the requisitions contained in that
notice the appellants would certainly be entitled to
recover from the respondent the value of the said
trucks in the alternative on the failure of the
respondent to re-deliver the same to the appellants
in accordance with the terms of the decree
ultimately passed by the Court in their favour. That
date could certainly not be foreseen by the
appellants and it is contrary to all reason and
common sense to expect the appellants to have made a
claim for the alternative value of the said two
trucks as of that date. The respondent was and ought
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CIVIL APPEAL NOS.4495-4496 OF 2019
to have been well aware of the situation as it would
develop as a result of its non-compliance with the
terms of that notice and if on January 8, 1943, the
appellants in the suit which they filed for wrongful
detention of the said trucks claimed re-delivery of
the said trucks or in the alternative Rs.3,500 as
their value and reserved their right to claim the
further appreciation in the value of the trucks by
reason of the rise in prices thereof up to the date
of the decree by paying additional court-fee in that
behalf, it could not be laid at their door that they
had not made the specific demand in their notice to
the respondent under s.80 of the Code of Civil
Procedure and that therefore their claim to recover
anything beyond Rs.3,500 was barred under that
section. A common sense reading of the notice under
s.80 would lead any Court to the conclusion that the
strict requirements of that section had been
complied with and that there was no defect in the
same such as to disentitle the appellants from
recovering from the respondent the appreciated value
of the said two trucks as at the date of the
judgment. It is relevant to note that neither was
this point taken by the respondent in the written
statement which it filed in answer to the
appellants' claim nor was any issue framed in that
behalf by the Trial Court and this may justify the
inference that the objection under s.80 h ad been
waived. The point appears to have been taken for the
first time before the High Court which negatived the
claim of the appellants for the appreciated value of
the said trucks.
In Vithalbhai (P) Ltd. v. Union Bank of India, ( 2005)
4 SCC 315, this Court, in paragraph 10, cited certain
judgments which made it clear that the object of the said
Section is the advancement of justice and the securing of
public good by avoidance of unnecessary litigation.
10.Under Section 80 CPC no suit shall be instituted
against the Government or a public officer until the
expiration of two months next after service of notice
in writing in the manner set out in the provision and
if filed before the expiry of said period, the suit
is not maintainable because there is clearly a public
purpose underlying the provision. The object of the
9
CIVIL APPEAL NOS.4495-4496 OF 2019
section is the advancement of justice and the
securing of public good by avoidance of unnecessary
litigation ( See Bihari Chowdhary v. State of Bihar
(1984) 2 SCC 627 ). In Butchiraju (Vaddadi) v. Doddi
Seetharamayya (AIR 1926 Mad 377) the suit was for a
sum of money which had not become payable on the date
of the suit but became payable since. Viswanatha
Sastri, J. (as His Lordship then was) held that the
Court could pass a decree for the recovery of money.
Reliance was placed on a Full Bench decision in A.T.
Raghava Chariar v. O.M. Srinivasa Raghava Chariar
(ILR (1917) 40 Mad 308) and a few other cases. Here,
in all fairness, it may be mentioned that in Rangayya
Naidu (Mylavarapu) v. Basana Simon (AIR 1926 Mad
594) , Spencer, J. has held that if a suit is
premature at the date of institution, though not at
the date of decision, a decree cannot be granted and
the only course in such cases is to dismiss the suit
with liberty to bring a fresh suit upon a proper
cause of action. It is pertinent to note that
Butchiraju case was decided on 5-10-1925 while
Rangayya Naidu case was decided on 7-10-1925 but the
former decision though of a prior date was not
brought to the notice of the Court deciding the
latter case.
In Ghanshyam Dass and Others v. Dominion of India and
Others, ( 1984) 3 SCC 46, this Court went into the amendment
made by the Law Commission and stated:
17. Section 80 of the Code is but a part of the
Procedure Code passed to provide the regulation and
machinery, by means of which the courts may do
justice between the parties. It is therefore merely
a part of the adjective law and deals with procedure
alone and must be interpreted in a manner so as to
subserve and advance the cause of justice rather than
to defeat it. In Sangram Singh v. Election Tribunal,
Kotah (1955) 2 SCR 1 Vivian Bose, J. in his
illuminating language dealing with the Code of Civil
Procedure said :
It is procedure, something designed to
facilitate justice and further its ends: not a
penal enactment for punishment and penalties; not
a thing designed to trip people up. Too
technical a construction of sections that leaves
no room for reasonable elasticity of
interpretation should therefore be guarded
10
CIVIL APPEAL NOS.4495-4496 OF 2019
against (provided always that justice is done to
both sides) lest the very means designed for the
furtherance of justice be used to frustrate it.
18. Our laws of procedure are based on the principle
that as far as possible, no proceeding in a court of
law should be allowed to be defeated on mere
technicalities. Here, all the requirements of
Section 80 of the Code were fulfilled. Before the
suit was brought, the Dominion of India received a
notice of claim from Seth Lachman Dass. The whole
object of serving a notice under Section 80 is to
give the Government sufficient warning of the case
which is going to be instituted against it ( sic so)
that the Government, if it so wished, ( sic can)
settle the claim without litigation or afford
restitution without recourse to a court of law. That
requirement of Section 80 was clearly fulfilled in
the facts and circumstances of the present case.
19. It is a matter of common experience that in a
large majority of cases the Government or the public
officer concerned make no use of the opportunity
afforded by the section. In most cases the notice
given under Section 80 remains unanswered till the
expiration of two months provided by the section. It
is also clear that in a large number of cases, as
here, the Government or the public officer utilised
the section merely to raise technical defences
contending either that no notice had been given or
that the notice actually given did not comply with
the requirements of the section. It is unfortunate
that the defendants came forward with a technical
plea that the suit was not maintainable at the
instance of the plaintiffs, the legal heirs of Seth
Lachman Dass, on the ground that no fresh notice had
been given by them. This was obviously a technical
plea calculated to defeat the just claim.
Unfortunately, the technical plea so raised prevailed
with the High Court with the result that the
plaintiffs have been deprived of their legitimate
dues for the last 35 years.
20. The Law Commission in the Fourteenth Report,
Volume 1 on the Code of Civil Procedure, 1908 at p.
475 made a recommendation that Section 80 of the Code
should be deleted. It was stated as follows:
The evidence disclosed that in a large
majority of cases, the Government or the public
officer made no use of the opportunity afforded
11
CIVIL APPEAL NOS.4495-4496 OF 2019
by the section. In most cases the notice given
under Section 80 remained unanswered till the
expiry of the period of two months provided by
the section. It was also clear that in a large
number of cases, governments and public offices
utilised the section merely to raise technical
defences contending either that no notice had
been given or that the notice actually given did
not comply with the requirements of the section.
These technical defences appeared to have
succeeded in a number of cases defeating the just
claims of the citizens.
21. The Law Commission in the Twenty-Seventh Report
on the Code at pp.21-22 reiterated its earlier
recommendation for deletion of Section 80 and in the
Fifty-Fourth Report at p.56 fully concurred with the
recommendation made earlier. In conformity with the
recommendation of the Law Commission, Section 80 has
undergone substantial changes. By Section 27 of the
Code of Civil Procedure (Amendment) Act, 1976 which
was brought into effect from February 1, 1977, the
existing Section 80 has been renumbered as Section
80(1) and sub-sections(2) and (3) have been inserted.
Sub-section (2) as inserted has been designed to give
an urgent and immediate relief against the Government
or the public officer with the leave of the court.
But the court shall not grant relief in the suit,
whether interim or otherwise, except after giving to
the Government or public officer, as the case may be,
a reasonable opportunity of showing cause in respect
of the relief prayed for in the suit. Proviso to
sub-section (2) enjoins that the court shall, if it
is satisfied, after hearing the parties that no
urgent or immediate relief need be granted in the
suit, return the plaint for presentation to it after
complying with the requirements of sub-section (1).
xxx xxx xxx
23. By sub-section (3), Parliament has brought in the
rule of substantial compliance. The present suit
would be directly covered by sub-section (3) of
Section 80 so introduced if the suit had been brought
after February 1, 1977. Unfortunately for the
plaintiffs, Section 97 of the Amendment Act provides
that the amendment shall not apply to pending suits
and the suits pending on February 1, 1977 have to be
dealt with as if such amendment had not been made.
Nevertheless the courts must have due regard to the
change in law brought about by sub-section (3) of
12
CIVIL APPEAL NOS.4495-4496 OF 2019
Section 80 of the Code introduced by the Amendment
Act w.e.f. February 1, 1977. Such a change has a
legislative acceptance of the rule of substantial
compliance laid down by this Court in Dhian Singh
Sobha Singh (1958) SCR 781 and Raghunath Dass (1969)
1 SCR 450. As observed in Dhian Singh Sobha Singh
case , one must construe Section 80 with some regard
to common sense and to the object with which it
appears to have been enacted. The decision in S.N.
Dutt v. Union of India case (1962) 1 SCR 560 , does
not accord with the view expressed by us and is
therefore overruled.
In another recent judgment in State of A.P. and Others
v. Pioneer Builders, A.P., ( 2006) 12 SCC 119, this Court
again referred to the Law Commission Report and held as
follows:
14. From a bare reading of sub-section (1) of
Section 80 , it is plain that subject to what is
provided in sub-section (2) thereof, no suit can be
filed against the Government or a public officer
unless requisite notice under the said provision has
been served on such Government or public officer, as
the case may be. It is well-settled that before the
amendment of Section 80 the provisions of unamended
Section 80 admitted of no implications and exceptions
whatsoever and are express, explicit and mandatory.
The Section imposes a statutory and unqualified
obligation upon the Court and in the absence of
compliance with Section 80 , the suit is not
maintainable. (See: Bhagchand Dagadusa v. Secretary
of State for India in Council AIR 1927 P.C. 176 ;
Sawai Singhai Nirmal Chand v. Union of India (1966) 1
SCR 986 and Bihari Chowdhary v. State of Bihar (1984)
2 SCC 627 ). The service of notice under Section 80
is, thus, a condition precedent for the institution
of a suit against the Government or a public officer.
The legislative intent of the Section is to give the
Government sufficient notice of the suit, which is
proposed to be filed against it so that it may
reconsider the decision and decide for itself whether
the claim made could be accepted or not. As observed
in Bihari Chowdhary , the object of the Section is the
advancement of justice and the securing of public
good by avoidance of unnecessary litigation.
15. It seems that the provision did not achieve the
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CIVIL APPEAL NOS.4495-4496 OF 2019
desired results inasmuch as it is a matter of common
experience that hardly any matter is settled by the
Government or the public officer concerned by making
use of the opportunity afforded by said provisions.
In most of the cases, notice given under Section 80
remains unanswered. In its 14th report (reiterated in
the 27th and 54th Reports), the Law Commission, while
noting that the provisions of this section had worked
a great hardship in a large number of cases where
immediate relief by way of injunction against the
Government or a public officer was necessary in the
interests of justice, had recommended omission of the
Section. However, the Joint Committee of Parliament,
to which the Amendment Bill 1974 was referred, did
not agree with the Law Commission and recommended
retention of Section 80 with necessary
modifications/relaxations.
16. Thus, in conformity therewith, by the Code of
Civil Procedure (Amendment) Act , 1976 the existing
Section 80 was renumbered as Section 80(1) and sub-
sections (2) and (3) were inserted with effect from
1-2-1977. Sub-section (2) carved out an exception to
the mandatory rule that no suit can be filed against
the Government or a public officer unless two months'
notice has been served on such Government or public
officer. The provision mitigates the rigours of sub-
section (1) and empowers the Court to allow a person
to institute a suit without serving any notice under
sub-section (1) in case it finds that the suit is for
the purpose of obtaining an urgent and immediate
relief against the Government or a public officer.
But, the Court cannot grant relief under the sub-
section unless a reasonable opportunity is given to
the Government or public officer to show cause in
respect of the relief prayed for. The proviso to the
said sub-section enjoins that in case the Court is of
the opinion that no urgent and immediate relief
should be granted, it shall return the plaint for
presentation to it after complying with the
requirements of sub-section (1). Sub-section (3),
though not relevant for the present case, seeks to
bring in the rule of substantial compliance and tends
to relax the rigour of sub-section (1).
On a perusal of the notice dated 14.01.2000, it is
clear that this is a legal notice sent by a lawyer of the
appellant to the authorities concerned. It is not disputed
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CIVIL APPEAL NOS.4495-4496 OF 2019
that it was by registered A.D. and served upon the
authorities. There is also no dispute that the cause of
action is sufficiently set out in the said notice, which is
the illegality of the partial termination of the contract on
16.12.1999. It was also made clear that though a Writ
Appeal at that point of time was going to be filed against
the Writ Petition dismissal, yet this would be a notice to
take appropriate legal action against the State. There is
no doubt, whatsoever, that more than two months have elapsed
from the date of this notice, after which the Suit has been
filed . In fact, the Suit was filed long after, on
12.09.2002. Quite apart from this, on 29.01.2000 also, the
letter of the appellant made it clear to the Divisional
Engineer that not only is the partial termination bad in law
but that the payments due for work would have to be made.
It is clear, therefore, that there is sufficient
compliance with the provisions of Section 80 CPC as has been
introduced by the Amendment Act introducing section 80(3)
into the Statute book. The respondents argument that
section 80 is not expressly referred to and that the legal
notice and letters were written prior to the disposal of the
Writ Appeal have no legs to stand on. This is for the
reason that a notice does not have to state the section
under which it is made so long as the ingredients of sub-
section (3) of section 80 are met. It is admitted that
15
CIVIL APPEAL NOS.4495-4496 OF 2019
there was no need for any legal notice before filing the
Writ Appeal . The notice, therefore, that was sent on
14.01.2000, was only under Section 80 CPC in the event the
Writ Appeal failed and a Suit would have to be filed.
We are, therefore, of the view that the learned
Additional District Judge's judgment was correct. In this
view of the matter, we set aside the impugned judgment of
the High Court and remit the matter to the High Court to
dispose of the two appeals on merits. Further, considering
this is a Suit of the year 2002, we request the High Court
to take up these appeals and dispose of the same at the
earliest.
The appeals stand disposed of accordingly.
......................................................................................, J.
[ ROHINTON FALI NARIMAN ]
......................................................................................., J.
[ VINEET SARAN ]
New Delhi;
April 30, 2019.
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CIVIL APPEAL NOS.4495-4496 OF 2019
ITEM NO.4 COURT NO.5 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal Nos. 4495-4496/2019
(Arising out of SLP (C)Nos. 30945-30946/2015)
Y. SAVARIMUTHU Appellant(s)
VERSUS
STATE OF TAMIL NADU & ORS. Respondent(s)
Date : 30-04-2019 These appeals were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
HON'BLE MR. JUSTICE VINEET SARAN
For Appellant(s)
Mr. M. A. Chinnasamy, AOR
For Respondent(s)
Mr. Vijay Kumar, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals stand disposed of in terms of the signed
reportable judgment.
Pending applications stand disposed of.
(NIDHI AHUJA) (RENU DIWAN)
COURT MASTER (SH) ASSISTANT REGISTRAR
[Signed reportable judgment is placed on the file.]
17
The Code of Civil Procedure (Amendment) Act , 1976 the existing Section 80 was renumbered as Section 80(1) and sub- sections (2) and (3) were inserted with effect from 1-2-1977.
Sub-section (2) carved out an exception to the mandatory rule that no suit can be filed against the Government or a public officer unless two months' notice has been served on such Government or public officer.
The provision mitigates the rigours of sub- section (1) and empowers the Court to allow a person to institute a suit without serving any notice under sub-section (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer.
But, the Court cannot grant relief under the sub-section unless a reasonable opportunity is given to the Government or public officer to show cause in
respect of the relief prayed for.
The proviso to the said sub-section enjoins that in case the Court is of the opinion that no urgent and immediate relief should be granted, it shall return the plaint for presentation to it after complying with the requirements of sub-section (1).
Sub-section (3), though not relevant for the present case, seeks to
bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1).
On a perusal of the notice dated 14.01.2000, it is clear that this is a legal notice sent by a lawyer of the appellant to the authorities concerned.
It is not disputed that it was by registered A.D. and served upon the authorities.
There is also no dispute that the cause of action is sufficiently set out in the said notice, which is the illegality of the partial termination of the contract on 16.12.1999.
There is no doubt, whatsoever, that more than two months have elapsed from the date of this notice, after which the Suit has been filed .
In fact, the Suit was filed long after, on 12.09.2002. Quite apart from this, on 29.01.2000 also, the letter of the appellant made it clear to the Divisional Engineer that not only is the partial termination bad in law but that the payments due for work would have to be made.
It is clear, therefore, that there is sufficient compliance with the provisions of Section 80 CPC as has been introduced by the Amendment Act introducing section 80(3)
into the Statute book.
This is for the reason that a notice does not have to state the section under which it is made so long as the ingredients of sub- section (3) of section 80 are met.
It is admitted that there was no need for any legal notice before filing the Writ Appeal .
The notice, therefore, that was sent on 14.01.2000, was only under Section 80 CPC in the event the Writ Appeal failed and a Suit would have to be filed.
We are, therefore, of the view that the learned Additional District Judge's judgment was correct. In this view of the matter, we set aside the impugned judgment of the High Court and remit the matter to the High Court to dispose of the two appeals on merits. Further, considering this is a Suit of the year 2002, we request the High Court to take up these appeals and dispose of the same at the earliest.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4495-4496 OF 2019
(Arising out of SLP (C)Nos. 30945-30946 of 2015)
Y. SAVARIMUTHU Appellant(s)
VERSUS
STATE OF TAMIL NADU & ORS. Respondent(s)
J U D G M E N T
R. F. NARIMAN, J.
Leave granted.
The present appeals relate to whether a notice under
Section 80 of the Code of Civil Procedure (CPC) has been
given to the State of Tamil Nadu in terms of the Section or
in substantial compliance thereof .
The appellant is a Government Contractor who has
executed various works in the National Highways, P.W.D. and
Electricity Board. On 15.10.1997, the appellant and
respondent No.2 entered into an agreement for strengthening
the existing two-lane pavement of NH7 from a particular
kilometer point from Madurai to Kanyakumari. As per the
agreement, the work ought to have been completed in 18
months. The site was handed over to the appellant on
20.10.1997, but, in the course of the progress of work, the
appellant stated that due to delay caused by the
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CIVIL APPEAL NOS.4495-4496 OF 2019
respondents, he was not able to progress and complete the
work in time. The immediate reason why the appellant had to
knock at the doors of the High Court was an order dated
16.12.1999 passed by the Superintending Engineer partially
terminating the contract on the ground that the plaintiff-
appellant has not shown sufficient progress in the execution
of the said work. The plaintiff-appellant first filed a
Writ Petition before the Madras High Court, which, by a
judgment dated 24.12.1999, rejected the Writ Petition,
stating that an adequate alternative remedy existed in terms
of filing of a Civil Suit. This was appealed against by the
appellant, which appeal substantially met the same fate by
the order dated 10.07.2000, by which the Writ Appeal was
dismissed, and it was stated that an adequate alternative
remedy existed by way of arbitration.
In between the learned Single Judge�s judgment and the
Division Bench judgment dismissing the Writ Appeal, the
appellant sent a legal notice dated 14.01.2000 in which the
appellant made it clear that he had completed the work to
the extent of Rs.1,25,00,000/- in spite of delay in
approving the pre-level work and fitness of the plant. He
also mentioned that the original period of 18 months was
extended up to 30.03.2000 for the reason that there was
delay on the part of the Department. Despite this, an order
of 16.12.1999 was made even before the said extension came
2
CIVIL APPEAL NOS.4495-4496 OF 2019
to an end, by which the contract was partially terminated.
It was for this reason that he stated that it was necessary
for him to have gone to the High Court by way of a Writ
Petition. It is further stated that the Writ Petition was
dismissed on 24.12.1999 and that the appellant had decided
to file a Writ Appeal against the said order. Despite this,
however, the appellant made it clear that the part-
termination, even before the expiry of the extended time, is
arbitrary and equally arbitrary is the fresh tender that had
been called for without issuing any notice to the appellant
for which he would take �appropriate legal actions� as
available in law, holding the State liable for all costs and
consequences. This legal notice was followed by two other
letters, one dated 25.01.2000, and the other dated
29.01.2000. The letter dated 29.01.2000 went on to state
that he is challenging the partial termination of the
contract and enclosing a list of payments due for the work,
which, at that point of time, amounted to a sum of Rs.88.06
lakhs.
Since the Writ Appeal had also been dismissed and
since the remedy of arbitration could not be availed of as
claims of above Rs.2 lakhs were not arbitrable, but ought to
be decided in a Civil Suit, the appellant filed O.S. No.
2/2002 on 12.09.2002 in the Court of the Special Judge at
Virudhunagar. After setting out the fact that the partial
3
CIVIL APPEAL NOS.4495-4496 OF 2019
termination was bad in law, the appellant prayed for a
declaration that the partial termination order dated
16.12.1999 is illegal and void and that a sum of Rs.3.30
crores with interest of 15 per cent per annum be granted to
him as these were the amounts owing to him by the State.
The learned Additional District Judge by his judgment
dated 29.06.2007 found that there was substantial compliance
of section 80 CPC, given the fact that the notice dated
14.01.2000 was clearly sent to the three authorities in
question and served on them. Further, the cause of action
and reliefs claimed were also substantially set out both in
the notice as well as in the letter dated 29.01.2000 already
referred to hereinabove.
After citing case law, the learned Additional District
Judge found that there was a substantial compliance with the
provisions of section 80 CPC. On merits, ultimately, the
appellant was awarded a sum of Rs.87,01,200/- together with
interest at the rate of 6 per cent per annum.
Being dissatisfied with the judgment of the learned
Additional District Judge, both the appellant as well as the
State filed appeals. These appeals were disposed of by the
High Court in which the High Court found that the provision
of Section 80 CPC was mandatory and that �full particulars�
as mentioned by the said provision was not given in the so-
4
CIVIL APPEAL NOS.4495-4496 OF 2019
called notice s that were sent under section 80, and,
therefore, allowed the appeal of the State on the
preliminary ground itself and stated that the Suit as filed
would not be maintainable as it was filed without complying
with the provisions of section 80 CPC.
Learned counsel appearing on behalf of the appellant
has submitted, based on the legal notice together with the
letters sent by the appellant, that substantial compliance
with section 80 CPC has been made in the present case as was
correctly found by the learned Additional District Judge.
The High Court went in error in not adverting to substantial
compliance of Section 80 but acted as if section 80 was a
rigid provision which, like the Laws of the Medes and
Persians, could not be bent at all. He cited certain
judgments to show that, by the 1976 amendment to the Code of
Civil Procedure, section 80(3) was added making it clear
that so long as the State was put on notice and properly
served, and so long as the cause of action and the prayer in
the Suit was substantially communicated, this must be held
to be sufficient compliance with the provision.
On the other hand, learned counsel appearing on behalf
of the State has argued before us that it is clear that
there was no notice at all issued under Section 80 CPC for
the reason that none of the three notices/letters relied
upon by the appellant had stated that they were under
5
CIVIL APPEAL NOS.4495-4496 OF 2019
Section 80 CPC. He has also argued that these notices were
issued prior to the disposal of the Writ Appeal which was
still pending, as a result of which, the object of giving a
notice, that is for the Government to settle the claim,
could not have taken place as it is well-known that the
Government can never settle claims which are sub-judice . He
has also argued that none of the notices were issued after
the Writ Appeal was dismissed, which alone could have
qualified as notices, if at all, before filing the present
Suit. He has also buttressed his submissions with reference
to certain decisions of this Court.
Section 80 CPC is set out as follows:
�80.Notice.-
(1) Save as otherwise provided in sub-section (2), no
suits shall be instituted against the
Government(including the Government of the State of
Jammu & Kashmir) or against a public officer in respect
of any act purporting to be done by such officer in his
official capacity, until the expiration of two months
next after notice in writing has been delivered to, or
left at the office of-
(a) in the case of a suit against the Central
Government, except where it relates to a railway, a
Secretary to that Government;
(b) in the case of a suit against the Central Government
where it relates to railway, the General Manager of that
railway;
(bb) in the case of a suit against the Government of the
State of Jammu and Kashmir the Chief Secretary to that
Government or any other officer authorised by that
Government in this behalf;
(c) in the case of a suit against any other State
Government, a Secretary to that Government or the
Collector of the district;
6
CIVIL APPEAL NOS.4495-4496 OF 2019
and, in the case of a public officer, delivered to him
or left at this office, 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.�
(2) A suit to obtain an urgent or immediate relief
agianst the Government (including the Government of the
State of Jammu & Kashmir) or any public officer in
respect of any act purporting to be done by such public
officer in his official capacity, may be instituted,
with the leave of the Court, without serving any notice
as required by sub-section (1); but the Court shall not
grant relief in the suit, whether interim or otherwise,
except after giving to the Government or public officer,
as the caes may be, a resaonable opportunity of showing
cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after
heairng the parties, that no urgent or immediate relief
need be granted in the suit, return the plaint for
presentation to it after complying with the requirements
of sub-section (1).
(3) No suit instituted agianst the Government or against
a public officer in respect of any act purporting to be
done by such public officer in his official capacity
shall be dismissed merely by reason of any error or
defect in the notice referred to in sub-section (1), if
in such notice-
(a) the name, description and the residence of the
plaintiff had been so given as to enable the appropriate
authority or the public officer to identify the person
serving the notice and such notice had been delivered or
left at the office of the appropriate authority
specified in sub-section (1), and
(b) the cause of action and the relief claimed by the
plaintiff had been substantially indicated.�
Even at a time when Section 80(3) was not available,
this Court in Dhian Singh Sobha Singh & Another v. Union of
India, (1958) SCR 781 made it clear that Section 80, which
must be strictly complied with, cannot be construed in a
7
CIVIL APPEAL NOS.4495-4496 OF 2019
pedantic manner completely divorced from common sense.
�We are constrained to observe that the
approach of the High Court to this question was not
well founded. The Privy Council no doubt laid down
in Bhagchand Dagadusa v. Secretary of State [(1927)
L.R.54 I.A. 338] that the terms of this section
should be strictly complied with. That does not
however mean that the terms of the notice should be
scrutinized in a pedantic manner or in a manner
completely divorced from common sense. As was stated
by Pollock C. B. in Jones v. Nicholls [(1844) 13
M.&W. 361, 363; 153 E.R. 149, 150] "We must import a
little common sense into notices of this kind."
Beaumont C.J. also observed in Chandu Lal Vadilal v.
Government of Bombay [I.L.R. [1943] Bom.128] : "One
must construe section 80 with some regard to common
sense and to the object with which it appears to
have been passed..........." If the terms of the
notice in question be scrutinized in this manner it
is abundantly clear that the relief claimed by the
appellant was the re-delivery of the said two trucks
or in the alternative payment of Rs.3,500 being the
value thereof. The value which was placed by the
appellants on the trucks was the then value
according to them - a value as on August 1, 1942,
the date on which the delivery of the trucks ought
to have been given by the respondent to the
appellants. The appellants could only have demanded
that sum as on the date of that notice. They could
not sensibly enough have demanded any other sum. If
the respondent had complied with the terms of that
notice then and there and re-delivered the trucks to
the appellant, nothing further needed to be done. If
on the other hand instead of re-delivering the
trucks it paid to the appellant the value thereof
then also it need not have paid anything more than
Rs.3,500 to the appellant, on that alternative. If,
however, the respondent failed and neglected to
comply with the requisitions contained in that
notice the appellants would certainly be entitled to
recover from the respondent the value of the said
trucks in the alternative on the failure of the
respondent to re-deliver the same to the appellants
in accordance with the terms of the decree
ultimately passed by the Court in their favour. That
date could certainly not be foreseen by the
appellants and it is contrary to all reason and
common sense to expect the appellants to have made a
claim for the alternative value of the said two
trucks as of that date. The respondent was and ought
8
CIVIL APPEAL NOS.4495-4496 OF 2019
to have been well aware of the situation as it would
develop as a result of its non-compliance with the
terms of that notice and if on January 8, 1943, the
appellants in the suit which they filed for wrongful
detention of the said trucks claimed re-delivery of
the said trucks or in the alternative Rs.3,500 as
their value and reserved their right to claim the
further appreciation in the value of the trucks by
reason of the rise in prices thereof up to the date
of the decree by paying additional court-fee in that
behalf, it could not be laid at their door that they
had not made the specific demand in their notice to
the respondent under s.80 of the Code of Civil
Procedure and that therefore their claim to recover
anything beyond Rs.3,500 was barred under that
section. A common sense reading of the notice under
s.80 would lead any Court to the conclusion that the
strict requirements of that section had been
complied with and that there was no defect in the
same such as to disentitle the appellants from
recovering from the respondent the appreciated value
of the said two trucks as at the date of the
judgment. It is relevant to note that neither was
this point taken by the respondent in the written
statement which it filed in answer to the
appellants' claim nor was any issue framed in that
behalf by the Trial Court and this may justify the
inference that the objection under s.80 h ad been
waived. The point appears to have been taken for the
first time before the High Court which negatived the
claim of the appellants for the appreciated value of
the said trucks.
In Vithalbhai (P) Ltd. v. Union Bank of India, ( 2005)
4 SCC 315, this Court, in paragraph 10, cited certain
judgments which made it clear that the object of the said
Section is the advancement of justice and the securing of
public good by avoidance of unnecessary litigation.
10.Under Section 80 CPC no suit shall be instituted
against the Government or a public officer until the
expiration of two months next after service of notice
in writing in the manner set out in the provision and
if filed before the expiry of said period, the suit
is not maintainable because there is clearly a public
purpose underlying the provision. The object of the
9
CIVIL APPEAL NOS.4495-4496 OF 2019
section is the advancement of justice and the
securing of public good by avoidance of unnecessary
litigation ( See Bihari Chowdhary v. State of Bihar
(1984) 2 SCC 627 ). In Butchiraju (Vaddadi) v. Doddi
Seetharamayya (AIR 1926 Mad 377) the suit was for a
sum of money which had not become payable on the date
of the suit but became payable since. Viswanatha
Sastri, J. (as His Lordship then was) held that the
Court could pass a decree for the recovery of money.
Reliance was placed on a Full Bench decision in A.T.
Raghava Chariar v. O.M. Srinivasa Raghava Chariar
(ILR (1917) 40 Mad 308) and a few other cases. Here,
in all fairness, it may be mentioned that in Rangayya
Naidu (Mylavarapu) v. Basana Simon (AIR 1926 Mad
594) , Spencer, J. has held that if a suit is
premature at the date of institution, though not at
the date of decision, a decree cannot be granted and
the only course in such cases is to dismiss the suit
with liberty to bring a fresh suit upon a proper
cause of action. It is pertinent to note that
Butchiraju case was decided on 5-10-1925 while
Rangayya Naidu case was decided on 7-10-1925 but the
former decision though of a prior date was not
brought to the notice of the Court deciding the
latter case.
In Ghanshyam Dass and Others v. Dominion of India and
Others, ( 1984) 3 SCC 46, this Court went into the amendment
made by the Law Commission and stated:
17. Section 80 of the Code is but a part of the
Procedure Code passed to provide the regulation and
machinery, by means of which the courts may do
justice between the parties. It is therefore merely
a part of the adjective law and deals with procedure
alone and must be interpreted in a manner so as to
subserve and advance the cause of justice rather than
to defeat it. In Sangram Singh v. Election Tribunal,
Kotah (1955) 2 SCR 1 Vivian Bose, J. in his
illuminating language dealing with the Code of Civil
Procedure said :
It is procedure, something designed to
facilitate justice and further its ends: not a
penal enactment for punishment and penalties; not
a thing designed to trip people up. Too
technical a construction of sections that leaves
no room for reasonable elasticity of
interpretation should therefore be guarded
10
CIVIL APPEAL NOS.4495-4496 OF 2019
against (provided always that justice is done to
both sides) lest the very means designed for the
furtherance of justice be used to frustrate it.
18. Our laws of procedure are based on the principle
that as far as possible, no proceeding in a court of
law should be allowed to be defeated on mere
technicalities. Here, all the requirements of
Section 80 of the Code were fulfilled. Before the
suit was brought, the Dominion of India received a
notice of claim from Seth Lachman Dass. The whole
object of serving a notice under Section 80 is to
give the Government sufficient warning of the case
which is going to be instituted against it ( sic so)
that the Government, if it so wished, ( sic can)
settle the claim without litigation or afford
restitution without recourse to a court of law. That
requirement of Section 80 was clearly fulfilled in
the facts and circumstances of the present case.
19. It is a matter of common experience that in a
large majority of cases the Government or the public
officer concerned make no use of the opportunity
afforded by the section. In most cases the notice
given under Section 80 remains unanswered till the
expiration of two months provided by the section. It
is also clear that in a large number of cases, as
here, the Government or the public officer utilised
the section merely to raise technical defences
contending either that no notice had been given or
that the notice actually given did not comply with
the requirements of the section. It is unfortunate
that the defendants came forward with a technical
plea that the suit was not maintainable at the
instance of the plaintiffs, the legal heirs of Seth
Lachman Dass, on the ground that no fresh notice had
been given by them. This was obviously a technical
plea calculated to defeat the just claim.
Unfortunately, the technical plea so raised prevailed
with the High Court with the result that the
plaintiffs have been deprived of their legitimate
dues for the last 35 years.
20. The Law Commission in the Fourteenth Report,
Volume 1 on the Code of Civil Procedure, 1908 at p.
475 made a recommendation that Section 80 of the Code
should be deleted. It was stated as follows:
The evidence disclosed that in a large
majority of cases, the Government or the public
officer made no use of the opportunity afforded
11
CIVIL APPEAL NOS.4495-4496 OF 2019
by the section. In most cases the notice given
under Section 80 remained unanswered till the
expiry of the period of two months provided by
the section. It was also clear that in a large
number of cases, governments and public offices
utilised the section merely to raise technical
defences contending either that no notice had
been given or that the notice actually given did
not comply with the requirements of the section.
These technical defences appeared to have
succeeded in a number of cases defeating the just
claims of the citizens.
21. The Law Commission in the Twenty-Seventh Report
on the Code at pp.21-22 reiterated its earlier
recommendation for deletion of Section 80 and in the
Fifty-Fourth Report at p.56 fully concurred with the
recommendation made earlier. In conformity with the
recommendation of the Law Commission, Section 80 has
undergone substantial changes. By Section 27 of the
Code of Civil Procedure (Amendment) Act, 1976 which
was brought into effect from February 1, 1977, the
existing Section 80 has been renumbered as Section
80(1) and sub-sections(2) and (3) have been inserted.
Sub-section (2) as inserted has been designed to give
an urgent and immediate relief against the Government
or the public officer with the leave of the court.
But the court shall not grant relief in the suit,
whether interim or otherwise, except after giving to
the Government or public officer, as the case may be,
a reasonable opportunity of showing cause in respect
of the relief prayed for in the suit. Proviso to
sub-section (2) enjoins that the court shall, if it
is satisfied, after hearing the parties that no
urgent or immediate relief need be granted in the
suit, return the plaint for presentation to it after
complying with the requirements of sub-section (1).
xxx xxx xxx
23. By sub-section (3), Parliament has brought in the
rule of substantial compliance. The present suit
would be directly covered by sub-section (3) of
Section 80 so introduced if the suit had been brought
after February 1, 1977. Unfortunately for the
plaintiffs, Section 97 of the Amendment Act provides
that the amendment shall not apply to pending suits
and the suits pending on February 1, 1977 have to be
dealt with as if such amendment had not been made.
Nevertheless the courts must have due regard to the
change in law brought about by sub-section (3) of
12
CIVIL APPEAL NOS.4495-4496 OF 2019
Section 80 of the Code introduced by the Amendment
Act w.e.f. February 1, 1977. Such a change has a
legislative acceptance of the rule of substantial
compliance laid down by this Court in Dhian Singh
Sobha Singh (1958) SCR 781 and Raghunath Dass (1969)
1 SCR 450. As observed in Dhian Singh Sobha Singh
case , one must construe Section 80 with some regard
to common sense and to the object with which it
appears to have been enacted. The decision in S.N.
Dutt v. Union of India case (1962) 1 SCR 560 , does
not accord with the view expressed by us and is
therefore overruled.
In another recent judgment in State of A.P. and Others
v. Pioneer Builders, A.P., ( 2006) 12 SCC 119, this Court
again referred to the Law Commission Report and held as
follows:
14. From a bare reading of sub-section (1) of
Section 80 , it is plain that subject to what is
provided in sub-section (2) thereof, no suit can be
filed against the Government or a public officer
unless requisite notice under the said provision has
been served on such Government or public officer, as
the case may be. It is well-settled that before the
amendment of Section 80 the provisions of unamended
Section 80 admitted of no implications and exceptions
whatsoever and are express, explicit and mandatory.
The Section imposes a statutory and unqualified
obligation upon the Court and in the absence of
compliance with Section 80 , the suit is not
maintainable. (See: Bhagchand Dagadusa v. Secretary
of State for India in Council AIR 1927 P.C. 176 ;
Sawai Singhai Nirmal Chand v. Union of India (1966) 1
SCR 986 and Bihari Chowdhary v. State of Bihar (1984)
2 SCC 627 ). The service of notice under Section 80
is, thus, a condition precedent for the institution
of a suit against the Government or a public officer.
The legislative intent of the Section is to give the
Government sufficient notice of the suit, which is
proposed to be filed against it so that it may
reconsider the decision and decide for itself whether
the claim made could be accepted or not. As observed
in Bihari Chowdhary , the object of the Section is the
advancement of justice and the securing of public
good by avoidance of unnecessary litigation.
15. It seems that the provision did not achieve the
13
CIVIL APPEAL NOS.4495-4496 OF 2019
desired results inasmuch as it is a matter of common
experience that hardly any matter is settled by the
Government or the public officer concerned by making
use of the opportunity afforded by said provisions.
In most of the cases, notice given under Section 80
remains unanswered. In its 14th report (reiterated in
the 27th and 54th Reports), the Law Commission, while
noting that the provisions of this section had worked
a great hardship in a large number of cases where
immediate relief by way of injunction against the
Government or a public officer was necessary in the
interests of justice, had recommended omission of the
Section. However, the Joint Committee of Parliament,
to which the Amendment Bill 1974 was referred, did
not agree with the Law Commission and recommended
retention of Section 80 with necessary
modifications/relaxations.
16. Thus, in conformity therewith, by the Code of
Civil Procedure (Amendment) Act , 1976 the existing
Section 80 was renumbered as Section 80(1) and sub-
sections (2) and (3) were inserted with effect from
1-2-1977. Sub-section (2) carved out an exception to
the mandatory rule that no suit can be filed against
the Government or a public officer unless two months'
notice has been served on such Government or public
officer. The provision mitigates the rigours of sub-
section (1) and empowers the Court to allow a person
to institute a suit without serving any notice under
sub-section (1) in case it finds that the suit is for
the purpose of obtaining an urgent and immediate
relief against the Government or a public officer.
But, the Court cannot grant relief under the sub-
section unless a reasonable opportunity is given to
the Government or public officer to show cause in
respect of the relief prayed for. The proviso to the
said sub-section enjoins that in case the Court is of
the opinion that no urgent and immediate relief
should be granted, it shall return the plaint for
presentation to it after complying with the
requirements of sub-section (1). Sub-section (3),
though not relevant for the present case, seeks to
bring in the rule of substantial compliance and tends
to relax the rigour of sub-section (1).
On a perusal of the notice dated 14.01.2000, it is
clear that this is a legal notice sent by a lawyer of the
appellant to the authorities concerned. It is not disputed
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CIVIL APPEAL NOS.4495-4496 OF 2019
that it was by registered A.D. and served upon the
authorities. There is also no dispute that the cause of
action is sufficiently set out in the said notice, which is
the illegality of the partial termination of the contract on
16.12.1999. It was also made clear that though a Writ
Appeal at that point of time was going to be filed against
the Writ Petition dismissal, yet this would be a notice to
take appropriate legal action against the State. There is
no doubt, whatsoever, that more than two months have elapsed
from the date of this notice, after which the Suit has been
filed . In fact, the Suit was filed long after, on
12.09.2002. Quite apart from this, on 29.01.2000 also, the
letter of the appellant made it clear to the Divisional
Engineer that not only is the partial termination bad in law
but that the payments due for work would have to be made.
It is clear, therefore, that there is sufficient
compliance with the provisions of Section 80 CPC as has been
introduced by the Amendment Act introducing section 80(3)
into the Statute book. The respondents argument that
section 80 is not expressly referred to and that the legal
notice and letters were written prior to the disposal of the
Writ Appeal have no legs to stand on. This is for the
reason that a notice does not have to state the section
under which it is made so long as the ingredients of sub-
section (3) of section 80 are met. It is admitted that
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CIVIL APPEAL NOS.4495-4496 OF 2019
there was no need for any legal notice before filing the
Writ Appeal . The notice, therefore, that was sent on
14.01.2000, was only under Section 80 CPC in the event the
Writ Appeal failed and a Suit would have to be filed.
We are, therefore, of the view that the learned
Additional District Judge's judgment was correct. In this
view of the matter, we set aside the impugned judgment of
the High Court and remit the matter to the High Court to
dispose of the two appeals on merits. Further, considering
this is a Suit of the year 2002, we request the High Court
to take up these appeals and dispose of the same at the
earliest.
The appeals stand disposed of accordingly.
......................................................................................, J.
[ ROHINTON FALI NARIMAN ]
......................................................................................., J.
[ VINEET SARAN ]
New Delhi;
April 30, 2019.
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CIVIL APPEAL NOS.4495-4496 OF 2019
ITEM NO.4 COURT NO.5 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal Nos. 4495-4496/2019
(Arising out of SLP (C)Nos. 30945-30946/2015)
Y. SAVARIMUTHU Appellant(s)
VERSUS
STATE OF TAMIL NADU & ORS. Respondent(s)
Date : 30-04-2019 These appeals were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
HON'BLE MR. JUSTICE VINEET SARAN
For Appellant(s)
Mr. M. A. Chinnasamy, AOR
For Respondent(s)
Mr. Vijay Kumar, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeals stand disposed of in terms of the signed
reportable judgment.
Pending applications stand disposed of.
(NIDHI AHUJA) (RENU DIWAN)
COURT MASTER (SH) ASSISTANT REGISTRAR
[Signed reportable judgment is placed on the file.]
17
