Orissa High Court
Certificate Officer And Anr. vs Kasturi Chand Malu And Anr. on 12 December, 1969
Equivalent citations: AIR1970ORI239, AIR 1970 ORISSA 239
JUDGMENT R.N. Misra, J.
1. Defendants 1 and 2, who are the Certificate Officer and the State of Orissa represented by the Collector of Ganjam, are the appellants in this appeal against a reversing judgment of the learned Additional Subordinate Judge, Berhampur, in a suit for declaration that the certificate proceedings for recovery of arrears of sales tax dues which are being pressed by defendant No. 1 are illegal and not : in conformity with the provisions of the Madras Revenue Recovery Act, 1859 and for further relief for permanent injunction.
2. As it appears, the plaintiff, one Rama-deen defendant No. 3 and another Giridharilal Malu, not a party to the present suit, were partners of a firm known as Reedkaran Rarnadin which was registered firm under the Indian Partnership Act, 1932. The firm came to be dissolved with effect from 15-5-56. Defendant No. 3 had undertaken to pay up the liability of sales tax and other public dues upto the date of dissolution. Bulk of the amount of sales tax as demanded have been paid, but the outstanding amount. of Rs. 18,277-50 remained due for which certificate proceedings have been taken. Objections were raised before the Certificate Officer on various counts, but they were overruled and the properties were threatened to be sold. Steps were taken in appeal and revision under the said Act, but they proved futile. Ultimately the suit was filed.
3. The other defences taken in the suit may not be necessary to be indicated and it may be sufficient to state that one of the defences was want of notice under Section 80, Civil P. C. In paragraph 13 of the plaint it was stated :
"The notice under Section 80, Civil P. C. is not necessary as the public officers concerned have been informed of the several illegalities and irregularities etc., and were approached with prayers not to perform the sale. As the sale is proceeding on 25-8-1963 and no time is left to protect the plaintiff's rights the public officers cannot claim the statutory period of two months....."
In paragraph 3 of the written statement by the two public officers it was contended :
"The plaintiff, before the institution of the suit has not served on the defendants the notice as required under Section 80, Civil P. C. and the contention advanced in para. 13 of the plaint that such notice is not necessary is untenable. The suit instituted without such notice is not maintainable in law."
Issue No. 2 was framed in the suit to the following effect :--
"Is the suit instituted without notice under Section 80, Civil P. C. and not maintainable?"
4. The trial court disposed of the matter against the defendants holding, "The learned advocate for the plaintiff has relied upon a decision reported in AIR 1960 Pat 530 wherein his Lordship has clearly observed that a notice Under Section 80, Civil P. C. is not necessary for any future act. That in the instant case the suit has been filed only for a future act of sale. Therefore, I hold that even though the suit was filed only one day after sending of notice Under Section 80 Civil P. C. the suit is maintainable and it is proper and valid and that even such a suit can be filed without any notice under Section 80, Civil P. C.".
Before the Learned Appellate Judge this matter was further canvassed and he negatived the defence claim relying upon the decision of the Andhra Pradesh High Court reported in AIR 1963 Andh Pra 164, Hussain All Mirza v. State of Andhra Pradesh.
5. The question as to the requirement to notice under Section 80, Civil P. C. as a condition precedent to suits which are covered by that section came up for consideration before the Supreme Court in AIR 1966 SC 1068, Sawai Singhai v. Union of India. Chief Justice Gajendragadkar, speaking on behalf of the Court, stated :
"It is significant that in a large majority of cases, the plea that the Government raises is that notice is necessary and it is generally contended that the notice.being defective in One particular or another makes the suit incompetent and in dealing with such pleas, the courts have naturally sought to interpret the notices somewhat liberally and have sometimes observed that in enforcing the provisions of Section 80, commonsense and sense of propriety should determine the issue. It is very unusual for the Government to contend that in a suit brought against it, no notice is required under Section 80. It is plain that such a plea has been raised by the respondent in the present case, because it helps the respondent to defeat the appellant's claim on the ground of limitation. In any case, the contention based on the object or purpose of the notice can hardly assist us in interpreting the plain words of Section 80. It will be recalled that prior to the decision of the Privy Council in Bhagchand Dagadusa v. Secy, of State, 54 Ind App. 338 = (AIR 1927 PC 176) there was a sharp difference of opinion among the Indian High Courts on the question as to whether Section 80 applied to suits where injunction was claimed. The Privy Council held that Section 80 applied to all forms of suit and whatever the relief sought, including a suit for an injunction. In dealing with the question about the construction of Section 80, the Privy Council took notice of the fact that some of the decisions which attempted to exclude from the purview of Section 80 suits for injunction were influenced by the 'assumption as to the practical objects with which, it was trained'. They also proceeded on the basis that Section 80 was a rule of procedure and that any construction which may lead to injustice is one which ought not to be adopted, since it would be repugnant to the notion of justice. Having noticed these grounds on which an attempt was judicially made to except from the purview of Section 80 suits, for instance, in which injunction was claimed, Viscount Sumner, who spoke for the Privy Council, observed that 'the Act albeit a Procedure Code, must be read in accordance with the natural meaning of its words' and he added that 'Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions'."
Even after the aforesaid decision of the Judicial Committee some High Courts, took the view that notice for a case for injunction under section 80, Civil P. C. may not be necessary. One such instance is the case reported in AIR 1960 Pat 530 on which the trial court placed reliance.
6. The Supreme Court decision referred to above was not known by the time when the Second Appeal was filed. As it now transpires, notice under Section 80, Civil P. C. is necessary condition precedent and the present suit cannot be maintainable. In consideration of the view I have taken Mr. Roy prays that he may be permitted to withdraw the suit with liberty to file a fresh suit on the same cause of action. I think, want of notice is a technical defect and the prayer of Mr. Roy should be allowed. I would, therefore, vacate the judgments of both the courts below and give leave to the plaintiff to file a fresh suit on the same cause of action. This would, however, be on payment of a consolidated cost of Rs. 100 (one hundred) to the State, on payment of which alone a fresh suit can be filed.