Orissa High Court
State Of Orissa And Anr. vs Bamadeb Panigrahi And Anr. on 20 August, 1970
Equivalent citations: AIR 1971 ORISSA 227
JUDGMENT R.N. Misra, J.
1. The defendants --the State of Orissa and the District Forest Officer, Berhampur Division are in appeal against a confirming judgment of the learned Additional Subordinate Judge, Berhampur.
2. The plaintiff instituted the suit for directing defendants 1 and 2 to allow him to work as a lessee in certain forest areas as detailed for a period of nine months more. Alternately he claimed relief of damages. The ex-intermediary of Mandasa, defendant No. 3, was admittedly the owner of the disputed forest till under the Orissa Estates Abolition Act the forest areas vested in the State. Before vesting defendant No. 3 had entered into an agreement with the plaintiff as a result of which the disputed forest was leased out to the plaintiff for a period of 18 months beginning from 1-12-1961 for the collection of timber, bamboo and other minor forest products. Timber transit permits are necessary for working out the forest by a lessee and such permits are to be issued by the State Government and its officers. As per the agreement defendant No. 3 was to obtain necessary timber transit permits from the Government and make them over to the plaintiff as lessee. There was a litigation going on in the Supreme Court between defendant No. 3 and the State of Orissa regarding the forest and ultimately they entered into a compromise as a result of which the State Government took over the forest with effect from 1-4-1962. They entered into an agreement (Ext. 2) with the plaintiff recognising his right as a lessee of the said forest. The 18 months' period with effect from 1-12-1961 was to lapse on 31-5-1963.
Even though the State of Orissa entered into the agreement with the plaintiff and recognised his right as a lessee, timber transit permits were not issued to the plaintiff until 21-8-1962. Thus from 1-12-1961 till 21-8-1962 for a period of about 9 months the plaintiff could not work the forest. The authorised officers of the State of Orissa impressed upon the plaintiff that if he paid the balance of the lease money necessary extension would be obtained. Accordingly the plaintiff deposited all the arrears, but ultimately no extension was granted. As the lease expired, the plaintiff could not make necessary use, of the lease. He has thus lost. In these circumstances he came to court asking for a decree for mandatory injunction restraining the defendants to hold public auction as notified on 10-2-1964 of the forest areas and to allow the plaintiff to continue to exercise the right of a lessee for a period of nine months more or alternatively for appropriate relief of damages.
3. Defendant No. 3 did not contest the suit. Defendants 1 and 2 in a joint written statement contended that though there was delay of 9 months in issuing the timber transit permits the plaintiff had not been prevented from collecting and storing forest materials during the previous 9 months, and there was contributory negligence on the part of the plaintiff in not having done so. Thus he was neither entitled to the extension of the lease period nor any damages.
4. The original agreement is not on record. It had been taken away by the Tahsildar, Parlakimedi. He had granted a receipt to the plaintiff in token of having taken away the original lease deed- That has been marked as Ext. 1. The subsequent agreement is marked as Ext. 2 which has been entered into between the plaintiff and the State of Orissa. The courts below have taken the view that the plaintiff is entitled to an extension of 9 month's period on the basis that there was delay in issuing of the timber transit permits as a result of which the plaintiff has not been able to work the forest areas as he could have if such permits had been granted in time.
5. Admittedly no notice as required under Section 80, C. P. C. had been given in this case. In paragraph 11 of the plaint it was stated, "That the plaintiff has also sent a telegram notice under Section 80, C. P. C. to the 1st and 2nd defendants on 7-2-1964 though strictly they are not entitled to notice, and the plaintiff reliably understands that the 1st defendant is not going to comply with his request. As the plaintiff apprehends injury to his rights by the threatened act of D-1 that he would hold the auction, this suit is filed."
In the written statement in paragraph 10 it was stated:
"The plaintiff not having served on defendants Nos. 1 and 2 previous notice of the institution of the plaint as required under Section 80, C. P. C. the suit is not maintainable, and the plaint is liable to be summarily rejected."
In the face of such pleadings an issue about the validity of notice under Section 80, C. P. C. was bound to arise. But as it appears, no issue was struck nor was this point canvassed either in the trial court or in the court of appeal. For the first time in the memorandum of second appeal this question has been raised in the shape of ground No. 3 which is to the following effect:--
"For that the defendants were entitled to a notice under Section 80 of the Code of Civil Procedure and the fact of such notice having not been pleaded in the plaint, the plaint should have been summarily rejected."
6. Section 80, C. P. C. is to the following effect:--
"No suit shall be instituted against the Government including of the State of Jammu and Kashmir or against a public officer in respect of any act purporting to be done by such public 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 -
X X X X
(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector of the District.
and, in the case of a public officer, delivered to him or left at his 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." That a notice under Section 80, C. P. C. is mandatory and the question is no more open to doubt in view of the decision of their Lordships of the Supreme Court in AIR 1966 SC 1068, Sawai Singhai v. Union of India. Position was always well settled and as early as 1927 their Lordships of the Judicial Committee had also stated so. The decision of their Lordships of the Judicial Committee in AIR 1927 PC 176, Bhagchand Dagdusa v. Secretary of State was approved in the aforesaid Supreme Court decision. But there is also another current of judicial thought which cannot be ignored. Courts have taken the view that the protection available under Section 80, Civil Procedure Code either to the State Government or a public officer can be waived and raising of a plea in the written statement and not joining an issue in the trial Court have been held to be waiver. In this Court there are two decisions directly on the point. In TLR (1959) Cut 258, Basudeb v. Padmanav, G. C. Das, J., held, "When an objection that a suit is not maintainable in the absence of a notice under Section 80 is not raised in the trial Court and no issue is joined on this point and the suit is decreed the plea as to want of notice must be deemed to have been waived and when the plea is taken for the first time in appeal, the appellate Court is not entitled to dismiss the suit on the ground of absence of notice under Section 80."
The same view has been reiterated by Barman, T., as he then was, in (1962) 4 O.J.D. 13, Anadi Charan Parida v. Banamali Muduli, considering a similar question which arose with reference to Section 49 of the Madras Court of Wards Act (I of 1902) which has the same language as Section 80, Civil Procedure Code, Viswanath Sastri, J., in AIR 1949 Mad 747, Venkataswami v. Mahalakshmi, held:--
"Waiver is an abandonment of a right and may be express or implied from conduct and to be effectual must be by a person who has full knowledge of the facts. A person who has taken a plea based on the want of notice to which he is entitled, may waive it and allow the action to proceed as though the required notice had been given to him and this can be done so long as the action is pending and has not been finally determined."
A Full Bench of the Rajasthan High Court in AIR 1959 Raj 126 (FB), Rajasthan State v. Girdharilal adopted the self-same view. They quoted with approval the observations of their Lordships of the Judicial Committee in AIR 1947 PC 197, Vellayan Chettiar v. Government of the Province of Madras, where it was stated.
"There appears to their Lordships to be no reason why the notice required to be given under Section 80 should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required; if in the particular case he does not require that protection and says so, he can lawfully waive his right."
In AIR 1958 SC 274, Dhian Singh v. Union of India, their Lordships stated, "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 appellant's claim nor was any issue framed in that behalf by the trial Court and this may justify the inference that the objection under Section 80 had been waived."
Mr. Justice Mitra of the Calcutta High Court in AIR 1960 Cal 270, Lalchand v. Union of India stated, "If the provisions of law were waived in the course of a trial, they cannot afterwards be set up by way of objection to any step taken or about to be taken upon the footing of waiver. When the litigant had, without mistake induced by the opposite party, taken a particular position in the course of litigation he* must act consistently with it, especially, if to allow him to do otherwise would prejudice the opponent. If Mr. Ghosh therefore wanted to rely on the invalidity or insufficiency of the notice under Section 80 of the Code of Civil Procedure it was for him to raise a specific issue on this question."
Reliance was placed by Mitra, J., on an earlier decision of their Court in (1907) ILR 34 Cal 257, Manindra Chandra Nandi v. Secretary of State. To the self-same effect there is an authority in (1913) 17 Cal WN 64, Bhola Math Ray v. The Secretary of State for India in Council. In the present case a plea was taken in the written statement, but a suitable issue on this aspect was not raised nor has this point been canvassed in the trial Court. Though in the lower appellate court a ground was in the memorandum of appeal on this question it does not seem to have been canvassed, nor is it alleged in this Court that such a point was raised in the lower appellate court and the learned Appellate Judge has omitted to refer to it. In such circumstances and in view of this state of the legal position I think the contention that the suit is bad for notice cannot 'be permitted to be mooted. The telegram notice is Ext. 6. It is certainly not in conformity with the requirement of Section 80, Civil Procedure Code. Besides, the provision in the Code that "the plaint shall contain a statement that such notice has been so delivered or left" does not appear to have been satisfied. If this provision was deemed to be mandatory so that its compliance could not be waived by that category of defendant to whom Section 80, Civil Procedure Code applies, the position must have been different. But in view of the series of decisions referred to above, I do not propose to take a different view. The plea of want of notice cannot be permitted to be raised for the first time in second appeal to the prejudice of the plaintiff who is bound to lose if the plea is now raised and he is nonsuited on that technical score.
7. Mr. Sahu, the learned Additional Standing Counsel next raised a contention attacking the merit of the matter. Admittedly Ext. 2 is dated 26-4-1962. On 1-4-1962, there was a compromise between the ex-intermediary and the State Government. Thereafter the State Government recognised the existing relationship between the outgoing intermediary and the plaintiff. It is also not disputed that until late in August 1962 timber transit permits had not been issued by the defendants to the plaintiff. The fact that for a period of 8 months and 20 days the plaintiff could not remove the timber from the forest must be taken to have been accepted. Timber transit permits are not necessary for the processing of the timber within the forest area. They are necessary for the purpose of removal of timber from the forest beyond the forest zone. There is some basis in the contention of the defendants that it was open to the plaintiff to work within the forest and have them removed after the timber transit permits were granted. The courts below have not examined that aspect.
8. The Courts below have also not examined another aspect which is material. The plaintiff in this suit asked for a mandatory direction that he may be permitted to continue under the lease for a period of 9 months more. In the courts below the basis of such a right, the nature of the claim and under what provision in law such a claim could be conceded have not been examined. The suit seems to be one for injunction only. In paragraph 12 of the plaint it was stated, "The plaintiff values the suit at Rupees 200/- for injunction and he pays a court-fee of Rs. 25.50 nP. under the Court-fees Act."
A suit of that type where the relief was one for injunction only could not have brought about the relief in question as granted in the courts below. There was an alternate prayer for appropriate damages. Court-fee has been undertaken to be paid after ascertainment.
9. In the courts below a decree for 9 months' possession on the same terms as under Ext. 2 has been granted. This may bring about a lot of hardship and inconvenience. It would be difficult to ascertain at present as to what were the existing assets in the forest area during the material period of subsistence of the lease in respect whereof the plaintiff would be entitled to appropriation during the extended period of 9 months. In the forest areas there are bound to be new growths and the time lag is more than 7 years by now. The forest must have added to its assets during this period by natural process. To give a decree to the plaintiff at this point of time in the manner done in the courts below would certainly mean putting the plaintiff to more advantages than he would have got by working the forest for 9 months more at the relevant point of time. That apart when the plaintiff has valued his suit at Rupees 200/- for injunction he would not certainly be entitled to the relief of possession of the forest areas for another period of 9 months.
Issue No. 3 in the trial court was as to whether the plaintiff was entitled to damages. The trial court came to hold that the plaintiff was not entitled to any damages in this suit as no specific sum was claimed as damages. That was an alternate relief. If the plaintiffs claim for damages was sustairiable in law, it could have been worked out by an appropriate decree. Omission to consider these aspects has certainly led to a peculiar position. Though on the question of notice I have negatived the contention of the State in Second Appeal I think there is substantial force in these aspects of the matter and it is difficult to uphold the decree without an examination of these questions. I would, therefore, allow the appeal and remand the matter to the trial court for a re-determination of the following questions :--
(1) Is the suit as laid maintainable?
(2) Is the plaintiff entitled to possession for a further period of 9 months of the forest areas in this suit?
(3) Is the relief of damages as claimed appropriate and, if so, what are the damages?
10. I must say before I leave this matter that the courts below did not handle the matter appropriately bestowing that amount of care which the matter deserved. This has led to the unfortunate position of remanding the matter at this stage. I have no other option but to remit the matter to the trial court for a consideration of these questions. If in the view of the trial court any amendment to the pleadings is necessary and applications are made, it would deal with them. It would be open to the trial Court to decide as to whether a fresh opportunity need be given to the parties to lead evidence on any of the aspects which had not been taken into consideration on the earlier occasion.
11. The appeal is accordingly allowed. Costs would abide the result.