Supreme Court of India
BIHARI CHOWDHARY & ANR.versusSTATE OF BIHAR & ORS.
- Citation
- 1984 INSC 67
- Decided
- 26 March 1984
- Disposal
- Dismissed
- Bench
- A P SEN
Holding
A suit against the Government or a public officer is not maintainable if instituted before the expiry of the two‑month period prescribed under Section 80 CPC; such a suit must be dismissed.
Summary
Bihari Chowdhary and another filed a suit for declaration of title and possession of immovable property against the State of Bihar. Before filing, they served a notice under Section 80 of the Civil Procedure Code on 18‑Feb‑1969 but instituted the suit on 2‑Apr‑1969, i.e., before the two‑month statutory period prescribed by the notice provision had elapsed. The State contended that the suit was not maintainable for lack of proper notice, a view upheld by the trial court, the first appellate court and the High Court. The Supreme Court examined the scope of Section 80 (as it stood before its amendment by Act 104 of 1976) and held that the language of the statute is clear and mandatory: a suit against the Government or a public officer cannot be instituted until the two‑month period after the notice expires. The Court rejected the argument that hardship or urgency could override the statutory requirement, citing earlier Privy Council decisions. Consequently, the appeal was dismissed and the lower court’s dismissal of the suit affirmed.
Issues considered
- Whether a suit against the Government or a public officer can be validly instituted before the expiry of the two‑month period prescribed under Section 80 of the CPC.
- Whether considerations of hardship or urgency can justify non‑compliance with the statutory notice requirement.
- Effect of the pre‑amendment wording of Section 80 CPC on the maintainability of such suits.
Legislation cited
Subjects
Section 80 CPCnotice requirementsuit against governmentpublic officerstatutory periodcivil proceduremandatory provisionpublic policyhardship exception
Judgment
30!1
BIHARI CHOWDHARY.& ANR. A
v.
STAT,E OF BIHAR & ORS..
B
March 26, 1984
(A.P. SEN AND V. BALAKRISHNA ERADI,. H.)
Code of Civil Procedu;e 1908, Section 80;
c
· Suit against g~vernment-lnstitutiorr afttr expiry of statutory period of two
ft!Onths after 'notice has been delivere,d~NeCessity of.
Interpretation of Statl;tes.
Language of statute clear and unambiguous-Duty. of court to give effecrto D .
statute n~twithstanding hardship liktly to be Caused: .
·,
The appellants-plaintiffs instituted a suit for deClaration of titIO and deli-
very of possession of immovable properties. The first fespondent was thC State
-Oovernment. Prior to the institution of t~e suit the plaintiffs, had issued notice
I
'. .
to the 1st respondent under section 80 CPC, but Without waiting for the.statutory
period of two months to expire, the plaintiffs instituted the suit. Jn the written
statement filed on behalf of the State it was-contended that the suit was not
QJaintainable for want of proper notice under section 80 CPC. The Trial court
E
>Upheld the contention and dismissed the suit. The order was confirmed by the
lirst appellate .court and the second appeal preferred by the. appellants to the
High Court was dismissed in Iimine. .
F
'Dismissing the appeal to this Court',
HELD: 1. A suit against the Gov~rnment or a public officer, to which
the requirement .of a_ prior notice . under section ·80 CPC iS attracted, cannot be
· validly instituted until the expiration ·of ihe period of two , months next after the
'·notice in writing has beep delivered to the authorities concerned· in the manner
' prescribed in the said section and if filed before the expiry of the said period,
G
the suit has to ]Je dismissed as not maintainabl~. [314 A·Bl ·
2. The effect of section 80 CPC prior to its amendment by Act 104 of 1976
.js clearly to iinpose a·
bar agains·t the institution of a s"Uit tlgainst the Govern·,
mentor a public officer in respect 6f any act purported to be done by him in his
Offidal capat.ity until the expiration .or two months after notice has been deli.. H
.ered. There is clearly a public purpose underlying this manda.tory provision.
[312 C, Hi.
.•
310 SUPRtMBCOURT REPORTS [1984] 3 S.C.R.'
3. The examination of the scheme-of the Section reveals that the section has;
been enaeted as a measure .of public policy "'.ith. the object "' ensuring that
·'":~re a· suit is-,,instituted against .-the &vermnent Or a '.public _officer, th~
Government or the officer concerned is afforded an opportunity to scrutinise_ ther-
cl3.im in respect of which the suit_ is proposed to be filed· and if it-be fouDd to be~
3.just·claim, to take immCdiate 13ction and thereby avoid unnecessary Iitigatibn1
and save public time and. money by settling the claim without driViog the~
JI pfrsOn wbo issued the notice, to institµte the :.uit . involving considerable
expenditure and delay. [312 El ·· -)';: '
...
4. When the language used in the Statute iS clea-r_ and una_mbi_guous, it is.~
the p}au'.i duty of._the COurt to give effect tC? it and considerations of hardship .
wnl not be a legitimate· ground for not faithfully implementing the mandate or
C· the legislMure. · [313 B]
. "
Bhagchand Dagadusa v. Secretary of..Statefor India, 54 IA 338 ; .Velfayan v:
Madras· Province,· 74 ·Irtd!an Appeals 223; a~nd SawaL?inghai Nirmal Chondv~
Union of Jndia [1966] 1 S.~.R. 956 referred to.
D Nani Amma Nanninl Amnfa 'v . .State of Kerdla AIR 1963 Kerala 114,.
-overruled.
,
C!VrL APPELLATE JURISQICTION : Civil Appeal.Np. 1048 of.
1979 .
. From the Judgment and Order dated 15. 12. 1978 of Patna.
•E
lligh Court in Second Appeal No. 215 of 1978
·'' '
• L.N. Sinha, B.P. Singh, Ranjit Kumar a11d Ravi Prakash for the'·
appeallants.
Jj' D.Goburefhan for the respondents.·
The Judgment of the Com;t was delivered by
.
• BALAKRISHNA ERADI J. The s]1ort question that arsies foP,
'
c,onsideration in this appeal by special leave concerns the true scope,
G and application of.Section 80 of the Civil Procedure Code.
'The appellants. her~in · ar~ the plaintiffs in a. suit instituted in
t)le i\iunsiff's Court, Bihar S'harif, seeking the reliefs of dedaration
of title and deliver¥ of possession with mesne profits in respect ot:.
the properties descdbed in the plaint. The State of Bihar-the 1st
H.
respondent herein is the main defendant in the suit. Prior to the·
institution of the suit, the plah1tiffs had issued a uotice to the 1st
•
B. CHOWDHARY v. Bll!AR (V.B. Eradi, J.) 311
vespondent-State_:...under section 80 C.P.C. on 18.2.1969 and Exhi- A
t>it 2 isa copy ofthe said notice. How·ever; without waiting for
othe statutory period of two ~ >n.ths, the plaintiffs instituted the.suit
-0n 2.4.1969. In the written statement filed on behalf of the State.
of Bihar, it was contended.; inter a!ia, that the suit was not maintain-
~ble for want of proper notice under Section 80 C.P.C .. This
·contentiOn was uphelJ by the trial court which also recorded find- B
ings against the pblntiff; on the remaining issues concerning the ·
·title to the property and their erititlemwt to reliefs of declaration. ·
:.and delivery of p'3session. The first appellate. court to which the
·.matter was ca.rried. in appral by 'the plaintiffs dismissed the appeal
-on the ground that the plaintiffs' suit was not maintainable inas-
much· as due .notice under Section 80 C.P.C. liad not been given. A
,gecond appeal preferred by the appellants to the High Court at
Patna did not meet with any success and it was dismissed in limine,
.Hence this appeal by the plaintiffs.
We· are concerned 'in this case with Section 80 C.P.C. as it D
cStood prior to its amendment, by Act 104 of 1976 (Even under the .
.amended provisiop, the position remains unaltered insofar as a suit
of this nature is concerned). We s.hall extract the Section as it
.stood at the matcr.ial ti me :
• lil
)', "so: No suit shall be instituted against the Govern-
ment (inclu(ling the Government 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 dtlivered to, or left at the office of- p
fa) in the cas.e-of a suit against the Central Govern-
ment, except where it ·relates to a railway, a
:Secretary to that Gover~_ment ;
((b)' in the case of a suit against the Central Govern'
ment where it relates to a railway, the General
Mana_ger of thatrailway ;
'
{(c) in the (:ase of a suit against the Government
of the S~ate ·ofJammu and Kashmir, the Secre- H
1at"y ,to 'that Governme11t or any other officer
authorised by that Government in this behalf;
•
•
,
3.H SUPRE}.!E CQUl\T. REPORTS (1984} 3 ~.C.R.
(d) in. the case of a suit against any-0ther Govern,
. inent,. a Secretary to that Government or the
Collector of the district ; ' .,
*' * *
B
and, in t4e case of a public offlcer, delivered to him
or lfet at liis office, stating the cause of action, the nami:,
description and place of residence of the plaintiff and relief
wl1ich be ·claims ; and plaint shall contai\1 a statement that
such notice bas been so delivered ot left."
c
The effect of the Section is clearly to impose a bar against the·
institution of a. suit against the Government or a public officer in
·respect of any act purported to be dohe by him in his official capa-
. city until the expiration of two months after. ~otice in writing has
D .been delivered to or left.at the office of the Secretary to Govern-
ment or Collector of· the poncerned district and' in the case of a·
public officer delivered to him or left at his office, stating the
particulars enumerated in the last part of sub-section (I) of the
Section. When we examine the' sch. eme" of.the. Section it becomes •
• . .
obvious .that the Section has been enacted as a measure of public
'
.policy with the object of ensuring that before a suit is instituted
against the Government or a public officer, the Government 6r the '(._ .
. officer concerned is afforded an opportunity to scrutinise the claim
in respect
.. of which. the suit is proposed to be filed .and if it be
found to be a just claim, to take immediate action and thereby
avoid unnecessary litigation and save public time and money by
settling the claim. wi.thout driving the person, _who has issued the
••
11otice, to institute the suit involving considerable expenditure and
delay. The Government, unlike ·private parties, is expected to
consider tlte matter, covered by the n.otice in a most objective
manner, after obtaining such legal advice as they may think fit, and
take a decision in public inierest within the period of . two months
allowed by the Section as to whether the claim is just and reason-
able and the contemplated suit should, . t!<ereforc, be avoided by
speedy negotiations a:nd settlement.or whether the claim shouJ.d be
1esisted by fighting out the suit if and when it is instituted. There,
is' clearly a. public purpose underlying. the mandatory provision
o<intained in the Section insisting on the issuance of a notice setting
eat the particulars or the ,proposed suit. and giving two months'
tillle ·to Government, or a public officer before a suit can be insti-.
..
B. CHOWDHARY v. BIHAR (V.B. EraJi, J.) .313
A
tuted' against them. T!)e object of the Section is the advancement
of justice and the securing of public good by avoidance of un- .
necessary litigation.
; . When the language used in the.Statute is clear and unambi-
guous, if is the plain duty of tlie 'Court to give effect to it ahd
considerations of
liardship will. not be a legitimate ground for not
faithfully implementing the mandate of the legisiature:
The· Judici..al Committee of the Privy Council had occ.asion to
consider the scope and. effect of Section 80 C.P.C. in an almost
similar situation in Bhagchand Dagadusa and ors. v. Secretary of C-
State for India in Council & Ors. l1) In that case, though a
notice had been issued by the plaintiffs under Section 'so C.P.C.
on 26th June 1922, the suit was insitituted before the expiry of
the period of two montl1s from the said date. It was contended
before the Privy Co~ncil, relying on some early decisions o_f
High Court of Bombay, that because one of t.he r~licfs claimed
in the .suit was the grant of a perpetual injunction and the
claim for the said relief would have become infrucluous if the
plaintiffs were to wait for the· statutory period of two months
• prescribed in Section 80 C.P:C. before they filed the suit, the rigour
of the Section should be relaxed by implication of a suita\Jle excep- E:
tion of a qualification in respect of a suit for emergent relief, such
as one for injunction.· That contention did not find favour with
the Privy Council ~nd it \Vas held that Section 80 is express, expli-
cit and mand~ory and it admits no implicati.ons or exception's. The
Judicial Committee observed :
F.
"To argue as appellants did, that the plaintiffs had a
right urgently calling for a remedy, while s. 80 is mere pro-
cedure, is fallacious, for s. 80 -imposes a statutory and ur;qua-
lified obligation upon the Court.''
This decision "was subsequently followed by the Judicial G.
Committee in Ve//ayan v. Madras Prol'iF?ce.<"') }'he dictum la'id down
. by the Judicial Committee in Bhagchand Dagadusa v; Secre~qry of
State.for India:<•) was cited with approval and followed by a Bench
•
~ (I) 54 I.A. 338
H
(2) 74 I.A. 223
(3) S4 I.A. 333
•
' ;
., 314 SUPREME COURT REPORTS (1984] 3 S.C.R j~
A of five Judge_s of this Court in Sawai Singlrai Nirnial Chand v. Union
of India.(') ·
·. . It must now be regarded as settled law that a suit against the
Government ·or a public officer, to whic4 the requirement of a
prioi: notice under. Section 80 C.P.C. is attracted, ·can not be
validly ihstituted until the expir>ttion of the period of two months )-'
next after ·the notice in writing has been delivered to t_he autho- •
rities concerned in the manner prescrib~d for in the Section and
if filed before the expiry of tile said period, the suit has to be
dismissed as not maintainable .
.On behalf of the appellaf1,ts, strong reliance ·was placed on.
the decision of.a learned•Single Judge of the High Court of Kerala
in Nani Amnia Nannini Amma v. State of Kera/a.(•) Therein the
learned Judge has expressed the view that Sec. 80 is not a provision "1f
. of public policy .and there is no\hing in the Section expressly
affecting the jurisdiction of the ·court to try a suit" instituted before
the expiry of the period prescribei! _therein. , The reasons 'stated by
the learned Judge in justification of his taking.lite said.view despite
the clear pronouncement of the Judicial Committee of the Privy
Council in Blzagchand's case do not appeal to us as correct or sound."
'In the light of the conclusion expressed by us in the f~regoing.
E
paragraphs about the true .scope and effect of Section 80 C. P.C., the
afore cited decision of the learned Single Judge of the Ketala High
-+- ,
·Court cannot be accepted as laying down good law. •
IIi the result, we confirm the judgment and decree of the
:F High Court and·· dismiss this appeal. The parties will bear the
respective costs in this appeat
N.V.K. Appeal dismissed
•
••
H
(I) Jl966](1) SCR 9'56
• (2) A.I R ..1969 Kerala 114
•
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