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

The Orissa High Court has reiterated that the State and its agencies cannot challenge the maintainability of a suit, for the first time at the stage of appeal, on the ground that no prior notice as prescribed under Section 80 of the Code of Civil Procedure was issued to them before instituting the suit. Clarifying the position of law, the Single Bench of Justice Ananda Chandra Behera observed– “…if the defendants do not raise any objection about the same in their written statement challenging the maintainability of the suit of the plaintiff on the ground of non-issuance of notice under Section 80 of the C.P.C., 1908 and if no issue is framed on the said point, then, it will be deemed as per law that, defendant or defendants have waived their right on such point.” Factual Background The respondent, being a registered construction company, had entered into an agreement with the appellants i.e. Justice Behera underlined that the appellants did not raise any objection challenging the maintainability of the suit of the respondent-company in the trial Court on the ground of non-service of notice under Section 80 of the CPC prior to filing of the suit. Against such backdrop, the Court highlighted the objective behind the provision of serving of notice under Section 80 and observed – “The main object/purpose of issuance of notice under Section 80 of the C.P.C., 1908 by the plaintiff to the State/Government and its officer prior to the institution of suit is only to give the concerned Government or officer an opportunity to reconsider the legal position and to settle the claim raised by the plaintiff, if so advised, without moving for the litigation in order to enable the State and its officer to be responsive to the notice of the plaintiff for the avoidance of a fight in the suit or litigation with the plaintiff or plaintiffs.” It further held that the though the provision of issuance of notice under Section 80 of the CPC is mandatory, but the same can be waived by the defendant and if once the defendant waives the requirement of notice under the said provision without raising any objection in the written statement, the plaintiff cannot be non-suited on the ground of non-service of statutory notice prior to the institution of the suit. Therefore, taking into account the aforesaid position of law, the Bench held that as the appellants neither raised any objection in their written statement nor any issue has been framed on that point by the trial Court during trial of the suit, it shall be deemed that the appellants have waived their right to challenge the maintainability of the suit on the ground of non-issuance of notice under Section 80, CPC.