Andavar Arul Lorry Service vs Pioneer Bottle House and Others

Abdul Hadi, J.—The 2nd defendant in O.S.No. 10522 of 1987 on the file of the VI, City Civil Court, Madras, has preferred this second appeal against the concurrent judgment and decree of the courts below for a sum of Rs. 22,380/-, granted against the appellant as wall as the 1st defendant (2nd respondent herein). The said sum was decreed as damages for the loss of goods in transit due to accident. According to the plaintiff, the appellant was the booking agent, to whom the goods were entrusted by the plaintiff for transport and the 2nd defendant is the owner of the lorry, in which the goods were carried, on being entrusted by the appellant for transport. There was no notice, cannot be raised for the first time in the second appeal. (Vide State of Bamadee AIR 1971 Orissa 227. Further, State of Bihar and Another Vs. Smt. Panchratna Devi and Another, also held that though Section 80 C.P.C. notice is mandatory, the right may be waived by the petitioner, for whose benefit it has been provided. The said decision also relies on Vellayan Chettiar v. Government of the Province of Madras AIR 1947 PC 197 and Sawai Singhai Nirmal Chand Vs. Union of India, . The relevant observation in the said Patna decision is as follows:-

"In the plaint there is an averment that no notice u/s 80 of the Code was required in law to be served on the defendants 1st party as this suit is only in continuation of the claim proceeding decided by the Certificate Officer. The defendants in reply thereto in the written statement had vaguely stated that the suit was barred for want of such notice, but the issue was either not raise at the trial stage and/or does not appear to have been pressed. There is no inconsistency in the proposition that the provision u/s 80 of the Code is mandatory and the standing counsel has rightly placed reliance on the case reported in Sawai Singhai Nirmal Chand Vs. Union of India, but the right may be waived by the party for whose benefit it has been provided. The question is whether in this case under appeal, the appellant will be deemed to have waived this right. From the facts, as stated above, it appears that the appellants had waived this right as I gather from the conduct of the parties. It is apparent that this issue was not raised in the court below, so much so that this point was not taken even in the memorandum of appeal. There are a number of authorities that Section 80 of the Code notice can be waived by the defendant. Reference in this regard may be made to one such decision of the Judicial Committee in the case of Vellayan Chettiar V. Government of the Province of Madras AIR 1947 PC 197 which has been consistently followed by the various ''High Courts in India including our own High Court."

Just as in the case of the above said Section 80 notice, in the present case also, there can be waiver of the above said Section 10 notice. It has also been so held in U BA TIN v. U TIN ON AIR 1938 Ran 437 DB.

No doubt, learned counsel for the appellant contends that though the plea was not raised in the written statement, in the first appeal grounds it was raised but that the first appellate Court has not considered the said question. No doubt, this aspect has not been considered by the lower appellate Court. But, it is not clear whether this aspect was argued before the first appellate Court. It is not stated in the grounds of the Second appeal that despite the fact that there was argument on this aspect, the lower appellate court has not considered the same.

In the above circumstances, I am unable to see any substantial question of law, arising in this second appeal. Accordingly the second appeal is not admitted, but dismissed.