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Judgment
T.S. Doabia, J.
The short question which is raised in this petition preferred u/s 115 of the CPC be noticed as under:
A suit was filed by the respondents in this petition against the present petitioner. The suit was filed for recovery of a sum of Rs. 3,46,471.06p. This was on the ground that cerium goods transported by the aforementioned defendant/ petitioner did not reach the destination.
Notice was served on the present petitioner. A written statement was filed. This was done on 27-2-1981. Later on an application was filed under Order 6 Rule 17. In this application, a new plea was sought to be taken. This plea was to the effect that as notice was not given u/s 10 of me Carriers Act of 1865, therefore, the suit is not maintainable. This application has been dismissed on the ground of delay. It is against the above order, the present revision petition has been preferred.
I am of the opinion that no case for interference has been made in this revision petition. This is because the plea sought to be raised is highly belated. Apart from this, if objection is not taken to the non-giving of a notice then this objection would be deemed to have been waived. The fact that the notice can he waived would be apparent from the various decisions which are being noticed hereinafter.
In Vellayan v. Madras Province AIR 1947 PC 197 vis-a-vis the requirement of Section 80 and the question whether it can be waived or not the observations were made to the effect that the notice required to be given u/s 80 is for the protection of the authority concerned and if an authority does not require that protection and does not take a plea then that notice would be deemed to have been waived. The aforementioned decision given by the Privy Council was noticed by a Full Bench of Bombay High Court reported as Vasant Ambadas Pandit Vs. Bombay Municipal Corporation and Others, . The Full Bench considered the decision given by the Supreme Court of India reported as Dhirendra Nath Gorai and Subal Chandra Shaw and Others Vs. Sudhir Chandra Ghosh and Others, also. In para 8 following observations were made :
"We have, therefore, no hesitation in holding that the construction placed by the learned Advocate for the defendants on paragraph 10 of the said Division Bench judgment in Ebrahimbhai Vs. State of Maharashtra and Others, is clearly incorrect and contrary to the clear and unambiguous observations in earlier paragraphs 1 and 9 of the said judgment. In our opinion, the true legal position in this behalf is that no suit can he instituted without service of the notice if such service of the notice is required statutorily as a condition precedent. The giving of the notice is a condition precedent to the exercise of jurisdiction. But, this being a mere procedural requirement, the same does not go to the root of jurisdiction in a true sense of the term. The same is capable of being waived by the defendants and on such waiver, the Court gets jurisdiction to entertain and try the suit. The plea of waiver can always be tried by the civil Court. In fact, it is not suggested who else can try. The question whether, in fact, there is waiver or not would necessarily depend on facts of each case, and is liable to be tried by the same Court if raised."
There is a direct authority of this Court reported as Union of India v. Tej Narain AIR 1957 MB 108. In para 5 of the judgment, it was observed that where an objection to sufficiency of notice u/s 80 was raised at a late stage (delay of over two years), the defendant should be deemed to have waived his right to notice u/s 80 of Code of Civil Procedure, 1908. Reliance on earlier view expressed by the Nagpur High Court reported as AIR 1949 25 (Nagpur) and the Bombay High Court reported as Erachshaw Hormusji Ginwala Vs. The Secretary of State, .
In view of the aforementioned decisions of this Court and the decision of the Privy Council and the Bombay High Court which are to the effect that if a particular plea is not taken in the written statement with regard to prior issuance of notice, then the objection would be deemed to have been waived. This petition is found to be without merit and is dismissed.