Chet Singh and others vs Municipal Committee, Kharar and others

S.D. Bajaj, J.—Basing their claim on title to the land forming part of Khasra No. 257 situated opposite Civil Hospital Kharar, in district Rup Nagar of Punjab State, purchased from previous owners by means of registered sale deeds, Plaintiff-Appellants filed against Defendant-Respondents a suit for declaration of their title thereto and for the recovery of Rs. 2850/- as mesne profits at the rate of Rs. 75/-per mensum from 13th September, 1964 onwards till the date of suit. Further claim of manse profits from the date of the suit till the date of recovery of actual physical possession of the suit land at the aforesaid rate was also made therein The learned trial court decreed the suit against Defendant Respondents 1 and 3 to 14 on 3rd February 1975. Against Defendant-Respondent No. 2 the State of Punjab, the suit was dismissed.

In first appeal learned Additional District Judge. Rup Nagar, vide his appellate judgment dated 25th February, 1978, rejected the plaint in terms of Order VII Rule 11 Clause (d) of the Code of Civil Procedure, on the ground that the service of a prior notice on Municipal Committee, Kharar, before the institution of the civil suit bearing No. 375 filed on 20th November. 1967 in terms of Section 49 of the Punjab Municipal Act, 1911, had not been duly proved. Against the aforesaid judgment and decree of the learned court of first appeal, Plaintiff-Appellants have filed in this Court regular second appeal No. 1286 of 1978.

I have heard Shri A.S. Tewatia, learned Counsel for the Appellants, and Shri K.C. Puri, learned Counsel for the Respondents. Finding recorded by the court of first appeal under issue No. 5 has been assailed by the learned Counsel for the Appellants on the ground that Rule 4 Order XIII of the first schedule of the CPC had been amended by the High Court of Punjab and Haryana at Chandigarh on 28th May, 1974 as follows: -

High Court of Punjab and Haryana at Chandigarh. The 28th May, 1974.

No. G.S.R. 121/CA. 5/1908/S. 122/74.-The following amendment to Rule 4 Order XIII of the First Schedule to the Code of Civil Procedure, 1908, made u/s 122 of that Code by the High Court of Punjab and Haryana at Chandigarh, after previous publication of the draft thereof in the Gazettes of Punjab and Haryana and the Chandigarh Administration, under Notification No. 56/Rules, XI Y. 30 dated 9th February, 1973 and with the previous approval of the State Governments of Punjab and Haryana and the Chandigarh Administration, is hereby published for general information under the provisions of Section 127 of the said Code:-

ORDER XIII

Add the following proviso to Rule 4, Order XIII

''Provided that where the Court is satisfied that the document, not endorsed in the manner laid down in the above rule, was in fact, admitted in evidence, it shall treat the document as having been properly admitted in evidence unless non-compliance with this rule has resulted in miscarriage of justice.

With the result that the exception taken by the learned court of first appeal in regard to notice tendered before Shri Mewa Singh the then learned Senior Sub Judge, Rup Nagar, on 1st August, 1973 having been signed by Shri Gurdev Singh, learned Senior Sub Judge 1st Class, Rup Nagar, successor in office of Shri Mewa Singh as also in regard to other particulars, besides exhibit mark, date and signatures of the Presiding Officer as required in Order 13 Rule 4 of the Code of Civil Procedure, being not mentioned on the notice is rendered nugatory and of no consequence. Even otherwise also as held in Union of India and Another Vs. Landra Engineering and Foundry Works and Another, P.C. Purushothama Reddiar Vs. S. Perumal, the object of the notice contemplated by Section 80 CPC Code, is to give to the concerned Governments and public officers opportunity to reconsider the legal position, and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in Section 80 are not intended to he used as boobytraps against ignorant and illiterate person''s. Section 80 though its terms have to be strictly complied with, must be construed with due regard to com-monsense and to the object with which it has been enacted. Its object is manifestly to give the Government or the public officer sufficient notice of the case which is proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the Plaintiff should be accepted or resisted. Section 80 does not define the rights of parties or confer any rights on the parties. It only provides a mode of procedure for getting the relief in respect of a cause of action. It is a part of the machinery for obtaining legal rights i.e., machinery as distinguished from its products. The provisions of notice under the section are not intended to be used as a trap for defeating the claimant''s suits against the Government. It is not open to a party to object to the admissibility of documents which are marked as exhibits without any objection from such party. Basing his arguments on the amendment and observations in these authorities aforesaid, learned Counsel for the Appellants contended that notice Exhibit P. 39 being valid in every way, the finding of the learned court of first appeal on issue No. 5 should be reversed and the decree granted to Plaintiff Appellants by the learned trial court should be restored.

On the other hand, learned Counsel for the Defendant-Respondents urged that there is no evidence on record proving the contents of notice Exhibit P. 39, issuance of post office receipt regarding its despatch to Municipal Committee. Kharar, and of the receipt of return of acknowledgement due receipt in respect of notice Exhibit P. 39. In this view of the matter, finding of the learned court of first appeal on issue No. 5 is set aside and the parties are directed to appear before the learned trial court on 15th January. 1988. Learned trial court shall record the evidence which may now be adduced before it by both the parties regarding the contents and service of notice Exhibit P. 39 and submit its report on issue No. 5 to this Court in terms of Order XLI Rule 23A of the CPC within 3 months On receipt of the report aforesaid, regular second appeal shall be listed for hearing by the Registry of this Court, after issuance of actual hearing notice to learned Counsel for both parties. Both parties shall then be heard on the whole case.