# M4han Singh Tarsikka v. The State of Punjab Gajendragadkar f

- **Citation:** [1964] 4 S.C.R. 945
- **Court:** Supreme Court of India
- **Decided:** 1963-09-12
- **Bench:** A. K. Sarkar, J. c. SHAH, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m4han-singh-tarsikka-v-the-state-of-punjab-gajendragadkar-f-3193
- **Pages:** 13

## Headnote

Civil Procedure Code, S. 80, 0. I. r. 8.-Notice under 80,
Civil Procedure Code by two persons but suit filed by one-Validity
of suit-Representative suit-Requirements of-Meaning of 'Estate'
-Madras Estates
Land Act, 1908, S. 3(2)(d)-Madras Estates
Rent Reduction Act, 1947.
·
The Government of Madras applied the provisions of the
Madras Estates Rent Reduction Act, 194 7 to the lands in the
village Mallinadhapuram on the ground that the grant was of the
whole village and hence an estate within the meaning of S. 3(2)(d)
pf the Madras Estates Land Act, 1908.
The respondent and
another person served a notice under S. 80 of the Code of Civil
Procedure upon the Government of the State of Madras in which
they challenged the above mentioned notification and asked the
Government not· to act upon it. Out of the two persons who
gave the notice, the respondent alone filed the suit.
The trial
court held that the original grant was not of the entire village
1963
M4han Singh
Tarsikka
v.
The State of
Punjab
Gajendragadkar f.
1963
September 12
afld was not so confirmed or recognised by the Government of the
. \ :
Province of Madras and therefore as it was not on
11estate" within
the meaning of S. 3(2)(d) of the Madras Estates Land Act the
Madras Rent Reduction Act, 1947 did not apply to it. But the
Suit was dismissed on the ground that although two persons had
given the notice under S. 80 of the Code of Civil Procedure, only
one person had filed the suit. The High Court agreed with the
~al court that the grant was not of an entire- village but it also
held that the notice was not defective and the suit was maintainable as it was a representative suit and the: pemiissiori of the
1963
State of i1trdhra
Pradesh
v.
Gundugola Venkata Suryanarayana Garu
Shah, /.
SUPREME COURT REPORTS
<[i964]
Court und~r Order 1, rl 8 had beeri obt:iined· ih this· c3se .. The
High Court granted the respondent the relief prayed for by him.
Against the order of the High Court, the appellant appealed to
this Court.
HELD, (i) The suit was not liable to be dismissed.
There
was in the circumstances of the case no illegality even though
notice was given by two persons and the suit was filed by only
one.
The right to institute a representative suit can be e_xercised
by one or more persons having an interest which is common With
others and that right can be exercised with the permission of the
court. If the court grants permission to one person to institute a
representative stiit and if the person had served the notice under
S. 80, the circumstances that another person had joined him in
serving the notice but did not join him in the suit, is not a
sufficient ground for regarding the suit as defective.
(ii) The permission of the court has to be obtained for instituting a representatiye su,it ~qd not. for serving the notice. The
Code of Civil· Procedure Contains no m:lchirieiy- fOf ·granting permission to a party seeking to se~ve a notice upon the Governn1ent
pr a. p~bl,ic. seryant.
,
. .
. 1 . ,. \,
(iii) The lands in dispute did ~ot constiiute. an eState ~~thin
the meaniilg"of S. ·3(2)(d) of the Madras Estates Land Act, 1908,
and therefore the Madras Rent Reduction Act, 1947 did not apply
"to them. Vellavan Che~tiar and othe,.s v . . The Government of the
Province of Madras and another, L. R. 74 I. A. 223 and Government of the Provinc,e of Bo1nbay v. Pestonji Ardeshir Wadia rJnd
others, L. R. 76 I. A. 85.
·
C1VIL APPELLATE 'JuRISDICTION : Civil Appeal No. 483 of
1961.
.
·Appeal from the judgment and decree dated April l,
.1959 of the Andhra Pradesh High Court in Appeal Suit No.
583 of 1954.
K. Bhimashankarani, B.R.G.K. Achar and R. N.
Sachthey, for the appellant.
,
September 12, 1963. The Judgment of the court was
delivered by
SHAH J .-Two questions fall to be determined in this
appeal:
( 1) whether the suit instituted by the respondent
G.V. Suryanarayana Garn against the State of Madras
was liable to be dismissed because of absence of identity betwe~n the persons who served t

## Text

4S.C.R.
SUPREME COURT REPORTS
945
special leave. That is why we propose to express no opinion on the merits of the plea of mala fides which the
appellant wanted to raise before us.
The result is, the. appeal is allowed and the order of
detention passed against the appellant is set aside
on
the ground that the service of the order is invalid and
is outside the scope of Rule 30( 1) (b) of the. Rules. We
accordingly direct that the appellant should be released
forthwith.
Appeal allowed.
STATE OF ANDHRA PRADESH
v.
GUNDUGOLA VENKATA SURYANARAYANA GARU
(A. K. SARKAR, J. c. SHAH AND RAGHUBAR DAYAL, JJ.)
Civil Procedure Code, S. 80, 0. I. r. 8.-Notice under 80,
Civil Procedure Code by two persons but suit filed by one-Validity
of suit-Representative suit-Requirements of-Meaning of 'Estate'
-Madras Estates
Land Act, 1908, S. 3(2)(d)-Madras Estates
Rent Reduction Act, 1947.
·
The Government of Madras applied the provisions of the
Madras Estates Rent Reduction Act, 194 7 to the lands in the
village Mallinadhapuram on the ground that the grant was of the
whole village and hence an estate within the meaning of S. 3(2)(d)
pf the Madras Estates Land Act, 1908.
The respondent and
another person served a notice under S. 80 of the Code of Civil
Procedure upon the Government of the State of Madras in which
they challenged the above mentioned notification and asked the
Government not· to act upon it. Out of the two persons who
gave the notice, the respondent alone filed the suit.
The trial
court held that the original grant was not of the entire village
1963
M4han Singh
Tarsikka
v.
The State of
Punjab
Gajendragadkar f.
1963
September 12
afld was not so confirmed or recognised by the Government of the
. \ :
Province of Madras and therefore as it was not on
11estate" within
the meaning of S. 3(2)(d) of the Madras Estates Land Act the
Madras Rent Reduction Act, 1947 did not apply to it. But the
Suit was dismissed on the ground that although two persons had
given the notice under S. 80 of the Code of Civil Procedure, only
one person had filed the suit. The High Court agreed with the
~al court that the grant was not of an entire- village but it also
held that the notice was not defective and the suit was maintainable as it was a representative suit and the: pemiissiori of the
1963
State of i1trdhra
Pradesh
v.
Gundugola Venkata Suryanarayana Garu
Shah, /.
SUPREME COURT REPORTS
<[i964]
Court und~r Order 1, rl 8 had beeri obt:iined· ih this· c3se .. The
High Court granted the respondent the relief prayed for by him.
Against the order of the High Court, the appellant appealed to
this Court.
HELD, (i) The suit was not liable to be dismissed.
There
was in the circumstances of the case no illegality even though
notice was given by two persons and the suit was filed by only
one.
The right to institute a representative suit can be e_xercised
by one or more persons having an interest which is common With
others and that right can be exercised with the permission of the
court. If the court grants permission to one person to institute a
representative stiit and if the person had served the notice under
S. 80, the circumstances that another person had joined him in
serving the notice but did not join him in the suit, is not a
sufficient ground for regarding the suit as defective.
(ii) The permission of the court has to be obtained for instituting a representatiye su,it ~qd not. for serving the notice. The
Code of Civil· Procedure Contains no m:lchirieiy- fOf ·granting permission to a party seeking to se~ve a notice upon the Governn1ent
pr a. p~bl,ic. seryant.
,
. .
. 1 . ,. \,
(iii) The lands in dispute did ~ot constiiute. an eState ~~thin
the meaniilg"of S. ·3(2)(d) of the Madras Estates Land Act, 1908,
and therefore the Madras Rent Reduction Act, 1947 did not apply
"to them. Vellavan Che~tiar and othe,.s v . . The Government of the
Province of Madras and another, L. R. 74 I. A. 223 and Government of the Provinc,e of Bo1nbay v. Pestonji Ardeshir Wadia rJnd
others, L. R. 76 I. A. 85.
·
C1VIL APPELLATE 'JuRISDICTION : Civil Appeal No. 483 of
1961.
.
·Appeal from the judgment and decree dated April l,
.1959 of the Andhra Pradesh High Court in Appeal Suit No.
583 of 1954.
K. Bhimashankarani, B.R.G.K. Achar and R. N.
Sachthey, for the appellant.
,
September 12, 1963. The Judgment of the court was
delivered by
SHAH J .-Two questions fall to be determined in this
appeal:
( 1) whether the suit instituted by the respondent
G.V. Suryanarayana Garn against the State of Madras
was liable to be dismissed because of absence of identity betwe~n the persons who served the notice under
s. 80 Code of Civil Procedure, 1908 and the person who
sued; and
\
4 S~C.R.
SUPREME COURT REPORTS
947
(2) whether the lands in dispute covered by title
deed No. 279 Mallinadhapuram constitute an "estate"
within the meaning of s. 3(2) (d) of the Madras
Estates Land Act, 1908.
By order dated January 11, 1950 the Government of
Madras applied the provisions of the Madras Estates Rent
Reduction Act 30 of 1947 to the lands in the village Mallinadhapuram on the footing that the grant was of the
whole village, and hence an estate within the meaning of
s. 3(2) (d) of the Madras Estates Land Act, 1908, and thereby sought ro prevent the Inamdars from collecting contrac:
tual or customary rent from the tenants who held the
lands under the Inamdars.
·
G. V. Suryanarayana Guru and Prabha Yegneswara
Sastri who collectively hold 2! out of the 8 vrittis constitu.ting the inam thereupon served a notice under . s. 80 Code
of Civil Procedure upon the Government of the State of
Madras. The notice recited that the cause of action for
the proposed suit arose on the issue of the notifica\ion
dated January 11, 1950 published in the Fort St. George
Gazette on May 16, 1950 and on subsequent dates when
the Government of Madras through its officers attempted
to interfere with the collection of rent due from tenants,
and called upon the Government of Madras to withdraw,
the notification and to refrain from collecting at reduced
rates rent from the tenants and cultivators in Mallinadhaptiram or otherwise interfering with the rights of ownership of the inamdars in Mallinadhapuram, and informed
the GO\·ernment that in default of compliance with the
nqtice, a suit to establish the rights claimed would be filed
against the State of Madras. The notice set out the names;
description and place of residence of the plaintiff and Prabha
Y egneswara Sastri. The Government of Madras failed to
withdraw the notification, and G. V. Suryanarayana Garu
alone instituted, for himself and on behalf of all Inamdars
of Mallinadhapuram, Suit No. 45 of 1953 in the Court of
the Subordinate Judge, Srikakulam against the State of
Madras for a declaration that "the agraharam of Thungathampara alias Mallinadhapuram covered by T. D. No. 279
is not an estate within the meaning of Section 3(2) ( d)
of Madras Estates Land Act, and the Notification No. 2970
of 'the Government defendant published at page 1399 of
Stat/: of Aruihra
Pradesh
v.
Gundugola Venkata Suryanarayana Garu
Shah, J.
196:!
State of Andhra
Pradesh
v.
Gundu go/a Vtmkata Suryanarayana Garu
Shah,/.
948
SUPREME COURT REPORTS
[1964]
Fort St. George Gazette under Madras Estates Rent Reduction Act XXX of 1947 and subsequent proceedings
thereunder are therefore void, illegal and ultra vires."
The State of Madras contended that the grant in favour
of the predecessors of the Inamdars was of the entire
village and of a named village which had been enfranchised as such under title deed No. 279 and on that account
the village constituted an estate as defined in s. 3(2)(d)
of the Madras Estates Land Act and also as defined in
Madras Act XXX of 1947, and the plaintiff's claim was
not maintainable. It was also contended that the notice
served by the plaintiff under s. 80 Code of Civil Procedure
was "not valid and proper in law".
The Trial Court held that the original grant in inam
was not of the entire village, and was not so confirmed
or recognized by the Government of the Province of Madras
and therefore within the meaning of s. 3 (2) ( d) of the
Madras Estates Land Act it was not an "estate", and the
Madra.s Rent Reduction Act, 1947 had no application
thereto, but the suit was still liable to be dismissed because
the notice served by the plaintiff and ·Prabha Y egneswara
Sastri was "invalid and defective inasmuch as the suit" was
filed by the plaintiff alone.
In appeal the High Court . of Andhra Pradesh at
Guntur (which since the constitution of the State of
Andhra was the proper Court to entertain the appeal)
reversed the decree passed by the Trial Court. The learned
Judges agreed with the Trial Court that the grant was not
of an entire village or of a named village, and that the
representative suit filed by the plaintiff for and on behalf
of all the Inamdars, with the permission of the Court under
0. 1 r. 8 of Code of Civil Procedure was not defective. The
High Court accordingly granted to the plaintiff the relief
claimed in the plaint.
The dispute in this appeal relates to an area of land
cover~d by T.D. No. 279. It is common ground that in
Hizri year 1143 the then Raja of Parlakimidi Veera Pratapa Rudranarayana Deo granted for maintenance as a
~ereditary inarn certain lands to one Nagulakonda Shivararndas. In course of time the lands were as a result of
Partitions and alienations divided into eight vrittis. The
original grant is · not forthcoming. In J860 when the
4 S.C.R.
SUPREME COURT REPORTS
949
Zamindari was under the management of the Court of
Wards, survey proceedings were instituted according to
the "block survey system" and the agraharam and the
jeroyiti villages in the Zamindari were demarcated and
measured in blocks. The District Collector recommended
to the Court of Wards "that no claim to land as yet uncleared and untilled should be allowed until the grant
clearly favoured the claim, and that the actual' encrochments made upto the date of demarcation would fall within the cognizance of the Inam Commissioner". This recommendation of the Collector was approved by the Court
of Wards on September 25, 1861. At the time of enfranchisement of the inam, the Inam Commissioner dealt
with the cultivated area only and issued title deeds to the
lnamdars excluding the jungle or the cultivable waste
lying within demarcated limits according to the Block Survey of 1860. The Court of Wards had on behalf of the
Zamindar claimed before the Inam Commissioner the waste
and banjar lands not under cultivation as being the exclusive and reserved areas of the Zamindari. In the investigations made by the Inam Commissioner the entire area in
the block survey of the inam land was not enfranchised,
and certain banjar lands which were excluded from enfranchisement were treated as Samasthanam jeroyiti, and
ever since the Block Survey of 1860 the Samasthanam
derived agricultural income from the excluded lands. The
Zamindar had got the banjar lands separately demarcated.
An application by one Nagulakonda J aggiah to obtain a
grant on patta of 15 acres of banjar land submitted to the
Estate Manager, and the feroyiti patta dated February 13
1864 for a portion covered by block No. 23 lend suppor;
to the recognition of the right of the Zamindar to the
banjar lands in the village.
In Ext. A-1 the Inam Fair Register it is recited in the
remarks column that :
"It appears that there was formerly a mokhasa in
this estate which was known by the name of Tungatampara in the vicinity of the Agrahar.
Under
settlement and is that of Chorlangi and Gatta, that
as the mokhasa fell into decay half century ago
and as the above agraharamdars complained to the
Zamindar Dugaraju that they are destitute of the
1963
State of Andhra
Pradesh
v.
Gundugola Vt'flkata Suryanarayana Garu
Shah, /.
1963
State of Andhra
Pradesh
v.
Gun du go/a Venkata. Suryanarayana Garu
Shah, /.
950
SUPREME COURT .REPORTS
[1964J
sources of irrigation he formed a tank, including
the lands of the mokhasa with head of it and ruled
that 2/5 of the water should run to the fields of
the Agraharamdars of Chorlangi, 2/5 to Gatta and
1/5 to the agraharam in question.. As the tank
was formed only half a century ago or subsequent
to the permanent settlement, the right to it vests
with the Zamindar and if any of the lands formed
to have been brought under plough it will be liable
to full assessment."
This indicates that the Zamindar had constructed the
tank and his title thereto was recognised. The Assistant
Inam Commissioner as recited in the Inam Fair Register
had recommended by his letter dated November 30, 1865,
confirmation of acres 149-59 cents only and not the entire
area of the village, and this was approved by the Inam Commissioner by his final order. There is nothing in Ext. A-1
to support the contention ,that the original grant was of
an entire village, and the inference that it was a grant
of a part of the village is supported by the actings and
dealings of the Zamindar with the waste and banjar lands,
and by the recognition of his title to the tank, and the
confirmation of a part only of the entire area. This inference is further supported by other documentary evidence.
Exhibit A-3 which is the correspondence between 1864 and
1866 relating to the ban jar lands shows that in the enfranchisement proceedings those lands were separated and that
:a jeroyiti patfta was granted for the ban jar lands by the Zamindari Manager. Similarly Exts. A-4 to A-8 show that
the Inam Commissioner did not deal with the jungle land
and hillocks in his final order dated November 30, 1865
and that the same were claimed by the Zamindar as belonging to him. Exhibit A-9 which is a note submitted by the
Diwan of the Estate recited that in Block No. 23 of Mallinadhapuram agraharam the excluded banjar was not sur1veyed in the. survey of 1860, and that it was separately surveyed, and the banjar was then .included in the village Gulumuru. Exhibit A-7 which is the block survey list shows
.that the total extent of the village was acres 325-92 cents
and out of that area acres 110-00 were recorded as belonging to the Zamindar as his banjar and poramboke lands
·for which he had issued
jeroyiti pattas. Exhibits A-13
4 S.C.R.
SUPREME COURT REPORTS
951
to A-20 also show that the banjar lands were granted on
jeroyiti pattas by the Parlakimidi estate and were not
regarded as part of the inam. The evidence therefore clearly
establishes that the grant was not of the entire village· and
the Trial Court and the High Court were, in our judgment, right in declining to accept the case of the State.
In the notice served on the Government of Madras
the plaintiff and Prabha Y egneswara Sastri claimed title
to 2!- vrittis out of 8 vrittis constituting the inam lands in
Mallinadhapuram, and set out in detail the proceedings
of the Inam Commissioner. They then proceeded to submit
on diverse grounds that what was confirmed by the Inam
Title Deed No. 279 was not an estate within the meaning
of s. 3 (2)(d) of the Madras Estates Land Act, and that
in applying the provisions of the Madras Estates Rent Reduction Act the State Government acted illegally.
The
notice then proceed to state that "this notice is therefore given
to the Government to request them to refrain from taking
any step or proceedings under the Rent Reduction Act, failing which my clients will be obliged to take legal proceedings in a Civil Court, on behalf of the Inamdars to
establish their rights and to restrain the Government from
taking any action under the Rent Reduction Act and interfere with my clients' rights to collect the usual and customary rents lawfully payable to Inamdars, under customary
contract, or otherwise interfere with their right of ownership and possession of the lands covered by the Inam Title
Deed No. 279 of Mallinadhapuram", and called upon the
Government to withdraw the notification published in the
Gazette dated May 16, 1950 and to refrain from attempting to collect at reduced rates the rent from the tenants
and cultivators in Mallinadhapuram and otherwise interfering with the rights of ownership of the agraharam in
Mallinadhapuram, and threatened that in default of compliance a suit would be filed by the inamdars in the Civil
Court to establish "their rights and obtain necessary reliefs
against the State of Madras".
Section 80 of the Code of Civil Procedure, (in so far
as it is material for this appeal) provides, that no suit
against the Government shall be instituted until the expiration of two months next after notice in writing has been
delivered to or left at the office of the appropriate autho1963
Stat< of Andh,.
Pradesh
v.
Gundugola Venkata Suryanarayana Garu
Shah, f.
1963
Stat< of Andhra
Pradesh
v.
Gundugola Venkata Suryanarayana Gf"U
Shah,/.
952
SUPREME COURT REPORTS
[1964}
rity stating the cause of action, the name, description and
place of residence of the plaintiff and the relief which he
claims. In the present case the notice addressed to the
Government of the State of Madras by two named persom
sought to raise a grievance on behalf of all the Inamdars
who were aggrieved by the issue of the notification undet
the Madars Act XXX of 1947. That is clear from the
recitals which we have set out verbatim earlier and from
the relief clause. The cause of action, the name, descril>"'
tion and place of residence of both the persons who gave
the notice and the relief claimed, were also set out. The
suit was instituted more than two months after the date
on which the notice was served. But it was filed by one
out of the two persons who had served the notice, with the
permission of the Court under 0. 1 r. 8 Code of Civil
Procedure, as a representative suit for and on behalf of
all the Inamdars who were aggrieved by the order.
The object ,of the notice under s. 80 is to give to
the Government or the public servant concerned an OP"'
portunity to reconsider its or his legal position and if that
course is justified to make amends or settle the claim out
of Court. The section is imperative and must undoubtedly
be strictly construed: failure to serve a notice complying
with the requirements of the statute will entail dismissal
of the suit. But the notice must be reasonably construed_
Every venial error or defect cannot be permitted to be
treated as a peg to hang a defence to defeat a just claim.
In each case in considering whether the imperative provisions of the statute are complied with, the Court must
face the following questions :
(1) whether the name, description and residence of
the plaintiff are given so as to enable the authorities to identify the person serving the notice;
(2) whether the cause of action and the relief which
the plaintiff claims are set out with sufficient
particularity;
(3) whether the notice in writing has been delivered
to or left at the office of the appropriate authority
mentioned in the section; and
( 4) whether the suit is instituted after the expiration
.of two months next after notice has been served,
4 S.C.R.
SUPREME COURT REPORTS
953
and the plaint contains a statement that such a
notice has been so delivered or left.
In construing the notice the Court cannot ignore the object
of the Legislature-to give to the Government or the public
servant concerned an opportunity to reconsider its or his
legal position. If on a reasonable reading-but not so as
to make undue assumptions-the plaintiff is shown to have
given the information which the statute requires him to
give, any incidental defects or errors may be ignored.
The notice in the present suit was served by the plaintiff and Yegneswara Sastri. They raised a grievance about
the notification issued by the Government of Madras on
May 16, 1950: it was not an individual grievance of the two
persons who served the notice but of all the Inamdars or
agrahamdars. The relief for which the suit was intended
to be filed was also not restricted to their personal claim.
The notice stated the cause of action arising in favour of
all the Inamdars, and it is not disputed that the notice set
out the relief which would be claimable by all the Inamdars or on their behalf in default of compliance with the
requisition. The plaintiff it is true alone filed, the suit, but
he was permitted to sue for and on behalf of all the Inamdars by an order of the Court under 0. 1 r. 8 Code of
Civil Procedure.
The requirements as to the cause of
action, the name, descciption and place of residence of the
plaintiff was therefore complied with and the relief which
the plaintiff claimed was duly set out in the notice. The
only dep1rture from the notice was that two persons served
a n.otice under s. 80 informing the Government that proceedings would be started, in default of compliance with
the requisition, for violation of the rights of the lnamdars,
and one person only out of the two instituted the suit.
That in our judgment is not a defect which brina-s the case
within the terms of s. 80. The right to institute ~ representative action may be exercised by one or more persons having an interest which is common with the others but it can
only be exercised with the permission of the Court. If
the Court grants permission to one person to institute such
a representative action and if that person had served the
notice under s. 80, the circumstance that another person
had joined him in serving the notice but did not effectuate
that notice by joining in the suit, would not in our judg61-2 S. c. Inuia164
1963
State of Andhra
Pradesh
v.
Gundugola Venkata Suryanarayana Garu
Shah, f.
1963
State of Andhra
Pradesh
v.
Gundugola Venkata Suryanara~
yana Garu
Shah, f.
954
SUPREME COURT REPORTS
[1964]
ment be a sufficient ground for regarding tbe suit as
defective.
Counsel for the State of Andhra Pradesh said that a
person who seeks to institute a suit in a representative capacity must establish that he had obtained sanction of the
persons interested on whose behalf the suit is proposed to
be instituted, and when it is to be instituted against the
Government or against a public officer, before serving the
notice he must; beside obtaining the authority from all the
persons so interested, set out in the notice the names, descriptions, and places of residence of all the persons sought
to be represented by him. But there is nothing in s. 80 of
the Code or 0. 1 r. 8 Code of Civil Procedure which
supports this submission, and there is inherent indication in
0. 1 r. 8 to the contrary. To enable a person to file a suit
in a representative capacity for and on behalf of numerous
persons where tbey have tbe same interest, the only condition is the permission of the Court. The provision which
requires that the Court shall in such a case give, at the
plaintiff's expense, notice of the institution of the suit
to all persons having the same interest, and the power
reserved to "the Court to entertain an application from any
·person on whose behalf or for whose benefit the suit is
instituted, indicate that no previous sanction or authority
of persons interested in the suit is required to be obtained
before institution of tbe suit. Nor is there anything in
s. 80 that notice of a proposed suit in a representative
capacity may be served only after expressly obtaining the
authority of persons whom he seeks to represent. Section
80 requires that the name, description and place of residence
of the plaintiff must be set out in the notice and not of
persons whom he seeks to represent.
A suit filed with
permission to sue for and on behalf of numerous persons
having tbe same interest under 0. 1 r. 8 is still a suit
filed by the person who is permitted to sue as the plaintiff: the persons represented by him do not in virtue of
the permission become plaintiffs in the suit. Such other
persons would be bound by · the decree in the suit, but.
that is because tbey are represented by the plaintiff, not
because they are parties to the suit unless by express order
of the Court tbey are permitted to be impleaded.
In the present case G. V. Suryanarayana Garu has
-
-
4 S.C.R.
SUPREME COURT REPORTS
955
served the notice under s. 80 Code of Civil Procedure and
he has also instituted the suit: the plaint complies with
the requirements of s. 80, and the fact that Y egneswara
Sastri had joined in serving the notice, but not in seeking
permission of -the Court, does not render the plaint and
the proceedings in suit defective. The principle of the two
decisions of the Privy Council: Vellayan Chettiar and
others v. The Government of the Province of Madras and,
another (') and Government of the Province of Bombay
v. Pestonji Ardeshir Wadia and others(2 ) on which reliance
was placed by counsel for the State has no bearing on
the case before us.
Vellayan C hettiar' s case (1) was one
in which notice was given by one plaintiff stating the
cause of action, his name, description and place of his
residence and the relief which he claimed, and that the suit
was instituted by him and another. The Privy Council
observed that :
"The section according to its plain meaning, requires
that there should be identity of the person who issues
the notice with the person who brings the suit: see
(Venkata Rangiah Appa Rao v, Secretary of SflateI.L.R. 54 Mad. 416) and on appeal, A.LR. 1935 Mad.
389. To hold otherwise would be to admit an implication or exception for which there is no justification."
Two persons had it is clear sued for a declaration that
certain lands belonged to them, and for an order setting
aside the decision of the Appellate Survey Officer in regard
to those lands. It was found that one alone out of the
two had served the notice. The relief claimed by the
two persons was personal to them and the right thereto
arose out of their title to the land claimed by them. It
was held that without a proper notice the suit could not be
instituted under s. 80, for to hold otherwise would be to
admit an implication or exception for which there was no
justification. In Prestonji Ardeshir Wadia's case (') two
trustees of a Trust served a notice in October 1933 upon
the Government of Bombay under s. 80 intimating that
the trustees intended to institute a suit against the Government on the cause of action and for the relief set out
therein. One of the trustees died before the plaint was
( 1 ) L.R. 74 I.A. 223.
(•) LR. 76 I.A. 85.
1963
State of Andhra
Pradesh
v.
Gundugola Ven·
kata Suryanara·
yana Garu
Shah, /.
1963
State of Andhra
Pradesh
v.
Gt1ndugola ·Venkata Suryanarayana Garu
Shah, /.
956
SUPREME COURT REPORTS
[1%4]
lodged in Court, and two more trustees were appointed in
the place of the deceased trustee. Thereafter the two new
trustees and the surviving trustee filed the suit out of which
the appeal arose which was decided by the Privy Council.
No notice was served on the Government on behalf of
the two new trustees.
The. Privy Council accepted the
view of the High Court that where there were three
plaintiffs, the names and addresses of all of them must
be given in the notice. Their Lordships observed that :
"the provisions of s. 80 of the Code are imperative
and should be strictly complied with before it can be
said that a notice valid in law has been served on the
Government In the present case it is not contendecl
that any notice on behalf of plaintiffs 2 and 3 was
served on the Government before the filing of the suit."
In both these cases the suit was institutecl by two or
more persons but not all had served the statutory notice.
In the present case the person who instituted the suit
had in fact served the notice. He had intimated the
Government by the notice that a cause of action had arisen
in favour of the Inamdars, and that proceedings would be
started on behalf of the Inamdars for relief set out in
the notice. The cause of action as set out in the notice
remained unchanged in the suit, and it is not claimed
that the relief set out in the plaint is different from the
relief set out in the notice. The only discrepancy between
the notice and the plaint is that the notice was given by
two persons intimating that an action would be started
against the Goverrunent for and on behalf of the Inamdars
on the cause of action and relief set out therein, the action
was instituted by one person but with the permission of
the Court for and on behalf of the Inamdars on the same
cause of action and for the same relief.
The other contention raised by counsel for the State
of Andhra Pradesh that in a suit which is to be instituted
against the State after notice under s. 80 Code of Civil
Procedure, the plaintiff must first obtain the permission of
the Court before serving a notice, is in our judgment futile.
The permission of the Court has to be obtained for insti-
-
-
tuting a representative suit and not for serving the notice.
rThe Code contains no ·machinery for granting permission
l
4 S.C.R.
SUPREME COURT REPORTS
957
to a party seeking to serve a notice upon the Government
or a public servant.
The appeal fails and is dismissed.
The respondent
has not appeared before this Court and hence there will be
no order as to costs.
Appeal dismissed
BABU LAL
v.
STATE OF UTTAR PRADESH AND OTHERS
(P. B. GAJENDRACADKAR, K. SuBBA RAo, K. N. W ANCHOO,
J. C. SHAH AND RAGHUBAR DAYAL, JJ.)
Code of Criminal Procedure,
1898(Act 5 of
1898), ss. 476,
479A-Using forged document-Whether offence contemplated by
s. 479A(l)-Interpretation of s. 479A.
In a civil suit the appellant was examined as a witness and he
tendered in evidence an agreen1ent, which in the Munsiff's opinion
was forged. The Munsiff, however, in his judgment did not record
the opinion required for ordering the prosecution of the appellant
under s. 479A of the Code of Crin1inal Procedure.
Respondents
2 to 5, who were the plaintiffs in the suit, had applied, before the
suit \vas disposed of, that action be taken against the appellant under s. 479A of the Code of Criminal Procedure. In disposing of
the suit the Munsiff did not record the opinion which he was required to record if he desired that action should be taken against
the appellant under s. 479A.
But on the application of the Respondents, the
Munsiff directed that complaint be
made against
the appellant in exercise of the powers vested under s. 476 Code
of Crin1inal Procedure for the offence of fraudulently or dishonestly using as genuine a docurnent which the appellant knew
or had reason to believe to be forged. This order of the Munsiff
was confinned in appeal by the District Judge, and the revision
to the High Court, too, was dismissed. In appeal by special leave,-
HELD : (i) Section 479A of the Code of Criminal Procedure
excludes the jurisdiction of the Court to proceed under s. 476 to
479, only in respect of offences under s. !95(b) & (c) of the Code
of Criminal Procedure where a person appearing before the Court
or a witness has intentionally given false evidence in any stage of
a judicial proceeding or has intentionally fabricated falS(: evidence
for the purpose of being used in any ·stage of the judicial proceeding.
1963
State of Andhra
Pradesh
v.
Gundugol~ Venkata Suryanarayana Garu
Shah, /.
1963
Sept., 18