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Issues Involved:
1. Whether the Custodian of Evacuee Property is a public officer requiring notice under Section 80 of the Civil Procedure Code. 2. Validity of the amendments to the written statements. 3. Whether the notice under Section 80 was waived by the Custodian. 4. Consequences of the absence of notice under Section 80 on the maintainability of the suit. Issue-wise Detailed Analysis: 1. Whether the Custodian of Evacuee Property is a public officer requiring notice under Section 80 of the Civil Procedure Code: The plaintiffs contended that the Custodian was not a public officer and thus no notice under Section 80 was necessary. However, the court referred to Section 2 Clause (17) of the Code, which defines a "public officer" as one in the service or pay of the government or remunerated by fees or commission for performing any public duty. The court concluded that the Custodian performs public duties under the Administration of Evacuee Property Act and is in the service and pay of the government, thus qualifying as a public officer. Consequently, the court held that a notice under Section 80 was necessary before instituting the suit against the Custodian. 2. Validity of the amendments to the written statements: The defendants sought to amend their written statements to introduce the bar under Section 80, Civil Procedure Code, which was initially omitted. The plaintiffs objected to these amendments. The court noted that the trial court allowed the amendments after hearing both sides and imposed a cost of Rs. 4/- on the plaintiffs, which they accepted. The court cited precedents indicating that accepting costs precludes challenging the amendment's validity. Thus, the plaintiffs were estopped from objecting to the amendments, and the amendments were deemed valid. 3. Whether the notice under Section 80 was waived by the Custodian: The plaintiffs argued that the Custodian waived the notice under Section 80 due to the delay in raising the issue. The court examined precedents, including "Province of Bihar v. Kamakshya Narain Singh" and "State of Bihar v. Kamaksha Prasad," which established that waiver of notice is possible. The court emphasized that waiver could be inferred from the conduct of the public officer. However, in this case, the court found that the delay in raising the issue was not sufficient to constitute a waiver. The amendments to the written statements were allowed before the trial commenced, and the plaintiffs had accepted the cost imposed by the court. Therefore, the court concluded that there was no waiver of the notice under Section 80 by the Custodian. 4. Consequences of the absence of notice under Section 80 on the maintainability of the suit: The court considered whether the absence of notice under Section 80 necessitated the rejection of the entire plaint or only affected the suit against the Custodian. The court referred to precedents, including "Secretary of State v. Amarnath," where the court directed expunging the Secretary of State from the suit for want of notice under Section 80. The court held that the suit could proceed against defendant No. 1 (Syed Salahuddin Ahmad) if the Custodian (defendant No. 2) was expunged from the suit. The court also noted that the plaintiffs might need to amend their plaint to reflect the changed circumstances, such as the separation of the evacuee's interest in the suit property. Conclusion: The appeal was allowed in part. The judgment and decree of the trial court were modified to expunge defendant No. 2 (the Custodian) from the suit. The case against defendant No. 1 (Syed Salahuddin Ahmad) was remanded for disposal according to law. The defendant No. 2 was entitled to costs from the plaintiffs in this court, while the costs of other parties would abide by the result of the suit.
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