1969 (12) TMI 13 - HC - Income Tax

Whether the suit was liable to be dismissed in view of the admitted non-compliance with the provision of s. 80 of the Civil Procedure Code - section 80 was attracted to this case and that the institution of the suit was invalid ab initio, because of non-service of notice u/s 80 - revenue s appeal allowed

Summary

Issues:
- Admissibility of suit under Schedule 2, rule 43 of the Bengal Public Demands Recovery Act without compliance with section 80 of the Civil Procedure Code.
- Validity of trust on the suit property by the respondents.
- Applicability of section 80 of the Civil Procedure Code to suits under Schedule 2, rule 43 of the Bengal Public Demands Recovery Act.

Analysis:
The judgment pertains to an appeal against the decree of a subordinate court where the suit under Schedule 2, rule 43 of the Bengal Public Demands Recovery Act was decreed. The primary issues in the appeal were the non-compliance with section 80 of the Civil Procedure Code and the validity of the trust on the suit property. The lower court upheld the suit, rejecting the statutory plea under section 80 and ruling in favor of the plaintiffs. However, the High Court, in the appeal, emphasized the importance of section 80, citing the Supreme Court decision in Sawai Singhai Nirmal Chand v. Union of India, which deemed compliance with section 80 mandatory before instituting a suit against the government or a public officer.

The High Court delved into the interpretation of section 80 of the Civil Procedure Code, noting its explicit requirement for notice before initiating a suit against the government or public officer. Despite arguments that a suit under Schedule 2, rule 43 might not fall under the purview of section 80, the court referred to the Privy Council's decision in Bhagchand Dagdusa v. Secretary of State for India, emphasizing the mandatory nature of section 80 for all forms of suits. The court rejected the notion that certain types of suits, including those under Schedule 2, rule 43, could be exempt from the notice requirement under section 80.

The High Court highlighted the divergence of judicial opinion on the applicability of section 80 to suits under different rules and acts. However, it unequivocally held that section 80 applied to the case in question, rendering the suit invalid ab initio due to non-compliance with the notice requirement. The court allowed the appeal, dismissing the suit on the first issue related to section 80, without making any pronouncements on the merits of the case. The judgment underscored the significance of adhering to procedural requirements, even in cases involving trusts and deity shebaits, directing each party to bear its own costs and setting aside the decree of the lower court.

In conclusion, the High Court's judgment elucidated the mandatory nature of section 80 of the Civil Procedure Code, emphasizing its applicability to all forms of suits, including those under the Bengal Public Demands Recovery Act. The decision underscored the importance of procedural compliance, ultimately leading to the dismissal of the suit due to the lack of notice under section 80, as mandated by law.