ESSENTIAL OF VALID NOTICE
The state of A.P.
Gundugola Venkata Suryanarayana Garu
THE object of the notice under Section 80 of the Code of Civil Procedure is to give to the Government or the public servant concerned an opportunity 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 constructed: failure to serve a notice complying with the requirements of the statue will entail dismissal of the suit. But the notice must be reasonably constructed. Every venial error or defect cannot be permitted to be treated as a peg to him a defense 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:
- Whether the name, description, and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice;
- Whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity;
- Whether the notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the Section; and
- Whether the suit is instituted after the expiration of two months next after notice has been served, and the plant contains a statement that such a notice has been so delivered or left.
In constructing 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 Statue requires him to give, any incidental defects or errors may be ignored.
WHETHER MERE FILING OF SECTION 80(2) OF CPC SUFFICIENT AND DEFECT IS CURED? IF AN APPLICATION UNDER SECTION 80(2) IS GIVEN CAN THE COURT HEAR THE APPLICATION UNDER ORDER 7 RULE 11?
Govt. of Kerala & Ors……. Appellants
Sudhir Kumar Sharma & Ors…… Respondents
It is admitted fact that no order had been passed on the application filed under Section 80(2) of the CPC whereby leave of the court had been sought for filing the suit without complying with the provisions of Section 80(1) of the CPC. In our opinion, a suit filed without compliance with Section 80(1) cannot be regularized simply by filing an application under Section 80(2) of the CPC.