- (1.) -I have heard the appellant's learned advocate and the learned advocate who represents the first respondent - Town Municipal Council, Kolar. The 2nd respondent though served has not appeared.
(2.) THE appellant is the original plaintiff and his learned counsel points out to me that the suit was presented before the trial court praying for a composite relief against both the defendants. At the hearing, one of the issues that came up for consideration was the question as to whether the first defendant being the Town Municipal Council, the service of the statutory notice was a mandatory requirement. The court upheld this contention and under normal circumstances ought to have rejected the plaint on this ground alone but instead of that, the court proceeded to decide the entire case on merits and recorded findings under all the various issues. The court dismissed the suit and this order came to be confirmed by the appeal court. The appeal court has also recorded a clear finding to the effect that the statutory notice under Section 274 was condition precedent and that in the absence of this notice, the suit was not maintainable as against defendant 1. The short question that has fallen for determination before this court in the second appeal is the question as to whether, having regard to the undisputed position that the suit was not maintainble for want of the requisite statutory notice, the court was right in having proceeded with the decision of the case on merits. The law on the point has virtually been settled by the Division Bench decision of this court reported in the case of K. P. Arvind v. Government of Karnataka wherein the Division Bench of this court has very clearly laid down that in situations such as this, the correct procedure is for the trial court is to reject the plaint and not to dismiss the suit on merits. The obvious reason for this decision arises from the fact that the non-service of notice is virtually a technical hurdle and in given instances if the cause of action persists, it would always be open to the plaintiff to overcome the defect or cure it by serving the requisite notice and re-instituting the proceedings. This however would not be permissible if there has been a decision on merits because the aspect of res judicata would arise.
(3.) THE leamed advocate who represents the 1st respondent - Municipal Council has in the first instance pointed out to me that this was not the only issue decided against the plaintiff because in law the court had also held that a suit for injunction simplicitor is not maintainable and that if the plaintiff desires the requisite relief, he ought to have also prayed for a declaration of title and in the absence thereof, that the plaint as presented was not maintainable. This was de hors the fact that the court went into the factual aspect and decided against the plaintiff on facts. I do not propose to go into that last aspect of the matter in view of the order that is required to be passed but as far as what has been pointed out on behalf of R-1 is concerned, I need to only observe that this only re-enforces the position in law that if the suit was not maintainable not only on one but two grounds, that the trial court should never have proceeded to examine the matter on merits in view of the fact that effectively the court was hearing a suit that was not maintainable in law;