Decided on July 30,1970

Jatindra Kumar Bhattacharjee Appellant
Government Of India And Another Respondents


R.S. Bindra,J. - (1.) In this revision petition filed under Para 34 of Tripura (Courts) Order, 1950, by Jatindra Bhattacherjee, the defendant in Money Suit No. 8 of 1963 filed by the Government of India and the Union Territory of Tripura the legality of the order dated 9 -1 -1967. by which the Additional Subordinate Judge held that though notice under Sec. 80 of the Civil Procedure Code was necessary in the context of the pleadings adopted by the plaintiffs yet the defendant must be deemed to have waived that notice, is challenged.
(2.) Succinctly put, the relevant facts are that Jatindra took over as Sub -Treasury Officer at Dharmanagar, on 7 -11 -1960, on transfer from Udaipur. Much before 10 -3 -1961, on which date the Sub -Treasury at Dharmanagar was sealed by the Government, it transpired that the affairs of the Sub -Treasury were "in a complete mess" to use the words' of the plaint. After examining the records and cash of the Treasury, the Government reached the conclusion that there had been misappropriation of a colossal amount. Consequently, the plaintiffs brought a suit on 16 -10 -1963 against Jatindra "for recovery of or compensation for misappropriated Government money, valued at Rs. 98,649.88". The written statement was filed by Jatindra on 3 -5 -1965 and issues were settled between the parties on 20th January, 1966. Thereafter, on 11 -7 -1966, Jatindra moved an application praying that two additional issues should be framed, one relating to Article 300 of the Constitution and the other bearing on Sec. 80 of the C. P. Code. A copy of that application had been supplied by the defendant to the plaintiffs' counsel before the master was taken up on 6 -8 -1966 by the Court. The learned counsel for the plaintiffs, it appears from the proceedings recorded by the Court on that day, did not raise any objection to the framing of the two additional issues sought by the defendant. It is mentioned in the relevant order that the stand of plaintiffs' counsel was that the points pressed by the defendant "are law points and as such they may be taken up even at the time of the hearing of argument of the suit". It is also mentioned in that order that "the learned Advocate for the pltff., however, did not object to framing two additional issues as prayed for by the defendant". The Court then proceeded to frame the two issues and remarked in the final para of the order that "the defdt. to file additional W. S. if any by the date". The case was then adjourned for hearing arguments on the two newly formulated issues. Arguments on those issues were actually heard on 3 -1 -1967 and it is on that date that the defendant put in his amended written statement. During the course of arguments, it looks apparent, the plaintiffs counsel raised the plea that even if notice under Sec. 80 of the Code was legally necessary, the same must be taken to have been waived by the defendant.
(3.) The trial Court held by Its order dated 9 -1 -1967, that "in the light of the plaint as a whole, it appears that the alleged omissions and commissions on the part of the defdt. cannot be shorn of their official character" and that, as such, it was obligatory on the plaintiffs to give a notice under Sec. 80 before filing the suit. However, at the same time the Court was clearly of the opinion that since the defendant had not raised the objection relevant to Sec. 80 in his written statement, filed on 3 -5 -1965, and had come out with such an objection more than a year thereafter, he must be deemed to have waived the notice. The defendant having felt aggrieved with this latter finding has come up in revision.;

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