William Broome, J. - (1.) This writ petition, filed in December 1968, challenges an order passed by a Judicial Officer of Tanda (Distt. Faizabad) on 13 -9 -65. dismissing a suit u/S. 229B/234 of the ZA & LR Act on the ground that it was defective since the State had not been impleaded and no notice had been issued to the State u/S. 80 of the CPC. Also impugned are the subsequent orders of the Addl. Commr., Faizabad dated 11 -4 -1966 and of the Board of Revenue dated 20 -8 -1968, refusing to interfere with the Judicial Officer's decision by way of first and second appeal. The private respondents, opposite -parties 1 and 2, have been served by publication but have not filed any counter affidavit. Learned Standing Counsel accepted notice on behalf of the remaining respondents but has stated that he has no instructions to oppose the petition.
(2.) S. 80 of the CPC no doubt lays down that no suit shall be instituted against the Govt. or against a public officer in respect of any act done in his official capacity until a notice in writing has been delivered and two months have expired thereafter. It is clear, however, that it is open to the party protected by S. 80 to waive his right to a notice. In the present instance notice appears to have been served on the State subsequently during pendency of the proceedings and two months elapsed thereafter without any objection being lodged by the Govt. or its officers. Moreover, the fact that the State has chosen not to oppose the present writ petition shows that it does not wish to press any objection u/S. 80 of the CPC; and this too must be deemed to amount to waiver.
(3.) Furthermore, as pointed out in Hirachand Himatlal Marwari v/s. Kashinath Thakurji Jadav ( : AIR 1942 Bom 339) no one but the party protected by S. 80 of the CPC has the right to challenge a suit on the ground of want of notice under this section; and at no stage was any such challenge put forward on behalf of the State in the suit out of which the present writ petition arises. The suit had been filed by the petitioners without impleading the State and Gaon Sabha as required by S. 229B of the UP ZA & LR Act; and when this defect was discovered the petitioners applied for these necessary parties to be impleaded. The proper thing to do would have been issue notice on the application for impleadment to the State and the Gaon Sabha; and if they had no objection, the requirement of S. 80 of the CPC would be deemed to have been waived and there would have been no bar to their impleadment. Instead of doing this, the Judicial Officer refused to consider the question of impleadment on the ground that the suit was fundamentally defective for want of notice u/S. 80 of the CPC. He thus omitted to consider the possibility that the rights granted by S. 80 might be waived. I am satisfied that this is a fit case for the issue of a writ in favour of the petitioners. The impugned orders dated 13 -9 -1965, 11 -4 -1966 and 20 -8 -1968 are accordingly quashed and the Judicial Officer is directed to take up the petitioners' amendment and impleadment application afresh and to pass orders thereon in accordance with law. Since no one has appeared for respondents there will be no order as to costs.;