Harbans Lal, J. - (1.) THE instant civil second appeal has been filed by the plaintiff -appellant under Section 100 read with Order 41 Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred in short as 'C.P.C.') against the judgment and decree dt. 22.05.2001 passed by the learned District and Sessions Judge, Baran in Civil Regular Appeal No. 54/2000 whereby the appeal has been allowed and the judgment and decree dt. 03.05.2000 passed by the learned Civil Judge (Senior Division) -cum -Chief Judicial Magistrate Baran in Civil Suit No. 52/1992 has been set aside and the suit has been dismissed.
(2.) BRIEFLY stated, the relevant facts giving rise to this appeal and necessary for its disposal are that that the plaintiff -appellant is an authorized Category Contractor of the Irrigation Department of the State of Rajasthan. In response to the notice issued in this behalf, he submitted his tender on 30.11.1987 for Naveli Dam Project. After negotiation, his tender was accepted on 04.12.1987. The work order amounting to Rs. 1,54,516/ - was given to him. It is averred that he had made all necessary arrangements for execution of the work order as per the G -Schedule, but the employees of the Forest Department informed him on 03.03.1988 that the land in which the said work order was being carried out belonged to the Forest Department. They also stopped the work. The plaintiff appellant informed the defendants about this but no action was taken by them to sort out the dispute with the Forest Department. He, therefore, got a legal notice served on defendant No. 1 and filed the suit for recovery of Rs. 40,440/ - on account of the work executed by him, damages expenses and profits etc. along with interest @ Rs. 1.50% per month. However, he gave up his rest of the claim. The defendants contested the suit by denying the averments made in the written statements. On the basis of the pleadings of the parties six issues were framed by the trial Court, after taking evidence of the parties and affording an opportunity of hearing to both sides the suit for a sum of Rs. 10,000/ - was decreed against defendant No. 1 along interest @ 6% per annum. The suit was however dismissed as against other defendants. The appeal preferred by the defendants under Section 96 of the C.P.C. was allowed. The suit was dismissed as a whole on the ground that no proper notice under Section 80 of the C.P.C. was served upon the defendants. The said judgment and decree is under challenge in this civil second appeal. I have heard at length learned Counsel for the parties and have perused the impugned -judgment and decree as well as the judgment and decree of the trial Court. I have also perused the relevant record.
(3.) IT is not in dispute that the notice purporting to be a notice under Section 80 of the C.P.C. has been given and served upon defendant No. 1 and the said notice is also for a period of 15 days and not two months as envisaged in Section 80(1) of the C.P.C. Admittedly, no notice has been given to defendants No. 2 to 5 as is evident from a perusal of the Notice Ex.P.7. The contention of the learned Counsel for the appellant is that due to bona fide mistake no notice could be given to the State Government and the State Government could not be impleaded as a party either through the Secretary to the concerned department of the State Government or the Collector of the District. He has further submitted that the suit was rightly decreed by the trial Court and the learned first Appellate Court has wrongly dismissed the suit for want of proper notice to the defendant.;