Madhya Pradesh High Court
Khalil Mohammed vs Smt Akhtari Bano on 8 July, 2026
1 CR-549-2026
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 8 th OF JULY, 2026
CIVIL REVISION No. 549 of 2026
KHALIL MOHAMMED AND OTHERS
Versus
SMT AKHTARI BANO AND OTHERS
Appearance:
Shri Mohammad Amjad Ansari - Advocate for applicants.
ORDER
The present revision has been filed challenging the order passed by the
trial Court rejecting application under Order 7 Rule 11 CPC which was filed
on three grounds.
2. Counsel for the applicants submits that the suit in question has been
filed seeking declaration of title on the basis of will, so also permanent
injunction, and declaration of order of Tahsildar to be null and void. It is
argued that the permanent injunction could not be sought by the plaintiffs
unless the plaintiffs are in possession and since the plaintiffs are not in
possession, they cannot seek relief of permanent injunction. It is further
argued that since the plaintiffs are not in possession, then they have to sue
for possession and, therefore, they are required to value the suit as per the
valuation of the property and also to pay ad valorem court fees as the
plaintiffs are not in possession. Another ground raised is that since the State
is party to the suit, therefore, notice under Section 80 CPC was a mandatory
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requirement that has not been adhered to by the plaintiffs.
3. So far as the question that ad valorem court fees was required to be paid
on the relief of possession is concerned, it is seen that the entire plaint does
not contain any relief seeking possession. It is settled in law that suit has to
be valued and court fees has to be paid as per the assertions in the plaint and
as per the reliefs claimed in the plaint. If the plaintiffs have not sought any
possession in the plaint, they cannot be forced to pay court fees for seeking
the relief of possession.
4. The counsel for the applicants has argued that the trial Court has given a
finding that the plaintiffs are not in possession. However, upon seeing the
order of the trial Court, it is found that the counsel for the plaintiffs has
wrongly tried to take this Court through the arguments of the defendants and
has tried to impress before this Court that the arguments of the defendants
are in fact the findings of the trial Court. Expressing dismay on such
argument, the same is discarded because the trial Court has not given any
categorical finding that the plaintiffs are not in possession and has simply
noted the assertions of the defendants therein.
5 . At this stage, counsel for the applicants further raised the ground of the
suit being barred by law of limitation. It is seen that in the plaint declaration
is being sought on the basis of will and no will is being challenged. Once
will is not being challenged, therefore, the question of limitation to challenge
an instrument or document or decree would not arise and simplicitor
declaration is being sought on the basis of will. Therefore, prima facie the
suit seems to be within limitation and has rightly been held to be so by the
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trial Court.
6 . So far as the question of notice under Section 80 CPC not having been
given to the State is concerned, the State is not having any inherent interest
in the subject matter of property. The State has been impleaded only because
consequential mutation would be carried out by the authority of the State. At
present, a mutation has been carried out by the authority of the State whereby
the authority of the State has not given benefit of will to the plaintiffs.
7 . In such circumstances, the State is not required to be issued a notice
under Section 80 of CPC and even in that case objection has to be taken by
the State. It is pertinent to note here that the person bringing the application
under Order 7 Rule 11 CPC was not the public officer or the State
Government, but a private litigant. The purpose of Section 80 CPC is to
enable the public officers to examine the claims of private parties to avoid
any avoidable litigation, therefore, the objection for non-compliance of
Section 80 or insufficient compliance of Section 80 can only be taken by the
public officer or the State Authority and not by the private litigant. In Gaja
Vs. Dasa Koeri, AIR 1964 Allahabad 471 , the High Court of Allahabad held
as under :-
8. Closely linked with the question of waiver is the question whether
the bar of Sec. 80 can be pleaded by a party other than those to whom
notice is required to be given. The answer to the latter question
follows, in my opinion, as a corollary from the answer to the former. If
notice can be and has been waived by the authority concerned the
natural conclusion appears to be that it is not open to any other party
to the suit to urge want of notice against the maintainability of the suit.
In Rup Lal Agarwala v. Dkansar Coal Co. [A.I.R. 1933 Patna 49.] it
was observed that: “A third party is not competent to raise the question
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of notice when the Secretary of State has waived it.” In Hira Chand
Himat Lal Marwari v. Kashinath Thakurji Jadhav [A.I.R. 1942 Bom.
339.] it was similarly observed that: “A party who has himself no right
to notice cannot challenge a suit on the ground of want of notice to the
only party entitled to receive it.” I may also refer to the case of Bodi
Venkataswami v. Adada Mahalaxmi [A.I.R. 1949 Madras 747.] ,
which dealt with Sec. 49 of the Madras Court of Wards Act requiring
two months’ notice for the institution of a suit against the Court of
Wards. It was held there that:”The plea as regards the want of statutory
notice is only available to the Court of Wards which is entitled to such
notice and not to the other defendants after the Court of Wards itself
waived the objection and further that such waiver on the part of the
person principally concerned affects the other parties as well.” If the
authority for whose benefit Sec. 80 has been enacted does not claim
the benefit it is not for other persons to press into service the
provisions of that section for defeating a suit. This result, as I have said
above, follows from the position that the objection as to notice is
capable of being waived.
8. In Raj Kumari v. Board of Revenue, 1984 SCC OnLine All 664 , the
Allahabad High Court again considered the entire law and held that the party
for whose benefit, notice is to be issued, can waive it and waiver may be
inferred in absence of objection. It was held as under :-
6. I have considered the arguments advanced by the counsel for either
side. In District Board, Banaras v. Churhu Rai (AIR 1956 All 680)
(supra), a Division Bench of this Court has held that it is always open
to a defendant for whose benefit notice prescribed by law to waive it
and as such if a plea in regard to the want of notice was not pressed in
the trial Court nor the same was raised in the first or second appeal, it
would be deemed that the same has been waived. Similar view has
been taken in Ishtiyaq Husain v. Zafrul Islam (AIR 1969 All 161)
(supra) where Hon’ble S.K. Verma, J., as he then was, held that no
doubt S. 80, C.P.C. is mandatory and notice has to be issued and
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served on the State before filing a suit, but this plea can be waived
also. Similar is the view expressed in Hira Chand Himmat Lal v. Kashi
Nath Thakurji, AIR 1942 Bom 339, where a Division Bench of the
Bombay High Court held that a party in whose favour S. 80, C.P.C.,
prescribed notice to be given, can waive his right to the same. Similar
is the view taken in Dhian Singh Shobha Singh v. Union of India
(supra) where the Supreme Court held that no doubt S. 80, C.P.C., has
to be strictly complied with but nevertheless notice should not be
scrutinized in a pedantic manner completely divorced from common
sense. In that case the controversy was that in the notice under S. 80,
C.P.C., only a sum of Rs. 3,500/- was claimed, but later on it was
found that the plaintiff was entitled to more than the sum of Rs.
3,500/-. The High Court did not accept the claim of the plaintiff on the
ground that he did not claim any amount more than Rs. 3,500/-. In that
reference the Supreme Court held that the approach of the High Court
was erroneous. It was further held in Chandu Lal Vadilal v.
Government of Bombay, AIR 1943 Bom 138 that one must construe
S. 80, C.P.C., with some regard to common sense and with the object
to which it appears to have been based. Further it has been held in
Gaja v. Das Koery (AIR 1964 All 471) (supra) by Hon’ble Ganeshwar
Prasad, J. that it is open to the authority concerned for whose genefit
the notice has been issued to waive it also. The natural conclusion is
that it is not open to other party (i.e., respondents 4 and 5 in the instant
case) to urge the want of notice against maintainability of the suit. It is
the authority for whose benefit S. 80 has been enacted can raise an
objection about want of notice and press the same. Similar view has
been taken by Hon’ble Katju, J., in Banarsi Rai v. D. Ahir, 1964 All
LJ 239. In Julal Mandal v. Union of India, AIR 1978 Patna 42, it was
held in similar circumstances that if an issue was framed by the trial
court about the effect of want of notice under S. 80, C.P.C., and the
issue was not pressed by the Government, it means that the
Government has waived the right to press the same and it was a clear
case of waiver and no other private party can press the said issue in
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respect of want of notice. Similarly in AIR 1947 PC 197, it has been
held that the provision of S. 80, C.P.C., are mandatory no doubt, but it
does not mean that the notice meant for the benefit of the authorities
cannot be waived by the said authorities. In the instant case the State of
U.P. has filed a written statement and an issue was also framed on the
point but it did not press the issue and the suit was decreed even
against the State of U.P. The State did not file first or second appeal,
hence it is clear that the State has waived the plea of notice under S.
80, C.P.C. It is not open to respondents 4 and 5 to raise that plea as no
prejudice has been caused to them.
9. Even in those cases where there is no waiver, then also, the plaint
cannot be mechanically rejected. In Gangappa Gurupadappa Gugwad v.
Rachawwa, (1970) 3 SCC 716, the Supreme Court has held that where a
relief is claimed by the plaintiff against the State Government, in that event
the delivering of notice is mandatory and in case it has not been done the
plaint can be rejected for want of notice, but where no relief has been
claimed against the State, the plaint cannot be rejected for want of notice and
in that case it would be the duty of the Court to go into all the issues which
may arise on the pleadings including the question as to whether notice under
S. 80, C.P.C., was necessary. It was held as under :-
10. No doubt it would be open to a court not to decide all the issues
which may arise on the pleadings before it if it finds that the plaint on
the face of it is barred by any law. If for instance the plaintiff’s cause
of action is against a Government and the plaint does not show that
notice under Section 80 of the Code of Civil Procedure claiming relief
was served in terms of the said section, it would be the duty of the
court to reject the plaint recording an order to that effect with reasons
for the order. In such a case the court should not embark upon a trial of
all the issues involved and such rejection would not preclude the
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plaintiff from presenting a fresh plaint in respect of the same cause of
action. But, where the plaint on the face of it does not show that any
relief envisaged by Section 80 of the Code is being claimed, it would
be the duty of the court to go into all the issues which may arise on the
pleadings including the question as to whether notice under Section 80
was necessary. If the court decides the various issues raised on the
pleadings, it is difficult to see why the adjudication of the rights of the
parties, apart from the question as to the applicability of Section 80 of
the Code and absence of notice thereunder should not operate as res
judicata in a subsequent suit where the identical questions arise for
determination between the same parties.
10. It is further held by Hon’ble Apex Court in Bishandayal and Sons
v. State of Orissa, (2001) 1 SCC 555 that notice under Section 80 CPC can
be waived by the authority concerned. It was held as under :-
15. The next question for consideration is whether the amendment suit
was not maintainable for want of notice under Section 80 of the Code
of Civil Procedure. In this behalf the appellants have relied upon the
cases of Amar Nath Dogra v. Union of India [AIR 1963 SC 424 :
(1963) 1 SCR 657], State of Punjab v. Geeta Iron & Brass Works Ltd.
[(1978) 1 SCC 68 : (1978) 1 SCR 746] , Ghanshyam Dass v.
Dominion of India [(1984) 3 SCC 46] and Vasant Ambadas Pandit v.
Bombay Municipal Corpn. [AIR 1981 Bom 394 : 1981 Mah LJ 706 :
1981 Bom CR 793 (FB)] In these cases it has been held that a notice
under Section 80 CPC or equivalent notices under Section 527 of the
Bombay Municipal Corporation Act are for the benefit of the
respondents and the same can be waived as they do not go to the root
of jurisdiction in the true sense of the term. 15. Such waiver can be
inferred even from non-appearance of the 7 CR-1234-2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:61980 party and non-
filing of written statement. In the present case, defendants No. 7 and 8
have already been proceeded ex-parte by the trial court after service
and it is clear that these defendants have no interest in outcome of theSignature Not Verified
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suit and they have consciously decided to remain ex-parte despite the
State having all the facilities of defending the suit against the State.
Therefore, it is to be inferred that the State and public officers have
waived the notice under Section 80 CPC.
11 . In view of the aforesaid, this Court does not find any ground to
interfere in the impugned order passed by the trial Court. The revision fails
and is dismissed.
(VIVEK JAIN)
JUDGE
psm
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