Once Leave Under Section 80(2) CPC Is Granted, Prior Notice to Government Is Not Mandatory: Orissa High Court Restores Trial Court Decree

“Objection of Non-Joinder Cannot Be Raised at Appellate Stage by a Party Who Chose to Remain Inactive During Trial”, In a significant ruling on procedural law and suits against the Government, the Orissa High Court held that once a court grants leave under Section 80(2) of the Code of Civil Procedure, the requirement of serving a prior notice under Section 80(1) CPC stands dispensed with. The Court also ruled that a party who remained inactive during the trial cannot raise the objection of non-joinder of necessary parties at the appellate stage merely to defeat the decree.

Background of the Case

The dispute concerned certain tanks (water reservoirs) situated in village Domjhar, which the plaintiff claimed had originally been excavated by his ancestor Trilochan Behera, a protected Thekadar of the village.

According to the plaintiff, Trilochan Behera excavated the tanks nearly 80 years prior with permission granted by the Deputy Commissioner of Raipur District, and Sanands dated 14 September 1910 and 24 April 1913 were issued recognizing such excavation and improvements.

The plaintiff pleaded that the tanks subsequently devolved upon his father Kalia Behera, and later through family partition in 1964, the tanks fell to the share of the plaintiff and his younger brother. The plaintiff asserted that he remained in exclusive, open, and continuous possession, using the tanks for pisciculture and irrigation, and making improvements from time to time.

However, during settlement operations, the tanks were allegedly erroneously recorded in the Government Rakhit Khata without the plaintiff’s knowledge. Later, the State authorities leased the tanks to Defendant No.3 for pisciculture, which prompted the plaintiff to file a suit seeking declaration of title by adverse possession and permanent injunction.

Reversal by the First Appellate Court

Defendant No.3, who had been set ex parte during the trial, challenged the decree before the Subordinate Judge, Nawapara.

The First Appellate Court reversed the trial court’s judgment and dismissed the suit primarily on two technical grounds:

“First, the plaintiff had not served prior notice to the Government under Section 80(1) CPC before filing the suit.”

“Second, certain co-sharers and the Gram Panchayat had not been impleaded, making the suit defective for non-joinder of necessary parties.”

Aggrieved by this reversal, the plaintiff approached the Orissa High Court in Second Appeal under Section 100 CPC.

High Court on Section 80 CPC Notice

The High Court first examined the issue of notice under Section 80 CPC, which ordinarily requires a two-month prior notice before instituting a suit against the Government.

The Court found from the record that the trial court had granted leave on 15 May 1982 under Section 80(2) CPC, permitting the plaintiff to institute the suit without issuing prior notice.

Justice Mishra observed:

“Once leave under Section 80(2) CPC is granted, the statutory requirement of prior notice under Section 80(1) stands dispensed with.”

The Court held that the First Appellate Court overlooked this crucial fact and therefore committed a clear legal error in dismissing the suit on the ground of non-service of notice.

Non-Joinder of Parties Cannot Be Raised at Appellate Stage

The High Court then addressed the issue of non-joinder of alleged co-sharers and the Gram Panchayat.

The Court noted that during the pendency of the suit, some persons had filed an application under Order I Rule 10 CPC seeking impleadment, but the petition was dismissed as not pressed on 16 September 1983.

The Court further observed that no issue regarding non-joinder was framed during the trial, nor was the objection raised before settlement of issues.

Justice Mishra emphasized that Order I Rule 13 CPC requires objections regarding non-joinder to be raised at the earliest opportunity.

The Court held:

“Permitting a party who remained inactive during the trial to raise the plea of non-joinder at the appellate stage would amount to defeating the decree on a technical ground which was neither pressed nor adjudicated earlier.”

Doctrine of Waiver and Acquiescence

The High Court also invoked the doctrine of waiver and acquiescence while examining the conduct of Defendant No.3.

Although Defendant No.3 had entered appearance before the trial court, he failed to file a written statement or contest the proceedings, and was eventually set ex parte.

Justice Mishra held that such conduct amounts to waiver:

“A party cannot be permitted to take advantage of his own default or omission.”

Therefore, Defendant No.3 could not later raise the objection of non-joinder merely because the trial court’s judgment was unfavourable to him.

Co-Sharers Not Necessary Parties in Adverse Possession Claim

The Court further clarified an important principle regarding necessary parties in adverse possession suits.

Where a plaintiff asserts exclusive and hostile possession against the State and claims title by lapse of the statutory period, the foundation of the suit is such exclusive possession.

The Court held that co-sharers cannot automatically be treated as necessary parties unless it is shown that no effective decree could be passed in their absence.

Final Decision of the Court

After examining the record and the legal position, the High Court concluded that the First Appellate Court committed serious errors in law in dismissing the suit.

Accordingly, the Court allowed the Second Appeal, set aside the judgment of the First Appellate Court, and restored the decree of the trial court declaring the plaintiff’s title and granting permanent injunction.

The Court, however, directed that there shall be no order as to costs.

The judgment reinforces key procedural principles under the Code of Civil Procedure, particularly regarding Section 80 CPC and objections relating to non-joinder of parties. The decision clarifies that leave under Section 80(2) dispenses with the requirement of prior notice to the Government, and that procedural objections cannot be raised belatedly at the appellate stage by parties who chose not to contest the trial.

Date of Decision: 10 March 2026