Section 80 CPC notice may be waived, and absence of notice need not defeat the entire plaint when only one defendant is affected.

Section 80 CPC notice was treated as necessary for a Custodian acting in an official capacity, since such an officer falls within the definition of a public officer; however, the notice requirement is for the benefit of the protected party and may be waived by conduct or express waiver. The text further notes that absence of notice does not automatically require rejection of the entire plaint under Order 7 Rule 11(d) where the defect concerns only one defendant and the suit is not clearly barred as a whole. On the facts, waiver was not proved, the Custodian was expunged from the suit, and the remaining dispute was left for trial court disposal.

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Issues: (i) whether the Custodian was a public officer requiring notice before suit and whether the statutory notice was waived; (ii) whether want of notice under Section 80 required rejection of the entire plaint or only the expunction of the Custodian from the suit.

Issue (i): whether the Custodian was a public officer requiring notice before suit and whether the statutory notice was waived.

Analysis: The Custodian, being an officer performing public duties in the service and pay of the Government, fell within the definition of public officer. The suit challenged acts done by him in his official capacity, so notice under Section 80 was ordinarily necessary. However, the notice requirement is mandatory for the Court, not incapable of waiver by the authority for whose benefit it exists. Waiver may be inferred from conduct as well as express words, and delay in raising the objection is relevant only with the surrounding circumstances.

Conclusion: The notice under Section 80 was required, but on the facts no waiver by the Custodian was proved.

Issue (ii): whether want of notice under Section 80 required rejection of the entire plaint or only the expunction of the Custodian from the suit.

Analysis: The bar created by Section 80 does not necessarily make the whole plaint liable to rejection under Order 7 Rule 11(d) in every case. Where the defect affects only one defendant and the plaint does not clearly show that the entire suit is barred, the proper course is not automatic rejection of the whole plaint. The earlier authorities relied upon for complete rejection were distinguished, and the case involving a pro forma defendant supported the view that the Court may strike out only the party for whom notice was necessary. Since the record did not permit a final finding on the continuance of the suit against the other defendant, that matter was left to the trial Court.

Conclusion: The Custodian was liable to be expunged from the suit, but the plaint was not wholly rejected.

Final Conclusion: The appeal succeeded in part, the Custodian was removed from the array of parties, and the remaining dispute was sent back for disposal according to law.

Ratio Decidendi: A notice under Section 80 of the Code of Civil Procedure may be waived by the public officer for whose benefit it is prescribed, and absence of such notice does not invariably require rejection of the whole plaint where the defect is confined to one defendant.

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