' CHAUDHARY MUHAMMAD TAJ, J.---This appeal, by leave, is directed against the order passed by the High Court on 16-6-2001 in a revision petition whereby the same was dismissed.
2. The facts are that the respondent filed a suit for damages against the appellant herein. The trial Court framed issues arising out of the pleadings of the parties and heard arguments on the following two preliminary issues:--
(i) Whether the suit without issuance of a notice under section 80, C.P.C. Is liable to be dismissed?
(OPD)
(ii) Whether the suit was hit by estoppel and res judicta? (OPD)
3. The trial Court held that the suit cannot be dismissed on the ground of failure of the plaintiff to issue a notice under section 80, C.P.C. Issue No.2 was also decided against the appellant. It was also held that the aforesaid issue related to the facts which could only be decided after receiving evidence from the parties. A revision was filed before the High Court which was also dismissed observing that the suit cannot be dismissed on account of failure to issue a notice under section 80, C.P.C. As the provisions are not mandatory. It was further held that the doctrine of res judicata and estoppel was not attracted. The order is challenged though this appeal.
4. Mr. M. Tabassum Aftab Alvi, the learned counsel representing the appellants, contended that the order is against law. It was argued that without a notice under section 80, C.P.C. The suit was not maintainable 'against the Government, the appellant herein. The learned counsel asserted that in the previous round of litigation the order was finally passed against the respondent, therefore, no suit for damages was competent.
5. Mr. Muhammad Noorullah Qureshi, the learned counsel representing the respondent, opposed the contentions of the learned counsel for the appellants on the ground that after filing the suit the date of hearing was fixed after 90 days, therefore, the purpose of notice was served which was meant to provide sufficient time to the Government. The learned counsel argued that the present suit relates to damages on a different cause of action as to the earlier litigation, therefore, the question of res judicata or estoppel does not arise.
6. We have heard the learned counsel for the paries and also gone through the record. The trial Court framed two preliminary legal issues of limitation and attraction of doctrine of estoppel and res judicata. After hearing the arguments on those issues the trial Judge decided against the appellants holding therein that failure to issue a notice under section 80 C.P.C. Is not fatal to the plaintiff's suit. However, on the other issue it was held that the suit cannot be dismissed on that issue which could only be decided after receiving the evidence. The learned Judge in the High Court also held that the suit cannot be dismissed on account of failure to issue notice under section 80, C.P.C. As the provisions were directory in nature. The other issue was also decided against the appellants observing therein that the doctrine of res judicata and estoppel was not attracted at all.
7. The first question requires determination whether a suit filed against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity would require a notice to be issued under section 80, C.P.C. To have a Correct perception of law the relevant section 80, C.P.C. Is reproduced:-- "80. Notice.---(1) A suit may be instituted against the Government or against a public officer, in respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to or left at the office of,--
(a) in the case of a suit against the Federal Government, or Secretary to that Government;
(b) (i) in the case of a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the Collector of the District; and
(ii) in the case of a suit against the Federal Government relating to the affairs of a Railway, the General Manager of the Railway concerned, and in the case of a public officer, delivered to him or left at his office stating the cause of action .The name, description of place of residence of the plaintiff and the relief which he claims; and the plaint shall contain statement that such notice has been so delivered or left.
(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shall not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiff's claim, within the period of two months from the date of the institution of the suit: Provided that in a suit instituted without such notice, the Court shall allow not less than three months to the Government to submit its written statement."
8. A perusal of the aforesaid provisions of law reveals that it does not in any way create a right of action, which has to be established in accordance with the substantive law. It lays down a procedural precondition to the filing of suit against Government or Public Officer. Before Amendment of 1962 (XLIV of 1962) no suit could be filed against the Government or a public officer without having served upon the defendant a two months notice. The bar to the institution of suit has now been removed. The object of this section is to give time to the public officer and the Government at the highest official level to reconsider the matter involved and in cases where the suit has already been instituted to defend the suit or to concede the claim of the plaintiff.
According to subsection (2) if a suit to which the provisions of section 80, C.P.C. Are applicable is filed without having delivered a notice, the Government shall be allowed not less than three months to submit its written statement and a judgment against the Government prior to the expiry of three months time is bad in law and is liable to be set aside. However, in the event of a settlement being reached with regard to subject-matter within two months from the date of institution, the plaintiff will not be allowed cost. Therefore, it can safely be held that keeping in view the law the suit cannot be dismissed for failure to issue a notice.
9. It was claimed by the appellants that the suit is hit by res judicata and estoppel as the earlier proceedings related to the same cause, therefore, the present suit was not maintainable. Though the trial Court did not agree with the appellants to dismiss the suit on aforesaid ground. However, it was held that the issue could only be decided on the basis of evidence for being a mixed question of facts and law. The learned Judge in the High Court held that no estoppel can be pleaded nor there was a res judicata in view of the different cause involved in two proceedings. It is no doubt correct that to decide the aforesaid issues the relevant evidence on the basis of which a party rests its claim be allowed to produce to appreciate the proposition in its true perspective. Therefore, we also agree with the observations of the trial Court that the said issue could only be decided after receiving the evidence if so produced.
' With the above observations, the appeal is dismissed.