1. The only question which arises in this appeal is whether a plaintiff, who has given a notice, under Section 80 of the Civil Procedure Code, with a view to a suit against the Secretary of State for India and has instituted a suit before the expiry of the two months prescribed in the section and has been permitted to withdraw that suit with liberty to institute a fresh one, is entitled to institute that fresh suit without a fresh notice.
2. For the purposes of this appeal the facts may be stated very briefly. The plaintiff-appellant served a notice on the Secretary of State on September 21, 1927, and less than two months from that date he filed a suit for a declaration of his rights in respect of certain property and for various injunctions. That was suit No. 1121 of 1927. Coming to understand that this suit was bound to fail as being premature, the plaintiff obtained the leave of the Court to withdraw it under Order XXIII, Rule 1, of the Code, with liberty to file a fresh suit. He did this on December 17, 1927, and on that same date he filed the fresh suit from which this appeal arises, No. 1773 of 1927.
3. Various objections were taken in the defendant's written statement, one of them being that the suit was bad for want of proper statutory notice under Section 80 of the Civil Procedure Code. The trial Judge heard that as a preliminary issue, decided against the plaintiff, and rejected the plaint under Order VII, Rule 11(d). Against that order the plaintiff appeals, and in our opinion the appeal must succeed.
4. The learned advocate, who has appeared for the appellant, contended in the first place that the notice under Section 80 of the Code need not necessarily be a notice of an intended suit. With that argument we are unable to agree. The language of the section makes it sufficiently plain, in our opinion, that what is required is notice of an intention to sue. But that point is quite unnecessary for the purpose of Mr. Desai's argument, because the notice which was given in this case unmistakably disclosed an intention to bring a suit against the Secretary of State.
5. Then Mr. Desai goes on to argue-and here we consider that he is on firm ground-that the notice which was given in the present case complies with all the conditions laid down in Section 80. The suit with which we are concerned was not instituted until after the expiration of two months from the notice. The notice had been delivered in the manner prescribed in the section. The notice does state the cause of action and also the name, description and place of residence of the plaintiff, and the relief which he claims. We have compared the reliefs claimed in the notice sent under Section 80 with the reliefs claimed in the present suit, and we find that they are not only substantially the same but practically identical. Finally, the plaint in the suit does contain the required statement that the notice has been delivered in the manner directed in the section.
6. As I have mentioned, the suit was filed on December 17, 1927, i.e., more than two months but less than three months after service of the notice. The present suit would obviously and admittedly have been in order and there could have been no possible objection in respect of the notice had there been no previous suit instituted and withdrawn. With respect to that Mr. Desai argues that when a suit has been withdrawn with the permission of the Court, the effect is to leave the parties in the same position as if no such suit had been instituted. In support of that he refers to Venkata v. Ranga I.L.R (1887). 10 Mad. 160,and Behari Lal Pal v. Srimati Bar an Mai Dasi I.L.R(1894) 17 All. 53.
The learned trial Judge has based his finding that there has been no sufficient compliance with Section 80 on the following reasons. He states that the notice under Section 80 is given for the benefit of the defendant and the intention of the legislature is that the Secretary of State should have an opportunity of investigating as to the truth of the alleged cause of action and of making amends or settling the claim if he thinks fit without litigation. He refers to Secretary of State for India v. Gulam Rasul (1916) I.L.R. 40 Bom. 392: S.C. 18 Bom. L.R. 243 and then he proceeds:
After the former suit No. 1121 of 1927 was withdrawn by the plaintiff, defendant (Government) is not supposed to think that plaintiff will positively file another suit. Same suits withdrawn with permission never see the light of the day.
7. Further on in the same strain he says:
Government have to look to a number of things and it is not likely that they would be remembering about notice given before filing another suit which was subsequently withdrawn with permission. It is just likely that if a fresh notice was given to the Secretary of State before filing this suit, Government might have reconsidered their situation.
8. The suggestion is that Government would connect the notice which they received with one particular suit, that is to say, the suit which came to be withdrawn, and would be placed at a disadvantage when another suit was filed without another notice. Speaking for myself, this reasoning is by no means convincing, but in any case the point does not appear to arise here. We understand that the former suit was withdrawn without any summons having been served upon the Secretary of State at all. So far as the record shows, therefore, he had no knowledge about that suit, and as far as he was concerned, when he got the summons in the present suit filed in December, 1927, less than three months after he had received the notice, that was the only suit of the plaintiff's on this particular cause of action of which he was aware. The considerations relied upon by the learned Subordinate judge, therefore, do not arise.
9. Nor has the learned Assistant Government Pleader attached any particular importance to that line of argument. He has attempted to maintain that the language of Section 80 itself requires that the notice must have reference to one particular suit and one only, and he has contended further that the notice which was given must be considered to have been part and parcel of the suit that was withdrawn and became exhausted and ceased to have any efficacy when it was withdrawn. No authority, however, has been cited in support of his argument, and in my opinion the contention cannot be supported. The part of Section 80 upon which reliance has been placed is the last sentence only, viz., the provision that the plaint shall contain a statement that such notice has been so delivered or left. As I have mentioned the plaint in the present case does contain the required statement. The plaint in the former suit in all probability also contained it. But how the learned advocate can derive from this provision any support for his argument that the notice became exhausted when the first suit was withdrawn I am unable to understand. The legal position is, as I have said, that the withdrawal of the suit left the parties in the same position as if there had been no such suit instituted, and since the notice complies with all the conditions of Section 80 in respect of this present suit, that, in my opinion, is all that we have to look to.
10. We were referred to the recent decision of the Privy Council, Bhagchand Dagadusa v. Secretary of State for India (1927) L.R. 54 IndAp 338: S.C. 29 Bom. L.R. 1227, where their Lordships stated that Section 80 is express, explicit and mandatory, and admits of no implications or exceptions. That, no doubt, is so. But I do not see how it can be suggested that any question of an implication not provided for by the section or an exception to it or qualification of it arises in the present case. All that has happened is that the notice which has been given would have served equally for the suit which was filed prematurely and withdrawn and for the present suit which has been filed after allowing the prescribed period to elapse. If the language of the section is not to be strained for the benefit of the plaintiff, neither must it be strained against him, and, in my opinion, it would amount to an extremely technical and unwarranted construction of Section 80 to hold that the notice given by the plaintiff in this case has ceased to be effective because of the false start which he made by filing his suit before the expiration of two months and being compelled therefore to withdraw it. For these reasons, I hold that the notice given by the plaintiff in this case fulfils the requirements of Section 80 of the Code and the suit is not bad. The appeal must, therefore, be allowed with costs, and the suit remanded for disposal on the remaining issues.
11. I agree and have nothing to add.