Skip to content


K. Dhondoji Rao Vs. Dominion of India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 353 of 1951-52
Judge
Reported inAIR1957Kant94; AIR1957Mys94
ActsCode of Civil Procedure (CPC), 1908 - Sections 80; Railway Act - Sections 75 and 77
AppellantK. Dhondoji Rao
RespondentDominion of India
Appellant AdvocateC. Nagaraja Rao, Adv.
Respondent AdvocateAdv. General
Excerpt:
.....grown thereon by the plaintiff could not be held to be lawful possession. therefore, the appellate court was quite justified in passing the impugned judgment and decree dismissing the suit. - in that case, a suit was filed by two plaintiffs and only one of them' had given notice under section 80. it was held that the suit was bad......stands dismissed against defendant 2.3. it is contended on behalf of the respondents that the notice issued to defendant 1 is also defective. the question for consideration is regarding the sufficiency in law or otherwise of the said notice. mr. nagaraja rao, on behalf of the plaintiff contended that a liberal construction must be placed upon the section and that the notice issued should be held as sufficient en the ground that it substantially fulfils its object in informing the parties concerned about the nature and scope of the suit to be filed.the notice ex. l has been issued to the chief secretary to the government of mysore, bangalore, the officer to whom it should be delivered in accordance with the requirement of the amended civil procedure code. the said notice purports to.....
Judgment:

1. The suit from which this appeal arises was initially filed against defendant 1, the State of Mysore represented by the Chief Secretary. Bangalore and (2) the Government of India, represented by the Governor-General in Council, New-Delhi. The cause title was subsequently amended by the substitution of the description of defendant 2 as the Government of the Dominion of India, New Delhi, represented by the General Manager, M and S M Railways, Madras.

2. The claim of the plaintiff was for the recovery, of Rs. 2.500/- as compensation for the non-delivery of goods consigned by him on 23-11-47 at Vontimitta, a station of the M End S M Railways. The destination was Davanagere, a station which was then included in the Mysore Railways. The main contention of the defendants is that there was no valid notice prior to suit as required under Section 80. C P. C, and that the suit, in consequence, is riot maintainable.

The other objections raised by them are that the notices Issued under Section 77 of the Railway Act are not in conformity with the provisions thereof and that otherwise the railway administration is not liable for loss of articles entrusted to be carried, as no special declaration required under Section 75 of the Railway Act was made, the commodity carried admittedly falling under excepted article.

Under Section 80, C. P. C., as amended in 1948, in the case of a suit against the Central Government where it relates to a railway, the notice to be issued must be delivered in writing to, or left at the office of, the General Manager of that railway. Ex. N, the notice dated 24-8-1948, on behalf of the plaintiff, was issued to the Governor-General in Council, New Delhi and Ex. P to the Secretary to Government, the Central Government of India. New Delhi. Neither of the said notices is in conformity with the requirement of the provision viz., Section 80, C. P. C., as they were not addressed to the General Manager of the concerned Railway as required therein.

Though the plaint was amended in 1849, by inserting Dominion of India in place of Government of India represented by Governor General in Council, it is admitted that no fresh notice had been issued. Section 80, C. P. C., is imperative and mandatory; the said provision absolutely debars a Court from entertaining a suit instituted without strict compliance with its provisions. It is conceded by the Advocate for the appellant that the notices issued to defendant 2 are defective. It need, therefore, hardly be said that the suit against defendant 2 does not lie and is liable to be dismissed. Consequently the appeal stands dismissed against defendant 2.

3. It is contended on behalf of the respondents that the notice issued to defendant 1 is also defective. The question for consideration is regarding the sufficiency in law or otherwise of the said notice. Mr. Nagaraja Rao, on behalf of the plaintiff contended that a liberal construction must be placed upon the section and that the notice issued should be held as sufficient en the ground that it substantially fulfils its object in informing the parties concerned about the nature and scope of the suit to be filed.

The notice Ex. L has been issued to the Chief Secretary to the Government of Mysore, Bangalore, the officer to whom it should be delivered in accordance with the requirement of the amended Civil Procedure Code. The said notice purports to have been Issued on behalf of Messrs K. Dhondoji Rao and Brothers together with one Mr. Santhuramappa both cloth merchants, Davanagere, advancing a joint 'claim aggregating to Rs. 3,249-15-6.

These two persons Subsequently filed two different suits. A doubt about the validity of a joint notice is raised; but there is no substance in that contention. The splitting up of a joint claim does not by itself render either suit not maintainable for want of proper notice. No particular form of notice is prescribed; a joint claim in the notice advanced by two people who ultimately founded two suits cannot be deemed to be improper especially when both the claims put together do not exceed the amount mentioned in the notice.

Both the suits were dismissed in the trial court; K. Dhondoji Rao who filed one of the suits as Manager of the joint Hindu family of himself and his brothers has preferred this appeal.

4. The point for consideration is whether the person who has issued the notice and the person that filed the suit are identical. The notice was issued in the name of K. Dhondoji Rao and Brothers and the suit was filed by Dhondoji Rao individually purporting to represent the family firm of K. Dhondoji Rao and Brothers. It is disclosed in the plaint that the plaintiff's family runs a cloth shop in Davanagere under the name and style of K. Dhondoji Rao and Brothers.

The question now is whether the person suing has legal capacity identical with the firm that has issued Ex. L. the notice. In Vellayan Chettiar v. Government of the Province of Madras, AIR 1947 PC 197 (A), Lord Simonds approving the view of the Madras High Court (Vide Venkata Rengiah Appa Rao v. Secy, of State : AIR1935Mad389 ), observed that there should be identity of the person who issues the notice with the person who brings the suit.

Ever since the Judgment of the Privy Council reported in Bhagchand Dagdusa v Secy, of State , it has been held by the Courts in India that Section 30, C. P. C., must be construed strictly. In AIR 1035 Mad 389 (B), it was laid down that Section 80, C. P. C., must be strictly complied with, that the section is express, explicit and mandatory and it admits of no implications or exceptions or any liberal construction and that every condition in that section must be strictly complied with. In that case, a suit was filed by two plaintiffs and only one of them' had given notice under Section 80. it was held that the suit was bad. The said decision was followed in Secy, of State v. Thawerdas Sirmal, AIR 1935 Kind 206 (D). In the case reported in Govt. of the Province of Bombay v. Pestonji Ardeshir , notice was issued pa behalf of a Trust and the persons who 'filed the suit were trustees at the time.

Their Lordships of the Privy Council concurred with the view expressed by Sir John Beaumont, the Chief Justice of Bombay who had held that there could be little or no doubt that when there were three plaintiffs, the names and addresses of all of them must be given. The trust on whose behalf the notice was given was not the plaintiff, as there is no power under the Code for trustees to sue in the name of their trust as members of the firm.

This observation has an application by way of analogy to the suit under consideration. There is no power under the Code of Civil Procedure for any member of a Joint Hindu family to sue his own name representing the family firm and as such the notice issued in the name of the firm cannot be construed as a notice issued by a managing member of the family firm. '

In a recent case the Madras High Court (Vide Ramchandra Naidu v. Kandaswami Mudaliar AIR 1949 Mad 416 (F) ), has held that a notice under Section 80 must be strictly in conformity with the provisions without any material alteration of the legal capacity of the person suing, or the relief claimed, or other incidental circumstances. It was further held in that case that a notice issued 011 behalf of the person in his own name cannot be said to be the same as a notice issued by that person as a Manager of a Hindu joint family for the purpose of Section 80; whatever weight it may have in a decree in a suit. The present case is a converse of that.

The notice under Section 80, -C. P_ C., must state amongst other things, the name, place and residence of the plaintiff; the notice of K. Dhondoji Hao and Brothers does not disclose the status or constitution of the firm nor the representative capacity of the manager of the family. On a careful consideration of all the circumstances, I am of opinion that there is no legal identity as a strict matter of law, between the person who has issued the notice and the person who has filed the suit.

It has therefore to be held that the suit against defendant 1 is also not maintainable and: liable to be dismissed. In the view I have taken. I it becomes unnecessary to deal with the other question whether or not the notice under Section 77 of the Railway Act is defective or to consider the competency or otherwise of the claim contravening Section 75 of the Railway Act.

5. In the result, the appeal is dismissed, parties bearing their own costs in this Court.

6. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //