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Dominion of India Vs. Purshottam Das Brijnandan Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2265 of 1951
Judge
Reported inAIR1961All176
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80
AppellantDominion of India
RespondentPurshottam Das Brijnandan Prasad
Appellant AdvocateBrij Lal Gupta, Adv.
Respondent AdvocateAmbika Pd., Adv.
DispositionAppeal allowed
Excerpt:
civil - notice - section 80 of code of civil procedure,1908 -person bringing suit is only entitled to issue notice - held, there should be identity of person who issues the notice with the person who brings the suit. - - it would be extremely hard on a party to be told by the government that although we have all the materials and we have all the particulars, still section 80 makes it incumbent upon you to mention all the grounds of the challenge to the order, and if you omit any ground, you cannot supplement it at a later stage although fresh materials and particulars may come to your knowledge .the expression 'cause of action' in section 80 must be construed in a liberal way in favour of the subject and so long as proper notice is given to government us to the nature of the suit and..........firm being the owner of the, business which was carried on in that name was entitled to bring the suit.learned counsel for the appellant contended that this finding that the plaintiff is the owner of the business carried on in the name of messrs, hiralal madhusudan das is of no avail because what the law required is that the name of the plaintiff who was to institute the suit should have been mentioned in the notice. there was no mention in the notice of the firm purshottam das brij nandan prasad and therefore the notice did not fulfil the requirements of the provisions of the statute.5. learned counsel for the respondent contended that the object of a notice under section 80, is, among other things, to give sufficient intimation to the department, or the officer concerned, of the claim.....
Judgment:

B. Upadhya, J.

1. This is a defendant's appeal arising out of a suit for the recovery of damages for non-delivery of goods which had been booked from a station on the defendant railway,

2. The plaintiff claimed Rs. 2386/7/6 for nondelivery of their consignments said to have been booked from Gorakhpur for Banaras Cantt. Theseconsignments were never delivered, and after sending notices under Section 77 of the Railways Act and Section 80 C. P. C. the suit was filed by the plaintiff for the recovery of the loss sustained because of the non-delivery and for recovery of the price of goods andother expenses incurred in sending the consignments. Among the pleas raised in defence was a plea that the notice under Section 80 C. P. C. was not valid. Thetrial court took the view that the notice was not valid and dismissed the suit. The lower appellate court reversed the decision and decreed the plaintiff's suit.

3. The notice in question is Ex. A-1 dated 8-8-1948. It was addressed to the Governor-General in Council, Indian Dominion, New Delhi and the General Manager, O. T. Railway, Gorakhpur. Reference was given at the top of the notice to the two consignments Nos. P. W. B.'s 595259 dated 29-12-1947 and 595260 dated 29-12-47 from Gorakhpur to Banaras Cantt. The notice was sent by Mr, J. B, Srivastava, Sarkari Vakil purporting to be under instructions from his client Hiralal Madhusudan Das proprietor of firm Hiralal Madhusudan Das, Reti Chowk, Gorakhpur. It was stated in the notice that goods worth Rs. 2,023-15-6 were despatched under the above P. W. B.'s from Gorakhpur to Banaras Cantt. but they did not reach the destination, which they should have reached by the 7th January 1948 at the latest.

A request was made that a claim under Section 80 C. P. G. may be entertained and settled, failing which legal action would be taken in the proper court of law. The notice was typed, but in manuscript an addition was made to say that the cause of action for the said suit would arise from 7-1-1948, the date when the consignments in question ought to have reached the destination. Under this were given the details of the claim showing the value of the goods as per invoices at Rs. 2,023-15-6 profit at 10 per cent Rs. 202/8/0, interest from 29-12-1947 to 29-8-48 at 1 per cent per annum Rs. 162/0/0 and expenses of notices and consultations Rs. 25/-. The total claim thus made in the notice was for Rs. 2413-7-6.

4. Learned counsel for the appellant contends that Section 80, C. P. C. requires that the notice must state (i) the cause of action (ii) the name, description and place of residence of the plaintiff and then (iii) the relief which he would claim in, the suit. The suit was filed hot by Messrs. Hiralal Madhusudan Das but by firm Purshottam Das Brijnandan Prasad. The difference between the names of the persons on whose behalf the notice under Section 80 was sent and the person in whose name the suit was instituted was obvious.

But the lower appellate court after considering the material on record including a deed of partnership found that the plaintiff firm was the owner of the business styled Hiralal Madhusudan Das which was run as a branch. On this finding the lower appellate court took the view that though the notice was sent on behalf of the firm Messrs. Hiralal Madhusudan the plaintiff firm being the owner of the, business which was carried on in that name was entitled to bring the suit.

Learned counsel for the appellant contended that this finding that the plaintiff is the owner of the business carried on in the name of Messrs, Hiralal Madhusudan Das is of no avail because what the law required is that the name of the plaintiff who was to institute the suit should have been mentioned in the notice. There was no mention in the notice of the firm Purshottam Das Brij Nandan Prasad and therefore the notice did not fulfil the requirements of the provisions of the Statute.

5. Learned counsel for the respondent contended that the object of a notice under Section 80, is, among other things, to give sufficient intimation to the department, or the officer concerned, of the claim which was intended to be enforced by the sender of the notice through a suit. In the instant case the consignment number and the date having been mentioned in the notice as also the name of the sender for it appears from the original railway receipts which are on record that the consignor was Messrs. Hiralal Madhusudan Das the railway had sufficient intimation of the fact that the demand that was being made and might be ultimately enforced by a suit was a demand in respect of the nondelivery of this consignment.

It is urged that this was not a case where the railway could plead that it was being taken by surprise or that the statutory period of two months had not been allowed to expire and that the railway did not have sufficient opportunity to settle the claim.

Learned counsel further argued that there was no firm in the name of Messrs. Hiralal Madhusudan Das at all. That name was merely the name in which the plaintiff carried on the business of one of its branches. The mention of the consignor's name in the notice was intended to facilitate reference and enquiry by the officials concerned, yet the plaintiff could not be deprived of its right to make the claim as the owner of the business which was carried on in the name and style of Messrs. Hira Lal Madhusudan Das.

Learned counsel drew my attention to certain observations made in some cases that the requirements of Section 80 are mandatory, but relied upon a decision by a Bench of the Bombay High Court in Dinbai v. Dominion of India reported in : AIR1951Bom72 . That was case where the plaintiff based his claim on certain grounds or allegations set out in the notice, but sought to make an amendment by giving further grounds in support of his claim and the allegations which went to constitute the cause of action, Chagla C. J. observed:

'It is clear that the object of the section is to give intimation to Government of the grievance that the subject has and to give to Government an opportunity to redress that grievance before it is brought to court The section is not intended to be an instrument of oppression against the subject'.

Later the learned Chief Justice observed:

'It would be extremely hard on a party to be told by the Government that although we have all the materials and we have all the particulars, still Section 80 makes it incumbent upon you to mention all the grounds of the challenge to the order, and if you omit any ground, you cannot supplement it at a later stage although fresh materials and particulars may come to your knowledge ......... ........

The expression 'cause of action' in Section 80 must be construed in a liberal way in favour of the subject and so long as proper notice is given to Government us to the nature of the suit and the facts on which the plaintiffs rely for obtaining the relief which they seek in the suit, the Court must be satisfied that there is a proper compliance with the provisions of Section 80'.

Learned counsel for the appellant drew my attention to the pronouncement made by the Privy Council in Bhagchand v. Secy, of State reported in . That was a case in which the question relating to Section 80 C. P. C. was as to whether the plaintiff could bring a suit before the expiry of two months if the relief claimed was also that of an injunction.

The suit in that case by the plaintiffs was for two kinds of reliefs -- (a) declaration that certain official notices and orders were ultra vires and invalid and (b) an injunction permanently restraining all executive action thereunder. Discussing the' proper application of Section 80 C. P. C. the difference of opinion among the various High Courts was noticed and Viscount Sumner in his speech disapproved or the assumption by some learned Judges as to the practical object with which Section 80 was framed. The view taken by the majority of the High Courts was summarised by his Lordship thus:

'The argument that a, statutory provision as to procedure is subject to some exception of cases, where hardship or even irremediable harm might be caused, if it were strictly applied might the used with equal cogency in connexion with a Code fixing the admissibility of evidence or with a limitation section, recognizing rights but barring remedies. For this, however, there is no authority. The Act, albeit a Procedure Code, must be read in accordance with, the natural meaning of its words. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions.'

Learned counsel for the appellant contended that Section 80 expressly required among other things that the name of the plaintiff, his description and place of residence must be stated. The plaintiff in the present case is firm Purshottam. Das Brijnandan Prasad. This name was not stated in the notice sent under Section 80. The description of the plaintiff as a firm carrying on business and having a certain name for one of its branches was also not given. Messrs. Hiralal Madhusudan Das in the notice are said to be residents of Reoti Chowk, Gorakhpur.

The plaintiff, as is evident from the plaint, is resident of Mohalla Sheikhpur P. O. Sadar, Gorakhpur, The residence of the plaintiff therefore was not given in the notice as required under Section 80 C. P. C. The view taken by the Privy Council in the case mentioned above has been followed in several cases. In 1947 a question relating to this section again went up for decision before the Judicial Committee. A notice under Section 80 was sent by one person: The suit was filed by that person and by one more person who joined him as a plaintiff. Lord Simonds in his judgment in Vellayan v. Govt. of Madras. Province reported in AIR 1947 P. C. 197 said:

'In the present case the question is whether, a notice having been given on behalf of one plaintiff stating his cause of action, his name, description and place of residence and the relief which he claims, a suit can then be instituted by him and another. It is clear to their Lordships that it cannot. The section according to its plain meaning requires that there should be in the language of the High Court of Madras identity of the person who issues the notice with the person who brings the suit. .........

To hold otherwise would be to admit an, implication or exception for which there is no justification.'

The High Court of Madras in Ramchandra v. Kandaswami reported in AIR 1949 Mad 416 has taken the same view. A notice had been sent by a certain person under Section 80 C. P. C. When instituting the suit he did it in his capacity as Manager or Karta of his family which capacity had not been stated in the notice under Section 80. The court took the view that the notice was not in conformity of the provisions of Section 80, as there was a material alteration in the capacity of the person suing,

A few other cases were referred to by learned counsel for the appellant, but it does not appear necessary to discuss them for they all appear to follow the rule laid down by the Privy Council. The cases relied on by learned counsel for the appellant are good authority for the view that a strict compliance of the provisions of Section 80 C. P. C. is essential, one of the requirements of that provision being that the name, description and residence of the plaintiff must be stated in the notice sent.

Even if the findings recorded by the lower appellate court be accepted it is difficult to answer In the affirmative the question whether the name, description and address o the plaintiff are stated in the notice sent under Section 80. The Judicial Committee has in both the cases referred to laid down that the plain meaning of this provision of the statute should be taken to be the proper rule of procedure and that no exception or implication is to be assumed. In the present case I find it difficult to say that the name of the plaintiff was stated in the notice simply because the plaintiff was the owner of the business or concern in which name the notice under Section 80 was sent.

Obviously the notice was not sent in the name of the plaintiff. Mr. Saran Behari Lal who argued the case elaborately for the respondents drew my attention to a recent decision of the Patna High Court in Surajmal Jain v. Union of India, AIR 1956 Pat 478. That is a case which does appear to be very near the case before me in certain respect. That was also a case of non-delivery of goods by the railway. The notice under Section 80 had been sent on behalf of firm Suraj Mal Mahabir Prasad, the consignee under the railway receipt but they were signed by Suraj Mal Jain of Katwa, district Burdwan.

The suit was filed by Surajmal Jain of Katwa, district Burdwan and the learned Judge deciding She appeal took the view that as Surajmal Jain had signed the notice and issued it and as all the relevant particulars had been brought to the notice of the defendant-railway the notice sent was not invalid and there was sufficient compliance of the requirements of Section 80 C. P. C. In the instant case however the consignor was Hira Lal Madhusudan Dass.

The notice under Section 80 was sent by a lawyer on behalf of Hira Lal Madhusudan Das and not on behalf of the plaintiff firm which ultimately brought the suit. There is no evidence to show that the plaintiff firm sent any demand or notice to the railway. It may be true that the nature of the claim did come to the knowledge of the defendants railway because the numbers and date of the consignments were given as also the amount claimed. But it was necessary that the name of the plaintiffs should have been stated. This might be with the object of bringing it to the notice of the railway authorities that they should, in case of their being so inclined, contact the person who was to institute the suit.

It is not necessary to probe into the objects which were behind this enactment as the Privy Council has observed that the plain meaning of the statute has to be given effect to. In view of the fact that the notice under Section 80 did not state the name, description and residence of the plaintiff who brought the suit I am of opinion that the notice was not in accordance with law and was invalid. No suit could have been filed without service of a valid notice under Section 80 and the lower appellate court therefore was not right in decreeing the plaintiff's suit.

6. In the result this, appeal is allowed. The plaintiff's suit is dismissed. But in the circumstances, of the case, and specially in view of the fact that the consignments were not delivered, no order is made as to costs.

7. Leave to appeal is prayed for and is granted.


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