Skip to content


Dominion of India Vs. L. Badu Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 11 of 1950
Judge
Reported inAIR1962All461
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80; Code of Civil Procedure (CPC) (Amendment) Act, 1948; Contract Act, 1872 - Sections 73
AppellantDominion of India
RespondentL. Badu Lal
Appellant AdvocateNaziruddin, Adv.
Respondent AdvocateK.S. Verma, Adv.
Excerpt:
(i) civil - suit - section 80 of code of civil procedure, 1908 - notice not expired - amendments - held, the law as on the date of sending notice shall be taken into consideration - though second notice not needed. (ii) cause of action - notice - notice for non-delivery - provisions of section 80 of code of civil procedure, 1908 satisfied - no need to mention that the notice was sent by an agent of the plaintiff. (iii) contract - non delivery - section 73 of contract act,1872 - actual price claimed - any other price not placed - held, plaintiff can claim the damages of actual price. - - railway accepted the consignment at jarwa railway station in the district of gonda for safe delivery to the plaintiff at kurigram and issued a railway receipt for the same on the 15th september, 1947......mukerji, j.1. this appeal came up for hearing before a bench consisting of mr. justice beg and mr. justice mathur. there was a difference of opinion between the two learned judges and the scope of that difference is discernible from the three questions they framed for obtaining the opinion of a third judge. the questions which were formulated were these:'1. is the notice relied upon by the plaintiff as complying with the provisions of section 80, c. p. c. invalid on the ground that it does not state the cause of action? 2. the plaintiff having sent notices exl. 3 dated 8-11-1947 and exhibit 8-p. w. 4 dated 18-12-1947, was it still necessary for him to send another notice under the provisions of section 80, c. p. c. as amended by c p c (amendment) act, 1948 (act no. vi of 1948)? 3. should.....
Judgment:

Mukerji, J.

1. This appeal came up for hearing before a Bench consisting of Mr. Justice Beg and Mr. Justice Mathur. There was a difference of opinion between the two learned Judges and the scope of that difference is discernible from the three questions they framed for obtaining the opinion of a third Judge. The questions which were formulated were these:

'1. Is the notice relied upon by the plaintiff as complying with the provisions of Section 80, C. P. C. invalid on the ground that it does not state the cause of action?

2. The plaintiff having sent notices ExL. 3 dated 8-11-1947 and Exhibit 8-P. W. 4 dated 18-12-1947, was it still necessary for him to send another notice under the provisions of Section 80, C. P. C. as amended by C P C (Amendment) Act, 1948 (Act No. VI of 1948)?

3. Should the entire claim of the plaintiff for damages be dismissed on the ground that there is no evidence to prove the market value of goods at the place of destination on the date on which such goods ought to have been delivered?'

2. This reference has arisen, it may be mentioned, out of a suit filed by Bodu Lal for the recovery of a sum of Rs. 24,060 against the Union of India (the suit originally was against the Dominion of India but later the necessary amendment appears to have been made) relating to a railway administration. The plaintiffs case in brief was that a consignment of 365 bags of mustard seed weighing 775 maunds and 18 seers was offered to the Railway Administration, then known as the O. T. Railway for carriage and delivery to the plaintiff at Kurigram station which fell within the Bengal Assam Kailway system which later was known as Eastern Bengal Railway, on the 15th September, 1947. The railway administration accepted the consignment at railway station Jarwa and issued a railway receipt in respect of the same.

The usual period required for the transit of goods between Jarwa and Kurigram railway stations was one and a half months. The consignment was, therefore, expected by the plaintiff at Kurigram on or about the 30th October, 1947. The consignment, however, did not reach Kurigram either on the 30th October, 1947 or any other date thereafter. The plaintiff was unable to get delivery of the goods in spite of repeated demands.

3. The plaintiff having despaired of receiving the goods, served the railway administration with a notice as required under Section 77 of the Indian Railways Act and he also served a notice purporting to be one under Section 80 of the Code of Civil Procedure.

4. The notice which purported to be under Section 77 of the Indian Railways Act was dated the 8th November, 1947, the notice is Ex.. 3 on the record. This notice was as follows :--

8th November, 1947.

To

The General Manager,

Oudh Tirhut Railway,

Gorakhpur, Behar.

Dear Sir,

On behalf of the business concern under the name and style of 'Datturam Ram Pratap' of village. Post Office and Police Station Kurigram, in the district of Rangapur, I beg to state that one consignment of mustard seeds comprising of 365 bags and weighing 775 mds. 18 srs. was despatched from the Jarwa railway station to the Kurigram railway station on 15-9-47 under Inv. No. 2 R/R No. 494391. The consignor was Gopiram Sagarmal and the consignee was the business concern named above.

But the said consignment has not yet been delivered at the destination as a result of which the business concern has sustained serious financial loss.

On behalf of the said business concern I do hereby demand payment of compensation for the goods not delivered amounting to Rs. 24,000/-(Twenty-four thousand rupees). If the said amount be not paid within 15 days from the date of receipt of this letter of demand, under Section, 77 of the I. R. Act, legal steps will be taken to enforce the claim.

Yours faithfully,

Sd. Chhagan Mal

for Datturam Ram Pratap,'

5. on the 18th December, 1947, the plaintiff had a notice under Section 80 of the Code of Civil Procedure sent through a pleader, one Mr. H. Lahiri. That notice was Ex 8/p w 4 on the record of the case and was as follows:--

'From

H. Lahiri, Kurigram, P. O.Pleader. Rangpur, 18th December, 1947. Notice under Section 80 C. P. Code.

To

The Governor General of India in Council representing the Oudh Tirhut Railway, Railway Department, New Delhi.

(To be delivered to the Secretary to the Government of India, Railway Department, New Delhi.)

Sir,

Under the instructions and on behalf of my client Sree Bodulal Agarwala, Manager and representing the business concern under the name and style of 'Datturam Ram Pratap' of village, P. O. and P. S. Kurigram, in the District of Rangpur, I beg to state that one consignment of 365 bags oi mustard seeds weighing 775 maunds 18 seers was despatched from the Jarwa Railway Station on 15th September, 1947 under Invoice No. 2, R/R No. 494391 to the Kurigram Railway Station. The consignor was Gopiram Sagarmal and the consignee, was the business concern named above.

But the said consignment has not yet been delivered to the destination station as a result of which the aforesaid business concern has sustained serious financial loss.

2. Please take notice that a civil suit will be instituted against the Governor General of India in Council representing the Oudh Tirhut Railway for the recovery of Rs. 24,000/-.

Plaintiff, Bodulal Agarwala, Manager and representing Joint family business 'Datturam Ram Pratap' of village, P. O. and P, S. Kurigram (Rangpur).

Cause of action: Non-delivery of one consignment of mustard seeds, as described above.

Relief claimed Recovery of Rs. 24,000/- being the price of the consignment.

Yours faithfully

sd. Illegible/

6. The plaintiff not having received adequate compensation from either the Government or the railway administration filed a suit on the 15th November, 1948; to this suit the delendant was the dominion of India, but the plaint had an endorsement to the effect that service of summons was to be made on the General Manager, Oudh Tirhut Railway, Gorakhpur.

7. In paragraph 4 of the plaint it was alleged that the O. T. Railway accepted the consignment at Jarwa railway station in the district of Gonda for safe delivery to the plaintiff at Kurigram and issued a Railway Receipt for the same on the 15th September, 1947.

8. In paragraph 5 of the plaint it was alleged that the usual period of transit of goods from Jarwa to Kurigram was about one and a half months and that the consignment in the usual course should have been delivered to the plaintiff at Kurigrarn on or about the 30th Oct. 1947; but that the entire consignment was missing and had not been delivered to the plaintiff in spite of repeated demands and notices.

9. In paragraph 6 the plaintiff alleged that the loss and non-delivery of the consignment was due to the misconduct and gross negligence of the defendant and that the defendant was liable to compensate the plaintiff by paying him Rs. 24,060/- in accordance with the details furnished at the foot of the plaint.

10. in paragraph 7 the plaintiff alleged that the required notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure had been duly sent to the defendant on the 8th November, 1947, and 10th September, 1948, respectively. In this paragraph of the plaint it was further alleged that a notice under Section 80 CP.C. had also been sent to the Secretary, Railway Department, Government of India, before the 10th September, 1948, and that that notice had been delivered to the Ministry of Railway Department on the 24th December, 1947, and yet another notice had been given to the General Manager, O. T. Railway, on the 13th January, 1948 and had been delivered to him long before the suit and the 10th September, 1949. The plaintiff clearly claimed in paragraph 7 of the plaint that he was entitled to take advantage of the aforementioned notices in order to sustain his plea that the requisite notices under Section 77 of the Indian. Railways Act and Section 80 of the Code of Civil procedure had been duly given and served.

11. In paragraph 8 of the plaint it was stated that the cause of action arose at Jarwa in Gonda district on the 15th September, 1947, when the consignment had been booked from Jarwa Railway Station, and on or about the 30th October, 1947, when the consignment in question ought, in the usual course, to have been delivered but was not delivered.

12. In paragraph 3 of the plaint, it was, clearly alleged that the consignment of mustard seeds which was booked on the 15th September, 1947, at Jarwa Railway Station had been booked by the plaintiffs agent Gopiram Sagarmal.

13. on the allegations in the plaint, the relevant portions of which have been described above, it would be manifest that the plaintiff claimed damage for loss of the consignment which, according to him, was his and had been booked at Jarwa Railway Station by this agent for transport and delivery at Kurigram.

14. The defendant contested the suit and denied practically every allegation of the plaintiff. In his written statement the defendant raised a single additional plea and that plea was raised in these words:

'No valid notice under Section 80 C.P.C. was given and the suit should be dismissed on this ground. The claim put forward by the plaintiff is exorbitant.'

The written statement of the defendant was filed, apparently, on the 7th January, 1949.

15. At the trial no less than 8 issues were framed. The trial court decided all the issues in favour of the plaintiff and decreed the plaintiffs suit for the recovery of Rs. 24,745/0/3 with interest thereon at the rate of 6 per cent. per annum from the 15th September, 1947, till the 23rd pecember, 1949. The defendant was allowed six mouths' time to pay the decretal amount.

16. An appeal was preferred by the defendant. In the grounds of Appeal the defendant, in effect, raised two main controversies. The first one was in regard to the validity of the notice given by the plaintiff under the provisions of Section 80 of the Code and the other question was whether the plaintiff was entitled to any damage, inasmuch as, the plaintiff had failed to offer any evidence in proof of the market value of the goods at the place of destination on the date on which such goods ought to have been delivered there. Apparently, before the Beach the controversy between the parties also centred round the aforementioned two questions and there was difference, as I have already indicated, between the two learned Judges who constituted the Bench hearing the appeal.

17. In order to appreciate the scope of the argument raised on behalf of the defendant regarding the invalidity of 'the notice in respect of which the first two questions had been formulated by the Bench, it is necessary to recapitulate a few facts. A notice, as has been pointed out earlier, purporting to be under Section 80 C.P.C. was issued on the 18th December 1947, by the plaintiff through his pleader Mr. Lahiri. It appears further that another notice purporting to be under Section 80 C.P.C. was issued on behalf of the plaintiff on the 10th September, 1948. This notice, apparently, was served or delivered on the 14th September, 1948. The issue of the second notice and its delivery to the defendant was not challenged on behalf of the defendant. The suit was filed on the 15th November, 1948.

18. The validity of the first notice was challenged on two grounds: first, that the notice had not been given as required by Section 80 C.P.C. to the General Manager of the railway which was concerned with the loss of the consignment which gave the plaintiff, so to speak, his cause of action for the suit; and secondly, that the notice did not state the 'cause of action' as required by Section 80 of the Code.

19. Section 80 of the Code, of Civil Procedure underwent an amendment in 1948 by Act VI of 1948. This amendment came into force on the 21st February, 1948. After the amendment the relevant portion of Section 80 read as follows:--

'No suit shall 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, until 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 Central Government, except where it relates to a railway, a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway the General Manager of that railway;

(c) .....

and in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been delivered or left.'

Before the amendment under Section 80 C.P.C. no suit could be instituted against the Government unless notice was given to a Secretary to that Government. Under the unamended Section 80 it was not necessary to serve a notice on the General Manager of a railway even in the case of a suit which related to a railway.

20. The plaintiff, as has already been noticed, served a second notice in September, 1948, purporting to be one under Section 30, C.P.C. on the General Manager of the Oudh Tirhut Railway, Gorakhpur, and this notice was received by the General Manager on the 14th September, 1948. It appears that the suit which was filed on the 15th November, 1948, was filed a day earlier than the expiry of the period of two months fixed by Section 80 for the institution of a suit after notice. So that this second notice could not be taken advantage of by the plaintiff. The question, therefore, that called for determination was, as formulated in a part of the second question, whether the notice dated the 18th December, 1947 (Ex. 8/P. W. 4) was valid, or whether it was still necessary for the plaintiff to send another notice under the amended Section 80 C.P.C. on the ground that at the time when the suit had been filed by the plaintiff Section 80 had been amended.

21. The cause of action for the suit arose on the 30th October, 1947. The first notice under Section 80 of the Code (Ex. 8/P. W. 4) was issued on the 18th, December, 1947, and was served on the Secretary to Government, Railway Department, New Delhi on the 24th December, 1947. At the time when the aforementioned notice was issued the Code required service of such a notice on a Secretary to Government; there was no necessity at that time to serve a notice on the General Manager of the Railway Administration concerned. Indeed, it was not contended before me by Mr. Naziruddin, counsel for the defendant-appellant, that the notice dated the 18th December, 1947, was bad on that score.

In order to know whether the notice Ex. 8/P. W. 4 was valid or invalid on the score that it had not been given to the General Manager of the O. T. Railway, one has to see whether Section 80 C. P. C. required the giving of a notice at any particular time in relation, either, to the cause of action or to the filing of the suit. The section did not require that a notice under it had to be given within such and such time from the date on which the cause of action arose, nor did the section say that a suit had to be filed within such and such date of the service of the notice: The only provision that there was in this section in regard to time was that a suit could not be filed before the expiration of two months after service of notice on the relevant authority.

It is no doubt true that a Court had to satisfy itself, when the suit had been filed, that a notice as required by Section 80 C. P. C. had been served. Section 80 itself prescribes that the plaint was to contain a statement that a notice as required by Section 80 had been delivered to the defendant. Can it be said that since a Court is under obligation to see whether or not there was a valid notice under Section 80 at the time when the suit came up for scrutiny before the Court it had to scrutinise the validity of the notice in accordance with the terms of the section as obtained at the date when such scrutiny was being done by the Court, or whether it was more reasonable and appropriate that the scrutiny in regard to the validity of the notice, even though the scrutiny was made much later than the date of the issue of the notice, had to be with reference to the requirements of the section at the date of the notice?

22. Some amount of discussion had been raised before the Bench and also before me in regard to whether the amendment to Section 80 by Act VI of 1948 was retrospective or not. As I look at the question I do not consider that the question of the Act being retrospective of prospective arises, for it is not really a question of giving effect to the amended section retrospectively at all. The question, as I see it and as pointed out by me earlier, was as to the point of time at which the validity of the notice had to be checked in relation to the law then prevailing and not pronouncing on the prospective or retrospective effect of the amendment brought about in Section 80 by Act VI of 1948.

23. If we were to check the validity or judge the validity or invalidity of the notice at the time of the filing of the suit then we would, in effect, be expecting the plaintiff to have done something which the law at the time when he did the act did not require him to do it. Apart from what I have just said, if we expected the plaintiff to do that then we would, in effect, be expecting the plaintiff, in this case, to have acted in 1947 as a 'seer blessed,' which the law certainly does not expect. A change in the law of procedure no doubt operates from the date it comes into force; this means that any procedural act which is done after there has been a change in the procedure or after a new procedure has been brought into being must be in consonance, with the law then prevailing. This, however, does not affect a case where what was expected at a time of a suitor had been done by that suitor at that time in accordance with the law.

24. It was contended that after there had been a change in the law the plaintiff should have given a second notice conforming to the changed provision of the law. It was also argued that the plaintiff having filed his suit much later than the change made in the law, he had had opportunity to serve a second notice and indeed it was contended that the plaintiff did give a second notice, and hence it was contended that it was obligatory to give a second notice and the first notice could not be relied upon by the plaintiff. The fact that there was time for a second notice and the fact that the plaintiff gave a second notice, which unfortunately could not be availed of by the plaintiff for he filed his suit one day earlier than the expiry of the two months required under Section 80 from the date of the notice, did not, as it could not, worsen the plaintiff's position, for if the law did not require a second notice under the circumstances of the instant case then the fact that the plaintiff gave a second notice which turned out to be of no value to him could not alter the plaintiff's position to his detriment, if under the law he was not required to serve a second notice in accordance with the changed law before filing his suit.

25. In the instant case, the fact that by giving a second notice the plaintiff would have suffered no harm because he could await filing his suit for two months from the date of the service of notice on the defendant was also no ground for holding that the plaintiff should have served a second notice when there was an amendment of the law. The object of giving notice is perfectly clear : the object is, as was pointed out in so many decisions, to give the defendant who happened to be the Government or some department of Government or some Government official, an opportunity to know precisely what the case was so that if the circumstances justified the case could be settled out of Court and thereby avoid waste of public time and money. In this connection it would be significant to note that there was no assertion on behalf of the defendant nor any finding of the court below that the answering defendant had no knowledge of the suit or that the answering defendant had no opportunity of setting the dispute if it so wanted. So that It could not be argued that there was any injustice done to the defendant by the notice, the validity of which I am inclined to uphold, namely, the notice dated the 18th December, 1947.

26. on behalf of the respondent, namely, the plaintiff to the suit, a great deal of reliance was placed on the Bench decision of Union of India v. Kedarnath Agarwalla, AIR 1954 Assam 147 where it was held that, when a notice complied with the requirements of Section 80, as it stood on the date of the cause of action, did not become invalid and insufficient by reason of the subsequent amendment of Section 80 which required the notice to be addressed to the General Manager of the Administration and not to the Secretary to the Central Government. The facts in brief of this case were that the plaintiff, Kedarnath Agarwalla, a dealer in cloth at Gauhati, had booked a consignment of 36 bales containing cotton piece goods from Madras Siding station on the M and S. M. Railway to Gauhati on the Assam Railway on the 29th October, 1947. Messrs. Binny and Company were the consignees.

The plaintiff had paid the price of the consignment to the bank representing the consignees and obtained the Railway Receipt duly endorsed in his favour. on the 29th November, 1947, the plaintiff obtained delivery but he got only 31 out of the 36 bales. A certificate of short delivery had been given to Rim by the Railway Administration. The plaintiff, when he did not get satisfaction in regard to the loss of some of the bales of his consignment, on the 26th April, 1948, sent a notice under Section 80 C. P. C. to the Secretary to the Government of India. Ministry of Railways. This notice was acknowledged by the Deputy Chief Commercial Manager, Assam Railway. As he received no acknowledgment from Delhi, he sent notices again on the 11th June, 1948, to the Secretary, Government of India, Ministry of Railways, and also the Chief Administrative officer, Assam Railway at Pandu by registered post. These notices were received on the 18th and the 14th June respectively. The plaintiff, not having received any adequate compensation, filed a suit and he stated in the plaint that the cause of action arose on the 29th November, 1947, at Gauhati when the five bales in question were not delivered.

27. on the 10th January, 1949, the Dominion of India put in a written statement and inter alia pleaded invalidity of the notice sent by the plaintiff under Section 80. Mr. Justice Ram Labhaya, who delivered the main opinion in the case, after examining a large number of authorities, came to the conclusion that 'Section 80 deals with the manner of the enforcement of the right of suit' and considering that the amendment of the section affected a very important right it could not be held that the amendment was intended io be given a retrospective effect. He further held that the obligation attached to the enforcement of the plaintiff's right on the date of the cause of action was the material point to be considered and that the amended Act could not affect that right.

It was pointed out by Mr. Justice Ram Labhaya that the only date which was available to the plaintiff for finding out what his obligation in the matter of giving a notice was, was the date of the cause of action and that the amended Act could not be applied in order to determine that question. It was further held by the learned Judge that though the provisions of Section 80 were procedural in their effect yet the formality in procedure which was provided for, being a condition precedent to the institution of the suit and that a failure to observe the formality resulting in complete destruction of the right to sue and almost creating an absolute bar to the enforcement of the right of action had to be viewed as something more than a mere matter of procedure.

Chief Justice Sarjoo Prasad agreed with the opinion of Mr. Justice Ram Labhaya and pointed out in a separate opinion of his that prima facie it appeared to him that Section 80 C. P. C. was a part of the procedural law and that although compliance with the procedure prescribed therein was an essential preliminary to the institution of the suit, yet what was to be seen was the state of the law as i.t stood at the time of the giving of the notice and that if the law had changed then the change in the law was not to affect the nature of the notice when it bad been given. I may, however, point out here that the learned Chief Justice guarded himself by saying that the opinion which he was then expressing was his 'present view', which possibly meant that he reserved to himself the right to change his opinion at a later date if and when occasion arose.

28. The view that Section 80 C. P. C. was not purely procedural in its scope could also receive support from the observations of their Lordships of the Privy Council in the case of Bhagchand Dagdusa v. Secretary of State . In my view, however, it was not necessary to find out whether Section 80 was purely procedural or it was something more than a pure procedural provision.

29. It appears to me that in order to judge the validity of the notice one: had to test its validity in accordance with the law in force at the date when the notice had been given and not in accordance with the law as obtained at a later date. I have, therefore, no hesitation in answering the second question formulated by the Bench thus :

That it was not necessary for the plaintiff to send another notice under the provisions of Section 80 C. P. C. as amended by the Civil Procedure Code (Amendment) Act, 1948 (Act VI of 1948) and that the notice which had been sent by the plaintiff on the 18th December, 1947 (Ex. 8/P. W. 4) was not invalid on this score.

30. I shall now revert to consider the first question formulated by the Bench, namely, whether the notice relied upon by the plaintiff was invalid in so far as it did not state the ''cause of action' as required by Section 80 of the code.

31. Section 80, as has been noticed earlier, enjoins on the plaintiff to state in the notice, among other things, the 'cause of action' and the relief which the plaintiff claims in respect of that cause of action.

32. 'Cause of action' has not been defined by the Code or by any other law to which recourse may be had for the purpose of knowing the meaning of the phrase 'cause of action'. The phrase 'cause of action' has been used at more than one place in the Code.

33. Order 2, Rule 3, C. P. C. refers to joinder of causes of action and uses this expression in that rule Order 7, Rule 8 provides for asking for relief founded on several grounds and uses the following words :--

'the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds.'

Rule 8 of Order 7 gives clear indication that cause of action is something synonymous almost with the claim. Order 7, Rule 1 prescribes particulars which a plaint must contain. Sub-rule (e) of that rule provides that the plaint must contain 'the facts constituting the cause of action and when it arose'. This sub-rule indicates that the expression 'cause of action' does not necessarily mean or refer to the facts which constituted a cause of action : the cause of action is something which arises either out of a bundle of facts and circumstances or out of a single fact or incident which, so to speak, provides the plaintiff with the animus or motive to go to Court for [the purpose of seeking relief. If the expression 'cause of action' meant all those facts which constituted it then, in my judgment, it would not have been necessary for the framers of the Code of Civil Procedure to specifically make provision in Order 7, Rule 1 (e) for the stating of those facts which constituted the cause of action.

34. The question, what was meant by the expression 'cause of action' in a sense came uo for decision before a Full Bench of five Judges of this court as far back as the year 1882, which then probably meant the entire Court in the case of Nargingh Das v. Mangal Dubey, ILR 5 All 163 (FB). The question which the Full Bench had really to determine was whether a plaint which had mixed up different causes of action against different defendants had been rightly dismissed or not. In that connection the question had to be considered as to what was meant by 'cause of action' Mahmood, J., in his dissenting judgment said this:

'Some difficulty in this case was felt in the course of the argument, owing to the circumstance that the expression 'cause of action' has always unfortunately had a signification which cannot be called precise or definite. The expression is sometimes taken to mean the title together with the injury; in other words, all the circumstances which a plaintiff is required to allege in order to show a right to sue for relief. Sometimes it is used as indicating merely the injury or the wrongful act of the, defendant; which is the cause of the plaintiff's coming into Court.'

There was in the majority decision nothing which ran counter to the aforeqUoted observation of Mr. Justice Mahmood. The expression 'cause of action' has often been taken in its most comprehensive sense, while in other cases, according to the circumstances of the case, it had been taken to mean something very much more restricted.

35. In Lady Dinbai Dinshaw v. Dominion of India : AIR1951Bom72 Chagla, C. J., and Bhagwati, J., pointed out that 'The expression 'cause of action' in Section 80 must be construed in a liberal way ...... In Lady Dinbai's case : AIR1951Bom72 their Lordships of the Bombay High Court were considering the import of the words 'cause of action' in Section 80 of the Code and in connection with this consideration their Lordships further observed that it was clear to them that the object of the section was only to give intimation to Government of the grievance that the subject had so as to give Government an opportunity to redress that grievance before a suit was brought. They further pointed out that 'The section is not intended to be an instrument of oppression against the subject. The effect of the decision of the Privy Counsil in was also considered and it was pointed out in relation to that decision that the observation made by Sir John Beanmont, C. J., in the case of chandulal Vadilal v. Government of the province of Bombay, AIR 1943 30m 138 was the correct way of interpreting the meaning of Section 80, namely, that the section had to be construed haying regard to common sense and to the object with which the section had been brought on the Statute book.

36. A similar view was expressed in several Counts. In Dhian Singh Sobha' Singh v. Union of India : [1958]1SCR781 their Lordships of the Supreme Court said that although the terms of Section 80 Civil Procedure Code were to be strictly complied with yet that did not mean that the terms of the notice were to be scrutinised ''in a pedantic manner or in a manner completely divorced from common sense'.

37. These observations, to my mind, clearly suggest that the expression 'cause of action' has to be given a meaning which was not technical. aS pointed out earlier, 'cause of action' has not been defined and the words 'cause', 'of' and 'action' mean nothing more than the reason which impels a plaintiff to seek his remedy against the defendant to a suit, or in other words that which, according to the plaintiff, gives him a right to sue the defendant.

38. The notice in the present case clearly said that the consignment had not been delivered at the destination station and as a result of which the plaintiff had sustained serious financial loss; the plaintiff had further set out in the notice something in these words: 'Cause of Action: Non-delivery of one consignment of mustard seeds as described above.' Reading the two statements in regard to cause of action together there could be no difficulty in seeing that what the plaintiff was saying was that the cause for this contemplated action was 'non-delivery of goods' which caused his loss

39. It has been held in India and elsewhere also that the expression 'cause of action' has been understood in a liberal sense as also in a strict sense. The commonplace liberal meaning of the expression 'cause of action' is only that particular act on the part of the defendant which gives the plaintiff his cause of complaint, while in the strict sense, in which the expression has been interpreted under certain conditions, the expression has been held to mean

'every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse'.

It is, therefore, clear that the meaning to be attached to the expression 'cause of action' depended upon the true construction of the Statute in which that expression arose.

40. In Halsbury's Law of England (Vol. I, 2nd Edn. Para 9, page 8) dealing with the meaning of the expression 'cause of action' this is what has been stated:

'The 'popular' meaning of the expression 'cause of action' is that particular act on the part of the defendant which gives the plaintiff his ' cause of complaint.'

41. In Jackson v. Spittall, (1870) 5 CP 542 it was held that 'cause of action' under Section 18 of the Common Law Procedure Act, 1852, did not mean 'the whole cause of action, i. e., contract and breach; but the act on the part of the defendant which gives the plaintiff his cause of complaint.'

42. Haying seen above, what the meaning of the phrase 'cause of action' should be in Section 80 of the Code of Civil Procedure, it is necessary to see how far the argument that was adduced on behalf of the appellant that in the instant case the cause of action had not been properly stated, inasmuch as, it was not said in the notice that the plaintiff had a right to sue because even though the plaintiff was merely a consignee yet he had a right of action as the consignor in the case was an agent of the plaintiff, was correct. Reliance was placed on paragraph 3 of the plaint where the plaintiff had clearly alleged that the consignment had been booked at Jarwa railway station by the plaintiff's agent. It was also alleged that because of this allegation in the plaint the cause of action alleged in the plaint was different from the cause of action alleged in the notice.

43. It was contended that what had been alleged in paragraph 3 of the plaint in regard to the consignor being an agent of the plaintiff was a necessary element of the cause of action which had to be alleged in the notice because a mere consignee had no right of suit. If the contention of learned counsel in regard to this aspect of the matter was right and if, further, his contention to the effect that it was essential in the notice under Section 80 Civil Procedure Code to state the entire cause of action or to state all those 'bundle of facts and circumstances' which it was necessary for the plaintiff to establish before the plaintiff could obtain his relief from the Court was right, then there could be no doubt that the notice given by the plaintiff and relied upon by him was not sufficient in law for the purpose of Section 80 of the Code.

44. It has been noticed earlier that the expression 'cause of action' has a wide as also a narrow meaning and that the meaning which is to be attached to the expression must depend upon the context in which that expression appears. 'Cause of action' in the context of Section 80 Civil Procedure Code must, for the reasons I have already indicated, be given a 'popular' meaning, namely, that it is that act by doing which or by not doing which the defendant furnishes the plaintiff, so to speak, the motive to file a suit.

45. In regard to the second contention that the cause of action alleged in the notice was different from the cause of action alleged in the plaint, all I need say is that that was not so, for in substance the cause of the plaintiff in the plaint was that the non-delivery of the consignment had caused loss to the plaintiff--I emphasise the words 'loss to the plaintiff'--and that the plaintiff, therefore, wanted to recover that loss from the defendant by the suit. This precisely was, in substance, the case of the plaintiff in his notice.

46. Some cases have undoubtedly held that a mere consignee has no right of suit against a common carrier. No issue was raised, in the present case, in regard to whether or not the suit was bad on the ground that it was a suit by a mere consignee against a common carrier: indeed, no such issue could arise because in the plaint the plaintiff clearly stated that the consignment had been booked from Jarwa by the agent of the plaintiff. In my view, if was not necessary lor the plaintiff to state this fact in the notice as well. The defendant could not be said to haye been in any sense, damnified by the non-alleging of this fact in the notice because if it were so the defendant would have clearly said so in the written statement. The defendant never challenged, specifically, the plaintiff's right of suit on the ground that he was a mere consignee and as such had no right of suit.

47. In view of what I have said above it appears to me right to say that the cause of action which the plaintiff, in the instant case, stated in his notice dated the 18th December, 1957, was sufficient statement of his cause of action for the purposes of a notice under Section 80 C. P. C. and that the notice was not invalid on the score that it had not stated the cause of action as required by law.

48. I would, therefore, answer the first question formulated by the Bench in the negative.

49. Turning now to the last question formulated by the Bench, namely, should the entire claim of the plaintiff for damages be dismissed on the ground that there is no evidence to prove the market value of goods at the place of destination on the date on which such goods ought to have been delivered, one has to see in order to be able to answer this question properly, what was the relevance of the question in the setting of the controversy arising between the parties.

50. The plaintiff's case in the plaint was that 365 bags of mustard seed weighing at certain quantity had been booked at Jarwa railway station by his agent for delivery to him at Kurigram, that the goods were never delivered at the destination and that the plaintiff suffered a loss of RS. 24060/- as detailed at the foot of the plaint. The details given at the foot of the plaint were these:

'1.

Priceof mustard seeds 365 hags weighing 775 maunds 18 seers

Rs. a. p.

21,324-14-0

2.

Arhat

169-15-0

3.

Ramjanki Pinjrapole (Dharam Khata)

33- 5-0

4.

Coolie

21-14-0

5.

Interestat 10% by way of compensation from 15th September, 1947 to the date of suit

2,514- 2-8

Total

24,068- 2-8

Sum given up

8-2-8

Amount in suit

24,060-0-0

There was in the plaint no allegation that the plaintiff had purchased the mustard seeds for purposes of selling these in the open market or that there was a market at the place of destination for the sale of mustard seeds. The plaintiff did not claim any damages for any loss which could have accrued to him due to a variation in the price of mustard seeds at the date of purchase and at the date delivery was expected. The plaintiff's claim was based on the loss which had been occasioned to him by the loss of the goods, that is to say, he only claimed the price which he paid for the goods. There was on behalf of the defendant no contention that the value of the goods which had been handed over for transport to the defendant had at the date of transport deteriorated nor was there any allegation on behalf of the defendant that the value of the goods would in the normal course have deteriorated during the normal period required for the transport from the station of booking to the station of destination. The question, therefore, arises as to whether under the aforementioned circumstances there was any necessity for the plaintiff to prove the market value of the goods at the place of destination at the time when those goods were expected to be delivered in the normal course at destination. In my view there was no Such neccssity.

51. In this connection there is yet another question that arises and it is this: Is not there a difference between those cases where the plaintiff claims that the damage that he has sustained is not only the price which he paid for the goods but also the profits that he expected to make on a re-sale of those goods at destination and a case like the present one? In my opinion, there is a difference between the two sets of cases, namely, a case where the plaintiff merely claims the price of the goods that he had paid because by the destruction of the goods or the loss of goods he had suffered to the extent of the price that he had paid, for them, and a case where the plaintiff suffers the loss not only of the price that he had paid for the goods but the likely loss of profits over the re-sale of those goods.

52. on behalf of the appellant reliance was placed on the following headnote in the decision of India General Navigation and Rly. Co., Ltd. v Eastern Assam Co., Ltd., ILR 47 Cal 1027 : (AIR 1921 Cal 315) :-

'Where goods entrusted to a carrier are not delivered according to the contract, the measure of damages is the value of the goods at the place of destination, in the condition in which the carrier undertook to deliver them at the time when they should have been delivered less the proper charges of transportation and delivery, if these have not been paid by the consignee. '

In the aforementioned case the plaintiffs' contention was that the tea which had been handed over to the common carrier India General Navigation and Railway Co. Ltd., was intended by the plaintiffs to be sold in London and that they expected to obtain a larger price at the London market: they therefore claimed the price which they expected for those goods at the London market. The contention of the defendants was that so ar as they were concerned the immediate destination of tea was Calcutta and that consequently the plaintiff could not recover from them anything more than the value of the goods at Calcutta. The scope of the controversy, therefore, between the parties in the case was whether damages were to be assessed at the prevailing price at Calcutta or at London of the tea which had been consigned for transport: the controversy was not whether or not the plaintiffs were entitled to claim the price which they had actually paid for the tea after the consignment of tea had been lost in transit.

Therefore, under the aforementioned circumstances the question that was decided in that case and on which reliance was placed was an appropriate question to decide, but that case never decided that the price which a person paid for the goods which he had handed to a common carrier could not be the measure of damage which he could recover on the loss of those goods from the common carrier.

53. For the proposition which was laid down in the aforementioned Calcutta case reliance had been placed by the learned Judges among others, on the decision of Rice v. Baxendale, (1861) 7 H and N 96. The facts of that case were that in November 1860 the plaintiffs had remitted a Sum of s, 10 13s 6d, to Messrs. Swainson and Bennett and Co., cloth manufacturers, of Leeds and had ordered a certain quantity of cloth to be sent to them to Maidstone. The plaintiffs wanted to sell the cloth at Maidstone and in the neighbourhood. The goods were purchased on the 27th November, and were handed over to the defendant for conveyance to Maidstone and those goods should have in the normal course been delivered to Maidstone on the 29th November. In anticipation of delivery the plaintiffs had sold a great part of the goods to customers at Maidstone. The goods never reached Maidstone in these circumstances, pollock, C. B., held that

'The only principle that we lay down is that when goods are delivered to a carrier to be carried from A to B. and are lost, the owner is entitled to the value of the goods at B.'

Rice's case, (1861) 7 H and N 96 therefore, was also not concerned with considering the question whether if the plaintiffs in that case sued the defendant for the money which they had paid for the cloth to Messrs. Swainson and Bennett and Co., they could not get a decree for that sum.

54. Another case on which reliance had been placed by the learned Judges of the Calcutta High Court in deciding the case of India General Navigation and Railway Co., Ltd, ILR 47 Cal 1027 : (AIR 1921 Cal 315) was the case of Rodecanachi, Sons and Co. v. Milburn Brothers. (1886) 18 QBD 67 where the plaintiffs had sold a cargo, which was to be delivered to them and which did not arrive, at a price less than the market value of the goods at the port of discharge at the time the cargo should have arrived, and the question arose whether the plaintiffs were to get that price for which they had sold the goods in anticipation of delivery or were they to get the price according to the market value of the goods at destination at the time when the goods were expected to arrive.

It was pointed out in the case of Rodecanachi Sons and Co., (1886) 18 QBD 67 that the rule in getting at the value of the goods was

''If there is no market for such goods, the result must be arrived at by an estimate, by taking the cost of the goods to the shipper and adding to that the estimated profit he would make at the port of destination. If there is a market there is no occasion to have recourse to such a mode of estimating the value; the value will be the market value when the goods ought to have arrived. But the value is to be taken independently of any circumstances peculiar to the plaintiff.'

As I pointed out earlier, there was no allegation on behalf of the plaintiffs that the goods were meant for re-sale, nor was there any allegation on behalf of the plaintiffs or the defendants that there was a market for the goods at the place of destination.

55. The plaintiff, in the instant case, complained really of a breach of contract and claimed damages for such a Breach, Section 73 of the Indian Contract Act lays down the principle for determining compensation for loss or damage caused by a breach of contract. Section 73 is in these words:

'When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.

Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.' It is important to notice that Section 73 mentions 'any loss'.

56. In Saunadanappa v. Shivbasawa, ILR 31 Bom 354 at p. 364 it was pointed out that according to Section 73 of the Indian Contract Act a party who complained of a breach of contract was entitled to compensation for any loss or damage caused to him which naturally arose in the usual cour.se of things from the breach or which the parties knew when they made the contract to be likely to result from the breach. It could not be said that the plaintiff in this case did not 'naturally' suffer loss of the price which the had paid for the goods on their having been lost to him because of the fault of the defendant.

57. In my judgment, the words 'any loss' in Section 73 of the Contract Act were, clearly wide enough to include the loss which theplaintiff in the case before me claimed, namely,the value of the goods. It cannot further bealleged that the loss of the value of the goods was not something that did not naturally arise in the usual course of things from the breach in question.

58. Beg, J., relied on the decision of O. Hanlan v. Great Western Railway Co., (1865) 122 ER 1274 in which it was held that the measure of damages in an action against a railway Company for non-delivery of certain goods was the price at which the goods could be obtained in the market, if there was one at the place and time at which the goods ought to have been delivered; if not, the damages must be ascertained by taking into consideration, in addition to the cost price and the expense of transit, the reasonable profit of the importer, Shee, J.. said in this case that:-

'When a carrier fails to deliver, at the proper time, goods which have been entrusted to him to carry for reward, the person to whom they belong is entitled, after a reasonable time has elapsed, to supply himself with similar goods at the place where the carrier contracted to deliver them and to recover the cost of those coods from him. If there is a regular market for such goods at that place, it is clear that he has sustained no damage beyond the amount of what would have been the cost to him of his goods and of the difference between that cost and the market price where they ought to have been delivered to him of other goods of the same kind. If at that place there are no such commodities, except charged with a profit beyond their original price and the cost of their carriage, then that profit is an element of their market price and of the amount of his damage. But if there is no market and there are no persons from whom such goods can be bought at the place except at an excessive price, a reasonable construction of the rule laid down in Hadley v. Baxendale, (1854) 9 Ex 341 would entitle the plaintiff to the reasonable price of the goods at that place, and that would be ascertained by calculating the probable profits which dealers who might sell goods of that kind there would make on the prime cost of the goods at the place of manufacture, and the cost of their carriage.'

59. In the case before me the plaintiff did not want any ''estimated profits.' All he wanted was the actual price which he had paid for the goods. on behalf of the defendant there was no contest that the goods could have been had at a lesser price than paid and claimed by the plaintiff. on behalf of the plaintiff there was the evidence of p. W. 1, Champa Lal, to the effect that the cost price of the goods in question amounted to really more than what the plaintiff had claimed. For the reasons indicated ahove I am of the opinion that the plaintiff was entitled to the damages thai he claimed.

60. I would, therefore, answer the third question formulated by the Bench in the negative.

61. I direct that the answers which I have given above be laid before the Bench concerned.


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