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Sodhi Shamsher Singh Vs. Pepsu State and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 8 (P) of 1952
Judge
Reported inAIR1961P& H358
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80 - Order 22, Rules 4 and 9
AppellantSodhi Shamsher Singh
RespondentPepsu State and ors.
Appellant Advocate Baldev Singh, Adv.
Respondent Advocate S.M. Sikri, Adv. General and; S.S. Sodhi, Adv.
DispositionAppeal allowed
Cases ReferredCouncil v. Krishna Shenoy
Excerpt:
.....or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the..........in respect of the notices which admittedly had been received in the concerned departments of the state government.4. it appears that one of the defendants, uggar sain, who, according to the appellant, is a pro forma defendant, died on 19th of july, 1955. it has been deposed by the appellant that he being a resident of village tejan, did not acquire the knowledge of this death, earlier than the 13th september, 1959, and the application to bring the legal representatives of uggar sain on record was made on 30th of september, 1959. no counter-affidavit has been filed to impute any negligence to the appellant.it has been recently held in a full bench decision of this court in firm dittu ram eyedan v. om press co. ltd. (1960) 62 pun lr 133 : (air 1960 punj 335), that ignorance of death can.....
Judgment:

Shamsher Bahadur, J.

1. This appeal has been preferred by Sodhi Shamsher Singh whose suit for recovery of Rs. 10,000/-as damages instituted against the State of Patiala and East Punjab States Union has been dismissed on the preliminary ground that a valid notice under Section 80, Civil Procedure Code, had not been served,

2. In the plaint filed on 28th of January, 1950,it was stated in paragraph 3 of the plaint that the plaintiff sent two notices of his intention to sue. The first one was sent on 23rd of July, 1948, addressed to the Prime Minister of Patiala, and Patiala and East Punjab States Union. It appears that on that date the new State of Patiala and East PunjabStates Union was yet in the process of formation and it actually came into existence on 20th of August, 1948. To avoid any objection that the notice had not been served on the right person, the plaintiff sent another notice under Section 80 of the Code of Civil Procedure, on 2nd of August, 1949.

This was addressed to the Prime Minister, Patiala and East Punjab States Union under the signatures of the counsel for the plaintiff, and a copy of it was sent to the Chief Secretary, Patiala and East Punjab States Union, Patiala, also signed by the counsel. In the written statement filed on behalf of the State on 29th of March 1950, the second preliminary objection was in these words:-

'The plaintiff had not given notice to the defendant under Section 80 of the Civil Procedure Code. Even if the plaintiff might have given any notice, the same is invalid and illegal. The plaintiff's suit may, therefore, be dismissed with costs.'

The same evasive plea was reiterated in paragraph 3 of the written statement on facts. These pleadings on the question of notice gave rise to the following preliminary issue which has been decided against the plaintiff, who has come in appeal to this Court:-

'Whether any valid notice under Section 80, Civil procedure Code, was served.'

3. The earlier notice of 23rd of July 1948 (Exhibit P. A./1) which is admitted to have been received in the office of the Prime Minister, Patiala, on 28th of July, 1948, had been discarded by the trial Judge on the ground that it was not addressed to the Prime Minister of Patiala, who still remained the competent authority to receive it before the formation of the Patiala and East Punjab States Union on 20th of August, 1948. In the opinion of the trial Judge, the original copy of the second notice dated 2nd of August, 1949, though it reached the Prime Minister's office, has not been proved.

It has been admitted by Hari Bhagwan P. W. 1 that this notice was received from the counsel of Sodhi Shamsher Singh through the Law Department, Patiala, and was sent to the Excise Superintendent on 2nd of September, 1949, for report. This witness further deposed that the original notice is not traceable, A copy of the notice, which is marked Exhibit P. A., sent to the Chief Secretary of the Patiala and East Punjab States Union has been admitted in evidence and it has been stated by B. Madan Lal, clerk of the Law Department, as P. W. 2, that this notice was received in the office of the Legal Remembrancer from the Home Department on 11th of August, 1949.

This notice has been rejected by the trial Judge on the ground that it has not been duty proved. The reasoning adopted by the Court and the learned Advocate-General, who has appeared for the respondent in support of this conclusion, amounts to a piece of casuistry which it is not possible to accept. It is suggested that the counsel who sent this notice should have come forward to State that he had actually despatched it or someone should have deposed that he saw the counsel appending his signatures to this notice. It seems to have been overlooked that Sodhi Shamsher Singh, plaintiff, as P. W. 4, deposed that the second notice was sent under his instructions by Mr. Prithvi Raj Advocate, Kapurthala.

In our opinion, this affords ample proof of the notice whose receipt in the Government Departments has never been denied at any stage. A notice under Section 80 of the Code of Civil Procedure is intended to fulfil the object of informing the government concerned generally of the nature of the suit intended to be filed. Its reception by the authority empowered to receive it is to all intents and purposes a sufficient compliance of the letter and spirit of Section 80 of the Code of Civil Procedure. It has never been the case of the respondent that the copy of the notice (Exhibit P. A) did not Contain the particulars of the dispute which is the subject-matter of the plaint filed by Sodhi Shamsher Singh.

The argument of the Advocate-General, therefore, that the mere receipt of a notice by a Department of the State cannot be linked with the notice which is said to have been despatched by the plaintiff, is wholly devoid of force and involves a degree of refinement to which it is not possible to accede. In the view which we take about the second notice which admittedly was addressed to the right person it is not necessary to decide the technical argument raised by the Advocate-General that the first notice (Exhibit P. A./1) should have been addressed in the first instance to the Prime Minister ofPatiala, and after the formation of the Patiala and East Punjab States Union to the new constitutional entity which had been brought about after 20th of August, 1948. We feel bound to say in the context that it did not behave the respondent to have raised and persisted with this plea in respect of the notices which admittedly had been received in the concerned Departments of the State Government.

4. It appears that one of the defendants, Uggar Sain, who, according to the appellant, is a pro forma defendant, died on 19th of July, 1955. It has been deposed by the appellant that he being a resident of village Tejan, did not acquire the knowledge of this death, earlier than the 13th September, 1959, and the application to bring the legal representatives of Uggar Sain on record was made on 30th of September, 1959. No counter-affidavit has been filed to impute any negligence to the appellant.

It has been recently held in a Full Bench decision of this Court in Firm Dittu Ram Eyedan v. Om Press Co. Ltd. (1960) 62 Pun LR 133 : (AIR 1960 Punj 335), that ignorance of death can be deemed to be a good ground when such ignorance is not attributable to any negligence. In the present instance, in the absence of any allegations to the contrary, we are inclined to accept the facts as given by the appellant in his affidavit. We accordingly allow Sodhi Shamsher Singh to implead Om Prakash Son of Uggar Sain as the legal representative of Uggar Sain, as respondent.

5. In the result, this appeal is allowed and the Case remanded to the trial Court for decision on merits. The Court-fee on this appeal would be refunded to appellant while the other costs of this appeal will abide the event. The parties have been directed to appear before the trial Court on 21st ot March, 1960.

Tek Chand, J.

6. I entirely agree with the order proposed by my brother Shamsher Bahadur, J. I may, however, give my reasons why in my view the decision of the trial Court is erroneous and deserves to be reversed.

7. Section 79 of the Code of Civil Procedure prescribes the form of suit by or against the Central Government and the State Government. It does not indicate the manner in which notice is to be addressed to either Government. Section 80 of the Code makes the giving of a notice in writing in a suit instituted against the Government etc. mandatory. Two clear months must expire after the service of the notice and the institution of the suit.

The notice in writing is required to be delivered to or left at the office of, in the case of a suit against the State Government, a Secretary to that Government or the Collector of the District The notice must state the Cause of action, name, description and place of residence of the plaintiff and the relief which he claims. Moreover, the plaint should contain a statement that such notice has been so delivered or left.

8. The object of the legislature in requiring the notice under Section 80 is to afford an Opportunity to the defendant to reconsider his position with regard to the claim made and to make amends orto settle the claim if so advised without recourw to litigation. The contents of the notice as mentioned in Section 80 are required to be given to the Government or the authority concerned so that it may during the statutory period o the notice decide to settle up the dispute without reference to Court

By means of the notice, intimation is given to the Government of the grievance that the plaintift has and the Government is enabled to redress the grievance before an action is brought against it in a Court of law. It is true that Section 80, in the words of Viscount Sumner, 'is express, explicit, and mandatory, and it admits of no implications or exceptions'. Vide Bhagchand Dagdusa v. Secy, of State, AIR 1927 PC 176 (184).

9. But the provisions of Section 80 ought not to be construed hypercritically with an eye for a flaw or an omission howsoever inconsequential, with a view to deprive the subject of his remedy, but rather liberally with due regard to common sense and bearing in view the object of the legislature in enacting the law. It is significant that the provisions of Section 80 do not prescribe any particular form of address and there is authority for the proposition that a misdescription of the defendant or the person on whom the notice is served is not fatal so long as the notice is received by the Government concerned.

A notice addressed to the Union of India is not invalid, though it is to be delivered or left at the office of the Secretary to the Central. Government, A notice delivered to the Secretary to the Government will not suffer from any infirmity if it is also addressed to the Secretary and not to the Government concerned. The notice under Section 80, Civii Procedure Code, need not mention the exact style under which the defendant is to be impleaded so long as it admits of no doubt that the case is to be instituted against the Central Government or the particular State Government. Vide A. Sankunni Menon v. South Indian Rly., AIR 1952 Mad 502; Frm Bholaram Shibdhan v. Govemor-General-in Council, AIR 1949 Pat 416; Governor-General-in-Council v. Amilal, AIR 1947 Pat 81 and Finn Mulchand Loknath v. Union of India, AIR 1955 N. U. C. (Pat) 728. Vol. I.

10. In Governor-General of India in Council v. Krishna Shenoy, AIR 1951 Mad 327, the name of the Secretary of State was inadvertently given at the head of the notice but it was treated by the Governor-General-in-Council as a notice to him, and action was taken on the notice in the same way as if the notice had been addressed to the Governor-General-in-Council. It was held in that case that that was a sufficient compliance with the requirements of Section 80, notwithstanding the error in the matter of designation.

11. In this case the stand taken up on behalf of the State Government is hardly tenable and the construction placed by the trial Court on the requirements of Section 80 is devoid of any reasonable view of the provisions. There is no gainsaying the fact that both the notices were in fact received by the Government and circulated to the heads of the departments concerned for action.

The plea that the notice was not correctly addressed though it was Correctly delivered, smacksof sophistry and it hardly becomes the State appearing as a litigant to dispute a citizen's claim on grounds which are specious and over-refined. This Court will not readily lend countenance to an interpretation which may result in oppression and in deviation from fairplay and the real purpose of the statute.

12. In my view both the notices served by the plaintiff were unexceptionable and this appeal must, therefore, succeed.


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