C.M. Lodha, J.
1. The only question that arises for decision in this second appeal by the plaintiff is whether the learned Senior Civil Judge, Gangapur was right in holding that the notice issued by the appellant-plaintiff under Section 80, Civil P. C. is defective and, therefore, the suit is not maintainable ?
2. The plaintiff's case as set out in the plaint is that he is the manager of the joint Hindu family constituted by himself, and his minor son Girraj Parsad and carries on family business under the name and style -- Ramjilal Girrajparsad. It is alleged that two bales of cloth were purchased by the plaintiff from Shah Nemichand Heera Chand of Bombay and the same were despatched to him to be delivered at Gangapur. City vide R. R. No. 6998 dated 19-12-1959 but only one bale was delivered. Consequently he gave a notice dated 19-7-1960 to the General Manager, Western Railway, Bombay under Section 80, Civil P. C. for a claim of Rs. 1,288.51 paise on account of price of one bale, interest thereon and notice charges and filed the present suit on 8-10-1960 in the Court of Munsiff, Gangapur.
3. The defendant resisted the suit inter alia on the ground that the notice under Section 80, Civil P. C. was defective and the suit was not maintainable. It was pleaded that the notice was given by Shri Girraj Parsad, Vakil. Gangapur City on behalf of M/s. Ramjilal Girrajparsad. Cloth Merchants, Gangapur City whereas the suit has been filed by Ramjilal son of Jagannath. Manager of the family business Ramjilal Girrajparsad, and thus there was no identity between the person who gave the notice and the person who filed the suit. The objection raised by the defendant in respect of the notice prevailed with both the Courts below with the result that the plaintiff's suit was dismissed by the trial Court and its judgment and decree were upheld by the Senior Civil Judge, Gangapur.
4. Learned counsel for the appellant has urged that the Supreme Court case S. N. Dutt v. Union of India, AIR 1961 SC 1449 relied upon by the Courts below against the appellant is distinguishable on facts. It has been further argued that the terms of the notice should not be scrutinised in a pedantic manner or in a manner completely divorced from common-sense.
5. As already stated above the notice Exhibit 6 was given by Shri Girrajparsad, Advocate on behalf of M/s. Ramjilal Girrajparsad. The suit has been filed by Ramjilal and in para No. 1 of the plaint it has been mentioned that the plaintiff is the Manager of the joint Hindu family and carries on business in the name and style -- Ramjilal Girrajparsad and that Girrajparsad is the plaintiff's son living with the plaintiff and is a member of the joint Hindu family. The sole point is whether it can reasonably be ascertained that the person filing the suit is the same person on whose behalf the notice had been served.
6. In AIR 1961 SC 1449 notice was sent by a lawyer on behalf of the concern known as S. N. Dutt and Co. The notice did not indicate either specifically or by necessary implication that the concern in Question was a proprietary concern and S. N. Dutt was its sole proprietor. The Court observed :
'The prima facie impression from reading the notices would be that M/s. S. N. Dutt and Co. was some kind of partnership firm and notices were being given in the name of that partnership firm. It cannot therefore be said on a comparison of the notices in this case with the plaint that there is identity of the person who issued the notices with the person who brought the suit.'
7. In Raghunathdas v. Union of India, AIR 1969 SC 674 notice was given from M/s. Raghunath Das Mulkraj and was signed at the end thus:
'For. M/s. Raghunath Dass Mulkrai,
Sd./ Raghunath Dass
The suit was filed by Raghunath Das. No objection as to the validity of the notice was taken in the pleadings and from this circumstance their Lordships drew an inference that the defendants never considered the person who brought the suit as being someone other than who issued the notice. It was further observed that the Union of India could not have been left with the impression that the notice had been issued on behalf of a partnership as there were clear indications in the notice showing that the plaintiff was the sole proprietor of the concern Raghunath Dass Mulkraj. In this view of the matter it was held that the decision in AIR 1961 SC 1449 did not govern the case.
8. In Union of India v. Kuthari Trading Co., AIR 1969 Assam 84 notice was given on behalf of Kalyan Rice and Oil Mills, Proprietor: Kuthari Trading Co. (Private) Ltd. and the suit was filed by M/s. Kuthari Trading Co. (Private) Ltd., as the owners of M/s. Kalyan Rice and Oil Mills. Tejpur. The learned Judges were of opinion that on a perusal of the notice and the plaint, the identity of the person who had issued the notice with the person who had brought the suit was established. In this view of the matter it appears that the Court did not apply the principle laid down in AIR 1961 SC 1449. In the instant case the notice. Exhibit 6 was issued on behalf of M/s. Ramjilal Girrajparsad. There is no mention in the notice that RamjiLal was the proprietor of M/s. Ramjilal Girraj Parsad. Use of the words 'M/s. Ramjilal Girraj Parsad' did give an indication that it was very likely a firm and possibly a partnership firm.
9. In AIR 1969 SC 674 there was indication in the notice showing that the plaintiff was the sole proprietor of the concern known as Raghunathdas Mulkraj. Similarly in AIR 1969 Assam 84 it was mentioned in the notice that Kuthari Trading Company which had filed the suit was the proprietor of Kalyan Rice and Oil Mills on whose behalf the notice had been given. In my opinion mention, of the names of proprietor in both these cases made all the difference and took them out of the purview of the principle laid down in AIR 1961 SC 1449.
10. Learned counsel for the appellant invited my attention to an earlier case of Punjab: Saligram v. Dominion of India. AIR 1953 Punj 43 and also State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu. AIR 1965 SC 11. In my opinion none of these cases is of much assistance to the appellant. In AIR 1965 SC 11' notice was given by Suryanarayana Garu and Prabha Yagneswara Sastri, and the suit was filed by Garu alone with the permission of the Court under Order 1. Rule 8, Civil P. C. Their Lordships held that this was not a defect within the terms of Section 80. The right to institute a representative action, it was observed, may be exercised by one person or more persons having an interest which is common with the others but it can only be exercised with the permission of the Court. If the Court grants permission to one person to institute such a representative action and if that person had served the notice under Section 80, the circumstance that another person had joined him in serving the notice, but did not effectuate that notice by joining in the suit, would not be a sufficient ground for regarding the suit as defective.
11. In the Punjab case : AIR 1963 Punj 43 in the first place the objection regarding validity of notice was not taken in a proper form. The notice in that case was given on behalf of Firm Saligram Tulsiram and the suit was brought by the same firm through its manager, who was described as such. The Court came to the conclusion that the body of the plaint and the reply of the defendant showed that the suit in essence was by the firm and not on behalf of one particular person. In this view of the matter it was held that there is no material variance in the description of the person, who brought this suit and the person who sent the notice under Section 80, Civil P. C.
12. In the instant case a pointed objection was taken by the defendant in his written statement and from the facts and circumstances mentioned above it cannot be said that the person giving the notice Ex. 6 was the same as the person serving the (notice with the ?) result that there is no escape from the conclusion that Section 80, Civil P. C. was not complied with and the suit was rightly dismissed by the Courts below.
13. In the result, I dismiss the appeal, but in the circumstances. I direct that the parties be left to bear their own costs throughout.