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K. Ramaswami Naicker and anr. Vs. Secy. of State - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad105; 140Ind.Cas.458
AppellantK. Ramaswami Naicker and anr.
RespondentSecy. of State
Cases ReferredJones v. Nicholla
Excerpt:
- - but to use the words mentioned as containing a clue to the method of determining whether the elements necessary to constitute good notice under section 80 exist in a particular document would be doing violence not only to the language but to the intention of their lordships. the collector had been pressing the zamindar to put the tank in good order and the suit was brought after years of correspondence when the zamindari happened to be in charge of the zamindar and a lawyer as receivers because the necessary steps were not taken......a is dated 2nd february 1926, which says:please take notice that you are requested to execute the repairs mentioned in the estimate within a period of six months as repairs are necessary to prevent all reasonable risk of danger to the periyar main canal failing which legal proceedings will be taken against you,4. then follows the list of repairs to be executed to the mattapparai tank to prevent danger to the periyar main canal and four items of works are mentioned. the document is addressed to the zamindar, defendant 1 when he was sole receiver and is signed on behalf of the collector of madura. the original which must be with defendant 1, was not produced by him, ex. a, being the office copy. ex. b is addressed to both defendants 1 and 2 described respectively as zamindar and receiver.....
Judgment:

Pandalai, J.

1. This is a petition by the defendants in a suit brought by the Secretary of State in the Court of the District Munsif of Madura in which the petitioners took the preliminary objection that they were public officers within the meaning of Section 80, Civil P.C., and were entitled to notice under that section of the suit but that they had received no such notice and so the suit was incompetent. The District Munsif rejected this contention holding that though the defendants are public officers, the notices marked Exs. A and B were sufficient compliance with the section and also, though rather hesitatingly, that the suit did not embrace official acts and therefore might be maintained even though no notice was sent. It is not necessary to deal with the second half of the above opinion if the Munsif's order can be supported on the first. The defendants are respectively the zamindar of Ammayanaickanur (defendant l) who was himself appointed a receiver to collect the rents and other incomes of the zamindari, and a vakil of the Court (defendant 2) who was afterwards appointed additional receiver for the same purpose apparently because defendant l's sole receivership was not functioning satisfactorily. These two receivers were receiving rents and profits of the zamindari for the purpose of satisfying certain creditors who had taken out execution of decrees obtained against the zamindar. The order of appointment of defendant 2 empowered him to be in entire charge of the management of the zamindari and to be responsible for the due collection of all other incomes of the zamindari, to keep proper accounts, to pay out of the income Rs. 1,000 to the zamindari-receiver as his monthly allowance and to pay the balance into Court for payment of the decree-holders.

2. The first point is whether these two defendants are public officers and on this there can be no serious dispute in view of the language of Section 2, Clause 17, Sub-clauses (d) and (h), Civil P.C. In the words of Sub-clause (d) they are persons especially authorised by a Court of justice to perform the duty of taking charge and disposing of property. In the words of Sub-clause (h) they are (at least defendant 2 is) officers remunerated by fees or commission for the performance of the public duty of execution of the Court's decree, in this case by taking charge of the debtor's property and disposing of it according to the orders of the Court. In Krishnaswami Sastri v. Syed Ahmed (1931) 136 IC 777, the question whether receivers appointed under Order 40, Rule 1 were public officers was not disputed and in my opinion rightly so. To the same effect is Jagadischandra Deo v. Debendraprasad : AIR1931Cal503 . I therefore think that the District Munsif was right on this point.

3. The only remaining point is whether the notices, Exs. A and B, sufficiently comply with the requirements of Section 80. The language of the judgment of their Lordships of the Privy Council in Bagchand Dagadusa v. Secy, of State , was prayed in aid in the lower Court and has been to a certain extent relied upon in this for the proposition that the section is express, explicit, and mandatory, and admits of no implications or exceptions and that therefore the examination whether it has been complied with must be strictly carried out. The passage in which the words referred to occur is where their Lordships are summarising the view of other High Courts than Bombay. It is a summary of the reasoning on which those High Courts held that Section 80 applies to all kinds of suits including those for injunction. No doubt their Lordships later on say that the reasoning which they had summarised in the previous passage is right; but to use the words mentioned as containing a clue to the method of determining whether the elements necessary to constitute good notice under Section 80 exist in a particular document would be doing violence not only to the language but to the intention of their Lordships. I consider myself at liberty notwithstanding the words imputed to their Lordships to determine the question in the light of decisions germane to the subject. There are several of them, but it is sufficient to refer to decisions of our own Court such as Secy. of State v. Perumal Pillai (1901) 24 Mad 279 and Venkata Ramakrishna Ayyar v. Secy. of State AIR 1026 Mad 408. The substance of it all is that in determining whether a particular document satisfies the requisites of Section 80 we are not bound to abandon all common sense, but on the contrary we must look at the document and understand it in a lair and reasonable sense in the way in which the writer meant and the addressee understood it. The correspondence on the subject of this case has been referred to by the Munsif and it is not necessary for me to refer to it again. For many years the Mattapparai tank in the Ammayanaickanur zamindari was in the opinion of the Local Government authorities a source of danger to the Periyar main canal owing to its being kept in a 'breached condition causing, I suppose, floods and inundations into the canal. The Collector had been pressing the zamindar to put the tank in good order and the suit was brought after years of correspondence when the zamindari happened to be in charge of the zamindar and a lawyer as receivers because the necessary steps were not taken. Of the two documents Exs. A and B, which are put forward as constituting sufficient notices, Ex. A is dated 2nd February 1926, which says:

Please take notice that you are requested to execute the repairs mentioned in the estimate within a period of six months as repairs are necessary to prevent all reasonable risk of danger to the Periyar main canal failing which legal proceedings will be taken against you,

4. Then follows the list of repairs to be executed to the Mattapparai tank to prevent danger to the Periyar main canal and four items of works are mentioned. The document is addressed to the zamindar, defendant 1 when he was sole receiver and is signed on behalf of the Collector of Madura. The original which must be with defendant 1, was not produced by him, Ex. A, being the office copy. Ex. B is addressed to both defendants 1 and 2 described respectively as zamindar and Receiver and Additional Receiver. The document is headed:

Tanks-, Private-Nilakottai Taluk Zarnin Mattaparai village-Mattapparai Taluk-Conservancy-suit filing of.

5. This part of official correspondence, as is familiar to those conversant with it, is a precis of the subject-matter of the communication which follows. The body of the letter reads:

A copy of the plan and estimate showing the nature of repairs to be carried out to the Mattapparai tank of Zamin Mattapparai village attached to Ammayanaickanur zamindari is herewith sent.'

2. Please take notice that you are requested to execute the repairs mentioned in the estimate within a period of six months as repairs are necessary to prevent all reasonable risk of danger to the Periyar main canal failing which legal proceedings will be taken against you. It is signed'E.B. Cobbald, 28th July 1929, Collector.

6. It is objected that this notice does not comply with Section 80 because it does not mention the three matters to be mentioned in it, viz. (1) cause of action, (2) name, description and place of residence of the plaintiff, and (3) relief. As to the cause of action, in both the documents it is in my opinion sufficiently stated as the necessity for repairs to the Mattapparai tank to prevent reasonable risk of danger to the Periyar main canal. As to the name, description and residence of the plaintiff the objection that the plaintiff is the Secretary of State and that that official is not mentioned at all not to speak of his residence being omitted, is, though literally plausible, not of substantial weight. It must not be forgotten that Section 80 is drawn as it had necessarily to be drawn so as to suit the vast majority of cases that arise under it, viz., suits by non-officials aggrieved by the action of Government or by officers against the latter for redress and it is reasonable in such cases where the plaintiff is a private party that his name, his description and place of residence should be known and stated. It is not that there is an exception in favour of the Secretary of State as to the contents of the statutory notice where he is suing as plaintiff. But the point is only how we are to understand whether a particular document said to be sent in the name of or on behalf of the Secretary of State was really so sent and says so with sufficient clearness to give notice to the defendants. It was in a case about the address of the plaintiff that Chief Baron Pollock said in Jones v. Nicholla (1822) 1 New Sess Cas 524 that 'we must import a little common sense into notices of this kind,' and that was with reference to a private individual.

7. I think we might import a little common sense in determining whether Exs. A and B do really convey the name, description and place of residence of this plaintiff. In my opinion they do and it is noteworthy that this particular objection was not pointedly taken before the Munsif and as this is a question in revision I have no hesitation in taking the view which the lower Court did.

8. Then as regards the relief, there seemed at first sight a little more ground for the complaint that Ex. B does not mention the relief at all. But when Ex. B is read as a whole it becomes clear that the legal proceedings mentioned as intended was a suit, and also reading paras. 1 and 2 together that the relief for which the suit was intended to be brought was to get the repairs carried out as mentioned in the plan and the estimates which were enclosed with Ex. B. As a matter of fact para. 7 of the plaint contains as relief the enumeration of the very repairs which the defendants were called upon to execute in Ex. B. That being so I am unable to say that the District Munsif erred in saying that Exs. A and B are, and B especially is, sufficient notice of suit. The petition therefore fails and must be dismissed with costs.


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