1. This second appeal came up in the first instance before Viswanatha Sastri J. who considered it desirable that it should be heard by a Bench as the decision in the case was likely to affect a number of suits and appeals of the same type.
2. The suit out of which this second appeal arises was instituted by the appellant originally against the South Indian Railway represented by the General Manager having his office at Trichinopoly for damages for short delivery of goods consigned to him through the railway company on 18th September 1943. The suit was instituted on 23rd March 1944 after the issue of the notice required under Section 77 of the Indian Railways Act. On 1st April 1944, the South Indian Railway was taken over by the Govt. of India and by a notification dated 14th October 1944, the General Manager was authorised to act for and on behalf of the Central Government as from 1st April 1944 in all judicial proceedings in which the South Indian Railway Administration might be concerned.
On 19th June 1944, on an application by the plaintiff-appellant, the plaint was amended by removing the name of the South Indian Railway Co., Ltd., through its Agent and General Manager and by substituting instead, the Governor-General-in-Council represented by the General Manager, South Indian Railway. On the same day, the General Manager of the South Indian Railway filed a written statement. It is not clear whether this written statement was filed as the General Manager representing the South Indian Railway before it was taken over or it was filed by the General Manager as representing the Governor-General-in-Council, because the first paragraph of the written statement is as follows:
"The suit is unsustainable in law, the South Indian Railway Co.. Ltd., having ceased to exist on and from 1st April 1944. The Governor-General-in-Council should be brought on record."
Evidently this written statement was filed, at any rate prepared to be filed, before the plaint was actually ordered to be amended. On 24th November 1944 the District Munsif, Tenkasi, who tried the suit dismissed it. There was an appeal by the plaintiff (A. S. No. 6G of 1945) in the Court of the Subordinate Judge of Tinnevelly. The appeal was allowed and the suit was remanded for fresh disposal on 27th September 1945, and eventually a decree was passed in favour of the plaintiff on 15th April 1946. Against this decree the Governor-General-in-Council represented by its General Manager, South Indian Railway filed an appeal A. S. No. 93 of 1946.
3. In the memorandum of appeal for the first time the point was taken that the suit was liable to be dismissed because of the failure on the part of the plaintiff to give the notice under Section 80, C. P. C. to the Government. The learned Subordinate Judge took up this point as a preliminary point and held that a notice under Section 80, C. P. C. was necessary in the case and as no such notice had been given, the suit should be dismissed in limine. In the result, the appeal was allowed and the suit dismissed. The plaintiff has filed the present second appeal against the decree and judgment of the Subordinate Judge.
4. Several points appear to have been argued by learned counsel before Viswanatha Sastri J. but, in our opinion, the appeal can be disposed of on our decision on one of these points. This point may be stated in the language of Viswanatha Sastri J., thus:
"Is a notice to the Government under Section 80. C. P. C. essential, when it is made a party to a pending suit by reason of a devolution of interest under Order 22, Rule 10, C.P.C."
There appears to be very little of case law on this question, but we have felt no difficulty whatever in coming to a conclusion on this: point. Apart from the decided cases to which we shall presently refer, the language of Section 80, C. P. C, does not appear to us to give much room for doubt. It says that no suit shall be instituted against the Government until the expiration of the two months next after notice in writing has been delivered to or left at the office of the official specified.
The section can obviously have no application to the continuation of a suit properly instituted when at the time of the institution the Government was not a necessary party. If the Government was a necessary party against whom the plaintiff sought relief or must be deemed to have sought relief, then, the fact that the Government was not made at the inception a party, but was subsequently added as a party would not make any difference in principle. In such cases the suit must be deemed to have been instituted against the Government only when the Government is made a party, and obviously Section 80 would apply to such a case and the Government would be entitled to the two months' notice. But in a case where on the date of the institution of the suit, the plaintiff could not have claimed, and did not claim, any relief against the Government and therefore no notice under Section 80 C. P. C. was necessary, but if it transpires during the pendency of the suit that the interest of the defendant has devolved on the Government, either by voluntary act of the Government or by operation of law, there is no fresh institution of the suit as against the Government. The Government only steps into the shoes of the party whose interest has devolved on it. Because in such a case there is no institution of a suit ss against the Government at the time when it is brought on record in the pending suit, Section 80 cannot have any application.
In -- 'G. I. P. Rly. Co. v. Mahsdeo Ram', AIR 1926 All 585 an identical question arose for decision. The suit was instituted against the G. I. P. Railway while it was a private company. During the pendency of the suit the line was taken up by the Government and the Secretary of State for India in Council was substituted as defendant. An objection was taken that notice should have been given to the Secretary of State under Section 80 and the objection was overruled by Daniels J. The learned Judge observed:
"Here there was no question of instituting the suit. The suit was already instituted".
The learned Judge pointed out that in the case of a devolution governed by Order 22, Rule 10 of the Code, the suit is by the leave of the court continued by or against the person to or upon whom such interest has come or devolved. Clarke J. followed this decision in C. S. No. 39 of 1944 the judgment in which is unrenorted. With great respect we are in entire agreement with the reasoning in -- 'G.IP. Rly. Co. v. Mahadeo', A.I.R. 1926 All 585. .In fact we think no other view can reasonably be taken.
5. The learned counsel for the respondent sought to rely on certain decisions of this court in which the Government happened to be impleaded as a party during the course of the suit and it was held that Section 80 of the Code applied to such casts. As we pointed out already, that would be so in cases where the Government was a necessary party even at the time of the institution of the suit, hut for some reason or other the plaintiff had not joined the Government as a party at the time of the institution. In such cases, there is no devolution of interest and the suit as against the Government must be deemed to have been instituted only at the time when they happened to be impleaded as party. We do not doubt the correctness of these decisions, -- 'Appallanarasamma v. Municipal Council, Vizagapatam', 1945-1 Mad. L. J. 22 and 'Chidambaram Chettiar v. Municipal Council, Karaikudi', A. S. No. 126 of 1941 (Mad.) but the principle underlying these decisions has no application whatever to the case before us.
6. In the view we have taken, the appeal must be allowed and the appeal (A. S. No. 93 of 1943) must be remanded to the court of the Subordinate Judge of Tinnevelly, to be decided on the merits. The appellant will he entitled to the costs of this appeal. The appellant will also be entitled to a refund of the stamp duty paid on the Memorandum of second appeal.