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Governor-general in Council, Represented by the General Manager, Madras and Southern Mahratta Railway Vs. Gujrathi Sankarappa Being Minor by Next Friend and Paternal Uncle Moroji - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1106 of 1949
Judge
Reported inAIR1953Mad838; (1953)2MLJ76
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80; Limitation Act, 1908 - Sections 22
AppellantGovernor-general in Council, Represented by the General Manager, Madras and Southern Mahratta Railwa
RespondentGujrathi Sankarappa Being Minor by Next Friend and Paternal Uncle Moroji
Appellant AdvocateC. Govindaraja Iyengar, Adv., i/b., King and Partridge
Respondent AdvocateSuryanarayana Rao and ;Ramakrishna Rao, Advs.
DispositionAppeal dismissed
Cases ReferredRamaswami v. Secy. of State
Excerpt:
.....are fulfilled, the minor details like the mis-description of the person to whom the communication is addressed would not make it an improper notice which does not comply with the requirements of section 80, c. please therefore take notice that unless you make good the loss i have sustained by reason of your negligence, i intend instituting a suit against your railway for such loss as mentioned above. is mandatory it is equally well settled that the court should not be hypercritical in examining the language used but should interpret the code in a free and liberal spirit and that on a fair reading of the notice in the present case it may well be taken as an intimation which will satisfy the requirements of sections 79 and 80, c......8-2-1946, he put in i. a. no. 145 of 1946 for leave to amend the description of the defendant as 'governor general of india in council represented by the general manager m. & s. m. railway'. this application was allowed on 18-2-1946.3. the defendant denied first of all the liability sought to be fastened by the plaintiff and secondly pleaded that there was no proper notice end thirdly that the suit was barred by limitation.4. on the point of fact namely whether the plaintiff was entitled to any amount, the trial court found that the plaintiff was entitled to a sum of rs. 1964-13-0 as compensation. on the ground of want of proper notice following the decisions in -- 'bhagchand dagdusa v. secy. of state ; -- 'apparao v. secy. of state : air1935mad389 , -- 'marina ammayi v. secy. of.....
Judgment:

Ramaswami, J.

1. This is a second appeal which has been preferred against the decree and judgment of the District Judge of Kurnool in A. S. 101 of 1947 reversing the decree and judgment of the learned District Munsif in O. S. 167 of 1945.

2. The facts are: Six bundles of cotton cloth were consigned on 14-9-1943 by the plaintiff's deceased father Devappa from the Tuggali railway station under R. R. No. 63/17791 and invoice No. 116 for delivery to himself at Hindupur. Of these six bundles, only three bundles, weighing 3 maunds & 26 seers, arrived at Hindupur on 16-9-1943. The plaintiff's father took delivery of these three bundles under protest and informed the railway authorities on 30-9-1943 about the non-delivery of the remaining three bundles. The Chief Commercial Manager, M. & S. M. Railway wrote to the plaintiff's father on 14-10-1943 that he would make enquiries into the matter and send a reply in due course. As no reply was however received by the plaintiff's father for nearly a month afterwards, he got a notice sent through his lawyer on 14-11-1943 claiming compensation of Rs. 2955-13-0 for the non-delivery of the remaining three bales. The Chief commercial Manager by his letter dated 17-2-1944 replied that the bales in question had been lost from a running train and that the property recovered by the police and kept in the Sub-Magistrate's Court, Gooty would be delivered to the plaintiff's father in due course. On 15-6-1944, 63 items of cloth valued at Rs. 571 were delivered to the plaintiff's father by the Traffic inspector, Guntakkal. The remaining cloth of the value of Rs. 1964-13-0 was not delivered to the plaintiff's father. Nor was its value paid to him. The Chief Commercial Manager by his letters dated 31-5-1944 and 14-7-1944 declined to entertain the plaintiff's claim in respect of it. The plaintiff is entitled to recover as compensation Rs. 1964-13-0 being the value of the remaining cloth, Rs. 100 being the amount spent by the plaintiff's father towards travelling expenses and Rs. 300 which the plaintiff's father would have realised as profit had the cloth not delivered been sold by him during the Dasara season of 1943 making up in all Rs. 2364-13-0 from the defendant. Notice under Section 80, C. P. C. has been given to the defendant prior to the institution of the suit. The plaintiff had instituted the suit on 14-7-1945 Impleading the defendant as 'The Madras and Southern Maharatta Railway Co.. represented by the Member to the Railway Board, Government of India., New Delhi.' On 8-2-1946, he put in I. A. No. 145 of 1946 for leave to amend the description of the defendant as 'Governor General of India in Council represented by the General Manager M. & S. M. Railway'. This application was allowed on 18-2-1946.

3. The defendant denied first of all the liability sought to be fastened by the plaintiff and secondly pleaded that there was no proper notice end thirdly that the suit was barred by limitation.

4. On the point of fact namely whether the plaintiff was entitled to any amount, the trial Court found that the plaintiff was entitled to a sum of Rs. 1964-13-0 as compensation. On the ground of want of proper notice following the decisions in -- 'Bhagchand Dagdusa v. Secy. of State ; -- 'Apparao v. Secy. of State : AIR1935Mad389 , -- 'Marina Ammayi v. Secy. of State', AIR 1941 Mad 446 (C). -- 'Governor General in Council v. Krishnaswami Pillai', AIR 1946 Mad 366 (D) and -- 'Governor-General of India v. Raghunandan', AIR 1947 Mad 64 (E) and also that the suit was barred by limitation by reason of the fact that on the date when the amendment was allowed it was beyond the time prescribed under Article 30 or 31, Limitation Act, the trial Court dismissed the suit.

5. There was an appeal therefrom and the learned District Judge held that there was proper notice in this case and secondly that the suit was not barred by limitation. Therefore he decreed the suit for Rs. 1964-13-0 and proportionate costs.

6. In regard to the concurrent finding of fact as regards compensation there can be no dispute before me and there can be no interference by me. In fact it was not raised before me.

7. Turning to the want of proper notice it is quite true that the terms of Section 80, C.P.C.are explicit and that these terms should be fulfilled in order to come within the proper notice contemplated thereunder. But the three essential requirements are, namely, that the addressee should be identified and must have received the communication; secondly there should be no vagueness or indefiniteness about the person giving the notice and who must also be the person filing the suit and the notice must also give the details which are specified in the section and thirdly two months' time allowed must expire before the suit is laid. The object of Section 80, C. P. C. is to give time for the Government to consider the whole matter and see whether it cannot be settled out of Court and wasteful litigation avoided. It is after all no pleasure for the State to embark upon a wasteful litigation against its own subjects and therefore this period of time is given for effecting possible settlement of these disputes. Once these requirements are fulfilled, the minor details like the mis-description of the person to whom the communication is addressed would not make it an improper notice which does not comply with the requirements of Section 80, C. P. C. In regard to this matter the learned advocate for the respondent as also the learned advocate for the appellant have also brought to my notice the subsequent decisions to which reference will be made briefly now.

8. Horwill J. in -- 'Governor-General of India in Council v. Krishna Shenoy', : AIR1951Mad327 (F), has held that where although the name of the Secretary of State was inadvertently given at the head of the notice, yet it was treated by the Governor-General in Council as notice to him and action was taken in the same way as if the notice had been addressed to the Governor-General-in-Council and that it is sufficient compliance with the requirements of Section 80, C. P. C. because the Governor-General in Council was in fact given notice. It must be held that the notice was given to the Governor-General in Council notwithstanding the error in the matter of designation. The learned Judge distinguished -- AIR 1946 Mad 366 (D)'. In -- 'Subramaniam v. Union of India', : AIR1951Mad416 (G), Panchapagesa Sastry J. has dealt with this matter with a new approach. He has pointed out the manner in which Section 80, C. P. C. should be construed. He states thus:

'The argument on behalf of the respondent is that unless the notice expressly states in-itself that the suit will be against the Governor-General in Council Section 80 is not complied with. I think this reading of Section 80 is not warranted. I realise that the terms of Section 80 are explicit and mandatory and cannot be waived. It requires that the notice should state the name, the residence etc., of the plaintiff, the cause of action and the relief. There is no objection in this case that the notice was not delivered to the proper person. The only objection is that the notice does not say in the last paragraph where a reference to the proposed suit is made that the suit will be against the Governor-General in Council. Any person who reads this notice can have no doubt that it is a suit proposed to be filed against the Crown or the Government. There is no reason to think that the suit was to be against the Secretary as a Public Officer concerned.'

The learned Judge distinguished -- AIR 1946 Mad 366 (D), & followed --'Bholaram Shibdhan Firm v. Governor-General in Council', : AIR1949Pat416 (H).

9. Turning to the decision relied on by Panchapagesa Sastri J. in -- : AIR1949Pat416 (H)', the Patna Bench laid down that it is not correct to say that because under Section 79 in the case of a suit against the Central Government the suit is to be instituted by naming the Governor-General in Council as defendant the notice under Section 80 must also be addressed to the Governor-General in Council, that Section 80 is complete in itself and provides for a notice in such a case to be delivered to or left at the office of the Secretary to Government and that it must obviously mean that the notice has also to be addressed in such a case to the Secretary to that Government. 'Governor-General in Council v. Amilal', AIR 1947 Pat 81 (I), was relied on and -- AIR 1946 Mad. 368 (D)', was distinguished. Panchapagesa Sastri J. in a subsequent decision reported in--'Sankunni Menon v. South Indian Rly', : AIR1952Mad502 (J), has stated that the notice under Section 80, C. P. C. after setting out the dispatch of goods and the non-delivery in time and their late arrival and the deterioration of the goods and the loss sustained by the plaintiff ended with this paragraph:

'please therefore take notice that unless you make good the loss I have sustained by reason of your negligence, I intend instituting a suit against your railway for such loss as mentioned above.'

The letter was addressed to the Secretary for Railways. Central Government, New Delhi and the agents of the three railways concerned. The learned Judge has held that though Section 80, C. P. C. is mandatory it is equally well settled that the Court should not be hypercritical in examining the language used but should interpret the Code in a free and liberal spirit and that on a fair reading of the notice in the present case it may well be taken as an intimation which will satisfy the requirements of Sections 79 and 80, C. P. C., and that the name of the proposed defendant need not be stated although of course it is expected that the person against whom the relief is sought would be particularised.

10. To sum up as Pandalai J. observed in --'Ramaswami v. Secy. of State', AIR 1933 Mad 105 (K), in effective language,

'We are not bound to abandon all common sense, but on the contrary we must look at the document and understand it in a fair and reasonable sense in the way in which the writer meant and the addressee understood it.'

11. In this case applying these principles, what are the facts? The plaintiff wanted only to address the State or the Government. The Government also understood the matter only in that way. The notice was sent to the Member-in-charge of the Railway Board as the competent authority to deal with the matter. This notice was forwarded by the Railway Board to the General Manager, M. & S. M. Railway as the competent authority to deal with the matter. Therefore the instant case falls within the four corners of the decisions which have been set out above and I have no Hesitation in agreeing with the District Judge of Kurnool that the notice was a proper notice under Section 80, C. P. C. In this connection we must remember what has been stated in a House of Lords decision by Lord Penzanee cited with approval in the Civil Justice Committee Report that:

'Procedure is the machinery of the law after all -- the channel & means whereby law is administered and justice reached. It strangely departs from its proper office if in place of facilitating it is permitted to obstruct and even to extinguish the legal rights, and is thus made to govern where it ought to subserve.'

12. As regards the point regarding limitation the question is whether when the amendment was made there was an addition of party or only a correction of a mis-description. I have set out sufficiently all the facts to show that no new party had been added. On the other hand a mis-description when recognised as such has been corrected by means of an amendment and against which also no revision has been filed. Therefore the suit has been filed within time.

13. The result is that this second appeal hasgot to be dismissed and is hereby dismissed withcosts. No leave.


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