M.M. Ismail, J.
1. The Union of India owning the Southern Railway, represented by the General Manager, Southern Railway, Madras, the defendant in O.S. No. 4570 of 1968 on the file of the City Civil Court, is the appellant herein. The suit was instituted by the respondents herein for recovery of a sum of Rs. 17,000 being the damages alleged to have been suffered in relation to a boiler consigned by A.C.C. Baccok Limited, Durgapur, for carriage to Davanagere in June, 1965 to the first respondent 'herein. Among the various defences set up by the appellant herein, one was that the suit was premature, since the period prescribed in Section 80 of the Code of Civil Procedure for institution of the suit had not expired on the date when the suit was instituted. Overruling this defence, the trial Court by its judgment and decree, dated 14th September, 1970, decreed the suit of the respondents. Hence the present appeal by the defendant in the suit.
2. Since I am reversing the decision of the trial Court oh this point which goes to the root of the matter, it is unnecessary for me to consider the other points dealt with by the trial Court. Admittedly, in this case the notice contemplated by Section 80, Civil Procedure Code, was sent by the respondents to the appellant on 10th June, 1968, and a copy of the notice has been marked as Exhibit-A-11. The said notice was received by the appellant on 12th June, 1968, as evidenced by Exhibit A-12, the postal acknowledgment. Equally admittedly the plaint in the present suit was presented to the Court on 12th August, 1968. It is with reference to these facts, the appellant contended before the trial Court that the two months provided for in Section 80, C.P. Code, had not expired on the date when the plaint was presented, namely, on 12th August, I968 and therefore, the suit wag premature and was liable to be dismissed on that ground The learned trial Judge fully realised this position and as a matter of fact has pointed out in paragraph 8 of the judgment that on the facts of the case, it was no doubt true that the suit would have been filed on 13th August, 1968, but had been filed on 12th August, 1968. Notwithstanding this observation of the learned trial Judge, he purported to decree the suit by referring to certain observations of the Supreme Court as to how the contents of the notice should be construed. I am clearly of the opinion that the learned Judge erred in his conclusion in this behalf.
3. Section 80 of the Code of Civil Procedure clearly and categorically states that no suit shall be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to or left at the office of the officers specified in this section. Thus, the section contemplates the expiration of two months next after notice in writing had been delivered. As I pointed out already, the notice in this case was served on the appellant on 12th June, 1968 and therefore by 12th August, 1968, when the plaint was presented, , the expiration of two months after delivery of notice had not taken place. Consequently, on the face of it the suit instituted on 12th August, 1968 was hit by Section 80, Code of Civil Procedure. This aspect of the matter is directly covered by a decision of this Court in Messrs. Madurai K. Rangiali Chettiar & Co., Madurai v. The Union of India, represented by the General Manager, Madras 83 L.W. 164. In that case, the notice under Section 80 of the Code of Civil Procedure was issued on 7th August, 1963 and was received by the Chief Commercial Manager, Southern Railway, on 8th August, 1963 and the plaint was presented on 8th October, 1963. This Court held that after the service of the notice on 8th August, 1963, two months period had not expired by 8 th October, 1963 when the suit was instituted and therefore, the suit was hit by Section 80 of the Code of Civil Procedure. This decision of this Court was cited before the learned trial Judge. But the learned trial Judge held erroneously that that decision did not apply to the facts of this case. The point of distinction, according to the learned trial Judge, is that as per the reported decision of this Court, the suit would have been barred by limitation, if it was filed on 13th August, 1963. In my opinion, the construction of Section 80, C.P. Code, is not dependent upon the question whether the suit if filed after the expiration of two months would be barred by limitation or not. As a matter of fact, the period of two months provided for in Section 80, Civil Procedure Code, is eligible to be excluded in calculating the period of limitation prescribed in the Limitation Act and therefore, the question whether if the suit filed after the expiration of two months period would be barred by limitation or not will have no effector influence, and should have no effect or influence, on the construction of Section 80, Code of Civil Procedure. As far as Section 80, Code of Civil Procedure is concerned, the language is unambiguous, express and explicit that there must be an expiration of two months period after the service of the notice on the Government or the officers concerned ; before the institution of the suit. Thus, it is clear that the suit in the present case was hit by Section 80, Code of Civil Procedure and therefore, ought to have been dismissed.
4. Mr. Rengarajan, the learned Counsel for the respondents sought to contend that though the plaint was presented on' 12th August, 1968, it was returned and subsequently represented and by the time the plaint was represented, the two months period contemplated by Section 80, Code of Civil Procedure had expired. I am unable to draw any inference in favour of the respondents from this fact. Section 26 of the Code of Civil Procedure provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Therefore, a suit is instituted, when the plaint is presented for the first time Section 80 also uses the expression 'no suit shall be instituted'. Therefore, a combined reading of Sections 26 and 80 of the Code of Civil Procedure can lead to the only conclusion, namely, the date on which a plaint is presented for the first time, is the date of institution of the suit. Consequently, the fact that the plaint was returned in this case and was subsequently represented will have no effect whatever on the plea of the appellant based on Section 80, Code of Civil Procedure.
5. Under these circumstances, the appeal is allowed and the judgment and decree of the learned trial Judge are set aside and the suit instituted by the respondents will stand dismissed. ,
6. The learned trial Judge has decreed the suit with costs. Having regard to the fact that the suit is now being dismissed only a technical ground, I consider it is only proper and just that both parties should be directed to bear their respective costs throughout.