B.K. Mukherjea, J.
1. This rule is directed against the judgment of the Small Cause Court Judge of Sealdah, dated 14-8-1945, dismissing the suit of the plaintiff petitioner for damages for loss of goods in transit, against the Bengal Nagpur Railway. On the merits of the case, the learned Judge found in favour of the plaintiff but he dismissed the suit on the ground that there was no notice served upon the Governor-General of India in Council as representing the Bengal Nagpur Railway under Section 80, Civil P.C.
2. The facts are not in controversy and may be shortly stated as follows:
3. The goods were consigned by the plaintiffs' agent on 10-10-1943, at Mandirhasand Station, and they were to be delivered to the plaintiff at Shalimar. A part of the consignment did not arrive at the destination at all, and the plaintiff gave notice of his claim for compensation under Section 77, Indian Railways Act, on 18-10-1943. On 1-10-1944, Bengal Nagpur Railway administration was taken over by the Governor-General of India in Council and the suit was brought on 20-12-1944, no notice being served upon the Governor-General of India in Council under Section 80, Civil P.C.
4. The whole point for consideration is whether the omission to serve this notice is fatal to the plaintiff's suit. It seems to me after hearing the arguments of learned Advocates on both sides that this question should be answered in the raffimative.
5. The rule of procedure laid down in Section 80, Civil P.C., is mandatory and explicit and admits of no implications or exceptions. Vide, Bhagchand Dagdusa v. Secy. of State . A suit brought against the Secretary of State for India in Council without compliance with the provisions of Section 80, Civil P.C., cannot at all be entertained by Civil Court. I do not think that the service of a notice under Section 77, Railways Act, would dispense with the service of notice under Section 80, Civil P.C. The object of a notice under Section 77, Railways Act is to prevent stale and presumably dishonest claims for compensation being put forward by petitioner when after the lapse of time, it would be difficult, if not impossible, for the Railway administration to trace the transaction and adduce proper evidence in connection therewith. Section 80, Civil P.C., on the other hand, aims at giving the Secretary of State for India in Council or the public officer concerned an opportunity to reconsider the matter and to settle the claim, if necessary, without recourse to litigation.
6. It is argued by Mr. Sen appearing on behalf of the petitioner on the authority of the decision reported in G.I.P. Ry. Co. Bombay v. Sreeramulu : AIR1928Mad599 that as the cause of action in the present case arose before the Secretary of State for India in Council had taken over the management of the Bengal Nagpur Railway, the right to relief claimed by the plaintiff was not founded on anything done by the Secretary of State for India or his officers. With all respect to the learned Judge who decided that case, I am of the opinion that the language of Section 80, Civil P.C. makes it perfectly clear that when a suit is brought against the Secretary of State for India in Council, it is not necessary that it should be founded upon anything done by the Crown or its officers. It is clear that the words 'in respect of any act purporting to be done by Such public officer in his official capacity' occurring in the section refer to the public officer and not to the Crown.
7. The view taken by the Court below is supported by the decision of Bombay High Court in Hirachand Succaram v. G.I.P. Ry. Co. ('28) 15 A.I.R. 1928 Bom. 421. In my opinion, therefore, the decision of the Court below is right, and I discharge this rule, but make no order as to costs in this Court.
8. Civil Revision Case No. 2023 of 1945. The point for decision in this rule is the same as in the other rule.
9. I discharge this rule, but make no order as to costs in this Court.