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Purnendu Bh. Deb Burman Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1413 of 1948
Judge
Reported inAIR1956Cal66
ActsCode of Civil Procedure (CPC) , 1908 - Section 9; ;Limtation Act, 1908 - Section 19; ;Defence of India Act, 1939 - Sections 17, 19 and 20
AppellantPurnendu Bh. Deb Burman
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateSambidh Das, Adv.
Respondent AdvocateG.P. Kar (Sr. Central Govt. Pleader) and ;S.P. Mitra (Jr. Central Govt. Pleader)
DispositionSuit dismissed
Cases ReferredJainarain v. Governor General of India
Excerpt:
- g.k. mitter, j. 1. this is a suit originally instituted by one pulin behari deb burman against the dominion of india for recovery of rs. 3,74,768-3-9 for loss and damages on account of goods mentioned in the annexure to the plaint taken over by the military authority, in the alternative, inquiry and accounts of loss and damages suffered by the plaintiff and decree for the amount found due on the taking of such accounts, receiver, injunction and for costs.2. the above is taken from the concise statement annexed to the plaint and it describes in the plaintiff's own terms as to what his suit is about.3. the plaintiff's case is that on 1-10-1943 the military authorities under c. r. e. 251 sub-area c/c no. 6 a. b. p. o. commandeered and took possession of the badarpur tea estate in the.....
Judgment:

G.K. Mitter, J.

1. This is a suit originally instituted by one Pulin Behari Deb Burman against the Dominion of India for recovery of Rs. 3,74,768-3-9 for loss and damages on account of goods mentioned in the annexure to the plaint taken over by the military authority, in the alternative, inquiry and accounts of loss and damages suffered by the plaintiff and decree for the amount found due on the taking of such accounts, Receiver, injunction and for costs.

2. The above is taken from the concise statement annexed to the plaint and it describes in the plaintiff's own terms as to what his suit is about.

3. The plaintiff's case is that on 1-10-1943 the military authorities under C. R. E. 251 Sub-area c/c No. 6 A. B. P. O. commandeered and took possession of the Badarpur Tea Estate in the District of Cachar, Assam. The said Tea Estate belonged to one Ral Saheb Gangadhar Tushnian who had purchased it from the Badarpur Tea Co. Ltd, in liquidation,

A certain quantity of boiled and seasoned timber, i.e., engine wood, teak wood, scrap iron, pipes gravel, stones, etc., as per list annexed to the plaint and marked A, were lying in the said area and belonged absolutely to the plaintiff. Paragraph 4 of the plaint reads as follows:

'The said military authority took possession and made use of the said goods under the wrong impression that the said goods had belonged to the said Rai Saheb Gangadhar Tushnian.'

The plaintiff goes on to allege that Gangadhar Tushnian wrongfully claimed the said goods and demanded compensation from the military authorities, denying the claim of the plaintiff, whereupon the military authorities advised the plaintiff to establish his claim to the said goods and compensation therefor in a civil suit.

The plaintiff alleges having acted upon such advice and obtained a decree on 30-11-1944 against the said Gangadhar Tushnian. The plaint goes on to narrate that C. R. E. Outer Bengal and Assam having its office at No. 57, Part Street, Calcutta, within the jurisdiction of this Court was the authority for payment in respect of the claim arising in the said area and that C. R. E. Outer Bengal and Assam, referred the matter to D. C. E. Billing Centre E. C., Fort William; Calcutta, within the jurisdiction of this Court, for examination and settlement of the plaintiff's claim and payment to the plaintiff.

4. In para 9 of the plaint it is stated that the military authorities wrongfully rejected the claim of the plaintiff by letter dated 5-3-1948 for the first time and that such rejection of claims and refusal for payment was wrongful and arbitrary. Paragraph 10 of the plaint reads as follows :

'The plaintiff is entitled to the compensation for the goods taken over by the military authority as stated hereinbefore.' Annexed to the plaint is a list of documents filed with the plaint which reads as follows : 'List of goods belonging to the plaintiff and requisitioned by the military.'

Annexure A to the plaint is a list of materials and they are described in general terms as follows :

'Timber, iron, scrap iron, wires, steel, G. I. pines, stone, gravel etc., at Badarpur Tea Estate premises purchased by P. N. & S. N. Co. from Burmah Oil Co. Ltd., and taken by the military for the war purposes' and the approximate value thereof is given as mentioned already, The original plaint was amended subsequently by reason of the death of Pulin Behari Deb Burman and substitution of the names of three other persons.

5. The defendant filed its written statement on 31-8-1948 the suit having been instituted on 27-4-1948 after service of a notice under Section 80, Civil P. C. By its written statement the defendant denies the correctness of the particulars set out in annexure A to the plaint and denies that the materials referred to therein belonged to the plaintiff or that the military authorities tookpossession or made use of the said goods as alleged.

Various defences have been taken in the written statement, namely, that the suit is not maintainable, that this Court has no Jurisdiction to try this suit, that the claim of the plaintiff, if any, is barred by limitation and that the notice under section 80 relied on, was insufficient and defective. In the written statement there is no denial of the fact that C. B. E. Outer Bengal and Assam, having its office at 57, Park Street, Calcutta, was the authority for payment in respect of claims arising in the Badarpur Tea Estate area but it was alleged that no direction was given or reference made for payment to the plaintiff.

6. Counsel for the defendant raised certain preliminary issues which were settled as follows:

1. Is the suit barred by limitation?

2. Is the suit maintainable?

(a) Inasmuch as it is a suit for compensation for goods taken possession of by the military authorities.

(b) Inasmuch as the cause of action is in respect of a wrongful act done by the Union of India.

3. Has the Court jurisdiction to try the suit?

4. Is the Notice under Section 80 sufficient or valid?

7. Counsel for the defendant contended that if any of these issues were determined in his favour, there would be no necessity for deal-Ing with the merits of the case. A brief of documents was put in as an agreed brief beginning from the plaintiff's document No. 18 in the plaintiff's affidavit of documents. I do not think it will be necessary for me to deal with all the documents but I shall deal with only some of them to show the nature of the claim the original plaintiff was making.

The claim of the plaintiffs is shortly this that their predecessor in interest purchased certain quantities of Burma Timber and Scrap Iron, pipes, etc., from the Burmah Oil Co. when the Panchgram oilfield was abandoned. This was sometime in 1933. Some of the timber, etc., had been removed prior to 1942 but some of the materials purchased by the plaintiff's predecessor-in-interest still lay scattered about Badarpur Tea Estate when the Military authorities started their operations there in the year 1942.

These materials were taken by the said authorities and compensation or damages are being asked in respect of the said goods.

8. The first letter on this subject is dated 14-10-1942. Paragraphs 2, 3 and 4 of the letter dated 14-10-1942 read as follows:

'(2) I purchased almost all the Burma Timber and Scrap Iron from the B.O.C. when the Panchgram Oil Field was abandoned and have been removing same from the Field as and when required to meet my requirements and have been paying ground rent to Tea Garden Manager for stocking my timber on the Tea Garden land.

(3) I left the station on business and was making necessary arrangement for transporting scrap iron from B.O.C.'s Chhatachura Test particularly to supply some materials against the order of the S. V. Technical School and was on my way to the Test from the end of July until the last week end when I received information that one of the officers attached to M.E.S. had been using my timber for construction of bridges on the new road from Panchgram.

(4) Immediately on receiving the information I left Bukabil leaving my son in charge of the work and on arrival at Panchgram I found my information is correct and a huge quantity of timber has already been used for bridge construction.'

The officer addressed was requested to look into the matter and to pay reasonable price fdr the timber already used for such construction.

9. The next letter from the plaintiff is dated 9-11-1942 addressed to the C.R.E. through the Deputy Commissioner, Cachar Division. The material portion of it reads as follows:

'I have now noticed that your Officer at Panchgram has been using pipes and scrap iron etc., for road construction at Panchgram. These pipes the scrap iron, etc., were purchased by me when Badarpur Oil Field was abandoned and are intended for sale at market rate'. By letter dated 10-1-1943 (P. D. No. 22) the Officer Commanding, Silchar, replied to the plaintiff's predecessor's letters as follows: 'Re. Your claim to the owners of timber and iron at Panchgram forwarded to me by D. C. Silchar on 12-12-42. My information is that you have no claim on either wood or iron found on the premises of the Badarpur Tea Estate. Both wood or iron were property of Badarpur Tea Estate. If you have a claim it should be established in a civil Court'.

The next document is plaintiff's document No. 23 being a letter dated 11-2-1943 addressed to the Officer Commanding, Silchar, through R. M. Ad-amson, late agent of the Burmah Oil Company at Badarpur. The relevant paragraphs of this letter run as follows:

'Recently the military at Silchar has taken a huge quantity of timber from my stock that was bought by me from you while you were agent at Badarpur in 1933.....I am very pleased that the timber which I purchased has been utilised thus in making bridges, shelters, etc., at Panchgram and other places in Cachar district.

'Now as the military pays for everything that they take I approached the authority who by letter under date 10-1-1943 advised that the timber is not mine and that I should establish my claim in the law Court. While I am not unwilling to adopt this course I still prefer to have things done peacefuly and I, therefore, beg to approach your mighty self to write a line to the Military authority vouching the correctness of my statement'.

The above letter shows clearly that the plaintiff's predecessor-in-interest knew that the military authorities were denying his ownership of the goods in the Badarpur Estate. The gentleman referred to in the above letter, Mr. R. M. Ad-amson, wrote a letter to the plaintiff dated 9-3-1943, the relevant portion of which reads as follows:

'As I explained to Babu P. B. Deb Burman when he called upon me, I personally have no recollection of details of the transaction involved after this lapse of time beyond that of recalling that some timber and scrap were sold to him when Badarpur field was closing down. I wrote to Mr. Walton who was in charge of stores at that time asking if he could recollect any details and his reply of the 22nd February to me reads:

'I am in receipt of the 13th instant. My recollection of our transactions in timber with Babu P. B. Deb Burman is that we sold him in 1933 first of all the squares remaining in the timber yard and that after our final evacuation of Badarpur field we sold him for a nominal sum all the timber we had left on well sites in thefield. We had, of course, previously taken all we thought we should require for Masimpur'.

'.....In the middle of his haulting operations the A. B. Rly Co. advised him that they were not prepared to allow him to drag any more bulks of timber over their lines and he ceased extracting. It is presumably the balance left in the field which Babu P. B. Deb Burman is endeavouring to prove that the Military have used. The timber was by no means in good condition when we sold to him in 1933 and after a lapse of 10 years it seems to me extremely doubtful if any could possibly have been now fit for use.

'.....With regard to scrap iron I think we sold him a few hundred-weight from Badarpur but this was taken away by him. The balance of scrap iron remaining on the Badarpur field after our evacuation was sold to a Calcutta firm and was extracted by them. I am afraid I do not recollect the name of the firm but I do not think Deb Burman had any connexion with it'. On 19-4-1943 the original plaintiff addressed another letter to the officer-commanding, Silchar, referring to the previous correspondence and in particular to the letter of Mr. B. W. Adamson stating that it would be clear from a perusal of that letter that all the timber lying on well sites was sold to him and that there could not be any doubt as to the ownership of the wood under claim. This was replied to on 15-5-1943. This is plaintiff's document No. 28 and reads as follows: 'In reply to your letter dated 19-4-1943 you appear to have gone to a lot or trouble to no good purpose. As far as I am aware there is no contention that the timber was not originally sold to you. The present owners of the land, however, claim that by neglecting to remove the timber within the time stipulated you have forfeited all title to it and I see no reason for my intervention in the matter.

'Please do not waste my time or your own by further correspondence on the subject'.

As already mentioned the original plaintiff filed a suit against Gangadhar Tushnian in the Court of the Subordinate Judge at Sylhet. In the said suit a decree was passed declaring that the original plaintiff was entitled to compensation, if any, awarded by the military authorities for any B.O.C. timber and teak wood found in the Badarpur Tea Garden area commandeered by the same authorities and that the defendant would not be entitled to such compensation.

It is noted in the decree that the exact number and quantity of the plaintiff's timber and teak wood as purchased from the B.O.C. had not been ascertained in the suit. The plaintiff thereafter took up the matter again with the military authorities. The latter stated at first that no trace would be found of the previous correspondence.

On 4-4-1946 the C.R.E. Shlllong wrote a letter to Gangadhar Tushnian a copy whereof was sent to the original plaintiff being plaintiff's document No. 42. The letter is headed -- Badarpur Tea Estate, Timber and Iron and reads as fol-lows :

'A title suit No. 71 of 1943 in the 2nd Court of the Subordinate Judge, Sylhet, brought by the plaintiffs Messrs. P. N. and S. N. Co. v. Rai Sahib Gangadhar Tushnian deft., was heard on 30-11-1944 and Judgment was given in favour of the plaintiffs.

This office has no knowledge of the goods you supplied to the military department and what amount of money was paid to you.

'Will you please furnish this Information without delay to enable this long outstandingclaim by the plaintiffs to be cleared at a very very early date.

10. It appears that the military authorities in 1947 were of the opinion that the claim related to an area which then formed a part of Eastern Pakistan and referred to the latter government for disposal of this claim. Ultimately, however, they took up the matter of the plaintiff's claim again and further correspondence followed.

The original plaintiff submitted various documents and correspondence before the military authorities and on 13-1-1948 a letter was addressed by C.R.E. Billing, centre E.C., Port William, Calcutta, to the plaintiff which reads as follows:

'Your claim has been examined and it is regretted that in the absence of more documentary proof it cannot be entertained. If, however, you have further proof to support your claim you are requested to call here personally before 31-1-1948 with the documents. Please note that the essential points are :--

1. You are to establish correct quantities ofmaterials left on site when the military took overthe Estate and prove that the materials existedon the site. Probably the land acquisition officer concerned can help you on this point.

2. That the military Engineering Services used these materials if they were on the site. Ref. to the particular unit of formation must be stated'.

On 4-2-1948 the same authority addressed another letter to the original plaintiff in the following words:

'As you have failed to produce satisfactory evidence of your claim as requested in this office letter under reference, you are hereby requested to submit the same on or before 10-2-1948 as agreed on 30-1-48 failing which your claim will be rejected'.

On 5-3-1948 the -same authority wrote another letter to P. B. Deb Burman and the last sentence of it reads as follows:

'*** In view of the above your claim is rejected owing to the lack of evidence'.

On 19-2-1948 the plaintiff's solicitor sent a notice to the Secretary, Government of India, Defence Department, New Delhi, from Calcutta narrating the plaintiff's claim and claiming Rs. 3,74,768/3/9 being the fair and reasonable value of the goods mentioned in the notice. Even after this notice there was further correspondence between the military authorities and the plaintiff for settlement of the claim, but evidently nothing was achieved.

11. I propose to take up the second issue first, viz., whether the suit is maintainable? Mr. Kar appearing on behalf of the defendant contended that no suit lay for recovery of compensation for goods taken possession of by the military authorities find he referred me to the case of 'Keshoram Poddar and Co. v. Secy, of State' reported in : AIR1928Cal74 .

This case has been considered along withother cases by our present learned Chief JusticeIn the case of 'Udoy Chand Mahatab v. The Province of Bengal' reported in 51 Cal WN 537 (B).The relevant passage is at page 541 and readsas follows: '

'The principles deducible from these and other cases, as we understand them, are as follows: a distinction must be made between acts done by the Crown in pursuance of ventures which a private Individual might undertake equally well, and acts done in exercise of government powers which could not be lawfully exercised save by the sovereign authority or persons towhom the sovereign authority might delegate those powers. *** Acts of the second class fall under two categories.

One class are acts of State properly so called, such as making a treaty, commandeering private property for war purposes or quelling civil disturbances by force. Such acts are never Justiciable in Courts of law, and since the Crown itself is not answerable for such acts in its Courts, there is no principle upon which it could be made liable for the acts of its officers or subordinates. The immunity is absolute'. Mr. Kar contended that in view of these decisions there would be no doubt that property taken over by the military for war purposes, such as the making of roads and bridges, could not form the subject-matter of a suit for compensation at the instance of a subject. It was, however, contended on behalf of the plaintiff that the suit was not in respect of goods commandeered by the army but for wrongful conversion of them.

The plaint, however, gives a complete lie to this contention and shows in clear and unmistakable terms that the plaintiff's claim is only for compensation for goods taken over by the military for war, purposes. This would appear from the concise statement, from the body of the plaint itself, from the schedule to the plaint as also from the list of documents filed with the plaint which is an annexure to the plaint.

This is borne out also by the first letters which the plaintiff addressed to the military authorities, namely, plaintiff's documents Nos. 18 and 19. The plaintiff's definite averment in those letters was to the effect that he had found the timber, pipes and scrap iron being used for road and bridge construction by the military authorities. I should mention here that counsel for the plaintiff referred me to the requisition order, being plaintiff's document No. 33, for his contention that only the lands of the Badarpur Tea Estate had been requisitioned and that the plaintiff's property was not requisitioned.

The relevant portion of the requisition order exhibited in this case reads as follows :--

'In exercise of the powers conferred upon me by Notification No. C132/41/67 dated 6-5-1942, under the Defence of India Act Rule 75A, I. A. Gladhill, I.O.S. Deputy Commissioner, Cachar, hereby requisition for six months for the present for the use of the Government of India for military purposes the lands described in the Schedule below belonging to Badarpur Tea Co., Ltd, and Rai Sahib Gangadhar Tushnian and order that these be taken possession of and made over to the military authorities with effect from 1-10-1942 and the owner be paid annual rent and compensation which will be decided afterwards'. It was contended that the requisition order related to lands only and that there was no evidence to the efiect that the properties for which the plaintiff was seeking compensation, were so affixed to the land as to form part of it. That may be so, but the question before me here is not whether the goods of the plaintiff were validly requisitioned or not or whether there was any order for requisition at all.

It is the plaintiff's case In the plaint as I read it, and as appears from his correspondence that his goods were commandeered or requisitioned by the military authorities and used by them for war purposes. I do not think it necessary to consider the older authorities on this point, as in my opinion, if I may say so with respect, the re-suit thereof has been very well summarised inthe Judgment already mentioned and this would put the plaintiff out of court.

12. There was a further ground taken about the maintainability of the suit, inasmuch as it was contended that in view of the provisions of Section 17 and Section 19 of the Defence of India Act no suit could be brought for the purpose of claiming compensation for anything in good faith done or intended to be done in pursuance of the Defence of India Act or any rules made thereunder.

Counsel for the plaintiff did not dispute the validity of this proposition. He urged that it was not a case of requisition at all and, therefore, Section 17 or Section 19 of the Defence of India Act could have no application. According to him the case was one of ordinary wrongful conversion.

In my opinion, however, the case as made in the plaint and as supported by the letters in the agreed brief of correspondence clearly is a case of requisitioning or commandeering by the military authorities. I, therefore, answer issue 2 as follows :--

The suit is not maintainable in view of the provisions of- Section 17 and Section 19 of the Defence of India Act and further even apart from the provisions of the said Act no such suit is maintainable.

13. Issue 2 (b) -- It appears to me was rather inartistically settled, because there might be causes of action for wrongful acts in respect of which suits, could be maintained against the Union of India, but the present case certainly is not one of that category.

Issue 1. -- In view of my finding on issue 2, it Is really not necessary to consider this, but counsel for the plaintiff urged that it was a case of ordinary conversion and there was no refusal to pay for the goods taken over before 5-2-1948 or March, 1948, and, therefore, the suit was within time. In deference to the argument put up by him I only want to say a few words on the peint.

14. If the cause of action was one founded on conversion, then it certainly arose in 1942 as plaintiff's documents Nos. 18 and 19 will show. Counsel for the plaintiff did not dispute this, but he said that the subsequent letters, to which I have already referred contained an acknowledgment of his client's claim and as such saved the suit from the bar of limitation.

In my opinion, however, this contention too. has no substance. In none of the letters, to which my attention was drawn, is there anything resembling an acknowledgment. In the first letter which the plaintiff received from the military authorities namely, plaintiff's document No. 22, dated 10-1-1943, it is expressly mentioned

'My Information is that you have no claim on either wood or iron found on the premises of the Badarpur Tea Estate. Both wood and iron were property of Badarpur Tea Estate. If you have a claim it should be established in a civil Court'.

There is a definite statement in this letter that the plaintiff had no claim and that his claim, if any, should be established in a civil court. A person acknowledging somebody else's claim never refers the claimant to a civil court. Moreover, there is a definite averment in this letter that wood and iron were property of Badarpur Tea Estate.

The next letter to which my attention was drawn is plaintiff's document No. 28 and plaintiff's counsel particularly relied upon the words 'As far as I am aware there is no contention that the Umber was not originally sold to you' and contended that this letter by implication contained an acknowledgment that the defendant was under liability to pay for the timber and he referred me to the judgment in the case or 'Jainarain v. Governor General of India' reported in : AIR1951Cal462 .

This was a case of a loss of goods on a railway, the facts being that on 6-2-1944 the petitioner Jainarain had handed over a bundle of cloth at the Burrabazar Booking Office of the B. & A. Railway for carriage from Calcutta to a station called Jogbani. This bundle was never delivered and in one of the letters written by the railway authorities to the petitioner it was stated :--

'With reference to your letter dated 2-8-1944 I beg to inform you that one bundle of cloth belonging to the above consignment (Calcutta Burrabazar to Jogbani, P.W.B. 963712 of 6-5-48) is lying undelivered at destination at your sole risk and responsibility and incurring wharfage daily. Will you please arrange to take delivery of the same at an early date?

Counsel for the plaintiff relied on an observation in that judgment at p. 463 which reads as follows :--

'The substance of the decisions appears to be that it is not necessary that there should be a specific and direct acknowledgment of the particular liability which is sought to be enforced, but if there is an admission of facts of which the liability in question is a necessary consequence there would be an acknowledgment within the meaning of Section 19 of the Limitation Act'. I cannot see how observation helps the plaintiff in the present case. In the letter under reference, at best, there is an implication that the plaintiff was the original purchaser of some timber in the Badarpur Tea Estate, but from that I cannot deduce that the military authorities acknowledged the right of ownership of the plaintiff in the said goods for all time or that they were, as a matter of fact, acknowledging the plaintiff's right at the date the letter was written or even at any date when any portion of the plaintiff's goods were taken over by them.

15. The letter must be read as a whole and it shows that the military authorities certainly thought the claim of the then owners of the Badarpur Tea Estate to the goods to be a substantial one and they declined to intervene in the matter. After this there is no further letter addressed by the military authorities until we come to the letter dated 4-4-1946, being plaintiff's document No. 42.

By this letter the military authorities were requesting Gangadhar Tushnian to furnish certain information so that the claim made by the plaintiff could be checked. This letter also, in my opinion, contains no acknowledgment of the plaintiff's claim. This letter only shows that the military authorities were prepared to investigate the plaintiff's claim and were calling upon Gangadhar Tushnian to furnish certain information which might aid them in such investigation.

In the letters of 1948 too there fs no semblance of any acknowledgment. The letter dated 13-1-1948 being plaintiff's document No. 59, clearly shows that the military authorities were calling upon the plaintiff to prove (a) correct quantities of materials lying on site when the military took over the Badarpur Tea Estate; (b) that the materials existed on the site; (c,) that the Military Engineering Services had used these materials.

This letter shows that the military authorities were not admitting any portion of the plaintiff's claim. They were not admitting that any materials existed on the site when they took over the Tea Estate. It further shows that they had no knowledge of the quantities of materials, if any, lying on site and they were certainly not admitting that the military Engineering services had made use of any of these materials.

16. The period of limitation for a suit for damages for conversion is as laid down in Article 48 of the Limitation Act and the period is three years from the date when the person having a right to the possession of the property first learns in whose possession it is. On the plaintiff's own showing, he came to know early in 1943 that the goods had been taken possession of by the military authorities.

He did not choose to file his suit till the year 1948 and' clearly, therefore, his suit, even if based on wrongful conversion of goods, is barred by limitation.

17. Issue 3 -- It was contended by counsel for the defendant that no .part of the plaintiff's cause of action arose within the Jurisdiction of court. I have already held that such a suit is not maintainable. But supposing the suit was maintainable, on the defendant's own showing, the authority for payment was in Calcutta and it is not controverted that the plaintiff approached the said authority for payment.

If it was open to the plaintiff to file a suit for compensation for goods taken possession of by the military authorities, I see no reason why I should come to a conclusion that this court would have no jurisdiction to entertain such a suit. But if the suit is one based on wrongful conversion, then the whole cause of action arose in the year 1943.

The plaintiff came to know in 1943 that his goods had been taken possession of by the military authorities and when he demanded compensation, he was referred to the Civil Court for the purpose of establishing his claim.

Clearly, therefore, his cause of action became complete at that stage. Th.e fact that the military authorities called upon him or gave him an opportunity of establishing his claim for compensation at some place within the jurisdiction of this court, would not affect his cause of action so far as the jurisdiction of this court was concerned.

18. Apart from the above, it was contended by counsel for the plaintiff that a part of the cause of action, namely the sending out of the notice under Section 80 took place within the jurisdiction of this court and, therefore, this court would have jurisdiction to entertain this suit. Counsel for the defendant referred me to various decisions for the purpose of showing that service of notice under Section 80 could form no part of the cause of action.

There are two sets of judgments of this court wherein contrary views have been taken but I do not think it necessary to go into that question at all because nowhere has it been laid down that the posting of a notice under Section 80 could form a part of the cause of action. The authorities only show that service of notice under Section 80 may form a part of the cause of action.

It cannot, however, be said in this case that the service was effected within jurisdiction and. therefore, so far as service of notice under Section 80 was concerned, the plaintiff cannot take recourse to it for the purpose of showing that any part of his cause of action arose within the jurisdiction of this court.

In the view, that the suit is not maintain-able, this question strictly speaking, does notarise for decision but I have only indicated iny views in deference to the arguments put up.

19. Issue 4. Counsel for the defendant contended that the notice under Section 80 which was served on the Secretary at New Delhi refers to the rejection of the plaintiff's claim made in February 1948 but in paragraph 9 of the plaint it is stated that the rejection of the plaintiff's claim took place for the first time by letter dated 5-3-1948. He contends that there being this discrepancy I should hold that notice given was insufficient and defective.

I do not think there is any substance in this. For after all, if there is a discrepancy in the date as given in the notice and as mentioned in the plaint, that should not be enough to throw out the plaintiff's claim unless it was a matter of some consequence. But I find the discrepancy in the case to be so inconsequential that I do not hold the notice under Section 80 to be insufficient.

20. In the result, the suit is dismissed with costs.

21. Certified for two counsel.


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