1. This is a suit against the Dominion of India representing the East Indian Railway. The matter has been set down for hearing of the preliminary issue whether or not this Court has jurisdiction to try this suit.
2. On behalf of the plaintiff, it is admitted that the only part of the cause of action upon which they can rely is the issue and service of notice under Section 80, Civil P.C. at Calcutta within the jurisdiction of this Court. It is admitted by counsel for the defendant that notice under Section 80, Civil Procedure Code was both issued at and served in Calcutta within the jurisdiction of this Court. It is contended by the defendant that the issue and service of such notice is not part of the cause of action 'and therefore this Court has no jurisdiction.
3. I am satisfied on the authorities that notice under Section 80, Civil P.C., is part of the cause of action for the purpose of jurisdiction. That such notice is part of the cause of action was decided by Sinha J. in -- 'Dunlop Rubber Co. (India), Ltd. v. Governor-General', in Suit No. 1679 of 1946 (Cal), and was held in --'Dominion of India v. Jagadishprosad Pannalal', 84 Cal LJ 175. These cases are binding upon me and I am bound to follow them.
4. The cases relied upon by counsel for the defendant are distinguishable. In --'Nilima Sarkar v. Governor-General in Council', 86 Cal LJ 98, it was held that the phrase 'cause of action' as used in Article 10 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, does not include a notice under Section 80, Civil P.C. But the Court expressly stated that it was unnecessary in that case to decide whether for the purpose of jurisdiction notice under Section 80, Civil P.C. might be regarded as a part of the cause of action.
5. The case of -- 'Banshi v. Governor-General of India in Council', 56 Cal WN 83 (FB), relied upon by the defendant is also distinguishable. In that case it was held that notice under Section 77, Railways Act, is no part of the cause of action for the purpose of jurisdiction. The ground for that decision was that notice under Section 77, Railways Act, is not a condition precedent to the institution of the suit because that notice could be given even during the pendency of the suit. It is clear however that notice under Section 80, Civil P.C. is a condition precedent to the institution of the suit.
6. I must not be supposed to say that the Union of India is helpless if a suit is instituted in this Court relying solely upon the fact that notice under Section 80, Civil P.C., has been given at Calcutta. If the institution of the suit in this Court is oppressive or if thebalance of convenience is overwhelmingly in favour of trial of the suit elsewhere this Court has undoubted power to revoke the leave granted under Clause 12 of the Letters Patent in a fit and proper case. That is not the issue before me. The only issue before me is whether this Court has jurisdiction.
7. The preliminary issue is therefore decided in favour of the plaintiff and I hold that this Court has jurisdiction to try and entertain the suit.
8. The plaintiff is entitled to the costs of the hearing on the preliminary issue.