1. It is unfortunate that in this case we have not had the advantage of the plaintiff being represented by Counsel, so that we might have heard from him the arguments by which he sought to maintain the judgment of the learned Judge in the Court below. The point which we have to decide is a very short one, nor does it strike me as one of any real difficulty.
2. The suit was instituted by the plaintiff against the Secretary of State for India and another gentleman, who is the purchaser under a certificate of sale following a decree under which certain property was put up for sale, and sold to meet the claim of the Government in respect of certain moneys due from the plaintiff, to set aside that sale.
3. An objection is taken by the Secretary of State in Council that he has not been served with the necessary notice under Section 424 of the Code of Civil Procedure to which he submits he is entitled before an action can be instituted. The question to my mind depends upon what is the true construction and effect of that section of the Code. The section runs as follows:
4. 'No suit shall be instituted against the Secretary of State in Council, or against a public officer in respect of an act purporting to be done by him in his official capacity, until the expiration of two months next after notice in writing has been, in the case of the Secretary of State in Council, delivered to, or left at the office of, a Secretary to the Local Government or the Collector of the District, and in the case of a public officer, delivered to him or left at his office, stating the cause of action,' and so forth.
5. It is admitted that no such notice was given. In his defence the Secretary of State raised the point that such notice ought to have been given, and that in the absence of such a notice the action is not maintainable.
6. It was contended before the Court below, and it is contended here, that upon the true construction of Section 424 the words 'in respect of an act purporting to be done by him in his official capacity' do not apply to the case of the Secretary of State in Council. Looking, if one may look, at the punctuation of the section and at the section grammatically, I incline to take the view so submitted as the correct construction, but it is not really material for the purpose of this decision, for it is clear that what was done in this case by the Secretary of State in Council was done and must be regarded as having been done by him in his official capacity. Therefore, whether the view suggested that those words do not apply to the Secretary of State in Council, but only to public officers, be sound or not, becomes immaterial.
7. Now, the language of that section, read according to its ordinary and natural meaning, is precise and clear. It is a section dealing with procedure. We are asked to cut down the ordinary meaning of the words, and to hold that they mean something quite different from that which in their ordinary acceptation they do. The section says: 'No suit shall be instituted.' We are told we ought to confine the words to a particular class of suits, that is, to suits founded on tort, and claiming damages. I am unable to see why the section should be cut down as suggested.
8. A variety of cases were cited in the Court below,---English cases based upon English Acts of Parliament in which the language and the subject-matter is different. Upon this it is not out of place to refer to what has been said by Lord MACNAGHTEN in delivering the judgment of the Judicial Committee in a very recent case, Narendra Nath Sircar v. Kamalbasini Dasi (1896) I.L.R. 23 Cal. 563: L. R. 23 I. A. 26. It is true that in that case the Judicial Committee was dealing with the question of the construction of a will having regard to a particular section of the Indian Succession Act.
9. The judgment runs: 'The learned Judges of the High Court have taken the line which was approved in the House of Lords. The Subordinate Judge followed exactly the opposite course. His judgment, with much display of learning and research, is a good example of the practice which Lord Herschell condemns, and the mischief which the Indian Succession Act, 1865, seems designed to prevent. To construe one will by reference to expressions of more or less doubtful import to be found in other wills is for the most part an unprofitable exercise. Happily that method of interpretation has gone out of fashion in this country. To search and sift the heaps of cases on wills which cumber our English law reports, in order to understand and interpret wills of people speaking a different tongue, trained in different habits of thought and brought up under different conditions of life, seems almost absurd.'
10. It seems that substituting 'English Acts of Parliament' for 'wills' the observations of the Privy Council may be usefully applied to this case. In lieu of reading Section 424 by the light of the decisions of the English Courts in cases under various English Acts of Parliament, where the language and in most cases the objects of the Acts are different, I prefer to read the section itself and try to arrive at a conclusion from the language used as to what the Legislature actually meant. But even if the true principle be that the statutory notice is only requisite in cases of tort, as I understand is the principle of Mr. Justice Ameer Ali's judgment, the plaintiff's suit in this case is based upon an alleged tort on the part of the Secretary of State, namely, in wrongfully selling the property, and asking for costs against him on the footing of such wrongful act.
11. If the object of such a Section as 424 be that the notice is given so that, before an action is brought, the Secretary of State may have breathing time so as to enable him to determine whether reparation ought not to be made,---if that, I say, be the object, I fail to see why the principle does not apply to the present case; if so, the notice was requisite. There is a short reference in the judgment to a decision of the late Master of the Bolls (Sir George Jessel) in Flower v. Local Board of Low Leyton (1877) L.R. 5 Ch. D. 347 to the effect that notice cannot be necessary where the object of the action is to restrain an immediate and irreparable injury. The materials before us do not enable us to say how far the present case comes within the principle laid down in the decision of Sir George Jessel, though I notice that no injunction is asked for against the Secretary of State. It would appear, therefore, that he, at any rate, could not be described, and was not regarded by the plaintiff, as doing any immediate or irreparable injury, which necessitated, as against him, an immediate interlocutory order for an injunction. For these reasons it appears to me that upon the preliminary point the judgment of the Court below is erroneous, and I think the appeal must succeed with costs.
12. I agree in the judgment just delivered by the learned Chief Justice, because reading Section 424 of the Procedure Code, I find that it declares that no suit can be instituted against the Secretary of State 'until the expiration of two months next after notice in writing has been delivered to or left at the office of a Secretary to the local Government,' and I can find no indication that any limitation has been put upon the word 'suit.'
13. I think it quite clear that the Secretary of State was entitled to notice of this suit for the reasons given by the learned Chief Justice.
14. The purchaser is entitled to his costs against somebody, and in the view of this Court the Secretary of State certainly ought not to have been made a party. [Maclean, C.J.---Do you ask to have the suit dismissed as against the purchaser?] Yes: for, although he is only the respondent, he is entitled to take a ground common to all the defendants. The question of notice is common ground. Notice must be given in order that the suit may lie against the Secretary of State; and as the suit has been dismissed as against him, it should be dismissed as against the other defendant also. By the dismissal of the suit, the sale certificate is allowed to remain, and the purchaser's title is complete. If the suit is not to be dismissed as against the purchaser, the Court would be bound to direct the Secretary of State to refund. But it cannot do that, because, by the present decision of the Court, there is no suit against the Secretary of State. [Maclean, C.J.---Is that a ground of defence common to you both within Section 544 of the Code ?] Yes, because it goes to the entire suit of the plaintiff.
15. The result of the judgment of the Court is that the suit is dismissed, not only against the Secretary of State for India in Council, but also against the defendant Radharomon Shaw with costs both in the Court below and in this Court.
16. We make no order as to the costs of the Appeal No. 23 of 1896.