A. Sankunni Menon vs South Indian Railway and Others

Panchapagesa Sastry, J.—This is an appeal by the plff. against the decree of the Subordinate Judge of South Malabar at Calicut dismissing

his suit on a preliminary point namely that a proper statutory notice u/s 80 of the C. P. C., has not been given by the plff. before the suit was

instituted. There are four defts. to the suit. The first is the South Indian Railway. The second is the Madras & Southern Maharatta Railway. The

third Is the Great Indian Peninsular Railway & the fourth is the Governor-General in Council, New Delhi. The plff''s case was that he despatched

from Calicut to self at Kalapipal, a station in the G. I. P. Railway, 34 bags of dry coconuts, 11 bags of moist coconuts & 77 bags of copra balls by

invoice dated 17-7-1944. He charged the railway system with wilful default & negligence & misconduct as the goods were wrongfully diverted &

otherwise unduly delayed in the course of transit. It was only after continued enquiries regarding the delay at the other end that the goods were

traced & finally sent to the destination in October 1944. The goods had become deteriorated & became unmarketable. The District Commercial

Inspector, Jhansi, certified the condition of the goods & assessed the claim for damages at Rs. 1,918. The plff''s agent took delivery under protest

reserving his claim for full & adequate damages. He claimed Rs. 5,059 as the proper amount of damages sustained by him. In para. 9, of the plaint

it was stated that he had sent various letters to the defts. compliaining of the delay & claiming damages that finally the defts; evaded & refused to

make good the damages. He issued on 29-3-1945 a registered notice u/s 80, C. P. C. Along with the plaint he filed the copy of the notice sent by

him & also the acknowledgments of delivery by the various addressees signed by them. All the defts. separately filed written statements & in each

of them we find an objection being taken to the legal validity of the notice u/s 80. The ground of objection was that proper statutory notice was not

served on the Governor-General in Council who owns the railways. The written statements disclosed that the goods were misdespatched to

Mysore & after some delay they were traced & finally they were rebooked to Kalapipal. Some time before the trial an additional written statement

was filed on behalf of all the defts; wherein it was stated that Section 80, C. P. C. was not complied with as the plaint did not use the words ""sent,

delivered & left"" with reference to the notice under S. 80. Various issues were framed but as stated before the validity of the notice was treated as

a preliminary point of law & the lower court was asked to try that issue first. It accordingly took it up for trial & in the end dismissed the suit as

stated above.

Two grounds are urged in the judgment of the court below for its conclusion that the notice is bad. The first is that there is no allegation in the

plaint that the notice was delivered or left at the office of the Central Govt. & that the mandatory provision of Section 80 are not complied with.

Section 80 says : ""That the plaint shall contain a statement that such notice has been so delivered or left"". The second ground was that the notice

does not state that the Governor General In Council will be sued

& it did not claim any relief against the Governor General in Council.

The points for determination are whether the notice is bad because the plaint did not contain an averment that it was delivered or left with the

Secretary to Govt; (2) whether the notice is bad because no relief was claimed against the Governor General in Council nor was it intimated that he

will be sued.

As regards point number 1, want of a proper averment in the plaint it may be noted that along with the plaint the acknowledgments of the

delivery of registered letters were filed. Para 9 of the plaint referred to the despatch of the registered notice u/s 80 & the non-receipt of a reply. In

this circumstance it seems to me a highly technical view that the plaint should be dismissed on the ground that the express words that the notice was

delivered or left with the Secretary for Ball-ways are not found in the plaint. If that was the only point I would allow an amendment to get over the

objection. Learned advocate for the respondents agreed that an amendment would get over the technical argument. In view of that he did not insist

on an amendment but was content to support the Judgment of other points. Point 1 therefore must be found in favour of the plff. In the

circumstance.

Point No. 2 : -- The more serious objection to the notice that was pressed before me was the absence of a reference to the Governor General

in Council in the notice issued. The copy of the notice is Ex. p. 1, (the original has not been produced by the defts.) p-1, after setting out the

despatch of goods & the non-delivery in time & their late arrival & the deterioration of the goods & the loss sustained by the plff; ends with this

para.

Please therefore take notice that unless you make good the loss I have sustained by reason of your gross negligence I intend instituting a suit

against your railway for such loss as mentioned above.

The letter, was amongst others, addressed to Secretary for Railways, Central Govt. New Delhi. I Similar notices were sent to various persons

including the agents of the three railways. The lower court had placed reliance on the Judgment of a Division Bench of this court in The Governor-

General in Council Vs. T.M. Krishnaswami Pillai, and also the decision of the privy Council in ''Bhagchand Dagadusa, v. Secretary of State, 51

Bom 725. It is well settled that the, section is mandatory. At the same time it is equally well settled that the court should not be hypercritical in

examining the language used but should interpret the same in a free & liberal spirit. In my opinion the decision in the M. L. J. case is distinguishable

because the registered notice there stated that the Secretary of State for India in Council will be sued. Actually it is a different person that should

be the deft; & that was the deft. In such circumstance the notice was regarded as bad. In the present case there is no such reference to a wrong

person as the person who was going to be sued. It is no doubt true that it is not expressly stated that the proposed suit would be against the

Governor General in Council. On the other hand it is stated generally that the suit will be against your railway & the notice was addressed to

Secretary to Railways, Central Government, New Delhi. Any person who receives this notice & reads it will understand that this is a claim against

the Govt; & the suit would be against the owners of the Railway, the Governor General in Council. It could not have been the intention, nor could it

have been understood; as a suit which is contemplated against the individual official, the Secretary for Railways. In fact the language used is ""the

suit will be against your railway"" and not "" against you."" I think a fair reading of this notice may well be taken as an Intimation which will satisfy the

requirements of Sections 79 & 80 of the C.P.C. In fact Section 79 says that actually in the suit the deft. must be the Governor General in Council.

In the present suit he is the 4th deft. Section 79, therefore, is strictly & literally complied with. Section 80 requires that the notice should state the

cause of action, the name, description of the plff. & the relief which he claims. It is somewhat significant that the name of the proposed deft. need

not be stated although of course it is expected that the person against whom the relief Is sought would be particularised. I had occasion to decide

the same question in a batch of C. R. Ps., C. R. P. No. 753 of 1948 etc., Subrahamanyam v. Union of India, 1950 M. W. N. 787. I held therein

that a notice in somewhat similar terms which merely stated that the suit would be filed for recovery of the amount claimed & was despatched by

registered notice to the Secretary to Governor General in Council, Department of Railways & stated that it was a notice u/s 80 of the C. P. C. was

a good notice. The matter has been argued before me again. I do not, however, see any reason to change my view. I hold accordingly that the

notice is not bad on this ground either.

Lastly Mr. Ramchandra Aiyar the learned advocate for the respondents sought to raise a new point in support of the Judgment of the lower

court. He contended that the notice was certainly bad because it merely stated that loss had been incurred & that unless the loss is made good a

suit will be filed. No particulars of the loss were indicated nor the amount. He stressed the need for definite information on the point in the notice

itself so that the Government may be apprised of the magnitude of the claim & the matter be dealt with at the appropriate level having regard to the

magnitude of the claim among other things. I see some force in this argument. But in the present case notwithstanding the fact that the defendants

raised an additional statement setting an objection to the notice on other grounds, they never raised this point. I do not see any justice in allowing

them to raise a further point now particularly when I tod that in the written statement it is admitted that the goods were misdespatched to Mysore

where they were lying unclaimed & it was only after some considerable delay that the mistake was found out & it was only after some considerable

delay that the mistake was found out & the goods were despatched to the proper place. I do not see any reason why the plff. should be made to

suffer for this delay which may be due either to the negligence or an accident on the part of the railway officials. Having regard to this aspect of the

matter I do not see why I should allow an indulgence in favour of the railway to the possible detriment of the plff. I therefore decline to entertain

this point.

In the result, the appeal is allowed & the case will be sent back to the lower court for trial of other issues. Costs to abide. Court-fee to be

refunded.