Mohammad Farooq vs Governor General in Council

Imam, J.—This is an appeal by the plaintiff. He had filed a suit to recover Rs. 1017/15/ against the respondent. According to him he had despatched from Howrah to Dhanbad railway station 7 bundles of glaze kid leather weighing 13 mds. 30 srs. under railway receipt No. 238573A dated the 20th October 1948. The plaintiff was both the consignor and the consignee. At the time of delivery, however, it was found that one bundle was in a broken condition and there was a shortage of 13 seers in weight which was equal to 425� sq. ft. of leather. These seven bundles had been despatched by passenger train and according to the plaintiff the said loss was due to the wilful negligence and misconduct on the part of the servants of the railway and that he was entitled to recover the price of the loss of leather at the rate of RS./2/4 per sq. ft. The total price claimed for the leather lost was Rs. 957/15/- and Rs. 60/- was claimed by way of interest from 20th October 1943 up to the date of the suit.

The Subordinate Judge who tried the case held that the circumstanced established that there had been misconduct on the part of the railway administration, and that the railway administration was certainly liable for the loss. As to whether the 7 bundles contained glaze kid leather, be came to the conclusion that the plaintiff''s case in this respect was unsatisfactory and that the leather in question was chrome leather. He believed the evidence of plaintiff''s witness No. 1 that the size of the leather lost was 425� sq. ft. and the Subordinate Judge fixed the value of this leather at the rate af Re. 1 per sq. ft. With reference to the question of interest he was of the opinion that no such claim was maintainable. Two issues had been framed before the Subordinate Judge. The first issue was to the effect: "Is the suit bad for want of legal and proper notice u/s 80, Civil P.C.?" and the second issue was to the effect: "Is the plaintiff entitled to any amount? If so, how much"? I have already indicated the opinion of the Subordinate Judge as to the amount of leather lost and the rate at which that loss should be assessed With reference to the issue as to whether the suit was bad for want of legal notice u/s 80 of the Code, the Subordinate Judge was of the opinion that so far as the service of the notice is concerned to the Secretary, Central Government, it could not be doubted in view of the fact that it was sent by registered post. He was further of the opinion that the notice in question clearly indicated the cause of action, the relief claimed and the residence of the plain, tiff. The Subordinate Judge, however, dismissed the suit on the ground that in the notice given this railway receipt No. 238573A was dated 20th October 1943, whereas the railway receipt was actually dated 22nd October 1943. He accordingly thought that no notice of the consignment in question had been given. After referring to the correspondence that proceeded between the appellant and the railway administration, he came to the following finding:

So it is apparent that no notice for the consignment of 22nd October 1943 has been given to the Secretary, Central Government, and in my view, the notice produced in this case must be regarded as invalid.

He relied upon a decision of the Madras High Court in the case of Meenakshi Amma v. Province of Madras A.I.R.1946 Mad. 73 to the effect that error in notice about the subject-matter of the suit is a substantial error which vitiates the notice. The Subordinate Judge was not prepared to believe that the incorrect date given in the notice was a clerical mistake as in spite of this notice the matter was not traced by the railway administration as the plaintiff did not furnish correct date.

Against the decision of the Subordinate Judge the appellant filed an appeal before the District Judge of Purulia. The only point raised by the appellant before the District Judge was that the Subordinate Judge had dismissed the suit on a technical ground, namely, that in the notice to the respondent the date of consignment is mentioned as 20th October 1943, whereas the actual date of consignment is 22nd October 1943. The learned District Judge did not agree with the Subordinate Judge in the view which he took as to this and distinguished the case of the Madras-High Court relied upon by the Subordinate Judge. He, however, dismissed the appeal on the ground that Section 80, Civil P.C., definitely provides that it must be stated in the plaint that the notice had been delivered to a Secretary of the Central Government. Paragraph 9 of the plaint had merely stated as follows:

That notice u/s 80, Civil P.C., for the plaintiff''s claim has been given to the Secretary Central Government on 26th February 1944 by registered post through his pleader, Babu Gangadhar Chatterji, Pleader Asansol.

According to the opinion of the learned District Judge all that this showed was that a notice had been sent by registered post to the Secretary, Central Government and that merely sending a notice by registered post to the Secretary Central Government could not possibly mean that it had actually been delivered to him or left at his office. Before the learned District Judge it had been argued on behalf of the respondent that, there was no negligence on the part of the railway at all and that the provisions of Section 80, Civil P.C., had not been complied with. The learned District Judge gave no finding as to whether there bad been negligence on the part of the railway.

Mr. Mazumdar on behalf of the appellant has urged, that the learned District Judge erred in law in taking the view he did Section 80, Civil P.C., does not specifically state that'' the word "deliver" must be used in the plaint. All that Section 80, states is that the plaint shall contain a statement that such notice has been so delivered or left. Mr. Mazumdar urged that in para 9, of the plaint the word used was given'' and not ''delivered''; but if the entire paragraph be read it cannot but be held that there bad been sufficient compliance of the provisions of Section 80, of the Code in this respect, particularly as it was not the case of the respondent that the notice had not been delivered no the Secretary, Central Government. The registration receipt and the acknowledgment due had been filed and the words used in the plaint must be interpreted in the light of the evidence given and the admission on the part of the respondent that notice had been delivered. Mr. Bose, on behalf of the respondent, has urged that the learned District Judge was correct in the view which he took, so with the Subordinate Judge with reference to the error as to the date of the railway receipt and that on both these grounds the suit must be dismissed. Section 80 of the Code had to be strictly applied as was held by the Judicial Committee in the ease of AIR 1927 176 (Privy Council) . Mr. Bose further argued that if it was to be held that the District Judge was wrong, then the case should be remanded for a finding as to whether the railway bad been negligent. Lastly, he urged that in any event there should be no order for costs passed against the respondent as it was largely due to the fault of the appellant that the respondent was not able to trace out the railway receipt. If the correct date had been given in the notice, the railway administration would have had the opportunity of making amends if satisfied that there bad been loss sustained by the appellant owing to the negligence of the railway administration.

I would first of all take up the question as to whether the notice, Ex. 1, complies with the provisions of Section 80 of the Code. I find as was held by the Subordinate Judge that it clearly indicates the cause of action, the relief claimed and the residence of the appellant. I also find that the notice is addressed to the Secretary of the Central Government. Such error as there may be in this notice is with reference to the date of the railway receipt, the number of the railway receipt being quite accurate. The Madras case on which the learned Subordinate Judge relied is I think clearly distinguishable as in that case the suit was brought to set aside a revenue sale in respect of a certain holding in a certain village in a certain district, and the notice stated that the subject-matter of the suit was to set aside the revenue sale No. 722/4 B. In fact what was sought to b� set aside was revenue sale No. 722-4 A. As the notice stood it was clearly intended to convey that revenue sale NO 722/4 B which was sought to be set aside As the plaintiff had no cause of action whatever to set aside the revenue sale No. 722-4-B, it is quite obvious that the notice was defective and therefore the provisions of Section 80 of the Code bad not been complied with and in the circumstances of that case, with respect, I agree with Rajamannar, J., that the error in the description of the subject matter of the suit was a substantial error. In the case with which I am dealing, it was not an error with reference to the description of the subject-matter of the suit. The cause of action which the Appellant had was for the loss by way of shortage in weight of goods despatched through the railway administration under a railway receipt. What has to be decided is as to whether the mistake in giving the wrong date entirely changed the character of the cause of action.

Mr. Bose argued that it was a substantial error, in that the cause of action was based on what purported to be a consignment sent under railway receipt on 20th October, 1943. In fact there was never any such consignment and accordingly there was no loss sustained by the appellant for a consignment of that date. The correspondence which is on the record shows that upto 24th July, 1944 the appellant was at all times under the belief that the railway receipt was dated 20th October, 1948. Even in the plaint when he filed the suit in October, 1944, he repeatedly states the date of the railway receipt as 20th October 1943. The railway receipt which was supplied to the appellant is a carbon copy and the date of that is not at all clear. In the circumstances of this case, I cannot but conclude that either there had been a bona fide clerical error in stating the date as 20th October instead 22nd October, or that the appellant and his lawyer who drafted the notice to the respondent bona fide read the date in the railway receipt as 20th October 1943. In the circumstances I agree with the learned District Judge that the Subordinate Judge was wrong in dismissing the suit on this ground. I shall, however, make it clear that there may be occasions when errors in a notice u/s 80, Civil P.C., may be fatal to the suit itself. In the circumstances of the case before me I am satisfied that the error was entirely bona fide and that the cause of action did not depend upon the error in the date of the receipt but on the question as to whether there had been a consignment sent under Railway Receipt No. 238673A from Howrah to Dhanbad.

I would next consider as to whether it was necessary to use the word "deliver" in the plaint. Section 80 undoubtedly requires that the plaint shall contain a statement that a notice to a Secretary of the Central Government stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims bid been delivered to him or left at his office. In my opinion, the actual use of the word ''deliver" is not necessary. So long as the plaint contains a statement which indicates that notice has been delivered, it is enough, particularly as the respondent never denied delivery. In the present case para. 9 states that notice u/s 80, Civil P.C. for the appellant''s ease had been given to the Secretary, Central Government, on 26th February 1944, by registered post through his pleader. I think, one must read this to mean that not only was the notice sent by registered post but had been delivered to the Secretary, Central Government, having regard to the fact that the registration receipt and acknowledgment due being on the record as exhibits in the case. While one must strictly enforce the provisions of Section 80 of the Code, it seems to me that the question of interpretation of the plaint as to what it means is another matter. I may make reference to the decision of Bay, J. in the unreported case of Kanailal Karmakar Vs. Governor General for India in Council and Others, :

For the purpose of determination of the question whether there are defects in the plaint or not, it is sometimes necessary or rather evident before the Court exercises his power under Rule 11 of Order 7 of the Code to go into evidence; for example, the question whether the relief claimed is under-valued does not admit of ready solution without some evidence. When the evidence is gone into, the Court is to consider the existence or otherwise of the defect in the light of the evidence. In this particular case when the Courts below expressed their opinion as to the meaning of the word ''served'', they had before them the admission of the defendant concerned, and besides, the proof of delivery of the notice by registered post and its due acknowledgment. Why should not the words in the plaint, therefore, be interpreted in the light of the evidence adduced? I should, therefore, hold that the plaint does not suffer from any defect which is sought to be assigned to it.

It may be stated that in the plaint of that case it was stated that the plaintiff had "served a registered postal notice with an acknowledgment due upon the Secretary to the Governor-General in Council u/s 80, Civil P.C. on 4th May 1943." In the case before me, the notice had been given under a registered post. The respondent admitted having received the notice. The acknowledgment due also shows that the notice had been delivered to the Secretary, Central Government. In these circumstances there had been a sufficient compliance with the Provisions of Section 80 of the Code. In my opinion both the Courts below had wrongly dismissed the suit of the appellant on the question of law.

The question to be considered is as to whether there should be a remand. The learned District Judge had not decided the question as to whether the railway administration had been negligent and were liable for the loss caused to the appellant as was held by the Subordinate Judge. Having regard to the provisions of Section 103, Civil P.C., I have the jurisdiction to decide this question of fact for myself. I have examined the reasons given by the Subordinate Judge and I have also examined sortie of the evidence. There can be no doubt that the Subordinate Judge was right that the loss caused to the appellant was due to the misconduct and negligence on the part of the railway administration. The goods were despatched by passenger train on the 22nd October 1943 the very day on which they, were booked. They did not, however, reach Dhanbad until the 26th October 1943. The bundle was found open at the time of delivery. It is somewhat extraordinary that a parcel sent by passenger train from Howrah to Dhanbad on the 22nd October should not have reached the latter place until the 25th October, 1943. The further circumstance that one of the bundles was found cut open indicates that such a thing could not have happened without the active connivance of the railway administration''s servants, and that inference of misconduct could be drawn from these facts. I would, therefore, hold that the railway administration is liable for the shortage in the consignment which has caused a loss to the appellant. I accept the findings of the Subordinate Judge that the extent of the leather lost was 4252 sq. ft. and that it was chrome leather. I am not so sure whether the reasonings given by him for rejecting the case of the appellant that there was also some glaze kid leather in this consignment are sound. I see, however, no reason to arrive at a different conclusion than that arrived at by the Subordinate Judge. As to the rate I think the price of the leather should be at Re. l/. per sq. ft. as was found by the Subordinate Judge.

In the circumstances, I would allow this appeal, set aside the decision of the Courts below and direct that the suit of the appellant be decreed to the extent that he is entitled to recover at Rs. 1/- per sq. ft. for 425 sq. ft. of leather which was the loss caused to him as a result of the shortage in the consignment owing to the misconduct and negligence of the railway administration. There will be no decree for interest and as to costs, in my opinion, the plaintiff''s suit should be decreed without costs, throughout for in my opinion, however bona fide the mistake as to the railway receipt made by the plaintiff, the railway administration might well have been prevented by this from making amends before the institution of the suit.