The Secretary of State for India in Council vs Kalikhan and Another

Sundara Aiyar, J.—This second appeal must be disposed of on the objection taken by the defendant, the Secretary of State for India in

Council, that the suit is not maintainable as no notice of it was given as required by Section 424 of the old code corresponding to Section 80 of

Act V. of 1908. The plaint states that the Board of Revenue passed an illegal order that a certain sum of money not due by the plaintiff to

Government should be collected from him and that ""on account of the said order the plaintiffs have lost peace of mind and are much troubled."" The

plaintiffs ask for a decree granting an injunction restraining the 1st defendant, that is the Secretary of State for India in Council or any of his

servants from collecting any amount from the plaintiff. The Subordinate Judge held that no notice was required u/s 424, C.P.C. in such a case. The

view he took was that the section applied only to suits for damages. This position is in our opinion entirely untenable. Section 424 enacted ""No it

shall be instituted against the Secretary of State for India 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 for India in Council,

delivered to, or left at the office of, the Secretary to the Local Government or the Collector of the District."" The contention before us is that the

section applies only when the suit is in respect of an act ''purporting to be done'' and this it is said, does not include a suit for an injunction but only

one for damages arising from the act done. The case for the respondent has been argued with great fullness and ability by the learned Vakil who

has appaared for him but he has been unable to pursuade us that the view adopted in the decided cases, which is against him, is wrong. Two

arguments have been urged on the meaning of the language of the section. It is contended that the words ''in respect of any act purporting to be

done by him'' qualify both ''The Secretary of State for India in Council'' and ''public officer.'' In the Government edition of the statute there is a

comma after the word ''Council.'' The object of the comma evidently was to show that the phrase ''purporting to be done'' did not apply to

''Secretary of State for India in Council.'' It is argued that punctuation cannot he taken note of in construing a statute. There is no doubt authority in

English cases for this position but no Indian case has been cited to us and it may be permissible to express a doubt whether the considerations

which induced Judges in England to lay down such a rule would be equally applicable in the construction of statutes in this country. The question

however does not depend on the punctuation alone. Now the expression ''Secretary of State for India in Council'' is, as urged by Mr.

Krishnaswami Aiyar for his own purposes, merely a. name under which the Government is to be sued and does not denote either individual or a

corporation. See Kinlock v. Secretary of State for India in Council (1880) 15 Ch. D. 1. If that be so, to speak of an act being done by the ''

Secretary of State for India in Council'' understood in that sense seems to involve some straining of language although it is pointed out that in

Secretary of State for India in Council v. Rajlucki Debi ILR (1897) C. 239 Maclean C.J. was of opinion that an act done by a public officer who

is subjected to the authority of the Secretary of State for India in Council has no other than any official capacity assuming that he has any capacity

at all and that the expression is not a mere name. This makes it unlikely that any distinction was intended to by made between the acts of Secretary

of State for India in Council in bis official capacity and other acts of his. On all these grounds we entertain no doubt that the phrase '' purporting to

be done '' was intended to apply only to public officer.

Another argument of the respondent is that the section applies only to suits arising out of acts done by public officers, whether they be against

the Secretary of State for India in Council or against a public officer; in other words, he contends that the section should be read thus : ""No suit

shall be instituted in respect of any act purporting to be done by a public officer in his official capacity either against the Secretary of State for India

in Council or against the public officer."" But if this were the meaning we think more appropriate language would be used to indicate it The

respondent''s construction requires in effect the omission of the comma after the word ''Council'' and the insertion of one after the word ''Officer.''

Besides there is reason to believe that the object of the Statute was to give the Government time for reflection whenever a suit is threatened against

it and this would apply whatever be the nature of the suit. No authority has been cited in support of this contention. The Secretary of State for

India in Council v. Rajlucki Debi ILR (1897) C. 239 Bachu Singh v. The Secretary of State for India in Council ILR (1902) A. 187 Secretary of

State v. Gajanan Krishna Raos and Shakharam Bagavan Patil v. The Secretary of State (1911) 14 Bom. L.R. 353 are all in favour of the

construction contended for. by the appellant that notice is necessary in all suits of whatever description against the Secretary of State for India in

Council and we agree with the opinion expressed in those judgments.

It is then contended that the section should not be applicable to suits for injunction restraining The Secretary of State for India from doing a

certain act. If the construction we have adopted of the language be correct, there is no room for excepting any class of suits for the operation of the

section and we doubt whether it would be within the Province of a Court of Justice to introduce an exception when the rule enacted by the

Legislature is universal in its terms. The observations of Chandravarkar, J. in Secretary of State v. Gajanan Krishna Rao ILR (1911) B. 262 and

Shakharam Bhagwan Patil v. The Secretary of State (1911) 14 Bom. L.R. 353 are no doubt calculated to show that the learned Judge was of

opinion that where in consequence of an immediate injury threatened by the Secretary of State for India in Council it would not be humanly

possible for the plaintiff to give the prescribed two months'' notice of action, the section should not be held to apply. It is not necessary to say

whether even this narrow exception can be made in accordance with the language of the section. In the present case it is not alleged that any very

immediate injury of a serious character was threatened. Revenue officers of Government would no doubt have power to arrest the plaintiff for the

debt alleged to be due to the Government but it is not stated that any immediate arrest was threatened. On the other hand the suit itself was not

institute until after the expiration of more than two months from the date on which the cause of action is alleged to have arisen. There is therefore no

room for any contention that it was not possible to give two months'' notice before the suit was launched. The result is that the suit must be held to

be not maintainable on the ground that no notice was given of it as required by Section 424 of the Givil Procedure Code. The decree of the Lower

Appellate Court must be set aside and that of the District Munsiff restored with costs both here and in the Lower Appellate Court.

Sadasiva Aiyar, J.

I do not think I could usefully add any observation of my own as regards the construction of Section 424 of the CPC and I agree with what my

learned brother has just now said and also with what Mr. Justice Chandravarakar has said in the case in Secretary of State v. Gajtnans Krishna

Rao ILR (1911) B. 362 and Sakharan Bhagwan Patil v. The Secretary of State (1911) 14 Bom. L.R. 353 on this point. So far as the word ''him''

in the old Section 424 is concerned, the matter has been made very clear by the amended Act in which Section 80 has substituted the words ''such

public officer'' for the word ''him.'' I do not think the Legislature intended to make any alteration in the law only to approve of those cases decided

under the old code which confine the grammatical relation of the pronoun ''him'' to ''public officer'' and do not extend it to ""The Secretary of State

in Council.

Then, as regards the question of hardship if a suit against the public officer alone for an injunction could be brought without notice--a position on

which I reserve my opinion--the fact that the plaintiff is prohibited from bringing a suit against the Secretary of State for India in Council without

due notice cannot cause irrepairable injury to plaintiff, for he could sue the public officer alone for his threatened act and obtain a temporary

injunction and this will effectually prevent the threatened injury. As regards suits against the Secretary of State for India in Council large classes of

such suits involve questions as to the legality of the acts done by subordinate public officers in respect of acquisitions of land under the Land

Acquisition Act, recovery of arrears of all kinds of revenue, of prevention and removal of encroachments and of the performance of similar public

duties and most of them do involve reliefs in the nature of an injunction. The Legislature must be deemed to have been aware of this patent

consideration and if they had intended to exclude suits against the Secretary of State for India claiming the relief of injunction from the necessity of

notice, they would have put in an exception under the section itself stating that in cases of injunction or in case where irrepairable injury is likely to

be caused if an injunction is not at once granted the notice required by the first part of the section was unnecessary. I do not think that it is

legitimate for the Courts to themselves graft on such exceptions to the section.

As regards the English case in Flower v. Local Board of Low Leyton (1877) 5 Ch. D. 347 in which it was held that in a suit for an injunction

against threatened injury, no notice need be given under the Public Health Act of 1875 before the suit is brought against the local authority. I

respectfully dissent from that case and also from the obiter dicta of Mr. Justice Chandravarkar in the two cases in Secretary of State v. Gajanan

Krishna Rao ILR (1911) B. 362 and Shakharan Patil v. The Secretary of State that a similar though more restricted exception could be grafted on

to Section 424 by the decisions of Courts. If I do not put it too strongly I would say that such a course would be a fraud on the part of judiciary

against the powers of Legislature, which powers as my learned brother remarked in the course of the arguments in the case are practically

omnipotent. It will also lead to this anomaly that where a plaintiff pays up a demand due to Government loyally and out of respect to Revenue

authority (but under protest) and then sues to recover the money so paid by him he ought to give two months'' notice, but if he rushes to Court for

an injunction against the Secretary of State acting through the Revenue Officer who is given statutory powers to recover the money, he need not

give such notice at all. I do not think that that could have been the intention of the legislature. I might also add that if we give room for even a single

exception of that kind, the ingenuity of litigants and of their legal advisers will be found to be quite equal to convert almost all suits against the

Secretary of State into suits involving the relief for an injunction. I therefore agree that the Lower Court''s decree should be reversed and that the

suit ought to be dismissed with casts.