Union of India (UOI) and Another vs Kedarnath Agarwalla

Ram Labhaya, J.—This is an appeal from the judgment and decree of the Sub-Judge of Gauhati by which Plaintiff-Respondent�s claim for Rs. 7261/5/2 was decreed with costs against Defendant No. 1 as representing Defendant No. 2, the Madras and Southern Marhatta Railway. The Union of India, Defendant No. 1 and the Chief Commercial Manager, Madras and Southern Marhatta Railway have appealed from the decree.

Facts necessary for the disposal of this appeal are as follows : Plaintiff Kedarnath Agarwalla is a dealer in cloth at Gauhati. A consignment of 36 bales containing cotton piece goods was booked from Madras Siding station on the M. and Section M. Railway, to Gauhati on the Assam Railway on 29th October, 1947. Messrs Binny and Company were the consignees. The Plaintiff paid the price for the consignment to the bank representing the consignees and obtained the Railway Receipt duly endorsed in his favour. On 29th November, 1947 he obtained delivery. He got only 31 bales out of 36. A certificate showing short delivery was given to him. In this certificate, the numbers of the bales not delivered were given. On 12th December, 1947 he informed the Deputy Chief Commercial Manager, Assam Railway, Calcutta that five bales of cloth had not been delivered to him from the consignment covered by Railway Receipt No. 55391, dated 29th October, 1947. He was informed on 18th December, 1947 (Ext. 10) that the matter was receiving attention. The Plaintiff also complained about the short delivery to the Chief Commercial Manager, Madras and Southern Marhatta Railway by a registered letter dated 27th February 1948 but he received no reply to this letter. On 18th March, 1948, the Plaintiff addressed another letter (Ex. 6) to the Deputy Chief Commercial Manager, Assam Railway. He referred to his previous letter and requested for the settlement of his claim within a month from that date in order that he may be spared the ''harassment'' that could attend the institution of a suit for recovery of the amount due. A similar letter was sent to the Chief Commercial Manager, Madras and Southern Marhatta Railway (Defendant 2). Both these letters were duly received but Plaintiff got no reply. The letter addressed to the Chief Commercial Manager, Madras and Southern Marhatta Railway referred to the invoice under which the consignment was booked and also to the previous complaint about short delivery. The value of the claim too was stated and a request was made for settlement of the claim within a month to obviate the necessity of a suit.

On 26th April, 1948, the Plaintiff sent a notice (Ex. 13) u/s 80, CPC to the Secretary to the Government of India, Ministery of Railways. This was acknowledged by the Deputy Chief Commercial Manager, Assam Railway. As he received no acknowledgment from Delhi, he sent notices of suit again on 11th June, 1948, to the Secretary to the Government of India, Ministry of Railways and also to Chief Administrative Officer, Assam Railway at Pandu by registered post. These notices were received on 18th June and 14th June respectively. No settlement of the claim was made Plaintiff was driven to institute the suit. He claimed Rs. 7,265/5/2 for non-delivery of the five bales alleging that this was due to the misconduct and gross carelessness of the Railway servants, for which deft No. 1, now the Union of India, was liable to compensate the Plaintiff. He stated in his plaint that the cause of action arose on 29th November, 1947 at Gauhati when the five bales in question were not delivered.

On 10th January, 1949 written statement was put in on behalf of the Dominion of India by the District Traffic Superintendent, Claims, Assam Railway. Several pleas were put forward. It was pleaded inter alia that the suit was bad for want of statutory notices u/s 77, Indian Railways Act and Section 80, Code of Civil Procedure. The validity and sufficiency of the notices received were not admitted. So far as the Assam Railway was concerned protection u/s 80 was claimed on the ground that the loss did not occur on that Railway.

On 18th February issues were framed in the case. At this stage we are only concerned with the first issue which was as follows : "Whether the suit is barred u/s 80, CPC and Section 77, Indian Railways Act?"

Some four months later another written statement was put in by Defendant No. 2, the Chief Commercial Manager, Madras and Southern Marhatta Railway. This written statement was, it appears, accepted by the Court in the presence of the Plaintiff and without any objection from him. The order dated 20th June, 1950 is in the following terms: "Defendant 2 files a written statement. No issues appear necessary."

Plaintiff himself appeared in the witness box and examined 2 witnesses in support of his claim. On the first issue the conclusion arrived at by the learned Judge was that notice u/s 77 was not a necessary prerequisite for a suit, for compensation for non-delivery of goods. He found further that the notice served on the Government u/s 80, CPC was sufficient in law. He exonerated Defendant No. 3 from responsibility u/s 80, Railways Act and decreed the claim against Defendant No. 1, the Dominion of India as the owner of Defendant No. 2, the Madras and Southern Marhatta Railway on the ground that the consignment was handed over to that Railway.

Both the Union of India, Defendant No. 1 and the Chief Commercial Manager, Madras and Southern Marhatta Railway, Defendant No. 2 have appealed from the decree. The learned Counsel for Appellants has assailed the correctness of the decree only on one ground namely, that notices on which Plaintiff relied did not comply with the requirements of law as contained in Section 80, CPC as amended. He urges that the notices u/s 80 should have been addressed to the General Manager of the Administration which was sought to be made liable and any notice addressed to the Secretary to the Government of India, Ministry of Railways would not meet the requirements of law. It is contended on behalf of Plaintiff-Respondent that those notices are valid in law as they satisfy the requirements of Section 80, CPC as it stood on the date of the cause of action.

The learned Counsel has also urged in the alternative that the letter dated 18th March, 1948 (Ex. 7) addressed to the Chief Commercial Manager, Madras and Southern Marhatta Railway could also serve the requirements of Section 80, CPC and that the suit therefore was not barred.

The point at which parties were at issue at this stage of the case put in a nut-shell is whether the notices which did admittedly comply with Section 80 as it stood on the date of the cause of action are invalid and insufficient by reason of the subsequent amendment of Section 80 which required that the notice should be addressed to the General Manager of the administration and not to the Secretary to the Central Government. The cause of action arose on 29th November, 1947, when the consignment was delivered in part. This is the Plaintiff�s case as stated in para. 13 of the plaint. In the two written statements the averment contained in para. 13 has not been expressly denied. If the provisions contained in Section 80 as it stood in November, 1947 applied to the case, valid notices were served on the Government. Mr. Medhi however urges that Section 80 was amended by the CPC Amendment Act 6 of 1948. This amending Act was passed in February 1948. The two notices sent to the Government were issued in April, 1948 and in June, 1948. The Plaintiff had no difficulty in addressing the notices to the General Manager as required by Section 80 as amended. He was bound to do so and therefore the notices do not fulfil the requirements of Section 80.

Section 80 forbids the institution of a suit against the Government or a public officer until a notice as required by that Section has been served on the appropriate authority. It prescribes a procedural formality. Without the observance of this formality the right to sue cannot be utilised. Non-compliance with the provisions of Section 80 creates a statutory bar to the suit. The Section also requires that the plaint shall contain a statement that a notice as provided for by Section 80 has been delivered or left at the office of the appropriate authority. If a statement is made as required by Section 80 but it is subsequently found that the notice was not valid in law, the suit would be liable to dismissal. The requirement is a part of the Code of Civil Procedure. The provision contained in Section 80 does not create any right of suit or any other kind of right. Nor is any right taken away by Section 80 as it stands. A penalty no doubt is attached to the failure to observe its requirement. It is fatal to the claim. Failure to comply with the requirement of the amended Section also can lead to the same result.

The next question is whether an amendment of this description can apply to cases where the cause of action accrued to a person some months before the amendment came into force. In-- AIR 1927 242 (Privy Council) their Lordships of the Privy Council laid down that:

while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute same into force, were final, are provisions which touch existing rights.

In this case Section 66-A which was introduced into the Income Tax Act by an amending Act of 1926 was under consideration. Clause (2) of Section 66-A provided for an appeal to His Majesty in Council from any judgment of the High Court delivered on a reference u/s 66 in any case which the High Court certified to be a fit one for appeal to His Majesty in Council. Their Lordships held that Clause (2) of Section 66-A if applied retrospectively, would deprive certain orders of their existing finality and therefore could not be applied retrospectively. The principle of the decision is that changes in procedural law or in matters of procedure may have retrospective effect unless it is provided expressly or by necessary intendment that they shall not have retrospective effect. But such provisions or amendments if they touch a right in existence at the time of the passing of the statute should not be applied retrospectively, unless retrospective effect has been given to them by the legislation either expressly or by necessary implication. The general principle of law is that no statute shall be construed so as to have a retrospective operation, unless its language is such that it plainly requires such a construction. A statute which takes away or affects vested rights, imposes a disability or confers a new right ought to be presumed not to have retrospective operation. The legislature no doubt has the right to give retrospective operation to Acts which take away or affect vested rights. Where the legislature intends that such retrospective effect be given, it should be possible to gather that intention from the language used in the statute. Even if this intention is there by necessary implication, it has to be given effect to. The same rule would apply to provisions of enactments relating to procedure if they affect rights, whether substantive or remedial. Normally enactments dealing with procedure are retrospective in the sense that their provisions may apply to proceedings commenced even before the date of the enactment. But where such provisions affect rights, the general rule against retrospective operation of statutes does apply as is clear from the decision reported in-- AIR 1927 242 (Privy Council)

In--''Sham Singh v. Vir Bhan'' AIR 1942 Lah 102 (FB) (B) Respondents 1 and 2 obtained a money decree against the Appellants on 1st June 1936. In execution of this decree certain premises were attached and ordered to be sold. The auction sale was held on 27th August, 1940. The highest bid of Respondent 3 was accepted. The auction-purchaser deposited 1/4 of the purchase price. He paid the remaining 3/4 on 1st October, 1940. On 30th August, 1940 the judgment-debtors raised objections under Order 21, Rule 90. While these objections were being enquired into Punjab Act 12 of 1940 came into force on 5th October 1940. By Section 35 of that Act a new Clause (ccc) was added to Sub-section (1) of Section 60, which provided that the ''main residential house and other buildings attached to it...belonging to a judgment-debtor other than an agriculturist and occupied by him'' shall not be liable to attachment and sale in execution of a money decree. On 22nd October the judgment-debtors filed further objections purporting to be u/s 47 stating that the attached property was their residential house and therefore could not be sold in execution u/s 60 as amended. The amended provision was in respect of attachment and sale. Both these had taken place before the amendment came into force. But the contention raised was that sale had not been confirmed, before the amending Act came into force and therefore there was no sale and the amending Act applied. The Full Bench overruled the contention relying on- AIR 1927 242 (Privy Council) and other cases. In--''Dist. Board of Belgaum v. Mahmed Mulla'' AIR 1945 Bom 377 (C) Justice Chagla, as he then was, dealing with a provision contained in the Bombay Primary Education Act which was amended by Act 12 of 1938 observedthat the amending provision

provided a period of limitation for suit against the District Board for anything done or purporting to be done in pursuance of the Act and the period of limitation was six months from the date of the act complained of.

On the question whether retrospective operation could be given to it he held that:

Statutes of limitation being procedural laws must be given a retrospective effect in the sense that they must be applied to all suits filed after they came into force. This general rule has got to be read with one important qualification, that if the statute of limitation, if given a retrospective effect, destroys a cause of action which was vested in a party or '' makes it impossible for that party for the exercise of his vested right of action, then the Courts would not give retrospective effect to the statute of limitation.

14 In--''Commr of Income Tax, C.P. v. Dharam Chand'' AIR 1924 Nag 24 (D) the Applicant was first assessed to Rs. 1125 under Income Tax Act of 1918. On appeal his case was remanded and the final assessment was made at Rs. 828-3-0. In July 1922 the Applicant claimed refund of the excess amount paid. This was refused by the taxing authorities on the ground that under Act 11 of 1922 which came into force on 1st April, 1922 prior to the making of the final assessment the refund could not be claimed. It was held by the learned Judges in this case that:

under the ordinary law vested right including the right to appeal and to demand a reference that have already accrued, are not taken away by the repeal of any Act, but the procedure would be under the new Act. The rule regarding vested rights is not confined to substantive rights but extends equally to remedial rights or rights of action including rights of appeal.

This case is a clear authority for the proposition that where remedial rights such as a right of action are affected, the ordinary rule against retrospective effect being given to provisions contained in any statute should apply unless the legislature has made it clear in express terms or by necessary implication that retrospective effect is intended. In support of this proposition the learned Judges relied on Maxwell''s Interpretation of Statutes, 6th edition, page 401. In--''Ram Krishna Chetty v. Subraya Iyer'' AIR 1916 Mad 607 (E) also which was a case of limitation, it was held that the rule regarding vested rights is not confined to substantive rights but extends., equally to remedial rights like right of actions including right of appeal.

In the famous case of--''The Colonial Sugar Refining Co. v. Irving'' 1905 AC 369 at p. 372 (F) their Lordships held that a right of appeal to His Majesty in Council was a vested right. Before coming to this conclusion their Lord-ships stated the general proposition in the following terms:

On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, ''if it touches a right in existence at the passing of the Act'', it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the Appellants would be entitled to succeed.

It is obvious from'' these observations that where a matter is not a mere matter of procedure but touches a right in existence, the provision shall not have any retrospective effect unless the legislature has expressly or by necessary implication given that effect to it.

In-- Gouhari Samantaray Vs. Sarada Charan Das and Others, it was held that the Orissa Hindu Religious Endowment Act could not be applied retrospectively to suits instituted before it came into force on the ground that the Act did not relate to merely matters of procedure. In certain respects it enacted sub-stantive law and therefore was construed strictly. In-- Sadar Ali and Others Vs. Doliluddin Ostagar, Full Bench of the Calcutta High Court refused to apply Clause 15 of the Letters Patent as amended to suits instituted prior to its coming into force. The effect of the amendment was that the right of appeal was restricted to cases where the Judge disposing of the appeal certified that the case was a fit one for further appeal. Before the amendment, the right to file a Letters Patent appeal was unqualified. The amendment had the effect of clogging the right with a new condition. It was not given retrospective effect. A similar amendment of the Letters Patent was not given retrospective effect by a Special Bench of the Madras High Court in--''In re In Re: Vasudeva Samiar alias Vasudeva Pillai, ; Sadar Ali and Others Vs. Doliluddin Ostagar, was followed in this case. In-- Nagendra Nath Bose Vs. Mon Mohan Singha Roy and Others, an amendment which effected the right of appeal was held not to have retrospective effect. The amendment in question was of Section 174 of the Bengal Tenancy Act. The amending Act (4 of 1928) required deposit of the amount decreed. It may be noticed that the right of appeal was not taken away as in the last two cases though She amending provisions affected the right.

In''--''Manjuri Bibi v. Akkel Mahmud'' 17 Cal WN 889 (K) it was held that

where, if a statute of limitation is taken to affect preexisting causes of action, the effect is to absolutely bar all actions where the cause of action had accrued more than the limited time before the statute was passed, the statute ceases to be one of mere procedure and operates to the destruction of existing and enforcible rights. In such cases the presumption against a retrospective construction of the statute becomes applicable, unless the coming into operation of the statute has been postponed so as to allow reasonable time for enforcement of existing causes of action.

This proposition was laid down notwithstanding the fact that the majority of the Judges were of the view that the statement that a statute of limitation embodies merely a rule of procedure is only generally and not universally true. Thus what may be regarded as a law of procedure generally should not affect existing rights, unless the legislature intended it and makes its intention clear either expressly or by necessary implication. In-- Ajit Singh Vs. Bhagabati Charan Mukerjee, the effect of Act 26 of 1920 (The Indian Limitation and the CPC Amendment Act 1920) had to be determined. It was held that the amending Act did not affect the right which had accrued before it came into force. The following observations in the judgment are important:

On the other hand the decision of the Judicial Committee in--''Colonial Sugar Refining Co. v. Irving (F)'' militates against the retrospective operation of statutes in cases of this description to the detriment of an ''existing right of suit or appeal''.

The principle that may be deduced from this is that nothing detrimental to an existing right of suit or appeal can be presumed to have retrospective effect. Its retrospective effect has to be intended and provided for either expressly or by necessary intendment. In-- Sarat Chandra Mitra and Others Vs. Santosh Kumar Haldar and Others, had to consider the effect of Section 66 of the CPC which had replaced Section 317 of the Act of 1882. He referred to the general principle governing the interpretation of statutes in the following terms:

By the general principle of non-retroactivity of law, any right or liability arising out of a jural relation constituted before the new law came into force or created by a jural fact or event taking place before the new law or any relief or remedy in respect of that right or liability remains unaffected by the new law.

There is voluminous authority in support of the proposition that presumption is against laws which affect existing rights having retrospective operation. The legislature has the right to take away even vested rights. If it is so intended, the intention should appear in express terms or at least by necessary implication. The rule applies not only to vested right of a substantive character but also to remedial rights such as the right of appeal and the right to sue or a right of action. The right of appeal has been treated in a long line of decisions as a vested right. Even though it is remedial in character it is not treated as something relating to procedure only. The right arises from a suit. In fact the Appellate proceeding is a continuation of the suit. The right of suit therefore stands on the same level if not a little higher in the eye of law than the right of appeal. It is also a substantive right like the right of appeal or at least a remedial right which may be taken away by a statute if the legislature makes its intention manifest in express terms or by necessary implication. No distinction can be made on principle between the right of suit and the right of appeal.

The rule above stated applies to statutes dealing with matters procedural in character, if they take away, impair or adversely affect a substantive or a remedial right. It is only with regard to provisions which relate to procedure alone which do not affect rights, vested, substantive or remedial, that retrospective operation can ''be presumed, unless that construction is tex-tually inadmissible.

In-- Mahendra Raut and Others Vs. Darsan Raut and Others, a Special Bench of the Patna High Court reiterating general principles governing the construction of statutes on the point found that it was open to the High Court to make a rule changing the powers of a single Judge and to make the rule applicable to all pending appeals with effect from a'' particular date. It was held that such a rule would not take away any vested right of appeal. It was further laid down that a change of procedural rule which does not make any alteration in the Statutory right of appeal cannot be said to be hit by the principles laid down in--''Colonial Sugar Refining Company''s case (F)''. The principle of this decision does not conflict with the rule as stated by me above. On facts this case is distinguishable.

In this case the cause of action arose on 29th November, 1947. The cause of action was against the Dominion of India as representing a certain Railway owned by it. According to Section 80 as it stood on that date, a notice had to be delivered or left at the office of a Secretary to the Central Government. It is admitted that such a notice was sent though the notice actually was send after Section 80 was amended. Amendment of Section 80 provided that in case of suits against the Central Government where that related to a Railway, the notice shall be addressed to the General Manager. The notices sent complied with the requirements of Section 80 as it stood on the date of the cause of action. It is contended that the notices should have conformed to the requirements of Section 80 as amended, as Section 80 is procedural in character and so is its amendment. This contention in my opinion should not prevail. Section 80 as amended provides that no suit shall be instituted against Government or against the Public Servant if notice as provided in the Section has not been delivered or left at the office of the authority concerned. Non-compliance with the provisions of the Section takes away the right of suit. The provision no doubt provides for a formality which is a condition precedent to the institution of the suit, but the failure to observe the formality is completely destructive of the right and creates an absolute bar to the enforcement of a right of action. It may not be regarded as a mere matter of procedure, in view of its obvious effect on an existing right.

The view receives considerable support from some authorities which Mr. Medhi has relied on, in support of his contention that the provisions of Section 80 are mandatory and have to be strictly complied with. In-- Suraj Jan Bibee Vs. Banku Behary Saha, Harries C.J. held that provisions of Section 80 are imperative and must be complied with strictly. A notice u/s 80 addressed to the Secretary, Railway Board, Delhi instead of the General Manager was found not good notice in law. In-- Hazi Jamal Noor Mohammad a firm Vs. Governor General in Council, Mukherjee J. held that the rule of procedure laid down in Section 80 was mandatory and admitted of no implications or exceptions. He relied on-- AIR 1927 176 (Privy Council) in which their Lordships of the Privy Council observed that Section 80 had to be complied with strictly and was applicable to all forms of actions and all kinds of relief. Need for strict compliance is obvious. The mandate of the provisions is clear. Non-compliance is fatal to a right. The provisions of the Section should not be regarded as mere matters of procedure.

The matter appears to be concluded by the observations of their Lordships of the Privy Council in-- AIR 1927 176 (Privy Council) These are reproduced below:

The Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. A suit in which, inter alia, an injunction is prayed is still a suit within the words of the section, and to read any qualification into it is an encroachment on the function of legislation. Considering how long these and similar words have been read throughout most of the Courts in India in their literal sense, it is reasonable to suppose that'' the Section has not been found to work injustice but, if this is not so, it is a matter to be rectified by an Amending Act. Their Lordships think that this reasoning is right. To argue, as the Appellants did, that the Plaintiffs had a right urgently calling for a remedy, while Section 80 is a mere procedure, is fallacious, for Sec. 80 imposes a statutory and unqualified obligation upon the Court.

It is clear from these observations that their Lordships declined to treat Section 80 as a mere procedural provision. This case has been relied on by the learned Government Advocate himself. It does not support the view that merely because Section 80 appears in a Code of Procedure, it should be treated as a mere matter of procedure.

In fact Section 80, CPC deals with the manner of the enforcement of the right of suit. If the right is to be enforced against the Government, its provisions have got to be complied with. The amendment retained the obligation of the Section but changed its nature. Considering the serious consequences that the amended Section has on a very important right, it should be presumed that the amendment was not ment to have any retrospective effect, unless from the amending Act it could be gathered that the legislature intended to give it retrospective effect. There is nothing in the amending ''Act to show that the legislature had any such intention. The amendment therefore should not be applied retrospectively.

The Plaintiff no doubt sent his notices after the amendment came into force. He had the right to send his notices before the amending Act came into force. If he had sent the notice of suit u/s 80 even a day before the amending Act came into force, the notice would have been admittedly valid. The position should not change merely because before the notice is issued the law has been changed. If on 20th of February, 1948 it was possible to send a valid notice to the Secretary to the Government of India, that notice should not become invalid if it is sent some days after 21st February, 1948 when the amending Act came into force. The obligation attaching to the enforcement of Plaintiff�s right on the date of the cause of action should continue if the amending Act is not retrospectively applied. The Act having come into force before suit, the question was what provision had to regulate the issue of a notice. The only date which was available to the Plaintiff for finding out what his obligations in the matter of notice were, would be the date of the cause of action, if the amending Act is not applied retrospectively. Therefore it does not matter when notice is actually issued, if it conforms to the requirements of Section 80 as they stood on the date of the cause of action which accrued before the amendment came into force.

It is reasonable to suppose that if the legislature had intended retrospective effect to be given to the amending provision, some time should have been given to those to send to the General Manager of the Railway a notice as required by Section 80. Retrospective operation of the amending provision could lead to an anomalous situation. A person may give notice after the accrual of the cause of action to him and before the amendment came into force. If a notice in conformity with the amended provision is insisted on, he will have to send a fresh notice to the General Manager and it may so happen that on that date he has less than two months available to him for the institution of the suit. The amending Act makes no provisions for such a contingency. The Justifiable inference is that its retrospective operation was not contemplated. The conclusion in the circumstances may well be that Section 80 as amended was meant to apply to causes of action which arose after that date. The obligation that it created attached only to those causes of actions that came into existence after 28th February and not before. Mr. Medhi however has contended that the cause of action in this was a continuous one and it is not correct to say that it arose on 29th November, 1947 when delivery of the full consignment was not given. There is no force in this contention. The failure of the Railway to give delivery of the entire consignment was the only circumstance, which could constitute this cause of action for a notice u/s 80, CPC at the time of the plaint it may be necessary for the Plaintiff to state that a notice u/s 80 was given. But at the time, the notice is to be given the cause of action has to be stated and that cause of action could be only the one that was stated in the notice. That cause of action arose on 29th November 1947 and it could not be regarded as a continuing cause of action. If it were a continuing cause of action there would not be any limitation for suits on such causes of action. In this view Of the matter the notices sent to the Secretary to the Central Government were valid and sufficient.

In the result this appeal must fail and is hereby dismissed. In view of the nature of the question involved it is ordered that the parties shall bear their own costs in this Court.

Sarjoo Prosad, C.J.

I agree. I have found it very difficult to persuade myself to hold that although at the time of giving notice u/s 80 of the Code of Civil Procedure, the law had changed, yet the notice should be deemed to have been validly effected, if given according to the law as it stood at the time when the cause of action arose. Prima facie it appears to me that Section 80, Code of Civil Procedure, is a part of the procedural law, although compliance with this procedure was an essential preliminary to the institution of the suit. What, therefore, one had to see was the state of the law as it stood at the time of giving; notice u/s 80, CPC and if the law had changed then the notice should have been effected in accordance with the amended provisions. In view, however of the observations of the Privy Council in-- AIR 1927 176 (Privy Council) quoted in the decision of my learned brother Ram Labhaya J., where their Lordships characterised as fallacious the argument that Section 80 was a mere procedure, I am inclined for the present to accept the decision of my learned brother which affirms the decree of the Court below.

I accordingly agree that the appeal should be dismissed.