TMI Blog1984 (3) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... 1952 - - - Dated:- 20-3-1984 - Sen, A. P.,Desai, D. A. And Eradi, V. Balakrishna,JJ. J. P. Goyal and S.K. Jain for the appellants. V. C. Mahajan and A. Subhashini for the respondents. JUDGMENT This appeal on certificate brought from the judgment and decree of the Allahabad High Court dated February 26, 1965 reversing the judgment and decree of the Civil Judge, Agra dated August 25, 1952 and dismissing the plaintiffs' suit for recovery of Rs. 26,000 raises a question of some importance upon s.80 of the Code of Civil Procedure, 1908. The facts giving rise to this appeal may be shortly stated. On November 12, 1949, the plaintiffs Ghanshyam Dass and his two minor brothers Shree Ram and Mohan Lal brought the suit out of which this appeal arises, in the Court of the Civil Judge, Agra for recovery of a sum of Rs. 26,000 against the Dominion of India through the Defence Secretary, New Delhi. It was pleaded that their late father Seth Lachman Dass Gupta entered into a contract with the Governor General-in-Council for the supply of charcoal to the Military Supply Depot at Agra during the period from April 1, 1943 to March, 31, 1944. In pursuance thereof, he made neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice Ex. A-8 given by the plaintiffs' father Seth Lachman Dass Gupta before his death under s.80 of the Code of Civil Procedure, 1908 would enure for the benefit of the plaintiffs. Section 80 of the Code as it stood on the date of the institution of the suit, insofar as material, is reproduced below: "80. Notice: No suit shall be instituted against (the Government) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of- (a) in the case of suit against the Central Government ........... a Secretary to that Government: ** ** ** ** and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left." In the celebrated case of Bhagchand Dagadusa Ors. v. Secretary of State for India in Council Ors., the Judicial Committee of the Privy Council held that this section is express, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the Province of Madras Anr. Lord Sumner delivering the judgment of the Privy Council referred to the observations of Lord Sumner in Bhagchand's case that s.80 is explicit and mandatory and-admits of no implications or exemptions, and observed that: "There should be identity of the person who issues the notice and who brings the suit. To hold otherwise would be to admit an implication or exception for which there is no justification. " . There, the question was whether a suit brought by two plaintiffs was competent when notice under s.80 was given by only one of them. The Privy Council having regard to the mandatory requirements of s.80 of the Code held that there was no valid notice and accordingly upheld the judgment of the High Court dismissing the plaintiff's suit. So also in Government of the Province Bombay v. Pestonji Ardeshir Wadia Ors., the Privy Council reiterated the same principles where no notice had been served under s.80 specifying the names and addresses of all the trustees and therefore the provisions of the section had not been complied with and it was accordingly held that the suit was incompetent. As to the requirement that the notice must state t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name and style of S.N. Dutt Co.". This Court upheld the decision of the Calcutta High Court dismissing the plaintiff's suit holding that the person who issued the notice was not the same as the person who filed the suit. The contention that the appellant was carrying on business under an assumed name and therefore the notice was valid as S.N. Dutt Co. was merely the name and style of the business which he was carrying on, was rejected. The Court held that since no suit could be filed by S.N. Dutt Co in that name as it was not a partnership firm, it could not give a valid and legal notice in that name, and a valid notice could only be given in the name of S.N. Dutt. The decision merely reiterates the rule laid down by this Court in Bhagchand that 'section 80, according to its plain meaning, requires that there should be identity of the person who gives the notice with the person who brings the suit". The Court distinguished the decisions in Dhian Singh Sobha Singh and C.P. Agencies on the ground that the Court was dealing with defect in describing the cause of action and the relief claimed and where it Concerns the relief and the cause of action, it may be necessary to use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in s.80, Civil Procedure Code are not intended to be used as bootstraps against ignorant and illiterate persons. In this case we are concerned with a narrow question. Has the person mentioned in the notice as plaintiff brought the present suit or is he someone else ? This question has to be decided by reading the notice as a whole in a reasonable manner." In the ultimate analysis, the question as to whether a notice under s.80 of the Code is valid or not is a question of judicial construction. The Privy Council and this Court have applied the rule of strict compliance in dealing with the question of identity of the person who issues the notice with the person who brings the suit. This Court has however adopted the rule of substantial compliance in dealing with the requirement that there must be ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to stand, great injustice would be done to the litigants in the matter of filing suits against the Government. If fresh notice is insisted upon in such cases, the period of limitation to file a suit may expire in the meantime. Such a situation is not intended by the Code. The authorities relied upon by the High Court in non suiting the plaintiffs are of ancient vintage. In Mahadev Dattattraya Rajarshi's case, supra, the Bombay High Court relying upon the decision of the Allahabad High Court in Buchan Singh, held that the language of s.424 of the Code of 1882, the predecessor of s.80 of the present Code which was substantially in the same terms, was imperative and absolutely debarred the Courts from entertaining a suit without complying with the provisions of the section. In Buchan Singh's case, supra it was observed by the Allahabad High Court at p.191: "If we acceded to this contention, it appears to us that we should be adding words to s.424 which find no place in it. It would be necessary to add after the words "name and place of abode of the intending plaintiff" some such words as "or of the party through whom such intending plaintiff claims." The Court of first instance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned make no use of the opportunity afforded by the section In most cases the notice given under s 80 remains unanswered till the expiration of two months provided by the section. It is also clear that in a large number of cases. as here, the Government or the public officer utilised the section merely to raise technical defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section. It is unfortunate that the defendants came forward with a technical plea that the suit was not maintainable at the instance of the plaintiffs, the legal heirs of Seth Lachman Dass on the ground that no fresh notice had been given by them. This was obviously a technical plea calculated to defeat the just claim. Unfortunately, the technical plea so raised prevailed with the High Court with the result that the plain tiffs have been deprived of their legitimate dues for the last 35 years, The Law Commission in the Fourteenth Report, volume 1 on the Code of Civil Procedure, 1908 at p.475 made a recommendation that s.80 of the Code should be deleted. It was stated as follows: "The evidence disclosed that in a large majority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and such notice had been delivered or left at the office of the appropriate authority specified in sub section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated," By sub.s.(3), Parliament has brought in the rule of substantial compliance. The present suit would be directly covered by sub-s.(3) of s.80 so introduced if the suit had been brought after February 1, 1977. Unfortunately for the plaintiffs, s.97 of the Amendment Act provides that the amendment shall not apply to pending suit and the suits pending on February 1, 1977 have to be dealt as if such amendment had not been made. Nevertheless the Courts must have due regard to the change in law brought about by sub- s.(3) of s.80 of the Code introduced by the Amendment Act w.e.f. February 1, 1977. Such a change has a legislative acceptance of the rule of substantial compliance laid down by this Court in Dhian Singh Sobha Singh and Raghunath Dass. As observed in Dhian Singh Sobha Singh's case, supra, one must construe s.80 with some regard to common sense and to the object with which it appears to have been enacted. The decision in S.N. Dutt v. Union of India's case, sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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