MAUJIRAM KHAYALIRAM Vs. UNION OF INDIA
LAWS(RAJ)-1955-7-13
HIGH COURT OF RAJASTHAN
Decided on July 20,1955

MAUJIRAM KHAYALIRAM Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) THIS is an appeal by Firm Maujiram Khyaliram against the judgment and decree of the Civil Judge, Ganganagar dismissing the suit brought by the appellant against the State of Rajasthan and the Union of India. The dismissal has taken place on the ground that the notice under sec 80 of the Civil Procedure Code was not given and the only point, therefore, for determination in the appeal is whether there was sufficient compliance with the provisions of sec 80 of the Civil Procedure Code.
(2.) IN view of this limited question before us, we do Dot think it necessary to set out in detail the case put forward in the plaint. It is enough to give the relevant facts which bear on the question of notice under sec. 80 of the Civil Procedure Code. These facts are that certain consignments of cotton cloth were booked to the appellant firm from Ahmedabad to Ganganagar in 1948. These consignments did not reach the appellant and it gave notice to the Railway under sec. 77 of the INdian Railways Act When it did not get any redress and it was decided to file a suit, notice under sec. 80 of the Civil Procedure Code became necessary. Consequently, the appellant gave notice on the 24th of January 1950, to the State Council, Rajasthan. This notice was received in the Secretariat of the State of Rajasthan and was returned in original to the appellant with the remark that there was no such body as the State Council, Rajasthan and that the notice was not in accordance with the Code of Civil Procedure as adapted to Rajasthan. Thereafter the appellant gave another notice on the 11th of March, 1950. This notice was addressed to the State of Rajasthan through the Collector, Ganganagar. There is evidence that this notice was in due course forwarded by the Collector to Secretariat and from there it reached the General Manager, Bikaner State Railway some time before the 24th of April 1950. The suit was filed by the appellant on the 5th of July, 1950, against the State of Rajasthan. The Union of INdia was made a party on the 1st of June, 1951. Thereafter, Union of INdia took the objection that there was no compliance with the provisions of sec. 10 of the Civil Procedure Code and the suit should be dismissed on that score. This objection has prevailed in the court below with the result that the suit was dismissed. We have heard learned counsel at length on this question of notice as it is of some importance in view of the rapid changes which have taken place in Rajasthan in suit the last 5 years in connection with the railway administration. Before, however, we consider the argument advanced on either side, we should like to point out that there is a fundamental mistake in the judgment of the court below inasmuch as that court took the view that the Union of India became the owner of the Railways in Rajasthan on the 26th of January, 1950. On that view perhaps the decision of the court below would be correct. But it is admitted before us by learned counsel for the State of Rajasthan as well as the Union of India that it was on the 1st of April, 1950, that the transfer of the Railway took place and that the State of Rajasthan was the owner of the Bikaner State Railway up to the 31st of March, 1950 It is enough in this connection to refer to Art. 295 of the Constitution which provides for transfer of assets and liabilities etc. to the Union Government or the State Governments in accordance with whether a particular subject is in List I or List II, but this was subject to any agreement entered into in that behalf by the Government of India with Government of that State. It is admitted that by an agreement entered into between the Rajpramukh of Rajasthan and the Government of India, the Bikaner State Railway was transferred to the Government of India from the 1st of April, 1950. There are two notices which were sent by the appellant in this case, namely, one on the 24th of January, 1950 and the other on the 11th of March, 1950. So far as the first notice is concerned, we are of opinion that it is of no help to the appellant. The Civil Procedure Code was adapted to the State of Rajasthan on the 24th of January, 1950, by Ordinance No. V of 1950, which came into force at once i. e. from the date of its promulgation namely the 24th of January, 1950. Therefore, the appellant had to comply with the provisions of sec. 80 of the Civil Procedure Code when he sent the notice on the 24th of January, 1950. The notice of the 24th of January, 1950 was, however, wrongly address to the State Council and when it reached the Secretariat, it was returned as being improperly addressed and the appellant was asked to send the notice as provided by the Civil Procedure Code in Rajasthan. We are, therefore, of opinion that this notice was of no value, as there was no State Council in existence in Rajasthan on the 24th of January, 1950. Then we come to the notice of the 11th of March 1950. This notice was addressed to the State of Rajasthan through the Collector, Ganganagar. We have already pointed out that in March 1950, the State of Rajasthan was the owner of the Bikaner Sate Railway, Sec. 80 of the Civil Procedure Code bars the institution of a suit against the Government until the expiration of two months next after notice has been delivered to, or left at the office of - (a) in the Case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to a rail way, the General Manager of that railway; (c) in the case of a suit against a State Government, a Secretary to the Government, or the Collector of the District. As the State Government was still the owner of the Bikaner State Railway when the second notice was given on the 11th of March 1950, it is clause (c) which will apply and not clause (b ). Clause (b) would have applied if the Central Government was the owner and the intention was to sue Central Government. It is obvious that if a notice had been sent to the General Manager on the 11th of March, 1950 stating that a suit would be filed against the Central Government, the notice might have been refused on the ground that the Central Government was not the owner and that the proper Government to be sued was the State Government. Consequently, the notice of the 11th of March 1950 was rightly addressed to the State Government through the Collector of Ganganagar District to which this case related. It cannot, therefore, be said that on the date that notice was given, it was wrongly addressed or sent through a wrong channel. The contention on behalf of the Union Government is that even though the notice might not be wrongly addressed on the 11th of March, 1950 when it was sent, it was the duty of the appellant, when it came to file the suit on the 5th of July 1950 to serve a fresh notice on the Union Government thought the General Manager as it by now had become the owner of the Railway, and as that was not done, there was no compliance with sec. 80 of the Code of Civil Procedure. Reliance in this connection has been placed on a number of decisions with which we propose to deal at once. The first case to which reference has been made is Bhagchand vs. Secretary of State (1 ). Emphasis in particular is laid on the following observation of their Lordships appearing at page 184 in this case: - "the Act, albeit a procedure code, must be read in accordance with the natural meaning of its words. Sec 80 is express, explicit and mandatory, and it admits of no implications or exceptions. " It is urged on the basis of this observation that the strictest compliance should be enforced with the terns of sec. 80 of the Civil Procedure Code and the slightest deviation from it should result in the suit being dismissed. These words, however, should, in our opinion, be read in the context in which they were made, for, it is well settled rule of interpretation that the general words used in a particular judgment are always subject to the circumstances of the particular case. That was a case where the suit had been brought within less than two months after the giving; of the notice and it was in that connection that their Lordships pointed out that whatever the hardship or difficulty, he words of sec. 80 C. P. C. were clear and must be given the meaning they bear. It does not follow from the use of these words in this connection that even a small defect in a notice would result in throwing out of a suit. S. 80 of the Civil Procedure Code is certainly to be complied with strictly but that does not mean that the slightest deviation from its provision would lead to dismissal of a suit. An example of this is to be found in a number of cases of various High Court in India were a misdescription in the name of the person to whom the notice had been given has been overlooked so long as the proper person has received the notice and has accepted it. Then come three cases which stand on more or less the same footing. The first of these is Hirachand vs. G. I P. Railway (2 ). That was a case where a suit had been filed in the wrong court and returned for presentation to the right court. In the meantime, the Railway Company became the property of the State. The plaint was presented in the proper court thereafter but no notice was given to the Governor General in Council. It was then held that as the suit was filed after the Railway had become the property of the State, notice to the Governor General was necessary and the absence of nonce under sec. 80 was fatal. In Jamal Noor Mahammad vs. Governor General (3), a suit was filed in December 1944, against the Governor General with respect to the Bengal Nagpur Railway, administration but no notice under sec. 80 of the Civil Procedure Code had been given. The Bengal Nagpur Railway was the property of a company up to the 30th of September 1944 but became the property of the State from the 1st of October, 1944. In those circumstances, it was held that a notice to the Governor General was necessary and its absence was fatal to the suit. The third case is Governor-General in Council vs. Raghunandan (4 ). In that case, the suit was filed against the Railway Company on the 6th of June 1944, but the Railway Company had already become the property of the State on 1st April 1944. Later by amendment the Governor General of India was brought on the record but no notice was given under sec. 80 of the Civil Procedure Code to anybody at any stage. It was then that as the State was brought at a time when the State was the owner of the Railway, the absence of notice under sec. 80 was fatal. This reasoning is not given in the judgment but obviously, this judgment is in line with the Bombay and Calcutta cases already discussed above. It is clear that in all these cases, the State had become the owner of the Railway at the time the suit had been brought. Further, no notice was given to anybody at any time under sec. 80 of the Civil Procedure Code The facts of these cases, therefore, are clearly distinguishable from the facts of the case before us. Here the State was owner of the Railway even in March 1950, though it was the State Government and not the Union Government. Further, a notice was given in March, 1950. to the State Government which was the owner of the Railway at the time when the notice was given. What we have to see there-fore, in the present case is whether on the facts of this case, a notice that was given to the State Government on the 11th of March 1950 is sufficient compliance with sec. 80 C. P. C. even though the suit is now to continue against the Union Government and was instituted after the Union Government had become the owner of the Railway. The last case on which reliance has been placed is Government of the province of Bombay vs. Pestanji Ardeshir Wadia (5 ). There also the facts were different, though their Lordships of the Privy Council reiterated the view that they had taken in 1927. What had happened in that case was that though the notice was given by two persons, the suit was brought by one of them and two others. It was then held that this was not proper compliance with s. 80 of the Civil Procedure Code which requires that the names of the plaintiff or plaintiffs should be given in the notice. Our attention was also drawn to a case of our Court, First Appeal No. 36 of 1952 Ramkanwar vs. Union of India, decided on 13 July, 1953, to which one of us was a party. In that case it was held that the validity of the notice can only be tested according to the law which was in force when the notice was given and the suit was filed. So far as that proposition is concerned, we agree with it. But what we have to see is whether in the peculiar circumstances of this case, the provisions of sec. 80 C. P. C. have been complied with.
(3.) WE have already pointed out that on the 11th of March, 1950,the State of Rajasthan was the owner of the Railway and the notice under sec. 80 of the Civil Procedure Code could only be given to the State Government. It cannot be disputed that the notice which was sent on the 11th of March, 1950, was properly addressed under sec. 80 C. P. C. Later the Union Government became the owner of the Railway from the 1st of April, 1950, and we have to see whether a fresh notice was required under sec. 80 C. P. C. to be addressed this time under clause (b) of sec. 80 C. P. C. It is true that when the suit was filed in July, 1950, the Union Government was the owner, but so far as the law is concerned, it was exactly the same on the 11th of March, 1950, as on the 5th of July, 1950. The appellant had complied with the law as it stood on the 11th of March, 1950, and there was no change in the law on the 5th of July 1950. What is contended on behalf of the Union of India is that as there was change in ownership, a notice under clause (b) became necessary after the 1st of April, 1950, because the suit had to be filed against the Central Government and that could not be done without a notice under clause (b ). WE however, fail to see why when the appellant had given notice to the proper authority on the 11th of March, 1950,that notice should not be availed of by him even though there had been a change in the ownership of the Railway. Under Art. 295 (l) (b) of the Constitution, all rights, liabilities and obligations of the Government of any Indian State corresponding to a State specified in Part B of the First Schedule, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations of the Government of India, if the purposes for which such rights were acquired or liabilities or obligations were incurred before such commencement were purposes of any of the matters enumerated in the Union List. When notice had been given by the appellant to the State Government on the 11th of March, 1950 when it was still owner of the Bikaner State Railway the State Government became liable to be sued after the expiry of two months in accordance with sec. 80 C. P. C. Before, however, this period expired, the Central Government or the Union of India became the owner of the Railway. It seems to us only reasonable that the notice which was served on the State Government should be treated as a notice to the suc-cessor Government mutatis mutandis. When the successor Government was saddled with all the rights, liabilities and obligations under Art. 295 of the Constitution. Learned counsel for the Union Government would ask us to give a literal interpretation to the provisions of sec. 80 C. P. C. and the argument is that as on the 5th of July, 1950, the Union Government was the owner and no notice had been given to the Union Government as required by clause (b) of sec. 80 C P. C. the suit could not be instituted. This argument, in our opinion, overlooks the valid notice that was given on the 11th of March, 1950, to the State Govt. to which alone it could be given on that date. That notice must, in our opinion, be treated to be a notice mutatis mutandis to the Central Government when on the 1st of April, 1950 it came to be the owner of the Railway by virtue of the Constitution and the agreement with the Raj-pramukh of Rajasthan. It is this notice, therefore, which was given on the 11th March, 1950, which clearly distinguishes this case from all the cases cited on behalf of the Union of India. It was also urged that the notice was invalid because it did not comply with the other provisions of sec. 80 C. P. C. namely that it said that the State Government would be sued while the suit had been brought against the Union Government and so on. It is enough to say that once it is held that the notice which was given to the State Government is enough for the Union Government also, we have to read that notice substituting the Union Government for the State Government after the 1st of April, 1950. We may also mention that this notice was in due course received by the General Manager, Bikaner State Railway and he in his letter of the 24th April,1950,said that the matter was under correspondence with the Jodhpur Railway and the appellant would be advised on receipt of the final reply from that Railway. The notice was thus accepted by the General Manager of the Bikaner Railway and cannot be said, under the circumstances of this case, to have reached him through any wrong or circuitous route. After all, if the Railway had remained the property of the State, the notice would still have to be sent from the Secretariat to the General Manager of the Railway to deal with. We may also give another argument in support of the view that we have taken, namely that the notice to the State Government must in the circumstances of this case be treated as sufficient notice to the Union Government. In cases where such transfer of ownership takes place, the question of limitation may also arise and if the notice to the predecessor is not thought sufficient for purposes of the successor, a party may sometimes be faced with the difficulty that his suit is barred by limitation A difficulty may also arise, where a second notice is given to the successor government, whether a party giving the second notice is entitled to the benefit not only of the period of the first notice but also of the second notice. All these difficulties, in our opinion, are avoided in the view that we have taken, namely that if the notice to the predecessor government is in order, it should be treated as notice mutatis mutandis to the successor government also. So far as the Rajasthan State is concerned, an application has been made before us by the appellant praying that the Rajasthan State may be struck out from the array of parties in this litigation. Such an application should have been made when the Union Government was brought on the record. As it was not made then, and the Rajasthan State was kept on the record, the appellant must pay the costs of the Rajasthan State for their being unnecessarily kept on the record. We order the name of the Rajasthan State to be struck off from array of parties but award costs of both courts to the Rajasthan State in the circumstances. We allow the appeal so far as the Union of India is concerned, set aside the order of the trial court and send the case back to it for trial on the remaining issues. The appellant will be entitled to a refund of courtfees paid in this Court. The other costs will abide the final result. . ;


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