S.D.AGARWAL, J. - (1.) THIS is plaintiff's second appeal arising out of a suit filed by the plaintiff -appellant for recovery of Rs. 3054/16 paise comprising of two sets of transactions, Rs. 1848/ - as the price of 308 pieces of wheel guards, Rs. 870/ -as price of 145 pieces of wheel guards. Both these sets of wheel -guards were sent by railway receipt No. G -388040 dated 20th July, 1962 from Chunar in the District of Mirzapur to the Executive Engineer, P. W. D. Purnea. Further a sum of Rs. 326/16 P. was claimed as interest at the rate of 12% per annum and Rs. 10/ - as cost of notice and incidental charges.
(2.) THE suit was filed against the Union of India representing the Northern, Eastern, North Eastern, and North East Frontier Railway Administration, New Delhi. Before flung the suit, notices under Section 80 Civil Procedure Code were sent to all the above mentioned four railway administrations. Notice on the Northern Railway was served on 17th July, 1963. Eastern Railway on 21st July, 1963, North East Frontier Railway on 18th July, 1963 and North Eastern Railway on 18th July, 1963. The suit was filed on 18th September 1963. The trial Court dismissed the suit on 23rd May, 1967 holding that the suit was premature and also on the ground that the plaintiff -appellant had no right to SU2. Against the said judgment an appeal was filed by the plaintiff -respondent before the lower appellate Court. The lower appellate Court set aside the finding of the trial Court in regard to the price of the wheel guards and held that the appellant was entitled to Rs. 2,508/ - as price of the wheel guards. The lower appellate Court further held that the appellant had a right to sue. The lower appellate Court, however, affirmed the finding that the suit of the plaintiff -appellant was premature and as such the decree of the trial Court was maintain _d and the appeal was dismissed by the lower appellate Court by its judgment dated 30th January, 1968. 'Against the said judgment the present appeal has been filed in this Court.
(3.) LEARNED counsel for the appellant has urged that the view taken by the lower appellate Court that the suit is premature is a view manifestly erroneous. He has submitted that the notice on the Northern Railway was served on 17th July, 1963 and the suit having been filed on 18th September, 1963 was well within time and was not premature as two months' period of notice expired on 17th September, 1963.;