DWARKA PRASAD, J. - (1.) THIS second appeal arises out of a suit for recovery of damages for short delivery and damage to goods in transit over railway.
(2.) THE facts which have given rise to this appeal are that M/s. Mohanlal Hargovind sent 20 crates of Bidies on February 8, 1962 from Tumsar Road Railway Station for delivery to M/s. Chandulal Jagjiwandas at Baran Railway Station. THE railway receipt in respect of the aforesaid consignment of Bidies in which Chandulal Jagjiwandas was shown as the consignee, was endorsed by the consignee in the name of Shah Nemji Chitarmal. Whan M/s. Shah Nemji Chitarmal took delivery of the goods at Baran Railway Station, one crate of Bidies was found missing while the remaining crates were found in damaged condition. THE plaintiff, M/s. Shah Nemji Chitarmal, took delivery of 19 crates of Bidies and the loss was assessed by the Station Master, Baran at the time of delivery. After serving the requisite notices under Section 77 of the Railway Act and Section 80 C. P. C, the plaintiff filed a suit for the recovery of a sum of Rs. 1627. 70 towards loss and damages etc. The trial court dismissed the plaintiff's suit and the first appeal filed by him met the same fate. Hence this second appeal. The first ground argued by the learned counsel for the appellant was that the first appellate court fell into error in holding that the notice issued by the plaintiff under Section 80 C. P. C. was invalid. The notice under Section 80 C. P. C. was admittedly given by Shanti Kumar as proprietor of Shah Nemji Chitarmal. The suit has filed in the name of firm Shah Nemji Chitarmal through Shanti Kumar. The argument of the learned counsel was that the notice was given by the same person on whose behalf the suit was filed, namely. Firm Shah Nemji Chitarmal. The contention of the learned counsel for the respondents, on the other hand, was that notice was given by Shanti Kumar in his personal capacity and the specification that he was the proprietor of Shah Nemji Chitarmal was merely a description, while the suit was filed on behalf of Shah Nemji Chitarmal a partnership firm and, therefore, the person who filed the suit was different from the person who gave the notice. The two courts below relying upon the decision of their Lordships of the Supreme Court in S. N. Dutt vs. Union of India (l) held that the notice under sec. 80 C. P. C. was defective and suit the was dismissed. In the aforesaid case the notice under Sec. 80 C. P. C. was given by the counsel under instructions from "m/s S. N. & Dutt & Co. " while in the plaint the plaintiff was described as "surendra Nath Dutt, sole proprietor of the business carried on in the name and style of S. N, Dutt and Co". Their Lordships of the Supreme Court observed that it was obvious that notice was given by a firm which created a prima facie impression that the notice was given on behalf of a partnership firm, while the suit was filed on behalf on an individual 's. N. + Dutt', who claimed to be the sole proprietor of M/s. S. N. Dutt and Co. It was held in the aforesaid case that where an individual carries on business in some name and style, the notice has to be given by the individual in his own name, as a suit can be filed by the individual only. Their Lordships held that comparing the notice given in the suit and the plaint and remembering that M/s. S. N. Dutt was not a partnership firm but merely a name and style in which an individual carried on his trade, the conclusion was inescapable that the person giving the notice was not the same as the person suing. The principle as regards notice under Section 80 C. P. C is well settled. Section 80 lays down that no suit shall be instituted against the Central Government until expiration of two months after notice in writing has been delivered to, or left at the office of the Secretary to that Government stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims and the plaint should contain a statement that such a notice has been so delivered. The notice has to be in conformity with the aforesaid provisions contained in Section 80 C. P. C. and if it were not so, the suit would fail on the ground of non-compliance with those provisions and the suit is liable to be dismissed as not maintainable, in view of the bar of Section 80 of the Code of Civil Procedure. As far back as in the year 1927, their Lordships of the Privy Council in Bhag Chand vs. Secy, of State (2) laid down that Section 80 was explicit and mandatory and admitted of no implications or exceptions and had to be strictly complied with and was applicable to all forms of actions and all kinds of relief. In Vellayan Chettiar vs. Govt. of the Province of Madras (3), where a suit was filed by two plaintiffs but the notice was given by only one of them, it was observed by their Lordships of the Privy Council that : "section 80 according to its plain meaning, requires that there should be identity of the persons who issues the notice with the person who brings the suit. " In Government of the Province of Bombay vs. Pestonji Ardeshir (4) the notice was given by two trustees & the suit was brought by three trustees, out of which two were newly appointed after the notice was given and one of the existing trustees had died when the suit was filed. Thus, only one trustee amongst the plaintiffs had given notice while two others had not. Their Lordships of the Privy Council again held that the provisions of Section 80 of the Code of Civil Procedure was imperative and must be strictly complied with.
(3.) THEREAFTER in Dhian Singh Sobha Singh vs. U. O. I. (5) their Lordships of the Supreme Court explained the legal position by observing that what the Privy Council had laid down in Bhag Chand's case (supra) did not mean that the terms of the notice should be scrutinised in a pedantic manner or in the manner completely divorced from common sense. Their Lordships placed reliance upon the observations of Pollock C. B. in Jones vs. Nicholls (6) to the effect that "we must import a little common sense into notices of this kind. " Beaumount, Chief Justice of the Bombay High Court also made similar observations in Chandulal Vadilal Vs. Govt. of Bombay (7) "one must construe Section 80 with some regard to common sense and to the object with which it appears to have been passed. " It may be observed that when dealing with the question of cause of action and relief claimed in the suit, it would be necessary to use common sense to find out whether Section 80 has been complied with or not; but when the question is about the identity of the name of the plaintiff with that of the persons giving the notice under Section 80 C. P. C. there is little scope for using common sense for either or it is not; and no amount of common sense can bring the name of the person giving the notice in the name of the plaintiff, if it is not there. ;