NANNAH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for damages and has been placed before this Bench on a reference by one of us sitting singly. The suit has been dismissed by both Courts below on a preliminary point relating to the invalidity of notice under Section 80 of the Code of Civil Procedure.

(2.) IT is unnecessary to state the facts of the case at any length as the suit has been thrown out by both Courts below on the afore-mentioned preliminary point only. Suffice it to say that on the 12th April, 1949, the plaintiff delivered 150 goats and sheep to what was then the B. B. and C. I. Railway at the Sojat Road Railway station for being transported to the Railway Station Bandra (Bombay) of the same railway. The animals were booked in three wagons in lots of fifty each. One of these caught fire on the way with the result that thirty-two of them were burnt to death in the wagon itself and ten died later and the remaining eight out of this wagon were delivered to the plaintiff at the destination. The plaintiff's case was that he had been put to a loss of Rs. 1497/8/-on account of the negligence and misconduct of the servants of the railway. It was further alleged that he had given a notice to the Secretary to the government of India in the Department of Railway Transport, New Delhi, and to the General Manager of the B. B. and C. I. Railway under Section 80 of the Code of Civil Procedure and under Section 77 of the Indian Railways Act respectively on the 23rd May 1949, but without any avail. These are Exs. P-3 and P-2 respectively on the record. This suit was instituted on the 1st July, 1950, in the Court of the munsiff Sojat. The suit as originally brought was against the President, Indian republic, through the General Manager, B. B. and C. I. Railway but was subsequently allowed to be amended and the Union of India was impleaded as defendant on the nth July, 1951.

(3.) THE defendant resisted the suit on a number of grounds but the plea with which we are concerned for the purposes of this appeal (as contained in paragraph five of the written statement) was that neither a notice under Section 77 of the Indian railways Act nor a notice under Section So Civil Procedure Code had been served, and, therefore, the suit was bad for want of these notices.