- Bookmark
- Share
- CaseIQ
Raj Kumar Shaw v. Dominion Of India
Summary of Opinion
Factual and Procedural Background
This is a suit against the Dominion of India representing the East Indian Railway. The matter was set down for hearing of a preliminary issue limited to whether this Court has jurisdiction to try the suit. The plaintiff admitted that the only part of the cause of action upon which they relied was the issue and service of a notice under Section 80 of the Civil Procedure Code (CPC) at Calcutta, within the jurisdiction of this Court. The defendant accepted that such a notice was both issued at and served in Calcutta but contended that the issue and service of the notice is not part of the cause of action and therefore that this Court lacked jurisdiction.
Legal Issues Presented
- Whether this Court has jurisdiction to try the suit.
- Whether the issue and service of a notice under Section 80 of the CPC constitutes part of the "cause of action" for the purpose of determining jurisdiction.
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff relied solely on the fact that a notice under Section 80 of the CPC had been issued and served at Calcutta, within the jurisdiction of this Court, as the part of the cause of action establishing jurisdiction.
Defendant's Arguments
- The defendant conceded that the Section 80 notice was issued and served in Calcutta but contended that the issue and service of such notice is not part of the cause of action and therefore the Court has no jurisdiction.
- The defendant relied upon precedents (including Nilima Sarkar and Banshi) to support the proposition that such notices are not part of the cause of action for jurisdictional purposes.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| ‘Dunlop Rubber Company (India), Ltd. v. Governor-General In Council’ (Suit No. 1679 of 1946 (Cal)) | That notice under Section 80 of the CPC is part of the cause of action for the purpose of jurisdiction. | The court treated this decision as binding and followed it in holding that Section 80 notice is part of the cause of action. |
| Dominion of India v. Jagadishprosad Pannalal, 84 Cal LJ 175 | That notice under Section 80 of the CPC is part of the cause of action for jurisdictional purposes. | The court considered this authority binding and relied on it in concluding that the Section 80 notice forms part of the cause of action. |
| Nilima Sarkar v. Governor-General in Council, 86 Cal LJ 98 | Held that the phrase "cause of action" as used in Article 10 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, does not include a notice under Section 80 CPC; the court in that case said it was unnecessary to decide whether for the purpose of jurisdiction the notice might be regarded as part of the cause of action. | The present court distinguished this authority because it concerned Article 10 of the Order and expressly did not decide the jurisdictional question now before this Court. |
| Banshi v. Governor-General of India in Council, 56 Cal WN 83 (FB) | That notice under Section 77 of the Railways Act is not part of the cause of action for the purpose of jurisdiction. | The court distinguished this case on the ground that the Section 77 notice was not a condition precedent to suit (it could be given during pendency), whereas notice under Section 80 CPC is a condition precedent to institution of suit. |
Court's Reasoning and Analysis
The court began from the mutual admissions: the plaintiff relied solely on issuance and service of a Section 80 CPC notice at Calcutta, and the defendant accepted that such notice was issued and served there. The narrow question was whether those facts constitute part of the cause of action for jurisdictional purposes.
The court held that authoritative decisions (Dunlop Rubber Company (India), Ltd. v. Governor-General In Council and Dominion of India v. Jagadishprosad Pannalal) establish that a notice under Section 80 of the CPC is part of the cause of action for jurisdiction. Those cases were treated as binding and the court followed them.
The court distinguished the authorities relied upon by the defendant. In Nilima Sarkar the point was not decided for jurisdictional purposes; the decision related to the meaning of "cause of action" in Article 10 of the Indian Independence Order and expressly avoided deciding the jurisdictional issue. In Banshi the court dealt with notice under Section 77 of the Railways Act and concluded that such notice was not part of the cause of action because it is not a condition precedent to suit (it may be given during pendency). By contrast, the court noted that a notice under Section 80 of the CPC is a condition precedent to instituting the suit, distinguishing Banshi.
The court also observed that even if jurisdiction is established on the Section 80 notice being given at Calcutta, the Union of India is not without remedy if the institution of the suit in that forum is oppressive or if the balance of convenience strongly favors trial elsewhere: the Court has power under Clause 12 of the Letters Patent to revoke leave in a fit and proper case. However, the court stated that that remedial power and related considerations were not the issue before it; the sole issue was jurisdiction.
Holding and Implications
The preliminary issue is decided in favour of the plaintiff: this Court has jurisdiction to try and entertain the suit.
Direct consequences: the court held that, given the admitted issuance and service of the Section 80 CPC notice at Calcutta and the binding precedents it followed, the suit properly lies in this Court. The plaintiff was awarded the costs of the hearing on the preliminary issue. The opinion does not state broader legal effects beyond the direct determination of jurisdiction and does not purport to lay down a new precedent beyond adhering to existing binding authorities.
1. This is a suit against the Dominion of India representing the East Indian Railway. The matter has been set down for hearing of the preliminary issue whether or not this Court has jurisdiction to try this suit.
2. On behalf of the plaintiff, it is admitted that the only part of the cause of action upon which they can rely is the issue and service of notice under Section 80 of the CPC at Calcutta within the jurisdiction of this Court. It is admitted by counsel for the defendant that notice under Section 80 of the CPC was both issued at and served in Calcutta within the jurisdiction of this Court. It is contended by the defendant that the issue and service of such notice is not part of the cause of action and therefore this Court has no jurisdiction.
3. I am satisfied on the authorities that notice under Section 80 of the CPC, is part of the I cause of action for the purpose of jurisdiction. That such notice is part of the cause of action was decided by Sinha, J. in — ‘Dunlop Rubber Company (India), Ltd. v. Governor-General In Council*’, in Suit No. 1679 of 1946 (Cal), and was held in — ‘Dominion of India v. Jagadishprosad Pannalal’, 84 Cal LJ 175. These cases are binding upon me and I am bound to follow them.
4. The cases relied upon by counsel for the defendant are distinguishable. In — ‘Nilima Sarkar v. Governor-General in Council’, 86 Cal LJ 98, it was held that the phrase ‘cause of action’ as used in Article 10 of the Indian Independence (Rights, Properties and Liabilities) Order, 1947, does not include a notice under Section 80 of the CPC. But the Court expressly stated that it was unnecessary in that case to decide whether for the purpose of jurisdiction notice under Section 80 of the CPC might be regarded as a part of the cause of action.
5. The case of — ‘Banshi v. Governor-General of India in Council’, 56 Cal WN 83 (FB), relied upon by the defendant is also distinguishable. In that case it was held that notice under Section 77 of the Railways Act, is no part of the cause of action for the purpose of jurisdiction.
6. The ground for that decision was that notice under Section 77 of the Railways Act, is not a condition precedent to the institution of the suit because that notice could be given even during the pendency of the suit. It is clear however that notice under Section 80 of the CPC is a condition precedent to the institution of the suit.
7. I must not be supposed to say that the Union of India is helpless if a suit is instituted in this Court relying solely upon the fact that notice under Section 80 of the CPC, has been given at Calcutta. If the institution of the suit in this Court is oppressive or if the balance of convenience is overwhelmingly in favour of trial of the suit elsewhere this Court has undoubted power to revoke the leave granted under Cl. 12 of the Letters Patent in a fit and proper case. That is not the issue before me. The only issue before me is whether this Court has jurisdiction.
8. The preliminary issue is therefore decided in favour of the plaintiff and I hold that this Court has jurisdiction to try and entertain the suit.
9. The plaintiff is entitled to the costs of the hearing on the preliminary issue.
B/H.G.P
10. Order accordingly.
Alert