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Union Of India v. Haji Jiwakhan

Madhya Pradesh High Court

Feb 2, 1962

Judgment

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Factual and Procedural Background

The respondent sued the Railway Administration claiming Rs. 370.17 as damages for loss allegedly caused by negligence of the Railway Administration. The plaint alleged that a notice under Section 77 of the Railways Act had been served on the Railway Administration, but the plaint did not state the date of that notice; it also stated that a copy of a notice dated 25-10-1960 was being filed with the plaint. The petitioner (Railway Administration) contended that any such notice under Section 77 was beyond the statutory period of six months and therefore invalid, and denied negligence.

The learned Small Cause Judge relied on observations in Union of India v. Ramnarayan (Civil Revision No. 290 of 1957) to infer actual notice from an assessment of damages by the Station Master and passed a decree in favour of the respondent. The present opinion is a revision of that decree. The revising court examined whether the notice relied upon was a valid notice under Section 77, and whether amendment or additional evidence should be permitted. The revising court ultimately allowed the revision, set aside the decree, and granted costs.

Legal Issues Presented

Whether the notice said to have been served under Section 77 of the Railways Act was valid and within the six-month limitation period prescribed by that section.
Whether an assessment of damages by an authorized railway officer (e.g., Station Master) can be taken to constitute valid notice under Section 77.
How the six-month limitation in Section 77 is to be computed — specifically, whether the phrase "for carriage by railway" qualifies "animals or goods" or the word "delivery" (i.e., whether time runs from delivery to railway administration or from delivery to consignee).
Whether the delay of a few days in sending the notice can be excused by excluding days under Section 10 of the General Clauses Act (e.g., due to post-office closure), thereby bringing the notice within the six-month period.
Whether a notice given to an authority held out by the Railway Administration as competent to deal with claims is sufficient notice under Section 77.

Arguments of the Parties

Petitioner's (Railway Administration) Arguments

The notice alleged to have been served under Section 77 was beyond the period of six months required by that section and therefore could not be a valid notice.
There was no negligence or misconduct by the Railway Administration causing damage to the consignment.
It was argued (by implication in defending the decree) that the notice produced with the plaint (dated 25-10-1960) was not a Section 77 notice and thus could not sustain the claim.

Respondent's Arguments

The respondent alleged that he had served a notice under Section 77 (though the plaint omitted the date), and filed a copy of a notice dated 25-10-1960 with the plaint.
The respondent later produced a copy of a notice dated 21-9-1960 purporting to be under both Section 80 of the Civil Procedure Code and Section 77 of the Railways Act and sought permission to amend the plaint to refer to that notice specifically.
The respondent's counsel relied on the Division Bench observations in the 1957 MP LJ/ AIR 1957 Madhya Pradesh decision to argue that a short delay (three days) could be excluded under Section 10 of the General Clauses Act because of inability to post on a public holiday, thereby attempting to bring the notice within limitation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Union of India v. Ramnarayan, Civil Revn. No. 290 of 1957 Dated 22-9-1958: 1958 MPLJ Notes 167	Earlier observations relied upon by the Small Cause Judge concerning inference of notice from assessment of damages by an officer.	The revising court held that the Small Cause Judge misread these observations; the revising court clarified that the earlier decision did not lay down that mere assessment of damages by any authority would constitute Section 77 notice, and that facts in that case constituted valid notice on evidence-specific grounds.
Union of India v. Haji JivaKhan, Civil Revn. No. 498 of 1961 Dated 24-1-1962 (MP)	Explanation of the Ramnarayan observations; authority for the point that notice in writing given within the prescribed period to an officer authorized by the General Manager is sufficient (not an authority for oral notice).	The court reproduced and relied on the explanation that a written notice to an officer authorised by the General Manager suffices; but emphasized that this does not mean oral notice is sufficient.
Governor-General in Council v. Musadd Lal, AIR 1961 SC 725	That a notice under Section 77 of the Railways Act is mandatory.	The revising court treated Section 77 as mandatory, following the Supreme Court's position, and applied that to negate the validity of an out-of-time notice.
Union of India v. Gendlal Nathuram, 1958 MPLJ 500 (AIR 1958 Madh Pra 314)	Earlier Division Bench view that a notice is not necessary in cases of non-delivery (now held not to be good law).	The revising court stated that this view is no longer good law in light of Musadd Lal, and reaffirmed that notice is necessary in all cases (deterioration, loss, or non-delivery).
Amarchand Pannalal v. Union of India, AIR 1955 Assam 221	Interpretation that the phrase "for carriage by railway" qualifies "animals or goods" and not the word "delivery".	The revising court noted this contrary view but rejected it, preferring the opposite interpretation adopted in other authorities and a Division Bench of the revising court's own High Court.
East Indian Rly. Co. v. Bhimraj Srilal, ILR 5 Pat 488 (AIR 1926 Pat 413)	One of the earlier cases adopting a view contrary to the Assam decision on how to construe Section 77.	The revising court recorded that this case's view was subsequently overruled by a full bench and aligns with authorities the court accepts.
Governor-General in Council v. Gouri Shankar Mills Ltd., ILR 28 Pat 178 (AIR 1949 Pat 347)	Full Bench overruling East Indian Rly. Co. view and supporting the construction preferred by the revising court.	The revising court treated this Full Bench decision as supporting the interpretation that "for carriage by railway" must be correlated with "delivery" (time runs from delivery to railway administration).
Badridas Firm of Purulia v. Governor General for India in Council, AIR 1947 Pat 118	Case cited as taking the view contrary to the Assam Division Bench on interpretation of Section 77.	Used among authorities that the revising court found persuasive against the Assam interpretation; supports computing time from delivery to the railway administration.
Governor-General in Council v. Sarbeswar Das, AIR 1949 Cal 420	Calcutta High Court adopting the view contrary to the Assam decision regarding construction of Section 77.	Noted as part of the weight of authority favoring the revising court's chosen interpretation.
Union of India v. Sha Vastimull Harakchand, AIR 1959 Mys 13	Single Bench dissent from the Assam Division Bench view on Section 77 interpretation.	Referred to in demonstrating the existence of contrary judicial views; contributes to the court's conclusion that the Assam interpretation should not be followed.
Union of India v. Asharfi Devi, 1957 MPLJ 294 ((S) AIR 1957 Madh Pra 114)	Division Bench of this Court considered the same interpretive question and expressed dissent from the Assam view, adopting the contrary view.	The revising court regarded the Division Bench of its own Court as binding on it and applied that interpretation (time computed from delivery to Railway Administration).
Deorao v. GIP Ry. Co., Nag LR 8(?) 34	Case cited as holding that notice issued to an authority held out as competent was not sufficient notice.	Listed among authorities taking the view that notice to such an authority would not be sufficient; the revising court noted the controversy but did not decide it because the notice was invalid on limitation grounds.
Cawnpore Cotton Mills Co. Ltd. v. GIP Rly, AIR 1923 All 301	Authority holding that notice to a held-out authority is not sufficient.	Noted as part of the body of authority rejecting the sufficiency of notice to a held-out authority; court left the controversy unresolved due to limitation ruling.
G.I.P. Rly Co. Ltd. v. Chandulal Sheopratap, ILR 50 Bom 184 (AIR 1926 Bom 138)	Cited among cases holding such notice insufficient; also cross-referenced with AIR 1926 Pat 413.	Recorded as part of authorities that the revising court acknowledged but did not resolve the broader controversy about sufficiency of notice to held-out authorities.
Mahadeva Ayyar v. South Indian Railway Co., ILR 45 Mad 135 (AIR 1922 Mad 362)	Full Bench case taking the contrary view that notice to an authority held out as competent is sufficient.	Included among the Full Bench authorities supporting sufficiency of notice to such authorities; the revising court mentioned it but did not decide the issue on that ground.
Devi Ditta Mal v. Secretary of State, ILR 7 Lab 238 (AIR 1926 Lah 253)	Full Bench authority supporting sufficiency of notice to a held-out authority.	Mentioned as part of the contrary line of decisions; not decided upon because the revising court disposed of the case on limitation grounds.
Bhayyalal v. Agent and General Manager, Bengal-Nagpur Railway, ILR (1944) Nag 612 (AIR 1944 Nag 362)	Judgment by Bobde J. adopting the view that notice to a held-out authority is sufficient.	Noted as supporting the line of authority that would treat such notice as sufficient, but not relied upon to decide the present matter.
Govindlal v. Governor-General in Council, ILR (1947) Nag 369 (AIR 1948 Nag 17)	Judgment by Niyogi J. adopting sufficiency of notice to an authority held out as competent.	Mentioned among authorities taking the contrary view; the revising court left the controversy open and did not decide it because the notice was invalid on time grounds.

Court's Reasoning and Analysis

The court proceeded methodically:

Section 77 of the Railways Act is mandatory. The court relied on the Supreme Court decision in Governor-General in Council v. Musadd Lal (AIR 1961 SC 725) for the proposition that a claim for compensation must be preferred in writing within six months from the date of delivery of the animals or goods for carriage by railway.
The court examined what was actually filed with the plaint and found that what the respondent purported to file was a notice dated 25-10-1960 (a Section 80 CPC notice) rather than a dated copy of a notice under Section 77; a copy of any Section 77 notice was not initially filed. Later the respondent produced a copy dated 21-9-1960 said to be under both Section 80 CPC and Section 77 Railways Act and sought to amend the plaint to refer to it.
The revising court considered whether to permit amendment or the adduction of that additional evidence. The court held that amendment/additional evidence did not arise in view of the conclusion it would reach on limitation: even if the 21-9-1960 notice were admitted, it would still be beyond six months from the relevant date.
The court resolved how the six-month period under Section 77 is to be computed. It held that the phrase "for carriage by railway" must be correlated with the word "delivery" — i.e., the period begins from the date of delivery to the railway administration for carriage (not from delivery to the consignee). The Court followed a Division Bench of its own High Court (Union of India v. Asharfi Devi, 1957 MPLJ 294 / AIR 1957 Madh Pra 114) and other authorities in rejecting the Assam Division Bench construction (Amarchand Pannalal) as incorrect. The revising court considered the wording clear and declined to adopt the Assam interpretation as judicial legislation.
Factual computation: the consignment was delivered to the Railway Administration for carriage on 18-3-1960 (and delivered to the consignee on 24-3-1960). Counting from 18-3-1960, a notice dated 21-9-1960 would be beyond six months.
The court addressed the respondent's reliance on Section 10 of the General Clauses Act to exclude days when he was unable to post the notice (post-office closure). The court checked the 1960 almanac: 19-9-1960 was a Monday (post-office not closed), 20-9-1960 was a public holiday, and the notice was actually sent on 21-9-1960. Even applying Section 10, the court found that the notice remained beyond six months and that Section 10 could not be invoked to bring it within limitation.
The court noted the collateral controversy whether a notice given to an authority held out by the Railway Administration as competent to deal with such claims is sufficient as notice under Section 77. It recorded conflicting authorities on that point (some holding such notice insufficient, others — including Full Benches — holding such notice sufficient). The revising court declined to resolve that controversy because it found the notice invalid on limitation grounds.
The revising court concluded that the Small Cause Judge had erred in his reliance upon the earlier observations in Union of India v. Ramnarayan; the decree based on that incorrect view could not be sustained in law.

Holding and Implications

Holding: The revision is allowed and the decree of the learned Small Cause Judge is set aside on the ground that there was no valid notice under Section 77 of the Railways Act within the prescribed six-month period.

Consequences and implications:

The decree passed by the learned Small Cause Judge cannot be sustained in law for want of a valid Section 77 notice; therefore the revision succeeds and is allowed with costs.
The court awarded costs (counsel's fee Rs. 30/-, if certified) to the petitioner.
Because the court disposed of the case on limitation and notice grounds, the other contested questions (including whether notice to an authority held out as competent suffices) were not decided — the court explicitly stated that those other questions do not arise for consideration in view of its primary conclusion.
The opinion was intended also to explain earlier observations by the judge that may have caused misunderstanding; the judge clarified his earlier statements rather than laying down a new general principle beyond the holding on the facts before him. The opinion does not purport to create or announce a new, broad precedent on the sufficiency of notice to held-out authorities because that controversy was left open.

Show all summary ...

3. The respondent filed the present suit claiming Rs. 370.17 nP. as damages for the loss caused on account of the alleged negligence on the part of the Railway Administration. In the plaint it was alleged that a notice under Section 77 of the Railways Act had been served on the Railway Administration. However, the date of the notice was not mentioned. Further on, it was also mentioned that a copy of the notice, dated 25-10-1960 was being filed along with the plaint.

4. On behalf of the petitioner, it was contended that the alleged notice under Section 77 of the Railways Act was beyond the period of 6 months and, therefore, it could not be a valid notice. It was also denied that there was any damage to the consignment on account of the negligence or misconduct of the Railway Administration.

5. The learned Small Cause Judge, relying on the observations made by me in Union of India v. Ramnarayan, Civil Revn. No. 290 of 1957 D/- 22-9-1958: 1958 MPLJ Notes 167 held that in view of the assessment of damages by the Station Master actual notice to the Railway Administration should be inferred.

5a. At the outset I might observe that the learned Small Cause Judge has totally misunderstood the observations made by me in the said case. I did not lay down that the mere fact about the assessment of damages by any authority would constitute notice under Section 77 of the Railways Act. in that case it was the plaintiff's allegation that he had served a notice on the General Manager. That fact was, however, denied by the Railway Administration. In that case the assessment of damage had been made subsequent to the alleged delivery of notice. Therefore, the question arose as to how the assessment of damages was made, although the Railway Administration had no notice at all. It was with reference to a rule of evidence. In fact, what I held was that the facts constituted a valid notice, as required by Section 77 of the Railways Act The learned Judge of the Small Cause Court appears to have laboured under that misapprehension in another case, which was recently decided by my brother Shrivastava J., namely: Union of India v. Haji JivaKhan, Civil Revn. No. 498 of 1961 D/- 24-1-1962 (MP). My brother Shrivastava J. explained the observations made by me in Civil Revn. No. 290 of 1957 D/- 22-9-1958: 1958 MPLJ Notes 167 (supra) can do no better than to reproduce the observations of my brother Shrivastava J.:--

"In view of the fact that the claim was made to an officer who was authorised by the General Manager to entertain such claims, it was held that the requirements of Section 77 were complied with. The decision is not an authority for the qu'estion that an oral notice would be sufficient; it only lays down that a notice in writing given within the prescribed period to an officer who has been authorised by the General Manager to deal with the claims is enough."

6. A notice under Section 77 of the Railways Act is mandatory, as laid down by Their Lordships of the Supreme Court in Governor-General in Council v. Musadd Lal, AIR 1961 SC 725. As such, the view of a Division Bench of this Court in Union of India v. Gendlal Nathuram, 1958 MPLJ 500: (AIR 1958 Madh Pra 314) laying down 1hat a notice is not necessary in a case of non-delivery is no longer good law. A notice will be necessary in all cases whether it be a case of deterioration, loss or non-delivery.

7. However, the question arises in the present case whether the alleged notice under Section 77 of the Railways Act was a valid notice. In this connection, it is to be noted that the respondent vaguely alleged that he had served a notice under section 77 of the kailwayg act. But, what he purported to file with the plaint was a subsequent notice, dated, 25-10-1960, which he had issued under Section 80 of the Civil Procedure Code. The alleged notice under Section 77 of the Railways Act, or its copy was not at all filed.

8. It was for that reason that the petitioner in its defence contended that the notice produced in Court was not within the period of 6 months, as required by Section 77 of 'the Railways Act. However, the learned counsel for the respondent has produced a copy of the notice, dated, 21-9-1960 purporting to be under Section 80 of the Civil Procedure Code and Section 77 of the Railways Act and has also prayed for permission to amend the plaint in order to refer to the said notice specifically.

9. In my opinion, the question relating to an amendment of the plaint, as also relating to production of additional evidence does not at all arise in the view that I propose to take. The consignment was delivered to the Railway Administration for carriage on 18-3-1960. It was delivered to the consignee at Khandwa on 24-3-1960. Section 77 of the Railways Act requires a notice of claim being preferred within a period of 6 months. The said Section is as follows:--

"A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction or determination of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway."

10. The learned counsel for the respondent invited attention to the observations of a Division, Bench of the Assam High Court in Amarchand Pannalal v. Union of India, AIR 1955 Assam 221 where Sarjoo Prosad C. J. and Ram Labhaya J. expressed the opinion that the phrase 'for carriage by railway' in Section 77 of the Railways Act qualify the phrase 'animals or goods' and do not qualify the word 'delivery' in the said section. There is a contrary view in various cases.

11. The contrary view was taken in East Indian Rly. Co. v. Bhimraj Srilal, ILR 5 Pat 488: (AIR 1926 Pat 413), although the said case was over-ruled subsequently by a full Bench of the same High Court in Governor-General in Council v. Gouri Shankar Mills. Ltd., ILR 28 Pat 178: (AIR 1949 Pat 347). The same view was taken by Sinha J. (as he then was) in Badridas Firm of Purulia v. Governor General for India in Council, AIR 1947 Pat 118. The Calcutta High Court also adopted that view in Governor-General in Council v. Sarbeswar Das, AIR 1949 Cal 420. Later on, a Single Bench of the Mysore High Court in Union of India v. Sha Vastimull Harakchand, AIR 1959 Mys 13 had an occasion to consider this question when the learned Judge dissented from the view of the Division Bench of the Assam High Court.

12. It is true that the interpretation put by the different High Courts on Section 77 of the Railways Act might lead to an anomalous position in some cases, as was observed by the Division Bench of the Assam High Court in AIR 1955 Assam 221 (supra). But, the wording of Section 77 is very clear and I am in agreement with the view that the pharse 'for carriage by Railway' cannot refer to animals or goods, but has necessarily to be corelated to the word 'delivery'. The other interpretation suggested by the Assam High Court would not be a correct rule of interpretation. It would amount to judicial' legislation, which would not be warranted on account o?1 the fact that there is no ambiguity in the section itself, This matter came up for consideration before a Division Bench of this Court consisting of V. R. Sen J. and Bhutt J. (as he then was) in Union of India v. Asharfi Devi, 1957 MPLJ 294: ((S) AIR 1957 Madh Pra 114). The learned Judges noted the view as expressed in the Assam case and expressed their dissent from that and accepted the contrary view propounded in other cases. So far as I am Concerned, I am bound by the observations of a Division Bench of this Court and under the circumstances it is not possible to accept the suggestion of the learned counsel for the respondent that this case might be referred to a larger Bench for considering the correctness of the said' view.

13. But, there is another difficulty. Even if the copy of the notice, dated, 21-9-1960 sought to be adduced as additional evidence is admitted on record, from any some of view, the said notice under Section 77 of the Railways Act would be beyond the period of 6 months. I have already negatived the contention of the learned counsel for the respondent that the limitation of 6 months should be Computed from the date of delivery of the consignment. As laid down by the Division Bench, the time has to be computed from the date of delivery to the Railway Administration.

14. However, the learned counsel for the respondent further invited attention to the observations of the Division Bench consisting of V. R. Sen J. and Bhutt J. in 1957 MP LJ 294: ((S) AIR 1957 Madh Pra 114) (supra) and urged that the notice In the present case was only delayed by three days and under Section 10 of the General Clauses Act, the respondent would be entitled to exclude the days during which he was unable to post the notice, because the post-office was closed. Upon a reference to the comparative almanac of the year 1960, I find that 19-9-1960. was a Monday when the post-office was not closed. It is true that 20-9-1960 was a public holiday. The notice was actually sent on 21-9-1960. Therefore, even according to the principle laid down by the said Division Bench, I am unable to accept the contention of the learned counsel for the respondent that Section 10 of the General Clauses Act can be invoked to bring the notice within limitation-. For the obvious fact that even this notice, dated 21-9-1960 was indisputably beyond the period of 6 months, there is no point in admitting the additional evidence, or In allowing the respondent to amend his plaint.

15. Further, I might observe that there has been s controversy whether a notice under Section 77 of the .Railways Act issued to an authority, who is held out by the Railway Administration as the competent authority to deal with such claims would be sufficient notice. The cases holding that such notice would not be a sufficient notice are as follows: Deorao v. GIP Ry. Co. 8 Nag LR 34, Cawnpore Cotton 'Mills Co. Ltd. v. GIP Rly, AIR 1923 All 301, G.I.P. Rly Co. Ltd. v. Chandulal Sheopratap, A firm ILR 50 Bom 184: AIR 1926 Bom 138) and AIR 1926 Pat 413. The contrary View has been taken in some Full Bench cases, namely, Mahadeva Ayyar v. South Indian Railway Co. ILR 45 Mad 135 : (AIR 1922 Mad 362), Devi Ditta Mal v. Secretary of State, ILR 7 Lab 238: (AIR 1926 Lah 253) and AIR 1949 Pat 347, The same view has been adqpted by Bobde J. in Bhayyalal v. Agent and General Manager, Bengal-Nagpur Railway, ILR (1944) Nag 612: (AIR 1944 Nag 362) and by Niyogi J. in Govindlal v. Governor-General in Council, ILR (1947) Nag 369: (AIR 1948 Nag 17). This question was, however, left open by the Division Bench in Union of India v. Asharfi Devi, 1957 MPLJ 294: ((S) AIR 1957 Madh Pra 114) (supra). In view of the fact that I am holding that the alleged' notice was invalid as it was beyond the period of 6 months as required by Section 77 of the 'Railways Act, it is unnecessary for me to try to resolve the controversy.

16. To conclude, I am of opinion that the decree passed on an incorrect view of the observations made by me in Civil Revn, No. 290 of 1957 D/- 22-9-1958: 1958 MPLJ Notes 167 (supra) cannot be sustained in law. It is with a view to explain my earlier observations which I find might have created a misunderstanding in the minds ot some Judges that I have been required to deal with the matter exhaustively. The decree passed by the learned Small Cause Judge cannot, therefore, be sustained in law on the ground that there was no valid notice under Section 77 of the Railways Act. Consequently, the other questions do not arise for consideration.

17. As a result, this revision succeeds and is allowed with costs. Counsel's fee Rs. 30/-, if certified.