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Madanlal Kadia v. Union Of India Through The General Manager, S.E Railway And Others
Factual and Procedural Background
The plaintiff, Madanlal Kadia (sole proprietor of the business "Madanlal Sajan Kumar Kadia" at Jharsuguda), was the endorsed consignee of a consignment of 220 bags of sugar booked from Bhatni to Jharsuguda. On delivery there was a total shortage of 4,437 kg (119 mds.) of sugar. The plaintiff obtained a short certificate, served notices under Section 77 of the Railways Act and under Section 80 of the Civil Procedure Code (CPC), and sued the Union of India (Railways) for damages for the shortage and for the cost of 36 torn gunny bags, claiming Rs. 5,070.
The defendant-Union of India denied the plaintiff's title to the goods and alleged that the goods had been booked at owner's risk without compliance with packing conditions, that the bags were old and torn, and therefore the Railways could not be held liable. The defendant also contended that statutory notices under Section 80 CPC had not been duly served and that the suit was not maintainable; the correctness of the damages rate was also disputed. At trial the defendants did not press their contentions regarding shortage and packing conditions. The Subordinate Judge, Sambalpur, found the damages rate not excessive but held that the plaintiff had failed to prove service of notices under Section 80 CPC; on that basis the suit was dismissed (without costs). The plaintiff appealed.
Legal Issues Presented
- Whether notices under Section 80 of the CPC were duly served on the defendant-railways prior to institution of the suit.
- Whether the plaintiff should be permitted, at that stage, to amend the plaint to record the second (subsequent) service date of the Section 80 notice (i.e., whether the proposed amendment would introduce a new cause of action or otherwise prejudice the defendants).
Arguments of the Parties
Appellant's (Plaintiff's) Arguments
- The plaintiff produced a short certificate and served notices under Section 77 (Railways Act) and Section 80 CPC, and subsequently filed the suit claiming Rs. 5,070 for shortage and damaged bags.
- After discovering that the initial notices dated 20-1-61 were defective (in view of AIR 1961 SC 1449), the plaintiff served further notices under Section 80 CPC dated 8-10-61 (Ex. 6) and produced postal receipts (Exs. 6(a)–6(e)) and postal acknowledgments (Exs. 6(f)–6(j)).
- The plaintiff sought leave to amend the plaint to add the second service date (8-10-61) on the ground that the omission was inadvertent/technical, that the substituted notices and postal receipts/acknowledgments were already on record, and that the defendants would not be taken by surprise or prejudiced.
Respondent's (Union of India / Railways') Arguments
- The Union denied the plaintiff's title and contended that the consignment was transported at owner's risk and packing conditions were not complied with so the Railways should not be held liable for loss.
- It was contended that notices under Section 80 CPC had not been duly served, rendering the suit not maintainable; the Subordinate Judge accepted this view and dismissed the suit.
- Regarding the proposed amendment, respondents argued that adding the later notice date would introduce a new cause of action, change the nature of the suit, prejudice the defendants, and effectively amount to filing a fresh suit that could be time-barred if brought at that later date.
- During cross-examination, respondents pointed to an apparent discrepancy in P.W.2's account about the places/dates of posting the registered letters (different post offices and dates), seeking to impeach the proof of posting.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| AIR 1961 SC 1449 | Where an individual carries on business in a name and style, a statutory notice must be given by the individual in his own name (i.e., notices in the trade name can be defective). | Explained why the plaintiff regarded the original notices dated 20-1-61 as defective and therefore issued substituted notices dated 8-10-61. |
| AIR 1918 PC 102 — Harihar Banerjee v. Ramshashi Roy | Where a letter is properly directed and proved to have been put into the post, there is a presumption that it reached the destination in proper time according to the regular course of post office business. | The court relied on this presumption in assessing the postal receipts and acknowledgments (Exs. 6(a)–6(j)) and in accepting that the substituted notices were delivered to the respective Railway offices. |
| AIR 1954 Bom 129 — Bata Shoe Co. Ltd. v. Union of India | Although a statutory notice is an essential preliminary step for institution of suit, it is not part of the cause of action; the notice follows the cause of action and merely paves the way for institution of the suit. | The court cited this principle to reject the contention that adding a date of service would amount to changing the cause of action; it supported allowing amendment. |
| AIR 1955 Mad 345 — Azizud-din and Co. v. Union of India | Approves the reasoning that service of the statutory notice is not part of the cause of action. | The court cited this approval as supporting authority for allowing the amendment and for the proposition that notice is not part of the cause of action. |
| AIR 1959 Cal 273 — Jaharlal Pagalia v. Union of India | Held that an averment in the plaint that notice under Section 80 CPC has been delivered is something apart from the cause of action; treating notice or its service as part of the cause would enlarge the content of Section 80. | The court relied on this decision (and subsequent follow-up decisions) to hold that the proposed amendment would not introduce a new cause of action and therefore allowed the amendment. |
| AIR 1960 Cal 391 — Niranjan Agarwalla v. Union of India | Follows the reasoning that service of notice under Section 80 is not part of the cause of action. | Considered as reinforcing the line of authority that permitted amendment and that service of notice does not alter the cause of action. |
Court's Reasoning and Analysis
The court proceeded in two connected stages: first, an evidentiary assessment of whether the Section 80 notices had in fact been served; second, legal consideration of whether the plaint could be amended to record the subsequent service date and whether such amendment would introduce a new cause of action.
On evidence, the plaintiff produced the substituted notice dated 8-10-61 (Ex. 6), postal receipts (Exs. 6(a)–6(e)) showing registration and dispatch to the railway authorities on 9–10–61 and 10–10–61, and postal acknowledgments from the railway offices (Exs. 6(f)–6(j)). P.W.2 (the plaintiff's claim agent) testified that he dispatched the notices and that the receipts and acknowledgments corresponded with each other. D.W.1 (a railway clerk) produced registers showing no receipt of a claim in respect of the consignment, but when confronted with Ext. 6(f) (a postal acknowledgment), D.W.1 admitted that the relevant letter had been received in his office. The defendant did not produce railway employees from the other railways to rebut the evidence, and did not produce the letter corresponding to Ext. 6(f) to show it was unrelated to the present claim.
The court applied the presumption from Harihar Banerjee v. Ramshashi Roy (AIR 1918 PC 102) that a properly addressed letter proved to have been posted is presumed to have reached its destination in the ordinary course of post. Although a discrepancy in P.W.2's statement about the place and day of dispatch (he had said all notices were dispatched the same day from Jharsuguda while postal receipts showed despatch from two different Sambalpur post offices on two dates) was pointed out, the court treated this as at most a lapse of memory. The court noted that P.W.2 had not been previously confronted with the discrepancy and therefore the respondents could not rely on that lacuna at appeal stage to discredit the established proof. On the whole evidence, the court was satisfied that notices under Section 80 CPC had been served on the different Railways about two months before the suit was instituted (i.e., prior to 19-1-62). The court also recorded that the notice under Section 77 of the Railways Act had been duly served.
On the amendment application, the court examined authoritative decisions (including Bata Shoe Co. Ltd. v. Union of India and the Calcutta High Court decisions) that hold that service of a Section 80 notice is a procedural prerequisite but is not part of the cause of action. Applying those precedents, the court concluded that permitting the plaint to be amended to add the second service date would not introduce a new cause of action, nor change the existing cause of action. The court further considered prejudice: substituted notices and supporting postal documents were already on the record, and the defendants had the opportunity to cross-examine and produce rebuttal evidence. On these grounds the court found no basis to refuse the amendment.
Holding and Implications
Holding: The court allowed the appeal and gave the following operative rulings:
- The appeal is allowed.
- The decree of the Subordinate Judge dismissing the suit is set aside.
- The plaintiff's suit is decreed with costs throughout.
- The proposed amendment to the plaint is allowed so as to record that notices under Section 77 of the Railways Act and Section 80 CPC were duly served (including the substituted notices), and the court found that such notices had been duly served about two months before institution of the suit.
Implications: The direct effect is that the plaintiff's claim succeeds and the previous dismissal is reversed; the plaintiff is awarded costs. The court's decision follows existing High Court and Privy Council authority about (a) the presumption of receipt of posted letters when posting is proved, and (b) the legal position that service of a Section 80 CPC notice is a procedural prerequisite but not part of the cause of action. The opinion does not purport to establish a new legal principle beyond applying these authorities to the facts; its practical effect is resolution of the parties' dispute in favour of the plaintiff on the basis of the evidence and settled law.
Patra, J.:— This is an appeal by the plaintiff whose suit to recover Rs. 5070 from the Union of India representing the defendant-Railways was dismissed by the Subordinate Judge, Sambalpur. The plaintiff was the endorsed consignee in respect of a consignment of 220 bags of sugar booked from Bhatni to Jharsuguda. When the consignment was delivered there was a total shortage of 4437 kg. or 119 mds. of sugar. The plaintiff obtained a short certificate and served notices under Section 77 of the Railways Act and under Section 80 of the CPC. Thereafter he filed a suit claiming damages for 4437 kg. of sugar and the cost of 36 gunny bags received in torn condition, amounting to Rs. 5070.
2. The Union of India denied the title of the plaintiff to the goods and contended that the goods having been booked at owner's risk rate without compliance with the packing conditions and the bags being old and torn the defendant cannot be held liable for the loss. It was further contended that the statutory notices under Section 80 of the CPC having not been duly served on the Railways, the suit was not maintainable. The correctness of the rate at which the damages were claimed was also disputed. At the time of hearing, however, the defendants did not press their contentions regarding shortage and the non-compliance with the packing conditions. The learned Subordinate Judge held that the rate at which the damages have been claimed is not excessive. A decree for the plaintiff was therefore to follow, but for the finding of the learned Subordinate Judge that the plain tiff failed to prove that notices under Section 80 of the CPC have been duly served on the defendants. In the result he dismissed the suit, but without any costs. Hence this appeal by the plaintiff.
3. The only question therefore for consideration in this appeal is whether there was due service of notices under Section 80 of the CPC on the defendants.
4. The plaintiff Madanlal Kadia is the sole proprietor of the business “Madanlal Sajan Kumar Kadia” at Jharsuguda. Notices were issued under Section 77 of the Railways Act and under Section 80 of the CPC in the name of Madanlal Sajan Kumar Kadia. These notices were dated 20-1-61. Immediately afterwards the plaintiff discovered that the notices were defective obviously in view of the decision in AIR 1961 SC 1449, to the effect 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. Plaintiff's case is that thereafter he served further notices under Section 80 of the CPC, to the defendants. Ex. 6 is the copy of the notice produced by the plaintiff, and it is dated 8-10-61. Exts. 6(a) to 6(e) are the postal receipts which go to show that registered letters were sent to the defendants and they were despatched to the North Eastern Railway and Eastern Railway on 9-10-81 and to the three other Railways on 10-10-61.
5. P.W 2 who is plaintiff's claim agent deposes that the receipts Exts. 6(a) to 6(e) related to the notice Ext. 6 sent to the defendants. Exts. 6(f) to 6(j) are the postal acknowledgments received from the defendant-railways in token of their having accepted certain registered letters and P.W 2 says that Exts. 6(f) to Ext. 6(j) related to the receipts Exts. 6(a) to 6(e). D.W 1 who is a clerk of the office of the General Manager, South Eastern Railway produced 8 registers Exts. A, A/1 and A/2 maintained in General Manager's office in which receipts of all notices in the office of the General Manager are noted. It is with reference to these registers that he said that the General Manager's office did not receive any claim in respect of the suit consignment. But on being confronted with the Ext. 6(f) the postal acknowledgment, D.W 1 admitted that the letter relating to Ext. 6(f) had been received in his office. This letter has not been produced to show that the letter received under Ext. 6(f) does not relate to the present claim. We therefore see no reason to disbelieve the evidence of P.W 2 that Ext. 6(f) related to the notice Ext. 6(e) sent to the General Manager, South Eastern Railway. No employee of any of the other Railways has been examined on the defendant's side to dispute the correctness of the statement made by P.W 2. Exts. 6(g) to 6(j) are acknowledgments received from the General Managers of Eastern Railways, North Eastern Railways, Central Railways and Northern Railways, respectively.
6. That apart if a letter is properly directed and is proved to have been put into the post office it is presumed that the letter reached the destination in proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. AIR 1918 PC 102, Harihar Banerjee v. Ramshashi Roy. P.W 2 has deposed that he himself had despatched the notices referred to above. He has no doubt stated that all these notices were despatched on the same day from Jharsuguda. Our attention was drawn by the learned Advocate for respondent to the fact that notices relating to Ext. 6(c) and Ext. 6(d) were despatched on 9-10-61 from Barabazar post office and Exts. 6(a) and 6(e) were despatched from Khetrajpur post office on 10-10-61. It is well known that Barabazar and Khetrajpur Post Offices are situated within Sambalpur town. It is pointed out that the statement made by P.W 2 that he had despatched all these notices on the same day from Jharsuguda should not be believed.
7. P.W 2's attention was not drawn to the discrepancy. Had that been done he would have had an opportunity to explain the same. It is therefore not permissible for the respondents at this stage to base his critioism on this lacuna which in the circumstances we do not at all consider to be very material. It may be just a case of lapse of memory. On a consideration of the evidence on record we are satisfied that notices under Section 80 of the CPC had been served on the different Railways 2 months before 19-1-62 when the suit was instituted in Court. It is not disputed before us that the notice under Section 77 of the Railways Act had been duly served on the defendants.
8. It is next contended that even though notices under Section 80 of the CPC might have been served on the defendants, still the suit must fail because the plaint did not contain a statement that such notices have been delivered to the defendants as required under Section 80 of the CPC. It is stated in Para 6 of the plaint that:—
“Notices of claim under Section 77 of the Railways Act and notices under Section 80 of the CPC were duly served upon the defendants on ‘20-1-61” (underlining (here into is ours) in respect of the aforesaid cause of action and it was duly received by them.”
9. It is argued that since on plaintiff's own admission the notices under Section 80 of the CPC sent on 20-1-61 (Ext. 3) were defective, the mention of service of such a defective notice does not save the suit and amounts to non-mention in the plaint of the service of the notice under Section 80 of the CPC and as such is fatal to the suit.
10. The plaintiff-appellant has filed in this Court an application for amendment of the plaint. If the amendment is allowed Para 6 would read as follows:—
“Notices of claim under Section 77 of the Railways Act and notices under Section 80 of the CPC were duly served upon the defendant on 20-1-61 and again on 8-10-61 in respect of the aforesaid cause of action and they were duly received by them”.
11. It is not disputed that if Para 6 stands thus amended there would be no further defect in the plaint. The question therefore is whether the amendment should be allowed, at this stage. In support of the petition for amendment it is submitted by the plaintiff-appellant that the non-mention of the second date is merely technical and it was due to inadvertence and that in view of the fact that the second notice and the postal receipts and acknowledgments relating thereto have been exhibited in the suit, the defendants cannot contend that they are taken by surprise. This amendment is opposed to by the respondents on the ground that it would introduce a new cause of action and change the nature of the suit and prejudice the defendants inasmuch as if this amendment is allowed it will practically amount to filing a fresh suit and if a fresh suit had been filed on the date the amendment was applied for it would have been barred by limitation.
12. Where a notice under Section 80 of the CPC is issued, the question whether its service is a part of the cause of action itself has been considered in several decisions of High Courts in India. This question came up in the Bombay High Court in AIR 1954 Bom 129, Bata Shoe Co. Ltd. v. Union of India, in the context of the Court within whose jurisdiction the cause of action arose. It was contended in that case that since notice under Seciton 80 of the CPC was delivered to B.B and C.I Railways having its head office at Bombay the Court of small causes at Bombay had jurisdiction to entertain the suit. Gajendragadkar, J., held that:
“A statutory notice required by the provisions of the Railways Act as well as the Code of Civil Procedure is no doubt an essential preliminary step for the valid institution of a suit; but that would not make such a notice part of the cause of action for the suit itself. The notice follows the cause of action and it merely paves the way for the institution of the suit itself”.
13. It was held that the small causes Court at Bombay had no jurisdiction to entertain the suit. This observation has been quoted with approval in a decision of the Madras High Court in AIR 1955 Mad 345, Azizud-din and Co. v. Union of India. In the Calcutta High Court in AIR 1959 Cal 273, Jaharlal Pagalia v. Union of India, it was held that the statement in the plaint that notice under Section 80 of the CPC has been delivered is something apart from the cause of action and to treat such notice, its issue or its service as a part of the cause of action would be to enlarge the content of Sec. 80 itself. This decision was followed in the subsequent case of the Calcutta High Court reported in AIR 1960 Cal 391, Niranjan Agarwalla… v. Union Of India….. In view of these decisions it is idle for respondents to contend that if the proposed amendment is allowed it would change the cause of action and would amount to substitution of a new plaint in the suit. In AIR 1959 Cal 273 referred to above, the plaint did not at all contain the averment that due notice under Section 80 of the CPC, was served on Union of India prior to the institution of the suit and the application was made in the trial Court to amend the plaint to introduce such an averment. It was opposed on the ground that the application was a belated one and that it introduced a new cause of action. After examination of the various authorities on the question as to whether service of a notice under Section 80 of the CPC, is a part of the cause of action. Ray. J., held that—
“Section 80 merely puts a legislative bar to the institution of a suit when the cause of action is complete and that it is not part of the cause of action.”
14. His Lordship proceeded further and observed:
“A statement in the plaint that notice has been delivered does not in any manner introduce a cause of action nor does it change the cause of action, inasmuch as cause of action as ripened before the notice has been delivered.”
15. He, therefore, allowed the amendment and also condoned the delay in applying for the amendment on the ground that it would not cause any harm to other side.
16. In the case before us no objection could have been taken to the averment in para 6 of the plaint if it had been merely stated that notices of claim under Section 77 of the Railways Act and notices under Section 80 of the CPC, were duly served upon the defendants without mentioning the date of the notice. What has actually happened is that a date also has been given which relates only to the notice under Section 77 of the Railways Act. No date was mentioned in respect of the Sec. 80 notice. The averment in para 6 of the plaint would have been without flaw if no date at all would have been given. We feel that the defendants will in no way be prejudiced if the plaintiff at this stage, obviously with a view to clarify the position, wants to supply the date on which notices under Section 80 of the CPC, were served, and especially when the substituted notices sent under Section 80 of the CPC, had been filed in the trial Court and the defendants had ample opportunity to cross-examine the plaintiffs' witnesses on this point and to let in such rebutting evidence as they would have considered necessary. We would accordingly allow the amendment prayed for.
17. For the reasons stated above we are satisfied that the notices under Sections 77 of the Railways Act and 80 of the CPC, had been duly served upon the defendant 2 months before the institution of the suit. We would accordingly allow this appeal, set aside the decree passed by the learned Subordinate Judge and decree the plaintiffs suit with costs throughout.
18. G.K Misra, J.:— I agree.
TVN/DVC
19. Appeal allowed.
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