Kanhaiya Singh, J.:— This is an appeal by the plaintiff from the judgment of the Additional Subordinate Judge, Ranchi, dated 8th August, 1955, dismissing his suit for recovery of Rs. 24,000 from the Union of India, defendant I, on account of non-delivery of eight insured covers.
2. Shortly put, the facts are these. The plaintiff, Lakshmi Narain, carries on business under the name and style of Lakshminarain Ramnarain. Ram Narain is his brother. This firm carries on four types of business, distillery, foreign liquor, shellac and out-still. Defendant 2 is another firm called Parsadi Lal Ram Das, carrying on business at Lalitpur in the State of Uttar Pradesh. In April 1950, defendant 2 sold to the plaintiff Mahua for distillation worth Rs. 42,000. The consignment was despatched to Manindragarh and Chirmuri. Kalka Prasad, the Manager of the plaintiff, paid defendant 2 in cash Rs. 17,000 at the time of purchase, and the balance of Rs. 25,279/13/6 remained due by the plaintiff. The latter remitted this amount in nine insured covers on 9th May, 1950. Each of the eight out of the nine insured covers contained 30 currency notes of Rs. 100 denomination each. The ninth cover contained Government currency notes of various denominations of the total value of Rs. 1279 and postage stamps worth as 13-6-p. These covers were made over to the Postmaster of the post-office at Lalpur in the town of Ranchi to being delivered to defendant 2 at Lalitpur. The said insured covers were delivered to defendant 2 on 12th May, 1950, but on opening them it was found that eight out of the nine covers contained no money but only waste papers. One cover, however, contained currency notes for Rs. 1279 and postal stamps worth annas 13-6 p. In other words a sum of Rs. 24,000 was removed from the insured covers, and it is this sum which the plaintiff seeks to recover from the Union of India on the ground that this loss was due to misconduct on the part of postal authorities, for which the Union of India was liable. The Union of India filed written statement traversing all the averments in the plaint. It denied liability for payment of the amount. It was denied further that currency notes of the value of Rs. 24,000 had been delivered to defendant 1 or its servants or agents. It is further denied that the contents of eight of the insured covers were removed in course of transit while in the custody of postal authorities. It was also pleaded that notice under Section 80 of the CPC was not properly served.
3. Defendant 2 filed a separate written statement supporting the plaintiff's case.
4. The learned Additional Subordinate Judge found that the plaintiff did send money, as alleged in nine insured covers, eight of which were substituted and the original covers were not delivered to the addressee and that for this the postal authorities and consequently the Union of India, were respondent. On the question of the maintainability of the suit, however, he held that the suit was premature, as it was filed before the expiry of two months from the date of the service of the notice under S. 80 of the Code. Accordingly, he dismissed the suit, but without costs.
5. The plaintiff has preferred this appeal against the said judgment, challenging the correctness of the finding that the institution of the suit was premature. At the time of hearing the learned Government Pleader also challenged the correctness of the finding that the money had been removed, or the original insured covers had been replaced by the postal authorities. His contention is that even on merits the plaintiff has no case. It is, therefore, to be seen whether the finding of the learned Judge that the nine covers containing money were made over to the Postmaster of the Lalpur post-office is sustainable on the evidence on the record. I would first address myself to the consideration of this question. I would briefly recapitulate the plaintiff's case as it emerges from the plaint and the evidence.
6. (After discussion of evidence His Lordship proceeded.) After a careful and anxious consideration of the entire evidence the only conclusion I come to is that the insured covers delivered to defendant 2 were the very covers which were handed over to the Sub-Postmaster of the Lalpur sub-post-office and that the postal authorities are not responsible for the loss of the money, and the plaintiff has miserably failed to establish his case by cogent and reliable evidence. In other words, the plaintiff's case fails even on merits.
7. Coming to the question whether the Institution of the suit was premature, I agree with the learned Additional Subordinate Judge that the suit was instituted before the expiry of two months from the date of the service of notice under Section 80 of the CPC. The averment in the plaint shows that the notice under sec. 80 was served on defendant 1 on 11th May, 1953. The present suit was instituted on 11th July, 1953. The suit should have been instituted not earlier than 12th July, 1953, that is to say, two months after the service of the notice excluding the date on which the notice was served. In other words, the suit was instituted one day earlier than it ought to have been instituted. It is well-settled that S. 80 is express, explicit and mandatory, and it admits of no implications or exceptions (vide Bhagchand v. Secy. of State, AIR 1927 PC 176). A similar view has been expressed by a Bench of this Court in Province Of Bihar… v. Kamakshya Narain Singh…., AIR 1950 Pat 366. Thus, it is well-settled that a suit against the Government instituted during the currency of notice under S. 80 is not maintainable and must be dismissed in limine. See Secy. of State v. Sagarmal Marwari, AIR 1941 Pat 517. Therefore, the present suit must be regarded as premature and unsustainable in limine for non-compliance with file provisions of S. 80. Non-compliance with the provisions of this section is thus fatal to the plaintiffs suit.
8. Learned counsel for the appellant did not challenge the correctness of these propositions of law. He, however, contended that this objection was waived by defendant 1. He pointed out that the Union of India in its written statement simply denied the service of the notice under S. 80, but did not plead expressly that the suit was premature and, therefore, not maintainable. The facts of this case do not establish waiver on the part of the Union of India (defendant 1). The averments in the plaint itself establish beyond doubt that the institution of the suit was premature. It was not necessary for defendant 1 to recapitulate those facts and the consequence therefrom..The rule of pleading does not require that law should be also stated. Under Rule 2 of Order VI of the Code of Civil Procedure, every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be. Thus, the plaintiff has to allege facts and the defendant to deny or admit them. A pleading is not required to state law, for the obvious reason that it is for the Court itself to find out and examine all pleas of law that may apply to the facts. It the plaintiff had not stated those facts in the plaint, then under R. 2 of O. VIII of the Code it would have been imperative for defendant 1 to raise by its pleading all matters which show a suit not to be maintainable. But, when the necessary facts are there in the plaint, it was not necessary for defendant 1 to particularize them in its defence and to state the legal effect of those facts. The rule of pleading does not require that the legal consequences flowing from the admitted facts should also be stated. Therefore, the omission of defendant 1 to state in the written statement the law applicable to the facts averred in the plaint does not amount to waiver on its part. This contention of learned counsel, therefore, is absolutely without substance and must be rejected. I hold, in agreement with the learned Additional Subordinate Judge, that the suit is not maintainable and must be dismissed on this ground also.
9. In the Court below, the learned Additional Subordinate Judge disallowed costs because the suit was dismissed on technical grounds. I have, however, held that the plaintiff has no case on merit also. There is, therefore, no reason to disallow costs to defendant 1 either here or below. For she reason aforesaid, the appeal must be dismissed with costs to defendant 1 throughout.
Ramratna Singh, J.:— I agree.
KE/K.S.B
10. Appeal dismissed.