Manohar Lall and Mahabir Prasad, JJ.:— This appeal is by the plaintiff from a decision of the Additional Subordinate Judge of Dhanbad confirming a decision of the Munsif of the same place dismissing the suit of the plaintiff for damages against the Governor-General in Council for short delivery of goods consigned to a railway.
The suit was for recovery of Rs. 1,287/1/- as damages. A consignment of 40 drums of cocoanut oil and 11 bags of turmeric had been consigned from Nimtala railway-station on the B. & A. Railway to Mugma railway-station lying on the E.I Railway. At the time of taking delivery of the consignment it was detected that 4 casks containing the cocoanut oil had been cut, and as a result of this there was a shortage of 20 maunds 8 seers of cocoanut oil. The delivery was taken by the plaintiff under a qualified receipt. The plaintiff sent notices under section 77 of the Indian Railways Act to the various authorities as also a notice under section 80, Civil Procedure Code, addressed to the Secretary, Central Government, New Delhi, claiming damages for short delivery of 20 maunds 8 seers of cocoanut oil.
The trial Court held that the plaintiff had succeeded in proving that loss of the consignment had been occasioned by the negligence and misconduct of the railway authorities, and the plaintiff, it was held, was entitled to be compensated for the loss. It also found that the amount claimed as damages was quite fair and reasonable. It however, disallowed interest. As it held that the notice under section 80, Civil. Procedure Code, served in this case was not addressed to the Governor-General in Council, and as such it was bad, the suit of the plaintiff was dismissed for want of proper and legal notice under section 80.
On appeal, the learned Subordinate Judge agreed with the trial Court in its finding regarding the invalidity of the notice under section 80, Civil Procedure Code, and affirmed the decision arrived at by the trial Court. It appears he did not deal with the facts relating to loss sustained by the plaintiff and the amount of compensation claimed by him as the findings of the trial Court in respect thereof were not challenged before him.
It has been contended before us by Mr. A.N Lal on behalf of the appellants that notice under section 80, Civil Procedure Code, in the present case complied fully with the provisions of that section, and the Courts below should have held that it was valid, and on the findings arrived at by the trial Court and not challenged before the Court of appeal below, this suit should have been decreed for the amount claimed by him as compensation for the loss suffered on account of short delivery of the consignment.
The contention of the appellant seems to be well founded. On an examination of the notice (Ext. 6) it appears that it is addressed to the Secretary to the Central Government, New Delhi. The relevant portion of the notice reads as follows:
“We would request you to make payment of our compensation for short delivery of 20 maunds 8 seers of cocoanut oil and for loss of empty casks as below with interest at one per cent per month to us as otherwise we will institute a suit in Court for recovery of the sum with interest thereon”.
Now, section 80, Civil Procedure Code, requires that before a suit be instituted against the thrown two months must elapse after notice in writing has been delivered to or left at the office of, in the case of a suit against the Central Government, a Secretary to that Government, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims. This notice certainly states the cause of action. It also gives ??? the name, description and place of residence of the plaintiff and also the relief which he claims, namely, that unless he is compensated for the loss, be will bring a suit for recovery of the compensation claimed in the notice. It does prima facie comply with the requirements of section 80. The suit for loss sustained by non-delivery or short delivery of the consignment against the railway has to be instituted against the Central Government. section 79, Civil Procedure Code, provides as to how the plaint against the Central Government has to be framed. In the case of a suit by or against the Central Government, the Governor-General in Council is to be named, as defendant. It provides that it will be so before the establishment of the Federation of India and thereafter the Federation. The amendment to this section now provides that if a suit is to be instituted against the Central Government, the defendant to be named will be the Dominion of India. It will be seen that in section 80 which provides for the notice to be given in the case of a suit against the Central Government, there is no indication that the notice is to be addressed to the defendant, namely, the Governor-General in Council or the Federation of India or the Dominion of India. The notice in such a case, namely, in case of a suit against the Central Government, has, as provided for in section 80, to be delivered to or left at the office of the Secretary to that Government. It must obviously mean that the notice has to be addressed in such also to the Secretary, to that Government. In the case of Governor-General in Council v. T.M Krishnaswami Pillai the notice under section 80, Civil Procedure Code, was addressed to the Secretary, Central Government, but it was not held invalid on that ground. In fact, notice in that case was not attacked on the ground that it was not addressed to defendant to be named as such in a suit against the crown. In that case the suit was originally instituted against the Secretary of State for India. The notice under section 80 was addressed to the Secretary, Central Government. When the defect in the plaint was pointed out, it was amended by substituting the Governor-General in Council for the Secretary of State for India, but the notice under section 80 remained as it was, and no new notice addressed to the Secretary to the Central Government stating what relief the plaintiff claimed was served. Their Lordships of the Madras High Court held that the notice was invalid because section 80 required that it should be stated as to what relief the plaintiff claimed. In the notice in that case it was distinctly stated that if the plaintiff failed to receive redress, a suit would be instituted against the Secretary of State for relief against him. It was held that the notice was invalid because there was no reference to the Governor-General in Council, and, therefore, it could not be treated as claiming relief against the Governor-General in Council. Their Lordships observed that the fact that the officials on whom the notice is actually to be served are the same makes no difference. It will, therefore, be seen that in that case the very person who was to be defendant in that case under section 79, Civil Procedure Code, became a different person by reason of the amendment of section 79. No such consideration arises in the present case. The suit is to be instituted against the Central Government, and the notice has to be served upon the Secretary to that Government which, as already stated, has been done in the present case. The suit which came to be instituted was certainly in compliance with the provisions of section 79 against the Governor-General in Council as defendant. In the circumstances, it is difficult to see as to how it can be held that the notice under section 80 in the present case was invalid.
It has been argued by Mr. Nitai Chandra Ghosh appearing for the respondent that the Courts below were right in holding that the notice not being addressed to the Governor-General in Council was invalid. He argues that as section 79 provides that the suit is to be instituted by naming the Governor-General in Council, as defendant the notice under section 80 must be addressed to the defendant, namely, the Governor-General in Council. This argument ignores the fact that so far as section 80 is concerned, it is complete in itself. It provides for a suit against the Crown and then provides that before such a suit is instituted a notice is to be given by using the word “served”. There is nothing in the wording of the section which may be construed as excluding the possibility of the notice being addressed to the same official at whose office the notice has to be left or to whom the notice is to be delivered. The very same question was raised in the case of Governor-General in Council v. Amilal decided by Reuben, J. sitting singly. This is what is stated in that decision in maintaining the validity of the notice which was being challenged on the ground that it was addressed to the Secretary, Central Government, instead of to the defendant who, according to clause (A) of section 79 Civil Procedure Code, is the Governor-General in Council:
“The section lays down in distinct terms, the contents of the notice required by it, namely, the cause of action, the particulars of the plaintiff and the relief which he claims. It is not necessary that the notice should mention the exact style under which the, defendant is to be impleaded. It is sufficient if it is clear against whom the suit is to be filed, and in the case of a suit against the Central Government, this notice is to be delivered to or left at the office of the Secretary to that Government. The actual style under which the defendant is to be described is necessarily determined by the provisions of section 79.”
We entirely agree with the observations of the learned Judge. We accordingly hold that the notice served under section 80 in the present case was a valid notice and the plaintiff's suit was not liable to be dismissed on that account.
So far as the merits of the claim made by the plaintiff is concerned, the first Court found, as already stated, that the plaintiff had succeeded in proving it as against the railway. The learned Subordinate Judge did not go into the facts of the case because he agreed with the Munsif that the suit of the plaintiff was bound to fail on account of the invalidity of the notice under section 80. Now that this Court has held that the notice under section 80 was a valid notice, Mr. N.C Ghosh for the respondents contends that the case should be remanded to the Court of appeal below for being heard on merits. He contends that because the suit was dismissed on the finding that the notice under section 80 was invalid, it was not open to him to contest the findings given by the trial Court on the question of the amount of compensation or the liability of the railway for the loss that the plaintiff had suffered. We do not agree with this contention, it was open to the respondent in the Court of appeal below to support the decree on any of the grounds decided against him. The grounds on which the plaintiff's claim for compensation were held to be established were certainly open to challenge by him in the Court of appeal below. He not having done so, it is not open to the respondent now to challenge them.
In view of these considerations the decree and, the judgment passed by the Courts below are set aside and the plaintiff's suit is decreed with costs throughout.
K.D
Appeal allowed.