Secretary Of State Deft. No. 1, v. Sheoramjee Hanumantrao Pltf-.

JUDGMENT

1. This is a Letters Patent appeal against the judgment of Pollock, J., delivered on 28-2-1944 in Second Appeal No. 43 of 1939.

2. The respondent purchased a certain forest coupe at an auction same held by the Divisional Forest Officer of Bilaspur on 20-7-1934 for Rs. 2,300. The amount was payable in four instalments: the first instalment was payable on 20-7-1934, the date of the execution of the agreement (Ex. D-6) & the last instalment was payable on 1-5-1935. Under this agreement the respondent had the right to remove the forest produce from 20-7-1934 to 30-6-1935. On the allegation that the Forest Range Officer hampered & interfered with the removal of timber, thereby causing joss to him, the respondent have a notice under Section 80 of the CPC, 1908, to the appellant, the Secretary of State for India in Council, on 30-10-1935 (Ex. P-1) & claimed Rs. 2,500/- as damages for the loss sustained by him in consequence of the wrongful acts of the Forest Range Officer. After the expiry of two months next after the delivery of the notice the respt. filed a suit on 7-9-1936 in the Court of the 1st Subordinate Judge, 2nd class, Bilaspur, against the two defts. the Secretary of State for India in Council & Khan Mohammad, the Forest Range Officer, to recover Rs. 2,500/- as damages for the loss caused to the respt. by the wrongful acts of deft. 2. In para 12 of the plaint the pltf. set out the various wrongful acts which were committed by deft. 2 in consequence of which the plff. suffered loss. In para. 21 he alleged that he had served a notice on deft. 1 under Section 80 of the CPC, 1908. According to the plaint the cause of action was stated to have arisen during the lease period from 20-7-1934 to 30-6-1935 & finally on 1-7-1935. In the written statement dated 18-1-1937, the deft. 1 admitted the receipt of the notice but stated that it was defective & did not fully comply with the provisions of Section 80 of the CPC. The particulars in which the notice was defective were not stated & it was not pointed out how there was no compliance with the provisions of Section 80 of the CPC. Deft. 1 did not plead that the suit was not maintainable because no notice had been given to deft. 2 under S. 80 of the Code. Deft. 2 adopted all the statements of deft. 1, whether made in the written statement or orally. Deft. 2 also did not raise the plea that the suit was bad because no notice under Section 80 of the CPC was given to him.

3. The trial Court dismissed the suit. Among other grounds the trial Court held that the suit must fail against deft. 2 for want of notice under Section 80 of the CPC 1908. The decree of the trial Court was reversed, by the Court of the Additional Dist. J., Bilaspur, in Civ. App. No. 14-B of 1938 & a decree for Rs. 650 was passed against both the defts. The first appellate Court held that deft. 2 was not entitled to raise the plea of want of notice in appeal when he had not urged it in the trial Court.

4. The defts. filed second appeal No. 43 of 1939 to this Court & the pltf. made a cross-objection under O. 41, R. 22 of the CPC, 1908, & claimed an enhancement of the decree from Rs. 650 to Rs. 2,000. In appeal Pollock, J. dismissed the suit against deft. 2, because no notice was given to him under Section 80 of the CPC 1908. As against deft. 1 the decree was reduced to Rs. 100/-. It is against this decree that the deft. 1 has filed the present appeal.

5. Four objections have been urged before us. The first question for decision in this appeal is whether the suit should have been dismissed in its entirety & not merely against deft. 2. The suit could have been filed against deft. 1 alone. A valid notice was given to deft. 1 under Section 80 of the CPC, 1908. No objection was taken either by deft. 1 or by deft. 2 that the suit was not properly framed & that it was liable to dismissal because of want of notice to deft. 2. The suit was to recover damages from the defts. for the torts committed by the Forest Range Officer (deft. 2) who was the servant of deft. 1.

6. The learned Govt. pleader contended that the suit as framed was not maintainable in the absence of deft. 2 & as the suit had been dismissed as against him for want of notice, the suit should have been dismissed in its entirety against deft. 1 also. He has not cited any authority for the proposition that deft. 2 was a necessary party & that as the suit fails as against him, the suit was liable to dismissal against deft. 1 also. Deft. 2 was not a necessary party to the suit. The suit for damages could have been filed against deft. 1 alone for the torts committed by its servants arising out of the exercise of commercial or mercantile functions. If the objection regarding want of notice to deft. 2 had been taken in proper time, it would have been open to the plff. to withdraw the present suit & file a fresh suit after giving proper notice under Section 80 of the CPC, 1908, to deft. 1 & deft. 2. The claim was within limitation on 18-1-1937 when the written statement was filed by the deft. 1 because the wrongful act in respect of which Rs. 100 had been awarded as damages had been committed by deft. 2 some time in February 1935. If the objection had been raised, it would have been open to the plff. to take necessary steps for the prosecution of his claim.

7. The suit against deft. 1, the Secretary of State for India in Council, was not ‘prima facie’ barred. The claim against deft. 1, can be served from the claim against deft. 2. So far as the plaint is concerned, it has to be rejected as a whole under O. 7, R. 11 of the CPC 1908, or not at all; but as regards dismissal it is competent to the Ct. to decree the claim against the person against whom it was properly constituted & dismiss the suit against another because no notice was given to him under Section 80 of the CPC.

8. Section 80 of the CPC, 1908, enacts that no suit shall be instituted against the Crown, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after the delivery of notice of the suit, & that the plaint shall contain a statement that such notice was delivered: In ‘Bhola Nath v. Secy, of State, 40 Cal. 503 at p. 510 it was held that it was competent to the Secretary of State to waive the notice under the section & he may be estopped by his conduct from pleading the want of notice at a late stage of the trial. In ‘Bhagchand Dagadusa v. Secy, of State’, 51 Bom 725: Lord Summer observed:

“S. 80 is express, explicit & mandatory, & it admits of no implications or exceptions.”

9. In view of this statement Pollock, J. was doubtful whether the decision in ‘Bhola Nath v. Secretary of State’, 40 Cal 503 at p. 510 (‘cit. sup.’) could now be regarded as a sound guide & held that the provisions of S. 80 cannot be waived.

10. In ‘Vellayan v. Madras Province’, AIR (34) 1947 P.C 197: Their Lordships of the Judicial Committee explained the decision in ‘Bhagchand Dagadusa v. Secretary of State’, 51 Bom 725: & stated:

“The observations of Lord Sumner in delivering the opinion of the Board were directed solely to the construction of the section & cannot in their Lordships' opinion be regarded as deciding that it is not competent for the authority, for whose benefit the right to notice is provided, to waive that right. There is no inconsistency between the propositions that the provisions of the section are mandatory & must be enforced by the Court & that they may be waived by the authority for whose benefit they are provided.”

11. After explaining the decision in ‘Gaekwar Baroda State Railway v. Habib-ul Huq.’ ILR (1938) All 601: their Lordships observed:

“—there appears to their Lordships to be no reason why the notice required to be given under S. 80, should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required: if in the particular case he does not require that protection & says so, he can lawfully waive his right.”

12. In view of this decision the view of Pollock, J. that there could be no waiver is not correct.

13. Pollock, J. held as a matter of law that there could be no waiver but did not decide whether in point of fact there was waiver. As already pointed out, neither deft. 1 nor deft. 2 raised a plea that the suit was had for want of notice under Section 80 of the CPC, to deft. 2 & that the suit was liable to dismissal. All objections regarding the maintainability of the suit for want of notice are to be taken at the earliest opportunity & of that is not done at the proper time & the plff. is prejudiced, it will not be open to the deft, to raise the plea of want of notice at a very late stage of the case. He would be deemed to have waived the notice & may be estopped by his conduct from pleading the want of notice.

14. In the circumstances of the case, it must be held that defts. 1 & 2 waived the notice & their objection that the suit was not validly constituted because no notice under Section 80 of the CPC 1908, was given to deft. 2 cannot be entertained. The suit, therefore, was not liable to dismiss in its entirety because it had been dismissed as against deft. 2 for want of notice.

15. The second question for decision is whether deft. 1 was liable for the torts of its servant, deft. 2, who was the Forest Range Officer. Pollock, J. held that the Range Officer, deft. 2, ordered about 16 pairs of sawyers from the plff.'s coupe to leave & go & work elsewhere, & that there was considerable interval before the plff. was able to secure other sawyers & that was an unjustifiable interference with the extraction of timber. As the wrongful acts of deft. 2 arose out of the exercise of commercial or mercantile functions, the Secretary of State is liable for damages: (‘P. & O. Steam Navigation Co. v. Secretary of State’, (1861) Bom H.C.R App. 1.

16. A distinction has been drawn between the liability of the Secretary of State for the torts committed by its servant in the exercise of sovereign powers & of commercial or mercantile functions. If the act is done in exercise of sovereign powers, the Secretary of State for India cannot be sued for damages arising out of an act done by the Govt. ‘Secretary of State v. Nagorao’, ILR (1943) Nag 511: There is no doubt that in the present case the acts of the Forest Range Officer arore out of the exercise of commercial or mercantile functions & were not in the exercise of sovereign powers. Accordingly we hold that deft. 1 was liable for damages for the wrongful acts committed by its servant, deft. 2.

17. The third question for decision is whether there is any legal evidence for the award of damages. The contention of the learned Govt. Pleader was that there was no legal evidence to Justify the award of damages. The resp stated to his evidence that he suffered a loss of Rs. 700 to Rs. 800 to not being able to supply sleepers to Dhanuram; & that for want of sawyers the suffered a loss of Rs. 400 to Rs. 500. The Cts. have found that deft. 2 had ordered about 16 pairs of sawyers from the plff's. coupe to leave & go & work elsewhere. The pltf. suffered damages on account of this wrongful act of deft. 2. This was a suit for damages on tort & the Cts. were justified in assessing the damages. There is legal evidence on which the Courts could assess the damages.

18. The last question is about the quantum of damages. Ponock J. maintained the decree for Rs. 100 as he did not consider the figure unreasonable & no alternative figure had been suggested. We agree that the award of Rs. 100 is neither unreasonable nor excessive. The appeal fails & is dismissed. No counsel fee as the plff. was not represented before us.

19. Appeal dismissed.