JUDGMENT
Sankar Prasad Mitra, J.
1. This Rule has been obtained against the
Judgment of the Small Cause Court,
Sealdah. delivered on the 27th April. 1971
in S. C. C. Suit No. 1061 of 1970. Two
consignments of 145 Bags of Sugar belong
ing to the plaintiffs were booked on April
1, 1968 under N/R No. 297704 and on
May 2, 1968 under R/R. No. 847875 from
Biswas and Bazpur respectively on the
North Eastern Railway. The goods were
to be delivered at Kantapukur on the
Eastern Railway. The plaintiff alleged
that there was shortage of 530.200 Kgs.
in the first consignment and 414.600 Kgs,
in the second consignment due to the
negligence of the Railway Administra^
tion. For the first consignment the plain
tiff claimed Rs. 877.27. For the second
consignment the plaintiffs claim for
Rs. 792-52. The Railway Administration
paid to the plaintiff Rs, 731.22 in respect
of the first consignment and Rs. 663.68 in
respect of the second consignment. The
plaintiff instituted the suit for recovery
of the balance of Rs. 146.05 for the first
consignment and Rs. 129.91 for the se-
cond consianment.
2. It appears that both the payments, aforesaid, by the Railway Adminis-tration were made in full settlement of the plaintiffs claim but the plaintiff accepted the said sums under protest. The learned Judge has held that the plains tiff’s claim with regard to the first consignment was maintainable but as the protest for the second consignment was made long after the receipt of the money, the claim in respect thereof could not be sustained. We do not intend to express any view on these findings
3. The learned Judge has dismissed the suit altogether on the ground that no fresh notice under Section 80 of the Code of Civil Procedure was served on the General Manager of the Railway concerned so far as the balance of the plaintiff’s two several sums aforesaid is concerned. In our opinion, the learned Judge has come to the correct conclusions. After acceptance of the two sums, mentioned above by the plaintiffs, a new eet of facts had arisen. The said two Bums were offered in full settlement of the plaintiff’s claims. The plaintiff accepted the said sums, it is alleged, under protest and the plaintiff intended to sue for the balance of his claims. This is a new set of facts giving rise to a cause of action (not pleaded in the notice under Section 80). The reliefs claimed in the suit are also much less than the reliefs claimed in the notice under Section 80. The obiect of this notice, it is well known, is to give the Government concerned, an opportunity to reconsider its legal position and to make amends or settle the claims without litigation. It is true that the notice should not be construed in a pedantic manner or in a manner completely divorced from common sense. But in the instant case, we find that the Government was given no opportunity at all to consider whether in view of the plaintiff’s alleged acceptance under protest the balance of the plaintiff’s claims should be paid off. The original notice under Section 80 which the plaintiff had served, did not fulfil the requirements of law. In these premises we are inclined to uphold the judgment of the lower Court.
4. This Rule is discharged. There will be no order as to costs.
Janah, J.
5. I agree.