P.B. Mukharji, J.
1. This appeal raises two points for determination.
One is whether notice under Section 80 of the Civil
Procedure Code is at all a part of the cause of
action. The other is whether, in any event, the
place from where such notice is issued or posted
gives the Court of that place jurisdiction.
2. The relevant facts on which these questions are raised may be stated briefly. The plaintiff instituted the suit against the then Dominion of India for a decree for the sum of Rs. 10,746-3-4p. for loss and short delivery of certain goods’ sent over the Assam Railway. The places from where the goods were despatched were Sealdah and Wadi Bandar, G. I. P. Railway both outside the original jurisdiction of this Court. The destination of these goods was Cooch Behar also outside the original jurisdiction of this Court. The plaint pleaded service of the notice under Section 80 of the Civil Procedure Code on the General Manager of the Assam Railway also outside the original jurisdiction of this Court. The notices under Section 80 of the Civil Procedure Code in this case are of different dates in respect of the ten consignments and are printed in the Paper Book. The point to note about all these notices is that they were sent from 18, Amratolla Street, Calcutta, within the jurisdiction of this Court and addressed to the General Manager, Assam Railway, Pandu, outside the jurisdiction of this Court. G. K. Mitter, J. dismissed the suit on the preliminary ground that the Court had no jurisdiction to try the suit, without delivering a judgment. The plaintiff has appealed.
3. The learned Advocate on behalf of the appellant-plaintiff has challenged the decree of dismissal on the ground that the Court should have held that because the notices under Section 80 of the Civil Procedure Code in this case were sent from a place within the jurisdiction of this Court, this Court had the jurisdiction to try and determine this
suit. It must be recorded here that the learned Advocate has abandoned his other grounds of appeal about the service of the notice under Section 77 of the Indian Railways Act being a part of the cause of action.
4. The point that remains for decision in the appeal is the point relating to notice under Section 80 of the Civil Procedure Code. A slow but steady erosion has engulfed much of the law relating to notice under Section 80 of the Code. Even the place from where such notice was posted or sent was formerly regarded as giving the court of that place jurisdiction to entertain a suit where notice under Section 80 of the Code was necessary. This theory was subsequently discarded by the Courts and yielded place to the idea that it was more the place where such notice was left or served that was a material part of the cause of action. Now the tendency is more radical and the better judicial opinion is that notice under Section 80 of the Code is not at all a part of the cause of action and so neither the place from where it is sent nor the place where it is served is relevant or material to invest the court of that place with jurisdiction to entertain a suit where such notice requires to be pleaded. The Law Commission in this changing legal climate on Section 80 of the Code is perhaps not unwise in recommending “we are clearly of the view that the provision requiring notice in such cases should be omitted. There is no justification for placing the Government and public officers in a different position from private parties in this respect”. Law Commission 14th Report on Reform of Judicial Administration Vol. I page 476.
5. The learned Advocate for the appellant has relied on the decision of S. B. Sinha, J. in Dunlop Rubber Co. (India) Ltd. v. Governor-General-in-Council. ILR (1950) 2 Cal 551, as being practically the only case which supports his contention. The learned Judge at pp. 558-559 of the Report observed as follows :
“The issue and service of notice is a fact material to be proved to entitle the plaintiff to succeed and the defendant has a right to traverse the allegation that notice was given.
In my opinion, therefore, notice under Section 80 is a part of the cause of action within the meaning of that phrase in Clause 12 of the Letters Patent.
The meaning of the phrase “cause of action” in Section 80 of the Code of Civil Procedure and in Clause 12 of the Letters Patent may not be the same as the context is different. Section 80 was enacted in order that the Crown might get notice of an intended suit in order to make amends before the suit is filed. The facts which are stated in the notice under Section 80 are facts which are sufficient to give the Crown or the public officer an idea of the nature of the case intended to be made for obtaining reliefs which are to be claimed in the intended suit.
In any event if the definition of the phrase ’cause of action’ adopted in English cases and in this Court is accepted as correct, I do not see any escape from the conclusion that a part of the cause of action in this suit arose within jurisdiction,”
6. S. B. Sinha, J. delivered this judgment on the 22nd July, 1949. Within a few months thereafter and almost immediately following, His Lordship sitting with Harries, C. J. in Nilima Sarkar v. Governor-General-in-Council, 86 Cal LJ 98, agreed with the following observations of learned Chief Justice on the 17th December, 1949 at p. 104 of that Report, which show that he must have revised his earlier view:
“It seems to me that for the purposes of bringing a suit the notice under Section 80 of the Code of Civil Procedure is not part of the cause of action. Section 80 expressly provides that the cause of action must be stated in the notice. If the delivery of the notice was part of the cause of action then how could the whole cause of action be stated in the notice because it would have to be stated before the notice was sent.”
7. It may be said that in Nilima Sarkar’s case, 86 Cal LJ 98, the point was not finally decided but as will appear from the observation quoted above, a very definite opinion was expressed. Although earlier in that judgment Harries, C. J. had expressed the wish that he would prefer to reserve his opinion on this point, yet subsequently in the judgment he expressed himself in no unequivocal terms that Section 80 was not a part of the cause of action and gave some reasons for it which will be clear from the observation quoted above. Most of the other decisions are almost uniformly against this proposition. I shall briefly examine and notice some of them.
8. Dealing with the Calcutta cases first, it may be noticed that Bachawat J, in Nalini Ranjan Guha v. Union of India, 93 Cal LJ 373, came to the conclusion that where notice was a part of the cause of action, such part of the cause of action arose at the place where the notice was served. He disagreed with the view expressed by S. B. Sinha, J. in ILR (1950) 2 Cal 551, and distinguished the case of Engineering Supplies Ltd. v. Dhandhania and Co. , on which S. B. Sinha J. relied on the ground that the latter was based on the law of contract and founded on offer and acceptance and consequently the place of offer was a part of the cause of action on the contract. Bachawat J, therefore, held in Nalini’s case, 93 Cal LJ 373, that the principle of the decision in ILR 58 Cal 539 : (AIR 1931 Cal 659), could not be extended to the case of a notice under Section 80 of the Code of Civil Procedure. My learned brother in Hindusthan Housing and Land Development Trust Ltd. v. State of West Bengal, 59 Cal WN 405 at p. 417, followed the view taken in Nalini Ranjan Guha’s case, 93 Cal LJ 373. The next decision is one of my own in Anath Bandhu Deb v. Dominion of India, , where at page 23 (of Cal LJ) : (at p. 631 of AIR), I said :
“But the place of the issue of the notice under Section 80 is not important or relevant. To apply the notion of jurisdiction in respect of contracts formed by correspondence where both the places from where letters are sent and where they are received are relevant, to the notice under Section 80 of the Civil Procedure Code, is to compare the incomparable. If Section 80 of the Civil Procedure Code is a part of the cause of action, although it itself is required to state the cause of action and it requires only that the plaint shall state that such notice has been delivered or left, then the place of the receipt of that notice and not the place of its issue determines part of the cause of action and there is the express emphasis in the language of that section on the place of receipt of the notice.”
Lastly there is the decision of A. N. Ray J. in Jaharlal Pagalia v. Union of India, , where the learned Judge, after noticing the previous decisions, came to the conclusion that neither the issue nor service of notice under Section 80 of the Code of Civil Procedure could form part of the cause of action either in its restricted or in its extended sense.
9. It will now be appropriate to notice here two Division Bench decisions of the Bombay and Madras High Courts. One is Bata Shoe Co. Ltd. v. Union of India, , where Gajendragadkar J., delivering the judgment of the Division Bench, observed at page 132 of that report as follows :
“A statutory notice required by the provisions of the Railways Act as well as the Civil Procedure Code is no doubt an essential preliminary step for the valid institution of a suit; but that would not make such a notice a part of the cause of action for the suit itself. If it is borne in mind that such a notice is required to state among other facts the cause of action on which the proposed suit would be based and the relief intended to be claimed, it would be clear that the notice follows the cause of action and it merely paves the way for the institution of the suit itself. That is why it is an essential preliminary step and no more.”
9A. The Madras Division Bench decision in Azizuddin and Co. v. Union of India, , followed the Bombay view as will appear from the observations of Rajamannar C. J. at pages 349-350 of that report.
10. From these reported decisions, authorities and precedents, this at any rate is clear that if notice under Section 80 of the Civil Procedure Code is at all a part of the cause of action, then in that case, the place where the notice is delivered or left is the place which gives jurisdiction to the Court of that place to entertain the suit and not the place from where the notice was sent or issued. The language of Section 80 of the Civil Procedure Code uses the words, “delivered or left” and not ‘sent or issued’.
11. To add one more reason to this view that the place of the issue of notice under Section 80 of the Code of Civil Procedure cannot give jurisdiction to the Court of that place, is to say that it will then permit a person going to a different place which has nothing to do with the cause of action or facts relating to the dispute and issuing notices under Section 80 of the Civil Procedure Code from that place and then claiming jurisdiction for the court of that place to entertain the suit. It will mean, for instance, in the case of short delivery or non-delivery of a consignment from Benares to Delhi, that if the aggrieved party chooses to go to Bombay, Madras or Calcutta and issue notices under Section 80 of the Civil Procedure Code from those places, then either Calcutta, Bombay or Madras will have jurisdiction to entertain the suit although these places had nothing to do with the consignment of the goods or its short delivery or non-delivery. It will permit persons aggrieved to choose their own Court at random and all that they need for such choice is to go to a particular place and post the notice from that place. Such a course will embarrass fair trial and will be most inconvenient to parties witnesses and for production of documents. I do not therefore think that such a course should be permitted or that is the test or principle by which jurisdiction of courts or for cause of action should be determined.
12. I, therefore, hold that this suit must fail for want of jurisdiction in any event on the ground that the place where the notice under Section 80 of the Civil Procedure Code in this case was delivered or left was Pandoo (Assam) which was outside the jurisdiction of this Court.
13. On the question whether notice under Section 80 of the Code of Civil Procedure is at all
a part of the cause of action, there has been some divergence of opinion. Some decisions have adopted the view that notice under Section 80 of the Civil Procedure Code is a part of the cause of action by taking the expression “cause of action” in its widest and most liberal sense, voiced by Lord Esher M. R. in Read v. Brown, (1888) 22 QBD 128, to mean :
“….. every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.” A full discussion of what is a cause of action is to be found in the Full Bench decision of this Court in Bansi v. Governor-General of India-in-Council, . Other decisions have taken the view that the notice under Section 80 of the Civil Procedure Code is not a part of the cause of action because the notice itself is required by the statute to state the cause of action. It is only when the cause of action had arisen first that a notice under Section 80 can be given. Therefore, it is said by this line of decisions that the cause of action must be something pre-existing before the notice.
14. A reference to the Civil Procedure Code at this stage may clear some of the ideas. To begin with, Section 80 of the Civil Procedure Code is itself its own dictionary for the meaning of cause of action. The expression, ’cause of action’, may have an enlarged or mitigated connotation according to the statutes and the circumstances considered by the court. But this much is certain that Section 80 says that this notice itself must state the cause of action. The statute therefore separates the notice from the cause of action. Therefore, the notice cannot be the cause of action or its part, for at least the purpose of Section 80 of the Civil Procedure Code. Secondly, Section 80 appears in Part IV of the Civil Procedure Code which deals with ‘suits in particular cases of (1) suits by or against the Government or public officers in their official capacity; (2) suits by aliens and by on against foreign rulers, ambassadors and envoys and (3) suits against rulers of former Indian States’. This Part IV of the Civil Procedure Code does not at all deal with cause of action for suits but deals with procedural requisites in respect of suits where those special types of litigants are involved. The actual language of Section 80 of the Code of Civil Procedure contains the material words :
“No suit shall be instituted against the Government ….. until the expiration of two months
next after ‘notice in writing has been delivered to or left at the office of ….. stating the cause
of action, the name description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.”
15. The opening words, “No suit shall be instituted” show that Section 80 consistently with the context of Part IV of the Code provides a procedural bar to the institution of the suit. It is not dealing with the cause of action. Even with a good cause of action, no suit can be instituted without a notice under Section 80. The State or the Government is privileged from being faced with actual law suits by reason of the fact of this bar which will always insist on a prior notice that a law suit is forthcoming. A bar to the institution of the suit therefore, is to be distinguished as a procedural hurdle from the cause of action for the claim in the suit.
16. Thirdly, there is one more consideration on this point. It is well settled that this statutory provision of notice under Section 80 is for the benefit
and protection of the Government. It is also
equally well settled on the high authority of Vellayan Chettiar v. Govt. of the Province of Madras, 74 Ind App 223 : (AIR 1947 PC 197), that the
Government can waive the notice under Section 80 of
the Civil Procedure Code.
17. The fact that the Government, which represents the defendant in this context, can waive this notice shows that notice cannot be a part of the plaintiff’s cause of action. It would be odd in
deed if the defendant could waive the plaintiffs
cause of action and such would be result if notice
under Section 80 of the Civil Procedure Code was to be treated as part of the plaintiff’s cause of action.
18. Lastly a reference at this stage to some of the other provisions of the Civil Procedure Code an respect of pleadings will re-inforce this conclusion. Order 6 of the Code makes provisions for pleadings generally, including the plaint and the
written statement. It is significant that the whole
of Order 6 and the 18 Rules contained therein do hot use the expression “cause of action’. The expression frequently used in that part of the Civil Procedure Code is ‘material facts’. For instance, Order 6 Rule 2 requires that every pleading shall contain the material facts. Order 6 Rule 6 of the Code requires
a condition precedent to be distinctly specified. Then, again, Order 6 Rule 11 of the Code provides that wherever it is material to allege notice to any person, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice as to be inferred, are material. Order 7 of the
Civil Procedure Code then proceeds to lay down
rules about the plaint in a suit. The provisions of Order 7 Rule 1 of the Civil Procedure Code being material are set out hereunder :
“(19) The plaint shall contain the following particulars —
(a) the name of the court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a
minor or a person of unsound mind, a statement
to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.” A glance at Order 7 Rule 1 of the Code shows that Clauses (e) and (f) make a difference between ‘facts constituting the cause of action’ and the ‘facts showing that the court has jurisdiction’.
20. An analysis of these provisions of the Civil Procedure Code leads to the conclusion that a plaint or a pleading is required to state a good many facts all of which may not be technically a part of the actual cause of action. For instance, facts showing that the court has jurisdiction or the value of the subject-matter for jurisdiction and
court-fees as in Order 7 Rule 1 (i) are not part of the plaintiffs cause of action, which exists independently of courts and court-fees. Taking another illustration from Order 7 Rule 1, it is clear that where the plaintiff or the defendant is a minor or a person of unsound mind, that fact must be stated in the pleading by reason of Order 7 Rule 1 (d). Can it be said that a minor or a lunatic has no cause of action? He certainly has a cause of action. But on that cause of action he cannot file a suit by himself. He has got to do that through a next friend. The aid of a next friend cannot be considered as a part of his cause of action but is a kind of a procedural bar for the institution of a suit by him. Of similar nature is the procedural bar that a plaintiff cannot institute any suit against a Government without a notice under Section 80 of the Civil Procedure Code. But the bar is not the cause of action.
21. The view that we are taking that notice under Section 80 of the Civil Procedure Code does not form a part of the cause of action is, therefore, supported both by the textual construction of Section 80 of the Civil Procedure Code read with other relevant provisions of that Code as well as by the authorities and precedents noticed above. This view does not come in conflict with the well-known decision of the Privy Council in Bhagchand v. Secretary of State, 54 Ind App 338 : (AIR 1927 PC 176), where Viscount Sumner says that Section 80 is express explicit and mandatory and it admits of no implications or exceptions and that the consequence of the failure to comply with that section is as if the action had never been brought and that such an action was unsustainable in limine. An action may be unsustainable because the law may provide that the plaintiff has to qualify for the action by giving a notice or by following a particular procedure. That qualifying notice or procedure thereby does not become a part of his cause of action. At the same time that qualifying notice is and remains a condition precedent to the maintainability of the suit. Not all conditions precedent, however, are parts of the cause of action.
22. We, therefore, hold, that notice under Section 80 of the Civil Procedure Code is not a part of the plaintiff’s cause of action although it is a condition precedent which must be pleaded and, if necessary, proved, unless waived, before a suit can be instituted and maintained against the Government. We hold further that in any event the place from where notice under Section 80 of the Civil Procedure Code is sent or issued can in no circumstances give the court of that place jurisdiction to entertain the suit.
23. The appeal must, therefore, fail and is dismissed. There will be no order as to costs of this appeal, but the order for costs of the trial court will stand.
24. The question that arises for consideration in this appeal is whether the issue or despatch of a notice under Section 80 of the Code of Civil Procedure is a part of the cause of action for a suit against the Government and vests the court with jurisdiction to entertain or try the suit. Reliance has been placed on the case of ILR (1950) 2 Cal 551, where S. B. Sinha, J. held-that both the issue and the service of notice under Section 80 form part of the cause of action for a suit against the Government and either of these facts can vest the court with jurisdiction. This view, however, Joes not appear to have found support from the later decisions dealing with this question and two lines of thought emerge from these subsequent decisions. One group expresses the view that as Section 80 of the Code itself provides that the notice under Section 80 should set out inter alia the cause of action and the reliefs claimed, it is clear that the notice has to be given after the accrual of the cause of action or after the cause of action is complete and so the fact of the issuing of the notice or the service of the notice cannot be regarded as forming part of the cause of action. The cases which belong to this group are , (S) . and . In the first mentioned case S. B. Sinha, J. was a party to the decision and His Lordship agreed with the views which have been expressed by the learned Chief Justice to the effect that for the purposes of bringing a suit against the Governor-General-in-Council a notice under Section 80 of the Code is not a part of the cause of action. It is, therefore, clear that Sinha, J. was not adhering to the view which he had expressed in the earlier case of ILR (1950) 2 Cal 551. The other group of cases has interpreted the expression ’cause of action’ in an extended sense and has expressed the view that the plaintiff in a suit against the Government has to allege and prove the service of the notice under Section 80 before the plaintiff can succeed in the suit or becomes entitled to any reliefs in the suit and so the service of the notice is a part of the cause of action and vests the court within whose jurisdiction the service is effected with jurisdiction to entertain the suit. These cases have proceeded on the view that ’cause of action’ means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed in the suit or to obtain a judgment in his favour.
25. It has been held that cause of action in its widest sense means the necessary conditions for the maintenance of the suit and in its restricted sense it means the circumstances forming the infringement of the right or the immediate occasion for the action. It is also well settled that a suit filed before the expiry of the period of two months which is the period prescribed for notice under Section 80 of the Code or during the currency of the notice is liable to be dismissed and in the absence of a notice and an averment that notice has been given, there is no valid suit instituted. Section 80 expressly requires delivery or service of the notice at the office of a Secretary to the Government or where the suit relates to a railway at the office of the General Manager. So, as the service of notice is an essential or material fact which has to be pleaded in the plaint for the maintainability of the suit, this fact has been treated as forming part of the cause of action as understood in its widest and extended sense and has been held to furnish jurisdiction to the court of the place where the notice is served. Under this group, the following cases have been referred to : (1) 93 Cal LJ 373 86 Cal LJ 98, a decision of Bachawat, J.,
and (2) 59 Cal WN 405 at page 417, where I followed the decision of Bachawat, J. In the case of , my learned brother did not commit himself absolutely to this line of reasoning but he pointed out that if notice under Section 80 can at all be regarded as a part of the cause of action, then it is the fact of service alone which is material and not its issue or despatch. But it is to be noted that none of these cases in either of these groups has taken the view that the issue of notice is a fact which can furnish jurisdiction to a court to entertain a suit. It appears to me that of the two views expressed by the
two groups of cases to which I have made reference, the more correct view is to hold that neither the issue of notice nor service of notice forms any part of the cause of action, nor does it vest the court with jurisdiction to entertain a suit.
26. I agree that this appeal should be dismissed.