PETITIONER: SAWAI SINGHAI NIRMAL CHAND Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 24/09/1965 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M. CITATION: 1966 AIR 1068 1966 SCR (1) 986 CITATOR INFO : F 1977 SC 148 (7) R 1984 SC1043 (5) ACT: Code of Civil Procedure (Act 5 of 1908), s. 80 and O. 21, r. 63-Claim suit against Government--Notice, if necessary HEADNOTE: In execution of an order to:- restitution of money, the respondent Union of India-applied for attachment and sale of certain immovable ,properties as belonging to the person from whom the. money was claimed. The properties were ordered to be attached, and the appellant claiming ownership of the properties, objected to the attachment under O. 21, r. 58 .of the Civil Procedure Code. 1908. The objection was over-ruled and his application was dismissed. Therefore, he filed ;I Suit tinder O. 21, r. 63 and before filing the suit gave notice to the respondentt under s. 80 of the Code. If s. 80 applied to the suit and the period covered by the notice could be taken into account the suit was within time but if s. 80 did not apply and the period of notice could not be taken into account, the suit would be barred by time. -Die trial court and High ,Court answered the question against the appellant and dismissed the suit .its barred by time. In appeal to this Court. HELD : The view that suits tinder O. 21, r. 63 did not attract the provisions of s. 80 is inconsistent with the plain, categorical .1nd unambiguous words used by it. [1993 F] The material words used in s, 80 are wide and unambiguous; they .,ire "express, explicit and mandatory" and it would be difficult to except front their operation any proceeding which can be regarded as a suit against the government. The proceedings which the aggrieved party ,commences by virtue of O. 21, r. 63 are intended to be a suit. They are commenced by the presentation of a plaint as required by s. 26 of the Code, and art. 11 of the Limitition Act, 1908, under which the plea of limitation was raised in the present, case, shows that the proceeding was a suit. Such a proceeding under O. 21, r. 63 cannot he regarded as either a continuation of the objection proceedings under r. 58, or as a form of ,in appeal against the order passed in them, because the scope of the suit is different from and wider than that of the investigation under r. 58. In fact, it is the order made in the investigation under O. 21, r. 58 that is the cause of action of the suit under r. 63. The object or main purpose of the notice is to give previous intimation to the government about the nature of the claim which a party wants to make against it. 'But that does not affect the interpretation of the plain words of s. 80 [989 E, G; 991 C, E, 992 D] Phul Kumari v. Ghanshyam Mishra (1907) I.L.R. 35 Cal. 202 (P.C.) and Amar Nath Dogra v. Union of India, [1963] 1 S.C.R. 657, explained. Bhagchand Dagadusa v. Secretary of State for India in Council and others. 54 I.A. 338, applied. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 928 of 1963.
987
Appeal from the judgment and decree dated March 14, 1961 of
the Madhya Pradesh High Court in First Appeal No. 57 of 959.
Bishan Narain, S. N. Prasad and f. B. Dadachanji, for the
apellant.
N. D. Karkhanis and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Gajendragadkar, C.J. The short question of law which arises
in this appeal is whether a suit filed in pursuance of O. 21
r. 63 of the Code of Civil Procedure attracts the,
provisions of s.80 of the Code. This point arises in this
way. One Phool Chand, the predecessor-in-title of the
appellant Sawai Singhai Nirmal Chand, instituted a suit
against the respondent, the Union of India, in the Court of
the Second Additional District Judge, Jabalpur, and obtained
a decree on 25-4-1951 for Rs. 24,234-14-0 and proportionate
costs with interest @ 4% per annum. The respondent
challenged the said decree by preferring an appeal in the
High Court. Pending the appeal, the respondent deposited
the decretal amount of Rs. 31.849-9-9. On December 14, 1952,
phool Chand withdrew Rs. 28.032-12-0 out of the said amount
after furnishing due security in that behalf. Ultimately,
the respondent’s appeal was partly allowed on June 26, 1954,
and the decretal amount was reduced to Rs. 10,971-15-6. In
the result, the total decretal amount due to the decree-
holder Phool Chand came to Rs. 12,691-13-6; and that meant
that he had withdrawn Rs. 15,340-14-8 in excess of his
legitimate dues.
On September 4. 1954, the respondent applied for restitution
of the said amount and claimed interest thereon. The Second
Additional District Judge, Jabalpur, allowed the said
application, and in execution of it, the respondent sought
for the recovery of the said amount by attachment and sale
of certain immovable properties of Phool Chand, mentioned in
the application. These properties were accordingly ordered
to be attached. But, meanwhile, they had been sold by Phool
Chand to the appellant by a registered sale deed executed on
January 9, 1953. That is why the appellant objected to the
said attachment under O.21 r. 58 of the Code. but his
objection was over-ruled and his application was dismissed
by the Second Additional District Judge on April 16, 1957.
It is this order which has led to the present suit under 0.
21 r. 63 of the code.
Before the appellant filed the present suit on June 23,1958
in the Court of the First Additional District Judge,
Jabalpur, he gave
988
notice to the respondent under s. 80 of the Code on April,
12, 1958. In the said suit, he claimed a declaration that
the properties in question could not be attached and sold
inasmuch as the title in respect of the said properties
vested in him by virtue of a valid sale deed executed in his
favour by Phool Chand. The appellant also claimed an
injunction restraining the respondent from attaching and
selling the said properties.
In defence, the respondent raised a plea of limitation. It
is common ground that the period of limitation prescribed
for a suit under O. 21 r. 63 by Article 11 of the Limitation
Act is one year from the date of the order under O. 21. r.
58. The respondent urged that s. 80 of the Code did not
apply to the present suit; and so, the period covered by the
notice served by the appellant on the respondent could not
be excluded for the purpose of calculating limitation in the
present case. It is not disputed that if s. 80 applies to
the present suit and the period covered by the notice can be
taken into account, the suit is within time. It is also not
disputed that if s. 80 does not apply to the present suit
and the period of the notice cannot be taken into account,
the suit is barred by time; and so, at the preliminary
stage, the only question which fell to be determined on the
pleadings of the parties was whether s. 80 applies to the
present suit. Both the learned trial Judge and the High
Court of Madhya Pradesh, Jabalpur, have answered this
question against the appellant, and the suit has, therefore,
been dismissed as barred by time. It is against this
decision that the appellant has come to this Court with a
certificate granted by the said High Court. ‘Mat is how the
only point which calls for our decision in the present
appeal is whether s. 80 of the Code applies to a suit
instituted in pursuance of the provisions of O. 21 r. 63.
Let us begin by referring to the provisions of O. 21 rr. 58
and 63. O. 21 r. 58 deals with the investigation of claims
to, and objections to attachment of, attached properties.
It is under this rule that a person whose property is
wrongfully attached in execution of a decree passed against
another, is entitled to object to the said attachment. On
such an application being made, a summary enquiry follows
and the attachment is either raised or is not raised and the
objection to attachment is allowed or is not allowed
according as the Court trying the application is satisfied
that the objector is or is not justified in objecting to the
attachment. After the final order is passed on– way or the
other as a result of the investigation made in such
proceedings, r. 63 comes into operation. It provides that
where a claim or an objection is preferred, the party
against whom an order is made may institute a suit to
989
establish the right which he claims to the property in
dispute, but, subject to the result of such suit, if any,
the order shall be conclusive. It is thus plain that where
an order is passed in objection proceedings commencing with
r. 58, it would be final subject to the result of the suit
which a party aggrieved by such order may ,institute; and
that means that if a party is aggrieved by an order passed
in these proceedings, he can have the said order set aside
or reversed by bringing a suit as provided by r. 63 itself
and such a suit has to be filed within one year from the
date of the impugned order. That is the nature of the suit
which the appellant has brought in the present case.
In considering the question whether this suit falls within
the purview of s. 80 of the Code, it is necessary to read
the relevant portion of s. 80 itself; it provides, inter
alia, that 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 the authorities specified by clauses (a), (b) &
(c); and it further provides that such notice shall state
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.
It would be noticed that the material words used in s. 80
are wide and unambiguous; they are “express, explicit and
mandatory”, and it would be difficult to except from their
operation any proceeding which can be regarded as a suit
against the Government. While dealing with the
applicability of s. 80, the question to ask is: is it a suit
against the Government or not? If it is, then s. 80 by the
very force of its words must apply. We have already
referred to the provisions of O. 21 r. 63. In terms, the
said rule provides that the order passed in the
investigation proceedings shall be conclusive, subject to
the result of a suit which the aggrieved party may
institute. So, there can be no doubt that the proceedings
which the aggrieved party commences by virtue of the pro-
visions of O. 21 r. 63, are intended to be a suit. In fact,
the present proceedings have commenced with the-
presentation of a plaint as required by s. 26 of the Code;
and the very article under which the plea of limitation is
raised against the appellant shows that it is plea in
respect of the institution of a suit beyond the period of
limitation. It is thus plain that what we are dealing with
is a suit and that it is a suit against the Union of India.
Therefore, on a fair and reasonable construction of s. 80.
we do not see how it is possible to hold that a suit filed
under O. 21 r. 63 can be taken out of the provisions of s.
80 of
990
the Code. If we were to accede to the argument urged before
us by Mr. Karkhanis for the respondent, we would, in
substance, have to add certain words of exception in s. 80
it-self, and that plainly is not permissible.
It is, however, said that the suit under O. 21 r. 63 is a
continuation of attachment proceedings and as such, cannot
be regarded as a suit proper which is included within the
purview of s. 80. In support of the assumption that a suit
filed under O. 21 r. 63 is a continuation of attachment
proceedings, reliance is placed on the decision of the Privy
Council in Phul Kumari v. Ghanshyam Misra(1). In that case,
the Privy Council was dealing with the question of the
proper court-fees to be paid for a suit under s. 283 of the
Code which was then in force, and which corresponds to 0. 21
r. 63 of the present Code. Article 17 of Sch. It of the
Court Fees Act (No. VII of 1870) with which the Privy
Council was dealing was expressly made to apply to “Plaint
or Memorandum of Appeal in each of the folllowing suits: 1
To alter or set aside a summary decision or order of any of
the Civil Courts not established by Letters Patent, or of
any Revenue Court”; and the Privy Council had to examine the
question as to whether a suit filed under s. 283 for the
purpose of the relevant article prescribing the, court-fees
to be paid on the plaint was, or was not, a suit to alter or
set aside a summary decision or order of any civil court.
In answering(, this question in the affirmative, the Privy
Council observed that the difference between the words used
in the plaint in the case before it and the words used in
the relevant article of the Court Fees Act. was merely
verbal. In the plaint, the plaintiff had “categorically
asked from the Court the several decrees which she had asked
from the Subordinate Judge, and which the Subordinate Judge
had refused.” In other words, the plaint did not, in terms,
ask for the setting aside of the said decrees, or reversing
them. The Privy Council did not attach any importance to
this verbal difference and held that in substance, the
plaint was one filed with the object of getting a summary
decision of the court set aside as contemplated by s. 283.
It is in that connection that the Privy Council made the
observation on which reliance has been placed by the courts
below. Says the Privy Council, “Misted by the form of the
action directed by s. 283, both parties have treated the
action as if it were not simply a form of appeal, but as if
it were unrelated to any decree forming the cause of
action.” In other words, the effect of the
(1) I.L.R. 35 Cal. 202
991
observations made by the Privy Council is just this that
when a suit is brought under s. 283, it is no more than a
suit to set aside a summary decision by which the plaintiff
feels aggrieved. It would be noticed that the question
which had been raised before the Privy Council had reference
to the payment of proper court fees; and the decision of the
Privy Council and its observations must, therefore, be read
in the light of the article which the Privy Council applied.
It would, we think, be unreasonable to extend the said
observations to the Present case and treat them as
enunciating a proposition of law that for all purposes, a
suit brought under O. 21 r. 63 is either a continuation of
the objection proceedings, or is a form of an appeal against
the order passed in them. In our opinion, this extension is
not justified, because the Privy Council could not have
intended to lay down such a broad proposition. Therefore,
the argument that the present suit is outside the purview of
s. 80 of the Code because it is a continuation of the
attachment proceedings, must be rejected.
In this connection, we ought to bear in mind that the scope
of the enquiry under O. 21 r. 58 is very limited, and is
confined to questions of possession as therein indicated
while suit brought under O. 21 r. 63. would be concerned not
only with the question of possession, but also with the
question of title. Thus the scope of the Suit is very
different from and wider than that of the investigation
under O. 21 r. 58. In fact. it is the order made in the
said investigation that is the cause of action of the suit
under O. 21 r. 63. Therefore, it would be, impossible to
hold that such a suit is outside the purview of s. 90 of the
Code.
It is next contended that no notice can be said to be
required for suits under O. 21 r. 63, because the principal
object for encting s. 80 is absent in the case of such
suits. The argument is that the requirement about the
statutory notice prescribed by s. 80 proceeds on the basis
that it is desirable lo give such notice to afford the
Government an opportunity to consider whether the claim made
against it should be settled or not. The Legislature
thought that if the Government is informed beforehand about
civil actions intended to be taken against it, it may in
some cases avoid unnecessary litigation by accepting the
claims if it is satisfied that the claims are well-founded.
In the case of i suit under O. 21 r. 63, there is hardly any
need to give Such a notice, because the Government was
already a party in the investigation proceedings and it
knows what the appellants, case
992
was in regard to the attachment sought to be levied at its
instance. Since the respondent knows all about the claim of
the appellant in regard to the properties in question, it is
futile and unnecessary to require that a notice should be
given to the respondent before a suit can be filed by the
appellant under O. 21 r. 6 3.
In support of this argument, Mr. Karkhanis has relied on a
-decision of this Court in Amar Nath Dogra v. Union of
India(1). In that, case, one of the questions which the
Court had to consider was whether, if a suit against the
Government is withdrawn and a subsequent suit is filed
substantially (in the same cause of action, the notice given
by the plaintiff prior the institution of the first suit
could be said to satisfy the requirements of s.80 ofthe Code
in respect ofthe second suit; and this question was answered
in the affirmative. while upholding the appealant’s
,contention that the first notice should serve to meet the
requirements of s. 80, this Court, no doubt, observed that
the main purpose of giving the notice isto give previous
intimation to the ‘Government about the nature of the claim
which a party wants to make against it. But we do not see
how the purpose, or the reason for requiring the notice can
alter the effect of the plain words used in s. 80. What
this Court held in the case of Amar Nath Dogra(1) was that
the notice given before the institution of the first suit
can be said to be a good notice even for the second suit;
and that means that the notice was necessary to be given
under s. 80. but it was not necessary to repeat it in the
circumstances of the case.
It is significant that in a large majority of cases, tbhe
plea that the Government raises is that notice is necessary
and it is generally contended that the notice being
defective in one particular or another, makes the suit
incompetent; and in dealing with such pleas, the courts have
naturally sought to interpret the notices somewhat liberally
and have sometimes observed that in, enforcing the
provisions of s. 80, commonsense and sense of propriety
,should determine the issue. It is very unusual for the
Government to contend that in a suit brought against it, no
notice is required tinder -s. 80. It is plain that such a
plea has been raised by the respondent in the present case,
because it helps the respondent to defeat the appellant’s
claim on the ground of limitation. In any case the
contention based on the object or purpose of the notice can
hardly assist us in interpreting the plain words of s. 80.
(1) [1963] 1 S.C.R. 657.
993
It will be recalled that prior to the decision of the Privy
Council in Bhagchand Dagadusa & Others v. Secretary of State
for India in Council and others(1), there was a sharp
difference of opinion among the Indian High Courts on the
question as to whether s. 80 applied to suits where
injunction was claimed. The Privy Council held that s. 80
applied “to all forms of suit and whatever the relief
sought,, including a suit for an injunction.” In dealing
with the question about the construction of s. 80, the Privy
Council took notice of the fact that some of the decisions
which attempted to exclude from the purview of s. 80 suits
for injunction, were influenced by the “assumption as to the
practical objects with which it was framed”. They also pro-
ceeded on the basis that s. 80 was a rule of procedure and
that any construction which may lead to injustice is one
which ought not be adopted, since it would be repugnant to
the notion of justice. Having noticed these grounds on
which an attempt was judicially made to except from the
purview of s. 80 suits, for instance, in which injunction
was claimed, Viscount Sumner, who spoke for the Privy
Council, observed that “the Act, albeit a Procedure Code,
must be read in accordance with the natural meaning of its
words”, and he added that “section 80 is express, explicit
and mandatory, and it admits of no implications or ex-
ceptions”. That is why it was held that a suit in which an
injunction is prayed, is still a suit within the words of
the section, and to read any qualification into it is an
encroachment on the function of legislation. In our
opinion, these observations apply with equal force in
dealing with the question as to whether a suit under 0. 21
r. 63 is outside the purview of s. 80 of the code.
It appears that on this question, there has been a
divergence of judicial opinion in India. But, in our
opinion, the view that suits under O. 21 r. 63 did not
attract the provisions of s. 80, is inconsistent with the
plain, categorical and unambiguous words used by it.
The result is, the appeal is allowed, the decree passed by
the courts below is set aside and the suit is remanded to
the trial court for disposal in accordance with law. The
appellant would be entitled to his costs from the respondent
in this Court and in the High Court. Costs in the trial
court would be costs in the suit.
Appeal allowed.
(1) 54 I.A. 338,
L8Sp. C. 1./65-20
994