JUDGMENT
1. In the suit out of which this appeal arises the plaintiff alleged that a consignment of two cases of Agarbatti was booked by the Modern Indian Trading Company at a station called Jaswantpur on the Mysore Railway for despatch to the plaintiff-firm which was the consignee, to whom the consignment was to be delivered at the Patna Junction Railway Station on the Eastern Railway. The consignment was not delivered to the plaintiff and after some correspondence with the Railway the plaintiff instituted a suit for recovery of Rs. 651/8/- on account of loss of the goods. The suit was contested by the Union of India on the ground that the suit was not maintainable by reason of non-compliance of Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. The suit was dismissed by the trial court, but the decree of the trial Court was reversed by the learned Subordinate Judge in appeal. The Union of India preferred a second appeal to the High Court, and on the 6th September, 1957, Kanhaiya Singh J., allowed the appeal of the Union of India and ordered that the suit should be dismissed with costs throughout.
2. This appeal is brought on behalf at the plaintiff under Clause 10 of the Letters Patent.
3. On behalf of the appellant two arguments were addressed. It was submitted in the first place that Section 80 of the Railways Act was not applicable to the present case, and in view of the decision of a Division Bench of this High Court in Lakshmi Narayan Gauri Shankar v. Union of India, AIR 1958 Pat 489, the learned Single Judge should have granted a decree to the plaintiff for the amount of damages claimed. It was contended on behalf of the appellant that there was difference in legal effect between a claim on the basis of non-delivery and a claim on the basis of loss of goods, and if the claim of the plaintiff was purely nne for non-delivery of goods the principle of Section 80 of the Railways Act cannot be made applicable so as to entitle the defendant to have the suit dismissed on that ground. 1t was, however, submitted on behalf of the respondent, the Union of India, by the learned Government Advocate that the decision of this High Court in AIR 1958 Pat 489 may have to be reconsidered in view of the recent decision of the Supreme Court in Governor-General in Council v. Musaddi Lal, AIR 1961 SC 725, where the Full Bench decision of this Court in Jais Ram Ramrekha Das v. G. I. P. Ry. Co, AIR 1929 Pat 109 has been expressly overruled. It is, however, not necessary for us to express an opinion on this aspect of the case, because we think that the appeal must be dismissed On the other ground that the notice Under Section 80 of the Code of Civil Procedure has not been validly given.
4. It is the admitted position in this case
that the plaintiff gave the notice under Section
80 of the Code of Civil Procedure by register
ed post to the Secretary to the Union of India,
Railway Department, New Delhi. At the same
time the plaintiff forwarded a copy of the notice
to the General Manager East Indian Railway.
The notice is exhibit 1(a), dated the 28th April,
1951, and it is clearly addressed to “The Secretary to the Union of India Railway Department
New Delhi,” At the bottom of the notice there
is an endorsement:
“Copy forwarded to the
1. General Manager E. I. Rly.,
17, Netaji Subhas Road, Calcutta.
2. The Chief Commercial Manager, E. I.
Railway 3, Koilaghat Street, Calcutta.”
The endorsement does not clearly indicate whether notice had been sent to the General Manager, East Indian Railway, Calcutta for information or for any particular action to be taken. It is necessary at this stage to reproduce Section 80 of the Code of Civil Procedure, which states:
“80. No suit shall be instituted against the Government 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 notice in writing has been delivered to, or left at the office of–.
(a) in the case of a suit against the Central Government, except where it relates to a railway, a Secretary to the Government;
(b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that Railway;
(c) in the case of a suit against a State Government, a Secretary to that Government or the Collector of the district;
and, in the case of a public officer, delivered to him or left at his office, 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.”
Before the amendment of Section 80 by Central Act 6 of 1948 the position was that in the case of a suit against the railway for damages for loss of goods notice had to be given to the Secy. of State for India in Council and notice had got to be delivered to or left with the Secretary to the Local Government or the Collector of the district. After the amendment of the section there is a clear statutory requirement that the notice has to be delivered to or left at the office of the General Manager of the Railway in the caste of a suit against the Central Government where it relates to a railway. The question presented for determination in this case, therefore, is whether there has been sufficient compliance on the part of the plaintiff with the statutory requirement. In our opinion the provision of Section 80 (b) of the Code of Civil Procedure has not been satisfied in this case and the learned Single Judge is quite correct in holding that the suit must fail for this reason. The view we have taken if supported by the decision of the Bombay High Court in E. I. Rly. Co. v. Jethumall Ramanand, ILR 26 Bom 669. It was pointed out by Sir Lawrence Jenkins, C. J., in this case that knowledge of the particular Railway of the claim is of no avail unless notice was communicated in the particular mode prescribed by the statute. The same view has been taken by the Orissa High Court in Fagumani Khuntia v. Dominion of India, AIR 1956 Orissa 29 where it was held that notice against the one Railway administration of the claim of the plaintiff is not sufficient compliance of the provisions of Section 77 to constitute a notice against the other Railway administration. If there was no sufficient compliance in this case of the provisions of Section 80(b) of the Code of Civil Procedure, then it follows that the suit of the plaintiff is incompetent. We should like in this connection to refer to the decision of the Privy Council in Bhagchand Dagadusa v. Secy. of State, 54 Ind App 338 : (AIR 1927 PC 176) where is was pointed out that Section 80 of the Code of Civil Procedure is mandatory in character and does not admit of any implications or exceptions. The provisions of Section 80 of the Code are not merely procedural in character, but the provisions embodied in the section impose statutory and unqualified obligation upon the plaintiff, and failure to comply with the requirements of that section is fatal to the success of the suit. For these reasons, therefore, we hold that the judgment of the learned Single Judge of this High Court is right and the suit has been rightly dismissed with costs throughout. We accordingly affirm the judgment and decree of learned Single Judge of this High Court in Second Appeal No. 496 of 1953, but we do not propose to order any costs of this Letters Patent Appeal.