P P ABUBACKER Vs. UNION OF INDIA

JUDGEMENT

(1.) Had there been an Indian Ombudsman, the technical defence raised by the Railway in this suit might well have come under his censorious attention. The plea put forward by the defendant, the Union of India represented by the General Manager, Southern Railway, Madras, in answer to a suit for damages on account of the damaged condition of certain bags of lime carried by the Railway, was, inter alia, that the suit was had for want of valid notice under S.80, CPC. If I may anticipate my conclusion at this stage, the contention is not merely untenable but unjust and is calculated only to protract the litigation and to postpone the facing of a trial on the merits and, perhaps, to tire out the private party, the plaintiff, whose resources are certainly very limited. In the present case, a notice had been sent purporting to be under S.80, CPC., before the action was instituted. The advocate, who issued the notice for the plaintiff, described his client as "Kozhikode Lime Centre, Lime Fruits, Vegetable Merchants and Commission Agents, M.V. Market, Calicut - 2." The same advocate later described the plaintiff in the plaint as "Kozhikode Lime Centre by proprietor, P.P. Abubacker". In the plaint it was stated that the Chief Commercial Superintendent, Trichinopolly, had been earlier intimated about the damage to the bags of lime, but no action was taken by him to award compensation. It is also seen that the Chief Commercial Superintendent had directed the plaintiff to produce the "pattiyas" in respect of the consignments concerned and that the goods had been sold in public auction presumably after notice to the plaintiff There is also a definite averment in Para.8 of the plaint that "the plaintiff had sent a notice to the defendant" claiming damages for the loss sustained by him under S.80, CPC. The defendant apart from a general denial of everything in the plaint which had not been expressly admitted, adverted to the notice under S.80 in Para.9 of the written statement and averred that "the plaintiff is put to strict proof of service of valid and legal notices under S.78B, Indian Railways Act, and S.80, CPC. It is fairly obvious that the defendant had merely required formal proof of service of the notices and did not challenge the validity thereof or indicate that there was any difference in the identity of the person who sent the notice and the one who brought the suit. Moreover, the earlier exchanges between the plaintiff and the Chief Commercial Superintendent also clearly lead to the conclusion that the Railway was dealing with a specific entity and had no doubts about the identity of the entity whose goods were alleged to have been damaged and which goods they had auctioned. Aside from this aspect, there is, in law, no plea of denial of the notice under S.80 or its validity and, therefore, no question relating to the sustainability of the action on account of non compliance with S.80 really arises. In a decision reported in Abubacker v. Abdulrahiman Beary ( 1960 KLT 348 ) a Division Beach of this Court explained a plea couched in similar words as not amounting to one of denial. There also the defendants had put the plaintiffs to 'strict proof of the right which they claimed and their Lordships observed: "These statements cannot be taken as a specific denial of the material allegation in the plaint. O.8 of the Code of Civil Procedure requires denial of allegations in the plaint to be specific. Where a defendant simply 'puts the plaintiff to proof of the several allegations in the plaint, he will be deemed to have admitted the facts alleged in the plaint' (see Mulla's Civil Procedure Code, 12th Edition, p. 624). In the absence of a specific denial the appellants cannot be permitted to raise this contention." It is thus plain that no contention turning on the validity of the notice under S.80, CPC is available to be canvassed, going by the rules of pleading. Counsel for the respondent, however, stated that an issue had been framed and that, therefore, the plea was permissible. I do not think that in the absence of pleadings a contention can be considered merely because the court has erroneously framed an issue on a point that had not been covered by the pleadings themselves.

(2.) Since the point at issu3 has been argued at some length, I may as well deal with it in the light of the precedents cited before me. When is a discrepancy between the name of the sender of S.80 notice and the plaintiff deadly in its effect

(3.) The notice was sent by the Kozhikode Lime Centre. The suit was filed by the Kozhikode Lime Centre, by proprietor P. P. Abubacker. The defendant had no doubts, going by the written statement about the identity of the party and only demanded proof of service of the notice although it is curious that the recipient of the notice, namely, the Railway, should have asked for proof of service of the notice. But that is the way defences are taken. The contention that there is a difference in the identity between the entity which caused the notice to be sent and the person who instituted the suit is largely built upon a ruling reported in S. N. Dutt v. Union of India ( AIR 1961 SC 1449 ) reinforced by a recent ruling of this court reported in Nazeema Textiles v. The Union of India ( 1970 KLT 290 ). True it is that a superficial study of the two decisions might suggest a fatal defect in the present suit also, but on a closer scrutiny, and informed by the numerous other pronouncements of the Supreme Court, the mists of confusion will melt away and commonsense will come back into its own as the Privy Council and the Supreme Court in a few of their pronouncements on this topic had insisted. The hope of the defendant is inflated by the observations in AIR 1961 SC 1449 because there the notice was sent by "M/s. S. N. Dutt. & Co." and the plaintiff was described in the plaint as "Surrendra Nath Dutta sole proprietor of a business carried on under the name and style of S.N. Dutt & Co." The Court held that while the suit was filed by S.N. Dutt claiming to be the sole proprietor of M/s S.N. Dutt & Co., the notices ran in the name of M/s. S.N. Dutt & Co. Wanchoo J., on the facts present in that case, observed: "The question therefore that immediately arises is whether S.N. Dutt who filed the suit was the person who gave the notices and the answer is obvious that it is not so. It may be that S. N. Dutt is the sole proprietor of Messrs. S. N. Dutt & Co. and is carrying on business in that name and style; but that does not mean that these notices were by S.N. Dutt. Anyone reading these notices would not necessarily come to the conclusion that Messrs S N. Dutt and Co. was merely the name and style in which an individual was carrying on business. The prima facie impression from reading the notices would be that Messrs. S.N. Dutt and Co. was some kind of partnership firm and notices were being given in the name of that partnership firm. It cannot therefore be said on a comparison of the notices in this case with the plaint that there is identity of the person who issued the notices with the person who brought the suit," Even assuming that in the present case the notice was seat by Kozhikode Lime Centre, there is nothing to indicate that that name, which is obviously an assumed name or style, is necessarily indicative of a firm. While Messrs. S. N. Dutt and Co. savour of a partnership, Kozhikode Lime Centre does not convey that prima facie impression and is perfectly consistent with an assumed name in which an individual was doing business. The fact that in S. N. Dutt's case a notice had been sent through lawyer and not by the party directly, also is of no moment whatever and the ratio of the ruling is clearly inapplicable to the situation in the present case. In 1970 KLT 290 a learned Judge of this Court followed AIR 1961 SC 1449 and took the view that in the case before his Lordship "it would appear that the notice was issued on behalf of a firm; but from the suit it would appear 'hat it was instituted by one T. P. Ebrahimkutty as proprietor of the concern." While his Lordship accepted the position that notices under S.80 should not be scrutinised in a pedantic manner or in a manner completely divorced from common sense, he reached the conclusion that the identity of the person who issued the notice with the person who brought the suit had not been made out in that case. I must also mention that the learned Judge's attention had, perhaps, not been invited to the decision reported in Beohar Rajendra Sinha v. State of M.P. (1969 (1) SCWR 803) and another case in the same volume. State of UP. v. Sheo Prasad (1969 (1) SCWR 1253). Nor did his Lordship have the benefit of a study of the telling observations of their Lordships of the Supreme Court in the decision reported in Raghunath Das v. Union of India ( AIR 1969 SC 674 ). I shall briefly consider these rulings so as to decoct the correct law that applies to such situations as arise in the present case. All the rulings on the subject swear by one principle, which in essence applies to all branches of the law, namely, "One must construe S.80 with some regard to commonsense and to the object with which it appears to have been passed." The Privy Council had long ago stated that the terms of the Section should not be scrutinised in a pedantic manner or in a manner completely divorced from common sense. I may mildly add that in a Welfare State such provisions must be construed in a kindly spirit. The Supreme Court in 1969 (1) SCWR 803 had to deal with facts closely akin to ours. The S.80 notice was sent by Beohar Raghubir Singh, but by the time the suit was instituted a partition in his family had taken place and the divided members of the family instituted the suit. As a fact, Beohar Raghubir Singh did not expressly describe himself as the Kartha in the notice and the plea was raised that there was no identity between the person who sent the notice and those who sued the defendant. Their Lordships, however, overruled the plea and explained the scope and object of S.80 CPC., iliuminatingly, if I may say so with respect: