UNION OF INDIA Vs. DEVANAGERE COTTON MILLS LTD

JUDGEMENT

(1.) THE Union of India owning the Southern Railway, represented by the General Manager, Southern Railway, Madras, the defendant in O.S. No. 4570 of 1968 on the file of the City Civil Court, is the appellant herein. The suit was instituted by the respondents herein for recovery of a sum of Rs. 17,000 being the damages alleged to have been suffered in relation to a boiler consigned by A. C. C. Baccok Ltd., Durgapur, for carriage to Davanagere in June 1965 to the first respondent herein. Among the various defences set up by the appellant herein, one was that the suit was premature, since the period prescribed in Section 80, Civil P. C. for institution of the suit had not expired on the date when the suit was instituted. Overruling this defence, the trial court by its judgment and decree dated 14 -9 -1970, decreed the suit for the respondents. Hence the present appeal by the defendant in the suit.

(2.) SINCE I am reversing the decision of the trial court on this point which goes to the root of the matter, it is unnecessary for me to consider the other points dealt with by the trial court. Admittedly, in this case, the notice contemplated by Section 80, Civil P. C. was sent by the respondents to the appellant on 10 -6 -1968 and a copy of the notice has been marked as Ex. A.11. The said notice was received by the appellant on 12 -6 -1968 as evidenced by Ex. A.12, the postal acknowledgment. Equally admittedly, the plaint in the present suit was presented to the court on 12 -8 -68. It is with reference to these facts, the appellant contended before the trial court that the two months provided to for in Section 80, Civil P. C. had not expired on the date when the plaint was presented, namely, on 12 -8 -1968 and therefor, the suit was premature and was liable to be dismissed on that ground. The Learned trial judge fully realised this position and as a matter of fact has pointed out in para. 8 of the judgment that on the facts of the case, it was no doubt true that the suit should have been filed on 13 -81968, but had been filed on 12 -8 - 1968. Notwithstanding this observation of the learned trial Judge, he purported to decree the suit by referring to certain observations of the Supreme Court as to how the contents of the notice should be construed. I am clearly of the opinion that the learned Judge erred in his conclusion in this behalf.

(3.) MR . Rangarajan, the learned counsel for the respondents, sought to contend that though the plaint was presented on 12 -8 -1968, it was returned and subsequently re -presented and by the time the plaint was re -presented, the two months period contemplated by Section 80, Civil P. C. had expired. I am unable to draw any inference in favour of the respondent from this fact. Section 26, Civil P. C. provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Therefore, a suit is instituted, when the plaint is presented for the first time. Section 80 also uses the expression "no suit shall be instituted." Therefore, a combined reading of Sections 26 and 80, C. P. C. can lead to the only one conclusion, namely, the date on which a plaint is presented for the first time, is the date of institution of the suit. Consequently, the fact that the plaint was returned in this case and was subsequently re -presented will have no effect whatever on the plea of the appellant based on Section 80, Civil P. C.