NATHOOLAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS revision-petition arises out of the judgment and decree passed by the learned Additional District Judge, Umaria, dismissing the suit of the plaintiff with costs on the ground that the notice Ex. P-4 issued on 7-7-1961 under section 77 of the Indian Railways Act and section 80 of the Code of Civil Procedure is invalid, and therefore, he set aside the decree passed by the learned Civil Judge Class II, Shahdol, in Civil Suit No. 159-B of 1961, wherein the learned Judge had decreed the suit of the plaintiff for Rs. 782.28 N. P. with costs, for the loss resulting due to the non-delivery of the bale of cloth booked from Viramgam railway station to Burhar.

(2.) THE plaintiff-applicant brought an action against the defendants - non- applicants for Rs. 794.88 N. P. on account of the nondelivery of a bale of cloth booked to "Self" under Railway Receipt No. GB/5/79089 dated 21-2-1961 from Viramgam railway station to Burhar railway station where the delivery was to be given. After service of the notice under section 77 of the Railways Act and section 80 of the Code of Civil Procedure, Ex. P-4, this action was initiated.

(3.) SHRI Dabir, the learned counsel for the applicant urged before me that the notice, Ex. P-4, was given by the applicant in the name of Kashideen Nathulal which is a joint family name and he also carries on business of the joint family in that name. He added that even the Railway Receipt, Ex. P-1 was on the joint family name and as he Is a Karta of the joint Hindu family, he filed the suit in his own name in the capacity of the Karta of the joint Hindu family. In para. 1 of the plaint, he has mentioned that he is doing business in the name, of Kashideen Nathoolal. According to the learned counsel, he being the Karta of the joint Hindu family, the suit as it is, is properly framed, and there is no question of mis-identity under either name, and the trade name was merely an alias. He has further contended that the ruling reported in S. N. Dutt v. Union of India, AIR 1961 SC 1449, is clearly distinguishable from the facts of the instant case. In that case, the notice was given under section 80 by Messrs S. N. Dutt and Co. and the suit was filed by S. N. Dutt as a sole proprietor of the business carried on under the name and style of S. N. Dutt and Co , and further there were documents on record to show that S. N. Dutt himself gave out as the partner of S. N. Dutt and Co., suggesting thereby that S. N. Dutt was a firm. In view of these considerations, it was held that the person giving notice was not the same who was suing, and therefore, section 80 of the Code of Civil Procedure was not complied with. In support of his contention, he has cited Stale, of Andhra Pradesh v. Gundugole Venkata Suryanarayan (Jam, AIR 1965 SC 11,