MUNICIPAL COMMITTEE, SAGAR Vs. CHHOTABHAI JETHABHAI

JUDGEMENT

(1.) TWO suits (i) Civil Suit No. 10 -B of 1950 by Messrs Chhota Bhai Jetha Bhai Patel and Company and (ii) Civil Suit No. 11 -B of 1950 by Chhota Bhai were consolidated in the Court of Additional District Judge, Sagar, and disposed of by one common judgment. The first suit was for recovery of Rs. 16,926 -8 -0, and the other of Rs. 6,884 -1 -0 on account of double octroi duty paid to the Municipal Committee, Sagar. Both the suits were decreed with costs and future interest at 3 p. c. p. a. This appeal is filed by the Municipal Committee through its Secretary against the decree.

(2.) WHAT took place afterwards is fully set out in Secretary, Municipal Committee, Sugar v. Messrs Vrajlal Manilal and Company F.A. No. 146 of 1950. That appeal has been filed by the Committee against the decree passed in favour of Messrs Vrajlal Manilal and Company by the lower Court in Civil Suit No. 3 -A of 1949. The facts there are similar and, therefore, need not be repeated. The facts which are necessary for the disposal of the present appeal, may, however, be stated:

(3.) IN Bachchu Singh v. The Secretary of State for India in Council ILR 25 All. 187, which appears to be the first case on the subject, the notice under Section 80, Code of Civil Procedure, was given by the predecessor of the Plaintiff. Their Lordships held that this notice did not endure for the benefit of his representatives and since there was no service of the notice, the proper course for the Court was to reject the plaint under Section 54 (c) of the Code. This decision also only emphasizes the imperative nature of the provision relating to the service of notice and does not deal with the question whether the plaint is liable to be rejected where the notice was duly served and only the necessary averment was not made in the plaint. It is doubtless true that in Hiralal Murarka v. Mangtulal Bagaria ILR 1944 (2) Cal. 513 it was stated that the language of the section was imperative, not only regarding the delivery of the notice but also as regards the inclusion of the averment in the plaint and that in the absence of the notice or of the statement, there is no suit with which the Court is empowered to deal. In that case, however, no notice was served and accordingly the observations of their Lordships regarding the statement in the plaint are only obiter dicta. It is also true that in the case of Bhagchand Dagadusa their Lordships of the Privy Council negative the contention that Section 80, Code of Civil Procedure, was merely procedural, but again the observations were confined to the question of the delivery of the notice.