SUBODH K CHATTERJEE Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application for the amendment of a plaint tiled in the year 1951. The plaintiff Subodh Kumar Chatterjee filed this suit against the Union of India for recovery of Rs. 12500/- as damages for shortage of ground-nut oil booked by the plaintiff at Sealdah Station in December 1949 to Silchar in Assam. The plaintiff relies on a certificate of shortage issued by the Assam Railway on 18-6-1950. In paragraph 6 of the plaint the plaintiff states that "notice under Section 77 of the Indian Railways Act, has been duly served by the plaintiff on the Company" meaning (East India Railway Administration) "and the said Assam Railway at Calcutta within the jurisdiction". In paragraph 7 the plaintiff states "notice under Section 80 of the Code of Civil Procedure, has been duly given to the defendant" and in paragraph 8 "inasmuch as part of the cause of action herein arose in Calcutta within the jurisdiction aforesaid and pleaded in paragraph 6 hereof, the plaintiff craves for leave under Clause 12 of the Letters Patent". The application has been made nearly eight years after the institution of the suit by adding to paragraph 7 above the following sentence: "The said notice was served upon the defendant through the General Manager E. I. R. at 17, Netaji Subhash Road, Calcutta, within the ordinary civil jurisdiction of this Hon'ble Court". Further in paragraph 8 of the plaint the plaintiff desires to insert the figure 7 by deletion of the figure 6.

(2.) There can be little doubt that the plaintiff has made this application on the basis of the judgment in Bansi v. Governor-General-in-Council, wherein it was held that service of notice under Section 77 of the Indian Railways Act does not form a part of the cause of action for a suit. All that the plaintiff really wants is that he should be allowed to plead that notice under Section 80 of the Code of Civil Procedure was served within the jurisdiction of this Court. Service of such notice is an essential pre-requisite to a proper suit and without such averment a suit against the Union of India would be thrown out on demurrer,

(3.) The point argued on behalf of the defendant is that as the plaint stands today, it discloses that no part of the cause of action for the suit has arisen within the jurisdiction of this Court, and as such this Court is not competent to try the suit. It was argued that the present application for amendment, although a very simple one, cannot be allowed to foe made if this Court finds that it has no jurisdiction to entertain the plaint as filed.