MAUJIRAM KHAYALIRAM Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal by Firm Maujiram Khyaliram against the judgment and decree of the Civil Judge, Ganganagar dismissing the suit brought by the appellant against the State of Rajasthan and the Union of India. The dismissal has taken place on the ground that the notice under sec 80 of the Civil Procedure Code was not given and the only point, therefore, for determination in the appeal is whether there was sufficient compliance with the provisions of sec 80 of the Civil Procedure Code.

(2.) IN view of this limited question before us, we do Dot think it necessary to set out in detail the case put forward in the plaint. It is enough to give the relevant facts which bear on the question of notice under sec. 80 of the Civil Procedure Code. These facts are that certain consignments of cotton cloth were booked to the appellant firm from Ahmedabad to Ganganagar in 1948. These consignments did not reach the appellant and it gave notice to the Railway under sec. 77 of the INdian Railways Act When it did not get any redress and it was decided to file a suit, notice under sec. 80 of the Civil Procedure Code became necessary. Consequently, the appellant gave notice on the 24th of January 1950, to the State Council, Rajasthan. This notice was received in the Secretariat of the State of Rajasthan and was returned in original to the appellant with the remark that there was no such body as the State Council, Rajasthan and that the notice was not in accordance with the Code of Civil Procedure as adapted to Rajasthan. Thereafter the appellant gave another notice on the 11th of March, 1950. This notice was addressed to the State of Rajasthan through the Collector, Ganganagar. There is evidence that this notice was in due course forwarded by the Collector to Secretariat and from there it reached the General Manager, Bikaner State Railway some time before the 24th of April 1950. The suit was filed by the appellant on the 5th of July, 1950, against the State of Rajasthan. The Union of INdia was made a party on the 1st of June, 1951. Thereafter, Union of INdia took the objection that there was no compliance with the provisions of sec. 10 of the Civil Procedure Code and the suit should be dismissed on that score. This objection has prevailed in the court below with the result that the suit was dismissed.

(3.) WE have already pointed out that on the 11th of March, 1950,the State of Rajasthan was the owner of the Railway and the notice under sec. 80 of the Civil Procedure Code could only be given to the State Government. It cannot be disputed that the notice which was sent on the 11th of March, 1950, was properly addressed under sec. 80 C. P. C. Later the Union Government became the owner of the Railway from the 1st of April, 1950, and we have to see whether a fresh notice was required under sec. 80 C. P. C. to be addressed this time under clause (b) of sec. 80 C. P. C. It is true that when the suit was filed in July, 1950, the Union Government was the owner, but so far as the law is concerned, it was exactly the same on the 11th of March, 1950, as on the 5th of July, 1950. The appellant had complied with the law as it stood on the 11th of March, 1950, and there was no change in the law on the 5th of July 1950. What is contended on behalf of the Union of India is that as there was change in ownership, a notice under clause (b) became necessary after the 1st of April, 1950, because the suit had to be filed against the Central Government and that could not be done without a notice under clause (b ). WE however, fail to see why when the appellant had given notice to the proper authority on the 11th of March, 1950,that notice should not be availed of by him even though there had been a change in the ownership of the Railway. Under Art. 295 (l) (b) of the Constitution, all rights, liabilities and obligations of the Government of any Indian State corresponding to a State specified in Part B of the First Schedule, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations of the Government of India, if the purposes for which such rights were acquired or liabilities or obligations were incurred before such commencement were purposes of any of the matters enumerated in the Union List. When notice had been given by the appellant to the State Government on the 11th of March, 1950 when it was still owner of the Bikaner State Railway the State Government became liable to be sued after the expiry of two months in accordance with sec. 80 C. P. C. Before, however, this period expired, the Central Government or the Union of India became the owner of the Railway. It seems to us only reasonable that the notice which was served on the State Government should be treated as a notice to the suc-cessor Government mutatis mutandis. When the successor Government was saddled with all the rights, liabilities and obligations under Art. 295 of the Constitution. Learned counsel for the Union Government would ask us to give a literal interpretation to the provisions of sec. 80 C. P. C. and the argument is that as on the 5th of July, 1950, the Union Government was the owner and no notice had been given to the Union Government as required by clause (b) of sec. 80 C P. C. the suit could not be instituted. This argument, in our opinion, overlooks the valid notice that was given on the 11th of March, 1950, to the State Govt. to which alone it could be given on that date. That notice must, in our opinion, be treated to be a notice mutatis mutandis to the Central Government when on the 1st of April, 1950 it came to be the owner of the Railway by virtue of the Constitution and the agreement with the Raj-pramukh of Rajasthan. It is this notice, therefore, which was given on the 11th March, 1950, which clearly distinguishes this case from all the cases cited on behalf of the Union of India.