MARINA ANMAYI Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF EAST GODAVARI

JUDGEMENT

(1.) The question for decision is whether the suit out of which this second appeal arises is liable to be dismissed for want of proper notice under Section 80, Civil Procedure Code. Both the lower Courts dismissed the suit. The question now is whether the dismissal is proper.

(2.) The notice of suit given to the Collector was dated the 20 October, 1932. Both the Courts have concurrently found that the notice was served on the 21st October, 1932. The suit was instituted on the 21 December, 1932. In the plaint the allegation is that the first defendant, the Secretary of State for India represented by the Collector of East Godavari acknowledged the notice on the 21st October, but however failed to comply with the demand therein. The plaintiff claimed exemption of the two months time occupied by reason of the said notice. The reply of the Collector on behalf of the Secretary of State was that the amount of claim was not mentioned in the said notice and the suit was bad for want of proper notice. The following issue was raised: Whether the suit is not maintainable for want of proper notice under Section 80, Civil Procedure Code.

(3.) When the case was taken up for trial, the Secretary of State under a mistaken impression contended that the notice was served on him on 22nd October, 1932 and the learned Subordinate Judge accepted this contention but his decision Was reversed on appeal on the ground that notice was actually delivered at the Collector's office on 21 October, 1932 and in remanding the appeal the learned District Judge remarked thus: It was contended by the Government Pleader that even if the notice had really been received on 21 October, 1932 the suit filed on 21st December, 1932 would still be within two months of the date of the receipt of the original notice. This point too does not appear to have been brought to the notice of the learned Subordinate Judge. I consider that the disposal of the suit in the lower Court is unsatisfactory in the sense that none of these points have been adjudicated upon.