MARINA AMMAYI Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The question for decision IH whether the suit out of which this second appeal arises is liable to be dismissed for want of proper notice under Section 80, Civil P.C. Both the lower Courts dismissed the suit. The question now is whether the dismissal is proper. The notice of suit given to the Collector was dated 20th October 1932. Both the Courts have concurrently found that the notice was served on 21 October 1982. The suit was instituted on 21 December 1932. In the plaint, the allegation is that defendant 1, the Secretary of State for India represented by the Collector of East Godawary acknowledged the notice on 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 P.C. 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 22 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 2i 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 21 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.

(2.) The learned subordinate Judge who dealt with the case after remand came to the conclusion that the suit having been filed within two months of the date of receipt of the notice provisions of Section 80, Civil P.C. were not complied with. He therefore dismissed the suit. On appeal the learned District Judge concurred in this view. Mr. Lakshmanna on behalf of the plaintiff-appellant contends that this view is wrong. He submits that both the lower Courts have wrongly construed Section 80, Civil P.C., and in computing the period of two months the day on which notice was served ought to have been included and not excluded and that if it was so included, the suit was in compliance with Section 80, Civil P.C. He further contends that in any event it must be held that the Government has waived this specific plea. Section 80, Civil P.C., so far as it is relevant for the present discussion runs thus: No suit shall be instituted against the Crown, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been, in the case of a suit against a Provincial Government, delivered to, or left at the office of, a Secretary to that Government or the Collector of the District....

(3.) This section therefore provides a condition precedent to the institution of a suit. As observed by their Lordships of the Privy Council in Bhagchand Dagadusa v. Secretary of State , Section 80, Civil P.C., is explicit and mandatory. If the suit is tiled before the expiration of two months after notice had been delivered or left at the office of the Collector, it is not maintainable and the Court is bound to dismiss it. The question therefore is whether two months expired after the notice in question was served on the Collector. The language of the section indicates that there must be full two months after delivery of the notice. This in my opinion follows from the use of the words "next after." It seems to me the principle that ought to be applied in construing this section is that whenever a period of time is to be computed from or after an act done or an event happened, the day on which the act was done or the event happened should be excluded. In Blunt V/s. Heslop (1838) 8 A & E 577 an action was filed by an attorney for recovery of an amount due to him from his client. The defence was that the action was premature. It was based on statute 2, Geo. II, c. 23, Section 23, which provided that no attorney or solicitor shall commence any action for the recovery of any fees, charges, or disbursements at law or in equity until the expiration of one month or more after such attorney or solicitor respectively shall have delivered into the party or parties to be charged therewith, or left for him, her or them, at his, her or their dwelling house or last place of abode, a bill.