SECRETARY OF STATE Vs. GAJANAN KRISHNA MAVLANKAR

JUDGEMENT

(1.) In my opinion, on a proper construction of Section 424 of the Civil Procedure Code of 1882, notice was necessary in this case, as a condition precedent to suit. The words in the section are: -No suit shall be instituted against the Secretary of State in Council, or against a public officer in respect of an act purporting to be done by him in his official capacity." From the repetition of the word "against", I think the -act," described in the section, was meant to relate only to the public officer, not to the Secretary of State. It shows that the Legislature intended to differentiate between the Secretary of State and other public officers. Further, if the words "in respect of an act" & c., had been intended by the Legislature to apply to the Secretary of State also, it would have been more appropriate to use the words "done by either" instead of the words "done by him."

(2.) The question is not quite free from difficulty. In The Secretary of State for India in Council v. Rajluchi Debi (1897) I.L.R. 25 Cal. 239, Ameer Ali J. construed the section in a different way. In appeal from his decision MacLean C. J. was inclined to differ from that construction; but the appeal was decided on other grounds and so the learned Chief Justice s opinion was a mere obiter dictum.

(3.) The considerations in support of the construction contended for by the learned Advocate-General in support of the present appeal seem to me to be stronger than those urged for the other construction.