MOHAMMAD FAROOQ Vs. GOVERNOR GENERAL IN COUNCIL

JUDGEMENT

(1.) This is an appeal by the plaintiff. He had filed a suit to recover Rs. 1017/15/ against the respondent. According to him he had despatched from Howrah to Dhanbad railway station 7 bundles of glaze kid leather weighing 13 mds. 30 srs. under railway receipt No. 238573A dated the 20 October 1948. The plaintiff was both the consignor and the consignee. At the time of delivery, however, it was found that one bundle was in a broken condition and there was a shortage of 13 seers in weight which was equal to 425 sq. ft. of leather. These seven bundles had been despatched by passenger train and according to the plaintiff the said loss was due to the wilful negligence and misconduct on the part of the servants of the railway and that he was entitled to recover the price of the loss of leather at the rate of RS./2/4 per sq. ft. The total price claimed for the leather lost was Rs. 957/15/- and Rs. 60/- was claimed by way of interest from 20 October 1943 up to the date of the suit.

(2.) The Subordinate Judge who tried the case held that the circumstanced established that there had been misconduct on the part of the railway administration, and that the railway administration was certainly liable for the loss. As to whether the 7 bundles contained glaze kid leather, be came to the conclusion that the plaintiff's case in this respect was unsatisfactory and that the leather in question was chrome leather. He believed the evidence of plaintiff's witness No. 1 that the size of the leather lost was 425 sq. ft. and the Subordinate Judge fixed the value of this leather at the rate af Re. 1 per sq. ft. With reference to the question of interest he was of the opinion that no such claim was maintainable. Two issues had been framed before the Subordinate Judge. The first issue was to the effect: "Is the suit bad for want of legal and proper notice under Section 80, Civil P.C.?" and the second issue was to the effect: "Is the plaintiff entitled to any amount? If so, how much"? I have already indicated the opinion of the Subordinate Judge as to the amount of leather lost and the rate at which that loss should be assessed With reference to the issue as to whether the suit was bad for want of legal notice under Section 80 of the Code, the Subordinate Judge was of the opinion that so far as the service of the notice is concerned to the Secretary, Central Government, it could not be doubted in view of the fact that it was sent by registered post. He was further of the opinion that the notice in question clearly indicated the cause of action, the relief claimed and the residence of the plain, tiff. The Subordinate Judge, however, dismissed the suit on the ground that in the notice given this railway receipt No. 238573A was dated 20 October 1943, whereas the railway receipt was actually dated 22nd October 1943. He accordingly thought that no notice of the consignment in question had been given. After referring to the correspondence that proceeded between the appellant and the railway administration, he came to the following finding: So it is apparent that no notice for the consignment of 22 October, 1943 has been given to the Secretary, Central Government, and in my view, the notice produced in this case must be regarded as invalid. He relied upon a decision of the Madras High Court in the case of Meenakshi Amma V/s. Province of Madras A.I.R.1946 Mad. 73 to the effect that error in notice about the subject-matter of the suit is a substantial error which vitiates the notice. The Subordinate Judge was not prepared to believe that the incorrect date given in the notice was a clerical mistake as in spite of this notice the matter was not traced by the railway administration as the plaintiff did not furnish correct date.

(3.) Against the decision of the Subordinate Judge the appellant filed an appeal before the District Judge of Purulia. The only point raised by the appellant before the District Judge was that the Subordinate Judge had dismissed the suit on a technical ground, namely, that in the notice to the respondent the date of consignment is mentioned as 20 October 1943, whereas the actual date of consignment is 22 October, 1943. The learned District Judge did not agree with the Subordinate Judge in the view which he took as to this and distinguished the case of the Madras-High Court relied upon by the Subordinate Judge. He, however, dismissed the appeal on the ground that Section 80, Civil P.C., definitely provides that it must be stated in the plaint that the notice had been delivered to a Secretary of the Central Government. Paragraph 9 of the plaint had merely stated as follows: That notice under Section 80, Civil P.C., for the plaintiff's claim has been given to the Secretary Central Government on 26 February 1944 by registered post through his pleader, Babu Gangadhar Chatterji, Pleader Asansol. According to the opinion of the learned District Judge all that this showed was that a notice had been sent by registered post to the Secretary, Central Government and that merely sending a notice by registered post to the Secretary Central Government could not possibly mean that it had actually been delivered to him or left at his office. Before the learned District Judge it had been argued on behalf of the respondent that, there was no negligence on the part of the railway at all and that the provisions of Section 80, Civil P.C., had not been complied with. The learned District Judge gave no finding as to whether there bad been negligence on the part of the railway.