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TMI Blog1984 (3) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India through the Defence Secretary, New Delhi. It was pleaded that their late father Seth Lachman Dass Gupta entered into a contract with the Governor General-in-Council for the supply of charcoal to the Military Supply Depot at Agra during the period from April 1, 1943 to March, 31, 1944. In pursuance thereof, he made necessary supplies and received payments for the same at the contractual rates from time to time. It was pleaded that tho contract contained an escalation clause viz. clause 8, to the effect that in case the price of charcoal increased by more than 10% of the stipulated rate during the subsistence of the contract, the contractor would be entitled to the price at the higher rate. It was alleged that from the date of the contract, the rate of charcoal went up continuously to 44.8% in July, August and September 1943, 93.1% in October November and December 1943 and 82.7% in January, February and March 1944. Accordingly Seth Lachman Dass made a demand for payment of price at the increased rate. The military authorities paid at the enhanced rate for part of the supplies while for the rest they refused to pay at more than the contractual rate. Seth Lachman Dass serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left." In the celebrated case of Bhagchand Dagadusa & Ors. v. Secretary of State for India in Council & Ors., the Judicial Committee of the Privy Council held that this section is express, explicit an mandatory and it admits of no implications or exceptions. The words of Viscount Summer delivering the judgment of the Privy Council have become classical : "Section 80 is express, explicit and mandatory, and it admits of implications or exceptions. A suit in which (inter alia) an injunction is prayed still "a suit" within the words of the section, and to read any qualification into it is an encroachment on the function of legislation. Considering how long these and similar words have been read throughout most of the Courts in India in their literal sense, it is reasonable to suppose that the section has not been found to work injustice, but, if this is not so, it is a matter to be rectified by an amending Act. The Privy Council rejected the contention put forward before them that the section deals with mere procedure and held that the requirements o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy Council reiterated the same principles where no notice had been served under s.80 specifying the names and addresses of all the trustees and therefore the provisions of the section had not been complied with and it was accordingly held that the suit was incompetent. As to the requirement that the notice must state the cause of action and the reliefs claimed, there is a large body of decisions laying down that a notice under the section should be held to be sufficient if it substantially fulfils its object in informing the parties concerned of the nature of the suit to be filed. In consonance with this view, this Court in Dhian Singh Sobha Singh & Anr. v. Union of India, Union of India v. Jeewan Ram, State of Madras v. C.P. Agencies and Amar Nath v. Union of India has held that though the terms of the section have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner or in a manner divorced from common sense. On this principle, it has been held that notice which states the cause of action and the reliefs described in the annexed copy of the plaint (which forms part of the notice) though defective in form, complies substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice with the person who brings the suit". The Court distinguished the decisions in Dhian Singh Sobha Singh and C.P. Agencies on the ground that the Court was dealing with defect in describing the cause of action and the relief claimed and where it Concerns the relief and the cause of action, it may be necessary to use common sense to find out whether s.80 of the Code has been complied with, and stated: "But where it is a question o f the name of the plaintiff, there is in our opinion (little scope for the use of common sense,) for either the name of the person suing is there in the notice or it is not. No amount of common sense will put the name of the plaintiff there, if it is not there." In the case of Raghunath Dass. v Union of India & Anr. the same question arose but the Court struck a discordant note there. There, the notice emanated from M/s Raghunath Dass Mulkhraj and in the body of the notice at several places the expression "we" was used. Further, the plaintiff had purported to sign for M/s Raghunath Dass Mulkhraj but at the same time he signed the notice as proprietor of M/s Raghunath Dass Mulkhraj. The Court held that was a clear indication of the fact that M/s Raghu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The Privy Council and this Court have applied the rule of strict compliance in dealing with the question of identity of the person who issues the notice with the person who brings the suit. This Court has however adopted the rule of substantial compliance in dealing with the requirement that there must be identity between the cause of action and the reliefs claimed in the notice as well as in the plaint. As already stated, the Court has held that notice under this section should be held to be sufficient if it substantially fulfils its object of informing the parties concerned-of the nature of the suit to be filed. on this principle, it has been held that though the terms of the section have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner divorced from common sense. The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would the recipient to avert the litigation. In the present case, in the notice Ex. A-8 the name, description and place of residence of the plaintiff Seth Lachman Dass, the father of the plaintiffs, was given but unfortunatory before filing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this contention, it appears to us that we should be adding words to s.424 which find no place in it. It would be necessary to add after the words "name and place of abode of the intending plaintiff" some such words as "or of the party through whom such intending plaintiff claims." The Court of first instance here tried to distinguish the decision in Buchan Singh on the ground that the word "intending" appearing in s.424 of the 1882 Code had been omitted from s.80 of the present Code, and therefore the word "plaintiff' j should be construed in a generic sense. The High Court however following the decision of the Bombay High Court in Mahadev Dattaraya Rajarshi held that the notice must contain the name of the actual plaintiff who could bring the suit adding that "the notice must be given by the person who becomes the plaintiff and by no other". We are afraid, that is taking too technical a view of the matter. S.80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the Courts may do justice between the parties. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been deprived of their legitimate dues for the last 35 years, The Law Commission in the Fourteenth Report, volume 1 on the Code of Civil Procedure, 1908 at p.475 made a recommendation that s.80 of the Code should be deleted. It was stated as follows: "The evidence disclosed that in a large majority of cases, the Government or the public officer made no use of the opportunity afforded by the section. In most cases the notice given under section 80 remained unanswered till the expiry of the period of two months provided by the section. It was also clear that in a large number of cases, Governments and public officers utilized the section merely to raise technical defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section. These technical defences appeared to have succeeded in a number of cases defeating the just claims of the citizens." The Law Commission in the Twenty-Seventh Report on the Code at pp.21-22 reiterated its earlier recommendation for deletion of s.80 and in the Fifty-Fourth Report at p.56 fully concurred with the recommendation made earlier. In conformity with the recommendation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce laid down by this Court in Dhian Singh Sobha Singh and Raghunath Dass. As observed in Dhian Singh Sobha Singh's case, supra, one must construe s.80 with some regard to common sense and to the object with which it appears to have been enacted. The decision in S.N. Dutt v. Union of India's case, supra, does not accord with the view expressed by us and is therefore overruled . Before parting with the case we consider it necessary to refer to one more aspect. It has frequently come to our notice that the strict construction placed by the Privy Council in Bhagchand's case, supra, which was repeatedly reiterated in subsequent cases, has led to a peculiar practice in some Courts. Where urgent relief is necessary the practice adopted is to file a suit without notice under s.80 and obtain interim relief and thereafter to serve a notice, withdraw the suit and institute a second suit after expiry of the period of the notice. We have to express our strong condemnation of this highly objectionable practice. We expect that the High Courts will take necessary steps to put a stop to such practice. The result therefore is that the appeal succeeds and is allowed. The judgment and decree passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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