Cases Referred:

Advocates Appeared:
BHABESH CHANDRA MITTER, BHABESH NARAYAN BOSE

HARRIES, C. J.

( 1 ) THIS is a petition for revision of a decree of a learned Small Cause Court Judge dismissing the petitioners' claim for damages against the Governor-General of the Dominion of India.

( 2 ) THE plaintiffs brought a suit claiming damages for the failure of the Governor-General to deliver electric switches to the value of Rs. 1300 which bad been consigned for carriage by railway to Delhi. A sum of Rs. 1304 was claimed as damages. On behalf of the defendant a point was taken that no notice was served as required by Section 80, Civil P. C. The notice was not sent to the General Manager of the East Indian Railway as required by Section 80 of the Code, but was sent to the Secretary of the Railway Board at Delhi. Apparently the General Manager of the East Indian Railway received the notice at sometime or another, but there is no evidence at all as to when the notice reached him.

( 3 ) THE learned Judge of the Small Cause Court held that as notice had not been served in accordance with Section 80, the suit was bound to fail and he accordingly dismissed it.

( 4 ) ON behalf of the petitioners it has been contended that the Court should have presumed that the notice reached the General Manager eighty days before the suit as required by Section 80. The notice was apparently dated August 1948 and the Secretary of the Railway Board acknowledged receipt, but there is nothing on the record to show when the Railway Board forwarded this notice to the General Manager of the East Indian Railway.

( 5 ) SECTION 80 clearly lays down that notices of this kind must be sent to the General Manager of the Railway concerned and there is no doubt that the railway concerned was the East Indian Railway as the goods were consigned to be carried by that railway from Calcutta to Delhi. Section 80, Civil P C. is in these terms:"no suit shall be instituted against the Government 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 delivered to or left at the office of-- (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway. "

( 6 ) IT will be seen that the notice must be delivered to or left at the office of the General Manager of the railway, namely, the East Indian Railway. Admittedly that was not done. Sen J. in an earlier case Dominion of India v. Sree Dedraj Bajoria, (Civil Revn. 856 of 1949), decided on 29th November 1949, that where a notice under Section 80 is addressed not to the General Manager of a railway but to some other body it is not a good notice and it is not necessary to show that the General Manager received it within the proper time.

( 7 ) THERE can be no doubt that the provisions of Section 80, Civil P. C. must be strictly complied with. In a very recent case Govt. of the Province of Bombay v. Pestonji Ardeshir Wadia, A. I. R. (86) 1949 P. C. 143 : (76 I. A. 85) their Lordships stressed the fact that the provisions of this section must be complied with strictly. At p. 146, Madhavan Nair J. who delivered the judgment of the Board observed:"their Lordships fully concur with the above view. The provisions of S. 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government. "

( 8 ) IF the provisions of Section 80 have to be strictly complied with, then clearly the plaintiff-petitioners failed to show that a valid notice under Section 80 had been served.

( 9 ) LEARNED advocate for the petitioners has contended that the General Manager of the East Indian Railway should have been called upon to state when he received the notice and he relied upon Sections 114 and 106, Evidence Act.

( 10 ) SECTION 114, Evidence Act, can have no application because it cannot possibly be presumed that a wrong addressee would immediately forward the communication to the person who by statute was bound to receive it. The addressee might or might not act and there can be no presumption under Section 114.

( 11 ) LEARNED advocate, however, contended that Section 106, Evidence Act, clearly applied. The facts, he contended, were entirely within the knowledge of the General Manager and he only could prove when he received the letter. Their Lordships of the Privy Council in two comparatively recent cases from Ceylon have laid down that Section 106 does not shift the onus. In this case before the plaintiff petitioners could succeed they had to prove a valid notice. Had they made out some prima facie case, then, I think, Section 106, Evidence Act would have applied and the General Manager would have been called upon to show that he did not receive the notice in time. But merely proving that a notice was sent to a person not contemplated by the statute does not raise any prima facie case, and there was, therefore, no evidence at all before the Court that the General Manager of the East Indian Railway received this notice within time. It seems to me quite clear that the suit was bound to fail and was rightly dismissed by the learned Small Cause Court Judge.

( 12 ) IT was suggested that in a case of this kind the plaintiffs had a remedy by applying to the Full Bench of the Small Cause Court and it was suggested that until they did that they could not move this Court. I do not think it is necessary to decide this question, as I am clearly of opinion that there is no merit in the application.

( 13 ) THE petition, therefore, fails and the rule is discharged with costs.