P L D 1965 Supreme Court 352 (PLP)

FAZLE‑AKBAR, J.‑These two appeals by special leave raise a question as to sufficiency of notice under section 109(1) of the Chittagong Port Act, 1914 and it arises under the following circumstances. On 17th November 1956, River Steam Navigation Company Limited filed a suit in the Court of Subordinate Judge, Chittagong claiming Rs. 1,81,229‑12‑9 as compensation for damages caused to their vessel "M. V. Teesta" which was rammed on her port side by steam tug 'Khalid' belonging to the defendant No. 1, the Trustees of the Port of Chittagong and which at the relevant time was in charge of defendant No. 2, Muhammad Islam. Before filing the suit, that is, on 18th October 1956, the plaintiffs gave the requisite notice under section 109(1) of the Chittagong Port Act, 1914 (hereinafter referred to as `the Act') to the defendants. Defendant No. 1, the Trustees of the Port of Chittagong by their letter dated 25th October 1956 repudiated all liabilities for the plaintiffs' claim but the second defendant did not give any reply to the said notice. The defendants filed separate written statements contesting the claim of the plaintiffs, but as they failed to appear at the hearing of the suit it was decreed ex parte, on 24th August 1960. Subsequently on a petition filed by the defendants under Order IX, rule 13 of the Code of Civil Procedure the ex parte decree was set aside and the suit was restored to file. On 16th May 1961, when the suit again came up for hearing it was contended for the first time by the defendants that the suit was not maintainable because it was instituted a day before expiry of one month as prescribed by section 109(1) of the Act. Hence on their prayer the Court framed the following additional issue: "Are the alleged notices under section 109 of the Chittagong Port Act legal and sufficient in law? Is the suit premature?" The said issue was thereafter heard as a preliminary issue under Order XIV rule 2 of the Code of Civil Procedure. The Subordinate Judge was of the opinion that as, this objection was taken at a very late stage, it should be deemed to have been waived and he therefore, overruled the said objection. The defendants then went up in revision before the High Court. The High Court however, being of the opinion that no revision lay against the order of the Subordinate Judge dismissed the revision. Special leave to appeal was granted in this case to consider: "Whether the suit) was pre‑mature and liable to be dismissed as such?" The learned counsel for the appellants has contended upon the authority of the decision of the Privy Council in Bhagchand Dagadusa and others v. Secretary of State for India‑in‑Council and others (54 1 A 338 (P C)), that the language of section 109 of the Act being imperative it debars a Court from entertaining a suit instituted without compliance with the provisions of that section. Section 109 of the Chittagong Port Act, 1914 is as follows: "109(1). No suit shall be brought against the Commissioners, or against any Commissioner, or against any of the Officers or servants . of the Commissioners or any person acting under their direction, for anything purporting to be done under this Act,. until the expiration of one month next after notice in writing has been delivered or left at the office of the Commissioners or at the place of abode of such person, stating the cause of suit and the name and place of the intending plaintiff, and unless such notice is proved, the Court shall dismiss the suit. (2) Every such suit shall be commenced within six months next after the accrual of the right to sue and not afterwards. (3) If any person to whom any such notice of suit is given tenders sufficient amends before the suit is brought such plaintiff shall not recover." Section 80(1) of the Code of Civil Procedure is practically in the same terms as subsection (1) of section 109 of the Act. In the case of Bhagchand Dagadusa it was said that section 80, C. P. C. is express, explicit and mandatory and admits of no implications or exceptions. Section 109(1) too in clear terms requires that no suit shall be brought "until the expiration of one month next after notice in writing has been delivered". Therefore, to hold otherwise would be to admit implications and exceptions for which there is no justification. Now admittedly the suit was filed a day too soon. The appellants have therefore, argued that the suit being pre‑mature was liable to be dismissed. On the other hand the learned counsel for the respondents have urged that the defendants have waived their right to a proper notice, or alternatively, are estopped from contending that no proper notice was given. Hence the main questions for determination in these appeals are (i) Whether it is competent for a defendant in a suit to which section 109 applies to waive his right to a proper notice; and (ii) if so, did the defendants waive their right? The learned counsel for the appellants has found it difficult to contend that the authority for whose benefit notice is provided has no right to waive it. It will therefore, suffice to say that there is nothing to prevent the defendants in such a' case from waiving the notice or from being estopped by their conduct from raising any objection as to B sufficiency of the notice. In this connection reference may be made to the observations of the Judicial Committee in A. L., A. R I. Vellayan Chettiar and others v. Government of the Province of Madras (74 I A 223). The Judicial Committee while dealing with a similar question with reference to section 80, C. P. C. observed: "On the other hand there appears to their Lordships to be no reason why the notice required to be given under section 80 should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required, if in the particular case he does not require that protection and says so, he can lawfully waive his right." The next question is: "Whether in this case the defendants waive their right or are they estopped from saying that they did not?" No doubt they did not do so expressly. The burden therefore, lies on the plaintiff‑respondents to establish the fact on which they rely for raising the implication or creating the estoppel. In the plaint it was clearly stated that notice had been duly served on the defendants under section 109(1) of the Act. In the written statements nothing was said or even hinted about notice. When issues were first framed between the parties no issue was suggested with regard to notice. In view of their failure to deny the allegation in the plaint that the notice had been duly served it must be taken to have admitted that averment and the implication of this implied admission is that they waived their right to a proper notice. Furthermore, it may be observed that one and a half years after the institution of the suit, that is, in 1957, the defendants made an application to the Court in which for the first time they urged that the suit was filed a day or two soon. Thus the objection was taken at a time when if the objection was allowed to prevail and the plaintiffs were driven to file another suit for recovery of the compensation it would be successfully met with the plea of limitation. It therefore, can also be said that the defendants by their implied admission and conduct induced the plaintiffs to act on the assumption that proper notice had been given and therefore, they were estopped from denying the said fact. We are therefore, of opinion that the respondents have established facts and circumstances on which the defendants must be deemed to have waived proper notice and/or are estopped from asserting want of proper notice. We accordingly dismiss these appeals with costs. A. H. Appeals dismissed. P L D 1965 Supreme Court 356