P L D 1956 (W (PLP)

RAHMAN, C. J.‑--This is a Letters Patent Appeal from the order of a learned Single Judge of this Court dated the 30th of April 1952 by which he allowed R. S. A. 81 of 1951 and dismissed the plaintiff‑appellant's suit for recovery of Rs. 1,900 from the Federation of Pakistan. The material facts of tine case are that three bales of old coats were despatched from Karachi Railway Station to Wazirabad under three different 'railway receipts by one, Hasham H. Abdu Akbar, on the 7th of March 1949. One of the receipts was endorsed in favour of Imam Din and the other two in favour of Muhammad Sadiq. It appears that Muhammad Sadiq and Imam Din are partners in a registered firm of cloth merchants functioning in Wazirabad. The goods of the three railway receipts were lost in transit and the firm Muhammad Sadiq, Imam Din, through Muhammad Sadiq, instituted a suit to recover the price of the goods amounting to Rs. 1,800 and a claim was added on account of freight, etc., paid by the plaintiffs to the extent of Rs.

100. The suit was resisted on behalf of the Federation of Pakistan on the grounds, inter alia that the notice given under section 80, Civil P. C. was not valid and that the plaintiff had no locus standi to sue. The trial Court decreed the suit, deciding all the material issues in favour of the plaintiff and against the defendant. The decree was however, confined to ' Rs. 1,800, the price of the goods lost. The first appeal instituted in the District Judge's Court also failed. In second appeal, Shabir Ahmad, J. took the view that the notice tinder section

80. Civil P. C. sent in this case was invalid in law and that the firm' which had brought the suit could not be said to have any interest in the subject‑matter of the suit. On other points, which had been found in favour of the plaintiff, the learned Single judge was not inclined to interfere with the concurrent findings of the Courts below. The issue about the validity of the notice is couched in general terms but it appears that the only objection taken in the trial Court in this behalf was that the notice was addressed to the General Manager, N. W. R., and in the event of the claim not being met, the suit was threatened against him and not against the Federation of Pakistan. Similarly the issue about the locus standi involved merely the question whether the plaintiff firm had acquired interest in the property despatched from Karachi under the three railway receipts by paying the necessary consideration or not. That these were the only two objections raised in respect of these two issues is clear from the judgments of the trial Court and the Court of first appeal and this is how the parties seem to have interpreted these issues. Before the learned Single judge the additional point seems to have been raised that the notice was sent by Muhammad Sadiq whereas one of the receipts was endorsed in favour of Imam Din who was not mentioned in the notice as one of the claimants or the intending plaintiff. It is significant that this point was not even raised in the grounds of appeal in this Court. The learned Single judge held that this objection was valid, being based on the language of section 80, Civil P. C. Mr. Siraj‑ud‑Din Ahmad on behalf of the plaintiff appellant strenuouly contended before us that the notice was not invalid because of the unfortunate use of the words sug gesting that a suit would be brought against the General Manager. The notice in question was sent through an Advo cate on the 5th of December 1949. For convenience of reference, it may be set out in extenso:‑ "Under instructions from my client Muhammad Sadiq Cloth Merchant. Railway Road, Wazirabad, I serve you with the following notice under section 80, Civil P. C. as amended by the Pakistan Act :‑ (1) That on 7th March 1949, three bales containing woollen old coats were booked to my client under R/567217 567218 and 567219 from Karachi Bunder, N.‑W. R. to Wazirabad. (2) That the above‑mentioned bales were never delivered to my client, the consignee. My client has come to know that the bales have been lost. (3) That the goods contained in the said bales were worth Rs. 1,

800. My client also spent about Rs. 100 for railway freight, cartage and packing, etc. (4) That it is, evident that the goods were lost through the misconduct and gross negligence of the railway authorities. (5) That it is, therefore, requested that Rs. 1,900 plus cost of this notice be paid to my client within two months from receipt of this notice otherwise my client will have to take legal proceedings against you and in that case you shall be liable for the costs of the suit." It has been pointed out by learned counsel for the appellant that the tenor of the notice makes it clear that a claim was being made not against the General Manager in person but against the railway authorities who were being charged with misconduct and gross negligence if the claim had been intended to be made personally against the General Manager, he would have been addressed by name as clearly his personal liability could not be transferred to his successor‑in‑office. We are inclined to accept the position that the tenor of the notice was such that no intention of suing the General Manager personally could be spelt out of it on a free and liberal reading of the document. The notice is undoubtedly not happily worded. The question, however, is whether, in the face of the language of section 80, Civil P. C., the document can be looked at for this purpose to discover the substance or whether the words indicating that "a suit will be brought against you" have to be taken literally. The learned Single judge took the view that a suit con templated by section 80, Civil P. C. could be lodged either against Government or a public servant in person and as, in terms, the notice declared that the suit would be brought against the General Manager, it could not be construed as a notice of suit against Government. In this connection, it is worthy of consideration that section 80 of the Civil Procedure Code does not prescribe the specification of the defendant against whom the threatened suit would be brought. The section provides that no suit shall be instituted against the State, 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, in the case of a suit against the Central Government relating to the affairs of a Government railway, the General Manager of the railway concerned and in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence 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. The detail about the name of the defendant is not included in the mandatory provisions of section

80. If the intention of the giver of the notice could, therefore, be clearly gathered on a reading of the whole document, we do not think that a fetish should be made of a word here or there unhappily chosen by the writer of the notice. That a substantial compliance with section 80, Civil P. C., would be sufficient for the validity of the notice which need not be construed strictly like pleadings in a suit, is supported by authority. Reference in this connection may be made to :‑ Mrs. A. v. Issacs v. The Federation of Pakistan (P L D 1954 Lah. 800 (D B)); The Federation of Pakistan v. the Muslim Vehari and Wehniwal Bus Service (P L D 1955 Lah. 256 (D B)); G. G. in Council v. Krishna Shenoy (A I R 1951 Mad. 327 (S B)) ; Sec7etarl, of State v. Nagorao Tanko Deshmukh (AIR 1938415(SB)) ; G.‑G. in Council v. C. Sankarappa (A I R 1953 Mad. 838 (S B)) ; Malik Khizar Hayat Khan v. Punjab Province (P LD 1955 Lah. 88 (S B)) ; Federation of Pakistan v. Ehsan Elahi (P L D 1955 Lah. 303 (D B)) ; G: G. in Council v. Amilal (A I R 1947 Pat. 81 (S B)) ; Sankunni Memon v. S. I. Railway (A I R 1952 Mad. 502 (S B)) and Federation of Pakistan v. Muhammad Iqbal (P L D 1953 Lah. 460 (S B)). The object of such a notice is after all to enable the Government Department concerned to settle the claim, if so advised, out of Court and that object is amply served if the Department is fairly fixed with the knowledge of the nature and particulars of the claim and the claimant. I am aware that on the authority of the judgment of the Privy Council in Bhagchand v. Secretary of State for India (AIR1927PC176). it has been held in certain reported cases that section 80 of the Civil Procedure Code should receive a strict inter pretation and that compliance with all the formalities prescribed by that section should be insisted upon. The Privy Council case was, however, one in which a suit had been filed before the expiry of the two months men tioned in the section, on the ground that the suit was one for injunction which would become infructuous if not lodged in time to prevent the mischief complained of. Their "Lordships of the Privy Council pointed out that this would be against the terms of section 80 and no exceptions or implications could be read into that section. The Indian High Courts had expressed different views on the competency of an injunction suit instituted prior to the expiry of the two months' period mentioned in the section, and the Privy Council laid the controversy at rest, by this judgment. It does not mean, in my humble judgment that even in cases where .the section is not in terms contravened, it would not be permissible to gather the substance of the notice on a fair reading of the whole document rather than to non suit the plaintiff on a technical and narrow interpretation of the section. We consider that the strict interpretation adopted by the learned Single judge of the effect of the notice was not justified and that on a liberal interpretation it should be held that Muhammad Sadiq intimated his intention of lodging a suit not against the General Manager personally but against him as representing the Federation of Pakistan. The Advocate who sent the notice may have been misled by the fact that section 80 required the notice to be sent or delivered to the General Manager in respect 'of claims for goods lost in transit by the railway. We have no doubt however, that there was no express or implied intention in the notice that the General Manager was to be sued per sonally. About the second point which the learned Single judge has taken against the plaintiff‑appellant, it has been contended before us that had the objection been taken in the trial Court in the written statement which was filed on the 2nd of May 1950, the plaintiff could have either amended the plaint so as to make Muhammad Sadiq alone the plaintiff in respect of the two receipts which bore an endorsement in his own favour or, in the alternative, what was still better, the plaintiff firm could have issued a fresh notice either in the firm's name or two separate notices in the names of its two partners, under section 80, Civil P.C., and then lodged a suit or suits within time. The cause of action, according to Mr. Siraj ud‑Din Ahmad, arose in this case on the 18th of June 1949 when finally the railway authorities intimated by letter to the plaintiff that the goods had been lost. The argument has considerable force behind it. As has been observed above, the objection was not taken in the first two Courts at all in this form nor was it raised in the grounds of appeal here. For the first time it seems to have been agitated at the argu ments stage, before the learned Single Judge. The time, under Article 31 of the Limitation Act, runs from the definite refusal or declaration of inability to deliver the goods made by the defendant. Reference, inter alia, may be made to K Raigarh Jute Mills v. Commissioners, Calcutta Port (A I R 1947 Cal. 98 (S B)). The cause of action in such cases arises when the owner of goods is made aware that there will be no further delivery. It is thus apparent that if this objection had been taken in time, the plaintiffs would have been in a position, to rectify the mistake, to send fresh legal notices and to lodge their suit or suits which would have been still in time. The limitation for such a suit was twelve months "excluding the two months" period of notice, from the time when delivery was normally due, in suits based on non‑delivery, as was the situation in the present case. At the same time we are conscious of the fact that section 80, Civil P.C., requires the specification of the name, description and place of residence of the plaintiff along with the relief which he claims. A failure to abide by this condition invalidates the notice. There must be, it is clear, a complete identity between the giver of the notice and the plaintiff who brings the subsequent suit (see Ramachandra v. Kandasawami (A I R 1949 Mad. 416), and vellayan Chattiar v. Government of the Province of Madras (P L D 1947 P C 160)). As things stand, therefore, the suit on behalf of the firm which did not give the notice would seem to be incompetent. However, we have considered the matter froth the point of view of equity. As observed above, if the precise objection had been taken in time, it was not beyond the powers of the plaintiffs to redeem their position and to bring their action within the four corners of the law. In these circumstances, the most equitable order to make would be to allow, even at this stage an amendment of the plaint so as to substitute Muhammad Sadiq alone for the plaintiff firm and to confine the claim to the two railway receipts which had been endorsed in favour of Muhammad Sadiq. This would make the suit in conformity with the notice as it would exclude the railway receipt endorsed in favour of Imam Din who never gave the notice and, moreover, would eliminate the firm which was in a position similar to that of Imam Din. The learned counsel for the appellant represented that in view of the legal position, this was the only prayer he could make to us, and we consider that the prayer should be acceded to. The amendment of the plaint has been effected accordingly so that the objection on this score vanishes. This would, however, necessitate a remand in order to ascertain the value of the bundle, the railway receipt of which was endorsed in favour of Imam Din. The value of that bundle would have to be excluded from the claim. On the question of the locus standi to sue, grounded on the allegation that the firm had not acquired any interest in the property, the learned Single judge had merely remarked that the railway receipt was endorsed in favour of Imam Din and it was not clear how the firm acquired any interest in it. He omitted to notice that two other railway receipts had been endorsed in favour of Muhammad Sadiq who had given the notice and according to the concurrent findings of the first two Courts, the endorsements had been made for consi deration in favour of Muhammad Sadiq. This objection too, therefore, no longer holds good. On the question of the merits of the claim, the learned Single Judge was inclined to uphold the findings of the two Courts below and we see no reason to differ from him in this respect. The result is that the appeal must be allowed and in view of the amendment, a decree granted to the plaintiff Muhammad Sadiq alone, in respect of the value of the two bundles sent under railway receipts endorsed in his favour. For the purpose of determining the value of the bundle sent through the railway receipt endorsed in Imam Dins favour in order that it may be excluded from the claim in suit, the record will be transmitted to the trial Court with the direction that an inquiry be held into the value of that bundle, in the pre sence of the parties who can lead such evidence on that point as they deem fit. After consideration of the evidence and the arguments, if any, addressed on behalf of the parties, the learned trial judge should record a finding as to the value of that bundle and remit the records through the District judge, to this Court. Before forwarding the records to this Court, the District judge would hear the parties or their counsel and give his own opinion as to the value of the bundle sent through the railway receipt endorsed in favour of Imam Din. On receipt of the records here, the appeal shall be put up again for hearing on the limited question of the value of that bundle so that a final order may be given as to the amount of the decree that will stand good in favour of the plaintiff. The parties have been directed to appear before the trial Court on the 9th of July 1956. A. H. Case remanded.