P L D 1952 Lahore 403 (PLP)

SHABIR AHMAD, J.‑A suit instituted by Firm Muhammad Sadiq Imam Din, Cloth merchants, Railway Road, Wazirabad, through Muhammad Sadiq, son of Imam Din against the Federation of Pakistan for recovery of Rs. 1,900 was decreed by the trial judge to the extent of Rs. 1,

800. The Federation of Pakistan appealed against the decree of the trial judge but that appeal having been dismissed by the District Judge, Gujran wala, a second appeal has been presented to this Court. The relevant facts may be briefly stated. On the 7th March, 1949, M. Hasham H. Abu Akbar despatched three bales of old coats from Karachi Railway Station to Wazirabad under three different railway receipts. One of these receipts was endorsed in favour of Imam Din by the Australasia Bank Ltd., Lalamusa. The endorsement in favour of the Australasia Bank Ltd., Lalamusa was by Habib Bank Ltd., Wazirabad in which bank's favour the consigner had endorsed the railway receipt. The goods mentioned in this receipt were lost when in transit and it was to recover the price of the lost goods which amounted to Rs. 1,800 and freight etc., which amounted to Rs. 100 that the suit for recovery of Rs. 1,900 was brought. A number of pleas were raised by the Federation of Pakistan and the following issues were framed by the trial Judge :‑ (1) Is the plaintiff Firm registered? If not, what is its effect? (2) Was the notice given under section 80, Civil Pro cedure Code, valid? (3) Has the plaintiff locus standi to sue? (4) Was the defendant not liable to make good the loss of the plaintiff? (5) To what amount of damages, if any, is the plaintiff entitled? (6) Relief. The first four issues were decided in favour of the plaintiff by the trial Judge who held under issue No. 5 that the plaintiff was entitled only to a decree of Rs. 1,

800. All the findings given by the trial Judge were confirmed by the learned District Judge. The learned counsel for the appellant questioned the find ings of the Courts below on the first four issues. He urged first of all that section 69 of the Partnership Act had not been complied with and, therefore, the suit could not proceed. This contention has no force. The plaintiff‑respondent placed on the record Ex. P. W. 1/1 the certificate of registration of the firm. In the Court of the District judge the point though raised in the memorandum of appeal was not pressed in argu ments, evidently because in the face of Exh. P. W, 1/1 it stood no chance of success. The next contention of the learned counsel for the appel lant was that no valid notice under section 80 of the Code of Civil Procedure was given and, therefore, the suit should have been dismissed. The notice (Exh. P. 9 on the record) sent with regard to the suit is copied below :‑ To The General Manager, N. W. R. Lahore. In re : Loss of Goods. 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, 3 bales containing woollen old coats were booked to my client under R. Rs. 5,67,217, 5,67,218 and 5,67,219 from Karachi Bandar 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 arid in that case you shall be liable for the costs of the suit". The learned counsel for the appellant urged that as the notice stated that the suit will be brought against the General Manager of the North Western Railway, no notice to Government had been given and, therefore, the suit could not proceed against Government The learned counsel for the respondent contended that though it was not mentioned in the notice that the suit will be instituted against the Central Government of Pakistan, yet the omission could not invalidate the notice because it should have been clear to all concerned that the intention was to institute the suit against the Central Govern ment of Pakistan. Section 80 of the Code of Civil Procedure makes it in cumbent that two months notice before the institution of the suit must be given in cases where the person intended to be sued is either the Crown or a Public servant who is to be sued in respect of any act purporting to be done by him in his official capacity. The section does not enjoin that the notice must mention the person against whom the suit is to be brought and relying on this fact the learned counsel for the respondent urged that the notice suffered from no defect. There would have been much force in the contention of the learned counsel for the respondent had it not been for the fact that in a suit contemplated by section 80 of the Code of Civil Procedure the defendant may either be Government or a public servant. As the General Manager North‑Western Rail way is a public servant, and may in certain circumstances be sued for loss of goods while in transit on the North‑Western Railway, the fact that the notice said that the General Manager would be sued does, in my opinion, make the notice defective. The learned counsel for the respondent cited a decision of the Madras High Court in Chakka Subrahramyam v. Union of India A I R 1951 Mad. 416, wherein it was held that it was not necessary to mention in a notice under section 80 of the Code of Civil Procedure, who was intended to be sued. I am in respectful agreement with this decision, but it has no application to a case where specific mention is made bf the person intended to be sued. In the above‑mentioned Madras case the notice ended with the following words:‑ "Please therefore take notice that if the said amount of Rs. 419‑2‑0 with interest at 6 per cent. be not paid to my client within two months of the receipt of this notice a suit will be filed in due course for the recovery thereof". The above notice was addressed to an officer to whom a notice under section 80 of the Code of Civil Procedure with regard to a suit intended to be lodged against Government should be addressed and was only open to the objection that it dial not mention the name of the person intended to be sued. The decision relied upon does not, therefore, have any application to the present case in which the facts are materially different. Reliance was also placed by the learned counsel for the respondent on two decisions of the Patna High Court, one reported as Governor‑General in Council v. Amilal and others A I R 1947 Pat. 81 and the other as Sholaram Shibdhan Firm v. Governor‑General in Council A I R 1949 Pat.

416. In the 1947 case the notice was challenged on the ground that it was addressed to a Secretary to Government and not to the Governor‑General in Council who according to clause (a) of section 79 of the Code of Civil Procedure was to be impleaded as the defendant, and the learned Single judge who dealt with the case made the following observations bearing on the con struction of section 80 of the Code of Civil Procedure :‑ " The section lays down in distinct terms, the contents of the notice required by it, namely the cause of action, the particulars of the plaintiff and the relief which he claims. It is not necessary that the notice should mention the exact style under which the defendant is to be impleaded. It is sufficient if it is clear against whom the suit is to be filed and in the case of a suit against the Central Government, this notice to be delivered to or left at the office of the Secretary to that Government. The actual style under which the defendant is to be described is necessarily determined by the provisions‑ of section 79." As it lays down that the notice is to make it clear against whom the suit is to be filed the decision rather than helping the respondent goes against him. The decision in the case reported as A I R 1949 Pat. 416 is not in substance materially different from the decision in A I R 1947 Pat.

81. In this case it was held by a Division Bench that a notice under section 80 of the Code of Civil Procedure was to be addressed to one of the persons mentioned in that section and it was necessary to address it to the person to be named as the defendant according to section 79 of the Code. The learned counsel for the appellant relied on a decision of Madras High Court in Province of Madras v. Sir Raja Uppalapati, etc., A I R 1946 Mad. 396, wherein it was held that where the notice under section 80 of the Code of Civil Pro cedure, said that the suit would be instituted against the Secretary of State for India, the suit instituted against the Governor‑General in Council was incompetent as the notice did not mention that it was intended to sue the Governor General. It appears to mg that the notice in that case could have been held to be valid on the ground that because of change in the law the person to be named in a suit against Government was to be the Governor‑General in Council instead of the Secretary of State for India, but in so far as the' decision lays down that a suit was incompetent if it impleaded as a defendant a person other then the one mentioned in the notice under section 80 of the Code of Civil Procedure, I am in respectful agreement with it. Another defect pointed in the notice by the learned counsel of the appellant was that the notice was sent by Muhammad Sadiq though the railway receipt had been endorsed in favour of Imam Din. Section 80 of the Code of Civil Procedure requires that a notice sent under that section must contain the name, description and place of residence of the plaintiff and the relief which it is intended to claim. In the present case the person who has sued was not mentioned in the notice as the intending plaintiff and the notice was clearly defective on that score. The learned counsel for the respondent drew my attention to the evidence on the record that Muhammad Sadiq and his father Imam Din were working under the name " Firm Muhammad Sadiq " and proceeded to argue that the notice could not be said to be defective, but with this contention I cannot agree. In this connection men tion may be made of a decision of the Privy Council in K. S., Muhammad Aslam Khan v. Khalil‑ur‑Rahman Khan A I R 1947 Privy Council‑197, wherein it was laid down that when a notice under section 80 of the Code of Civil Procedure was sent by a person a suit brought by him and another was not maintainable in law. Another case which is relevant for the present purpose is reported 'in Public Prosecutor v. Nagappa Pujary and others A I R 1949 Mad.

460. In that case the notice was sent by a person in his own name and the suit brought by him as a manager of a joint Hindu family for the relief men tioned in the notice was held not to be maintainable. It appears to me accordingly. that the contention of the learned counsel for the appellant that as the notice was not issued by the person who had sued, the suit was incompetent, must be accepted. Another objection raised by the learned counsel for the appellant to the suit was that it was brought by the firm which could not be said to have any interest in the matter. The railway receipt on which the suit is based had been, as pointed out already, endorsed in favour of Imam Din and though it may be true that Imam Din is a partner in the plaintiff firm but I do not see how the firm got the right to sue on a cause of action which had accrued to only one of its partners. The learned counsel for the appellant sought to question the finding of the Courts below that the loss of the packages was due to the negligence of the servants of the North Western Railway. The finding that the servants of the Railway were negligent is, in my opinion, a finding of fact which cannot, because of section 100 of the Code of Civil Procedure and section 41 of the Punjab Courts Act, be questioned in second appeal except for reasons which are not shown to exist in the present case. In these circumstances I cannot but accept the finding of the lower appellate Court that the loss was due to the negligence of the servants of the Railway. In view of what I have said above, I have arrived at the conclusion that because of the defect in the notice under section 80 of the Code of Civil Procedure, the suit was not maintainable. I further hold that for the reasons already mentioned the firm was not competent to sue. The result is that accepting the appeal I dismiss the plaintiff's suit but because the suit is being dismissed on account of a technical defect, I leave the parties to beat their own costs throughout. A.H. Appeal accepted.