JUDGMENT

SEN, J.:—This appeal on certificate brought from the judgment and decree of the Allahabad High Court dated February 26, 1965 reversing the judgment and decree of the Civil Judge, Agra dated August 25, 1952 and dismissing the plaintiffs suit for recovery of Rs. 26,000/- raises a question of some importance upon S. 80 of the Code of Civil Procedure, 1908.

2. The facts giving rise to this appeal may be shortly stated. On November 12, 1949, the plaintiffs Ghanshyam Dass and his two minor brothers Shree Ram and Mohan Lal brought the suit out of which this appeal arises, in the Court of the Civil Judge, Agra for recovery of a sum of Rs. 26,000/- against the Dominion 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 the 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 served a notice Ex. A-8 on the Dominion of India through the Defence Secretary under Section 80 of the Code of Civil Procedure, 1908. It appears that before his death, on or about September 15, 1948 he received a letter from the military authorities rejecting his claim for payment at the enhanced rate but before he could institute any suit he died on October 28, 1949. Thereafter, on November 12, 1949 the plaintiffs who are his three sons, brought the suit as his legal heirs and successors claiming the amount. The defendants contested the claim inter alia on the ground that the notice Ex. A-8 given by Seth Lachman Dass could not enure for the benefit of the plaintiffs and therefore the suit was bad for want of a notice under S. 80 of the Code. The learned Civil Judge, however, held that no further notice under S. 80 was necessary as the notice Ex. A-8 served by the plaintiffs father Seth Lachman Dass must enure for their benefit. He found that the plaintiffs were entitled in terms of clause 8 of the contract to receive a sum of Rs. 20,710.50p. being the difference between the enhanced rate and the contractual rate for the supplies paid for and accordingly decreed the plaintiffs claim to that extent. But on appeal to the High Court, his decision on the point was reversed upon the view that the notice Ex. A-8 given by the plaintiffs father was insufficient and was not a valid notice under Section 80 of the Code of Civil Procedure insofar as the plaintiffs were concerned.

3. The short question involved in this appeal is whether the notice Ex. A-8 given by the plaintiffs father Seth Lachman Dass Gupta before his death under Section 80 of the Code of Civil Procedure, 1908 would enure for the benefit of the plaintiffs.

4. Section 80 of the Code as it stood on the date of the institution of the suit, insofar as material, is reproduced below :

"80. Notice : 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 delive