A suit against the Government instituted during the currency of notice under Section 80 of the Code of Civil Procedure is not maintainable and must be dismissed in limine.

Kanhaiya Singh, J.

1. This is an appeal by the plaintiff from the judgment of the Additional Subordinate Judge, Ranchi, dated 8th August, 1955, dismissing his suit for recovery of Rs.24,000 from the Union of India, defendant 1, on account of non-delivery of eight insured covers.

2. Shortly put, the facts are these. The plaintiff, Lakshmi Narain, carries on business under the name and style of Lakshminarain Ramnarain. Ram Narain is his brother. This firm carries on four types of business, distillery, foreign liquor, shellac and out-still. Defendant 2 is another firm called Parsadi Lal Ram Das, carrying on business at Lalitpur in the State of Uttar Pradesh. In April 1950, defendant 2 sold to the plaintiff Mahua for distillation worth Rs.42,000. The consignment was despatched to Manindragarh and Chirmuri. Kalika Prasad, the Manager of the plaintiff, paid defendant 2 in cash Rs.17,000 at the time of purchase, and the balance of Rs.25,279/13/6 remained due by the plaintiff, The latter remitted this amount in nine insured covers on 9th May, 1950. Each of the eight out of the nine insured covers contained 30 currency notes of Rs.100 denomination each. The ninth cover contained Government currency notes of various denominations of the total value of Rs.1279 and postage stamps worth as.13-6- p. These covers were made over to the Postmaster of the post-office at Lalpur in the town of Ranchi for being delivered to defendant 2 at Lalitpur. The said insured covers were delivered to defendant 2 on 12th May, 1950, but on opening them it was found that eight out of the nine covers contained no money but only waste papers. One cover, however, contained currency notes for Rs.1279 and postal stamps worth annas 13-6 p. In other words a sum of Rs.24,000 was removed from the insured covers, and it is this sum which the plaintiff seeks to recover from the Union of India on the ground that this loss was due to misconduct on the part of postal authorities, for which the Union of India was liable.

3. The Union of India filed written statement traversing all the averments in the plaint. It denied liability for payment of the amount. It was denied further that currency notes of the value of Rs.24,000 had been delivered to defendant 1 or its servants or agents. It is further denied that the contents of eight of the insured covers were remove ed in course of transit while in the custody of postal authorities. It was also pleaded that notice under Sec.80 of the Code of Civil Procedure was not properly served.

4. Defendant 2 filed a separate written statement supporting the plaintiffs case.

5. The learned Additional Subordinate Judge found that the plaintiff did send money, as alleged, in nine insured covers, eight of which were substituted and the original covers were not delivered to the addressee and that for this the postal authorities. and consequently the Union of India, were responsible. On the question of the maintainability of the suit, however, he held that the suit was premature, as it was filed before the expiry of two months from the date of the service of the notice under Sec.80 of the Code. Accordingly, he dismissed the suit, but without costs.

6. The plaintiff has preferred this appeal against the said judgment, challenging the correctness of the finding that the institution of the suit was premature. At the time of hearing the learned Government Pleader also challenged the correctness of the finding that the money had been removed, or the original insured covers had been replaced by the postal authorities. His contention is that even on merits the plaintiff has no case. It is, therefore, to be seen whether the finding of the learned Judge that the nine covers containing money were made over to the Postmaster of the Lalpur post-office is sustainable on the evidence on the record. I would first address myself to the consideration of this question. I would briefly recapitulate the plaintiffs case as it emerges from the plaint and the ev