Modi, J.—Thlis is a plaintiffs second appeal in a suit for damages and has been placed before this Bench on a reference by one of us sitting singly. The suit has dismissed by both courts below on a preliminary point relating to the invalidity of notice under sec. 80 of the Code of Civil Procedure.

2. It is unnecessary to state the facts of the case at any length as the suit has been thrown out by both courts below on the afore-mentioned preliminary point only. Suffice it to say that on the 12th April, 1949, the plaintiff delivered 150 goats and sheep to what was then the B. B.& C. I. Railway at the Sojat Road Railway Station for being transported to the Railway Station Bandra (Bombay) of the same Railway. The animals were booked in three wagons in lots of fifty each. One of these caught fire on the way with the result that thirty-two of them were burnt to death in the wagon itself and ten died later and the remaining eight out of this wagon were delivered to the plaintiff at the destination. The plaintiffs case was that he had been put to a loss of Rs. 1497/8/-- on account of the negligence and misconduct of the servants of the Railway. It was further alleged that he had given a notice to the Secretary to the Government of India in the Department of Railway Transport New Delhi and to the General Manager of the B.B. & C.I. Railway under sec. 80 of the Code of Civil Procedure and sec. 77 of the Indian Railways Act respectively on the 23rd May, 1949 but without any avail. These are Exs. P-3 and P-2 respectively on the record. This suit was instituted on the 1st July, 1950, in the court of the Munsiff Sojat. The suit as originally brought was against the President, Indian Republic, through the General Manager, B.B.&C.I. Railway but was subsequently allowed to be amended and the Union of India was impleaded as defendant on the 11th July, 1951.

3. The defendant resisted the suit on a number of grounds but the plea with which we are concerned for the purposes of this appeal (as contained in paragraph five of the written statement) was that neither a notice under sec. 77 of the Indian Railways Act nor a notice under sec. 80 C.P.C. had been served, and, therefore, the suit was bad for want of these notices.

4. In the replication filed by the plaintiff on the 8th May, 1951, it was alleged that notices had been served on the Railway according to law. The issue raised on this part of the case in the trial court was as follows:—

"Were the notices Exs. 2 and 3 not in accordance with law ?

It is in this manner that the issue of the legality of the notices came to be raised though such a plea does not seem to have been raised by the defendant in the written statement. Be that as it may, the trial court held that the notice Ex. 3 which was avowedly given to the Secretary to the Government of India in the Department of Railway Transport, New Delhi, was bad inasmuch as according to Sec. 80 C.P.C., which was mandatory, the notice should have been given to the General Manager of the Railway concerned. As for the notice Ex, P-2, it was held that it was a good notice under sec. 77 of the Railways Act but as no valid notice under sec. 80 had been given by the plaintiff, the suit was dismissed without trying the case on the merits. The plaintiff then went up in appeal to the District Judge, Pali, who upheld the decision of the trial court.

5. It appears that the position taken up on behalf of the plaintiff before the District Judge was somewhat different from what he had adopted in the trial court, and it was contended in appeal that Ex. P-2 was a good notice for the purposes of both sec. 77 of the Railways Act and sec. 80 C.P.C. inasmuch as both were required, according to the law as it stood at the relevant time, to be given to the General Manager of the Railway concerned, and, consequently, it was contended that even if Ex. P-3 were entirely left out of account, the notice given to the General Manager of the B.B.&C.I. Railway on the 23rd May, 1949 notwit

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