Essentialbility of averment made in the plaint that notice was delivered.

This is an appeal by the plaintiff against the decree of the Subordinate Judge of South Malabar at Calicut dismissing his suit on a preliminary point namely that a proper statutory notice under section 80 of the Civil Procedure Code has not been given by the plaintiff before the suit was instituted. There are four defendants to the suit. The first is the South Indian Railway. The second is the Madras and Southern Mahratta Railway. The third is the Great Indian Peninsular Railway and the fourth is the Governor-General in Council, New Delhi. The plaintiff’s case was that he despatched from Calicut to self at Kalapipal, a station in the G.I.P. Railway, 34 bags of dry coconuts, 11 bags of moist coconuts and 77 bags of copra balls by invoice dated 17th July, 1944. He charged the railway system with wilful default and negligence and misconduct as the goods were wrongfully diverted and otherwise unduly delayed in the course of transit. It was only after continued enquiries regarding the delay at the other end that the goods were traced and finally sent to the destination in October, 1944. The goods had become deteriorated and became unmarketable. The District Commercial Inspector, Jhansi, certified the condition of the goods and assessed the claim for damages at Rs. 1,918. The plaintiff’s agent took delivery under protest reserving his claim for full and adequate damages. He claimed Rs. 5,059 as the proper amount of damages sustained by him. In paragraph 9 of the plaint it was stated that he had sent various letters to the defendants complaining of the delay and claiming damages and that finally the defendants evaded and refused to make good the damages. He issued on 29th March, 1945, a registered notice under section 80 of the Civil Procedure Code. Along with the plaint he filed the copy of the notice sent by him and also the acknowledgments of delivery by the various addressees signed by them. All the defendants separately filed written statements and in each of them we find an objection being taken to the legal validity of the notice under section 80. The ground of objection was that proper statutory notice was not served on the Governor-General in Council who owns the railways. The written statements disclosed that the goods were misdespatched to Mysore and after some delay they were traced and finally they were rebooked to Kalapipal. Sometime before the trial an additional written statement was filed on behalf of all the defendants wherein it was stated that section 80 of the Civil Procedure Code was not complied with as the plaint did not use the words “sent, delivered and left” with reference to the notice under section 80. Various issues were framed but as stated before the validity of the notice was treated as a preliminary point of law and the lower Court was asked to try that issue first. It accordingly took it up for trial and in the end dismissed the suit as stated above.

Two grounds are urged in the judgment of the Court below for its conclusion that the notice is bad. The first is that there is no allegation in the plaint that the notice was delivered or left at the office of the Central Government and that the mandatory provision of section 80 are not complied with. Section 80 says:

“That the plaint shall contain a statement that such notice has been so delivered or left.”

The second ground was that the notice does not state that the Governor-General in Council will be sued and did not claim any relief against the Governor-General in Council.

The points for determination are whether the notice is bad because the plaint did not contain an averment that it was delivered or left with the Secretary to Government; (2) whether the notice is bad because no relief was claimed against the Governor-General in Council nor was it intimated that he will be sued.

As regards point number 1, want of a proper averment in the plaint, it may be noted that along with the plaint the acknowledgments of the delivery of registered lett